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November 16, 2012

Week in Review

By Martha Nimmer

A World Without Commercials?

Late last week, the U.S. District Court for the Central District of California denied a request by News Corp.'s Fox Broadcasting unit to block Dish Network Corp.'s Hopper digital video recorder service and its AutoHop feature before a copyright infringement suit concerning those services can be decided. Dish's Hopper digital video recorder (DVR), introduced in March, records all major prime time television shows and then stores them for eight days after their first broadcast. The AutoHop service, a potential Godsend for people who do not enjoy watching TV commercials, allows viewers to skip all commercials recorded during the prime time broadcasts, without having to fast-forward manually through the commercials.

Although this initial ruling in the case of Fox Broadcasting v. Dish Network, 12-04529, U.S. District Court, Central District of California (Los Angeles) was filed under seal, both Dish and Fox issued separate responses to U.S. District Judge Dolly Gee's decision. Dish Network applauded the ruling, referring to it as "a victory for common sense and customer choice." Dish's general counsel also invoked the 1984 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, decision, commenting that this recent ruling "underscores the U.S. Supreme Court's 'Betamax' decision, with the court confirming a consumer's right to enjoy television as they want, when they want." Fox, in stark contrast to the optimism evinced by Dish, lamented Judge Gee's ruling, stating, "we are disappointed the court erred in finding that Fox's damages were not suitable for a preliminary injunction." An attorney for Fox has confirmed Fox's intention to appeal the ruling.

http://about.bloomberglaw.com/2012/11/08/fox-loses-bid-to-block-dishs-autohop-ad-skipping-service/

Unnecessary Roughness?

Rashard Mendenhall is perhaps best known for being a Pittsburgh Steelers running back, and Charlie Sheen rose to fame in the 1980s as the star of movies such as Platoon, Wall Street and Major League. What could these two celebrities possibly have in common, other than their notoriety? Until recently, both men were endorsers for Hanesbrands, the parent company of Hanes and Champion sportswear. Mendenhall and Sheen are also no strangers to controversy. In March 2006, Sheen commented on a radio interview that "It seems to me like 19 amateurs with box-cutters taking over four commercial airliners and hitting 75 per cent of their targets feels like a conspiracy theory. It raises a lot of questions." Rashard Mendenhall also made controversial marks in regards to the death of Osama bin Laden. In 2011, Mendenhall tweeted "What kind of person celebrates death? It's amazing how people can HATE a man they have never even heard speak. We've only heard one side." It is this tweet that led Hanesbrands to terminate Mendenhall's contract to promote Champion sportswear. Hanesbrands alleges that this comment violated the morals clause contained in the company's endorsement deal with Mendenhall. Now, Mendenhall is suing Hanesbrands, claiming that the company breached his contract.

Morals clauses are common in the entertainment business; the vast majority of movie studios and companies that contract with actors, musicians, athletes and other notable figures retain some contractual protection that permits them to terminate the contract "upon controversy." Mendenhall's contract contained a typical morality clause that prohibited the running back from engaging in activities that would bring the company "into public disrepute, contempt, scandal or ridicule." The clause failed to specify, however, what Mendenhall was permitted--or prohibited--from saying on his personal Twitter account. It is this ambiguity that has led Mendenhall to argue that Hanesbrands "went outside" of its termination right, and acted arbitrarily and unreasonably in ending the sportswear endorsement deal with Mendenhall. To support the finding that the apparel company acted unreasonably and treated him unfairly, Mendenhall has sought documents from Hanesbrands showing how "the company has treated endorsers such as Mr. Sheen." Mendenhall's goal in making that discovery request is to prove that Hanesbrands treated him differently from other endorsers--such as Sheen--without good reason, despite the similarity between the two controversial remarks and the public's outcry to it. Mendenhall's suit is primed to determine just what celebrity endorses may say on Twitter, without running afoul of morality clauses, and to what extent companies may enforce such clauses differently among their endorsers.

http://www.hollywoodreporter.com/print/389273

Trouble in Tinseltown

Turning now to Tinseltown, the National Conference of Personal Managers, Inc. (NCOPM)--a Las Vegas-based trade association--has brought suit in federal court, seeking declaratory and injunctive relief that the Talent Agencies Act (TAA) of California violates the United States Constitution. Specifically, the NCOPM argues in National Conference of Personal Managers, Inc. v. Edmund G. Brown that the TAA runs afoul of Article 1, Sections 8 and 10, the 13th Amendment and the Due Process and Equal Protection Clauses of the 14th Amendment. Briefly stated, the TAA requires that any individual acting as a talent agent must be licensed by the State Labor Commissioner, and is subject to state oversight, including office inspections and records review. The essential purpose of the law is to protect artists from employers posing as employment counselors and making false promises about procuring work; the passage of the law in 1978 reflected a growing understanding in the California legislature of the mounting complexity involved in talent procurement and the entertainment business, particularly in the state of California. Despite these noble purposes, the TAA, some critics say, has been used by artists who want to avoid paying commissions to their managers.

Turning to the constitutional arguments proffered by the petitioner, the NCOPM disputes the "vague, uncertain and inconsistent provisions and enforcement of the TAA," stating that the law violates the substantive due process right to notice and a reasonable opportunity "to know what is required and what is prohibited . . . By Defendants under the TAA." Specifically, the plaintiff points to the fact that the "procure employment" language in the Act has never been defined by any court, and thus lends itself to uncertainty and ambiguity. Additionally, the plaintiff argues that the Act amounts to involuntary servitude, as it forces the plaintiff to forfeit his right to be paid for his labor, or face being convicted of a crime.

Although the TAA appears to have been well-intentioned, ambiguities in the law and almost 100 years of piecemeal interpretations of predecessors to the TAA have resulted in injustice and uncertainty on the part of talent managers in the entertainment industry.

Read the full complaint here: http://www.scribd.com/doc/113104861/Ncopm-Complaint-v-Aglc-of-CA#

Easter Comes Early for Cadbury

Now, to the other side of the pond. Earlier this week, the High Court of England and Wales dismissed an appeal by Swiss multinational Nestlé to prevent the registration of the color purple for use in connection with chocolate products. The case of Société Des Produits Nestlé S.A. v Cadbury UK Ltd [2012] EWHC 2637 sprang from the 2004 trademark application filed by Cadbury UK Limited (Cadbury) with the United Kingdom trademark registry. Although initially rejected by the registry, Cadbury was able to prove that the color purple--specifically, Pantone 2685C--had acquired distinctiveness through use. The trademark was registered on May 2008; three months later, Nestlé opposed the trademark application. The registry objected to Nestlé's opposition, and the Nestlé appeal to the High Court followed.

Nestlé's main objection to the registration focused on whether the mark, as applied for, was "a sign capable of being represented graphically." Nestlé argued in the negative, averring that the description of the trademark fell short of satisfying the criteria laid out in the case of Sieckmann (C-273/00). This case set out the parameters for when a mark can be said to be capable of being represented graphically; specifically, Sieckmann requires that the description of the mark be clear, precise, self-contained, easily accessible, intelligible and objective. The High Court judge disagreed with Nestlé, stating that the language of Cadbury's trademark registration was not impermissibly vague under the Sieckmann framework. In so stating, the court dismissed Nestlé's appeal.

This case should bring to mind for American attorneys the case of Qualitex Co. V. Jacobson Products Co., Inc., 514 U.S. 159 (1995). In Qualitex, a unanimous Supreme Court held that a color; here, greenish-gold, could fulfill the requirements for trademark registration under the Lanham Act, as long as the color had acquired secondary meaning.

http://www.lexology.com/library/detail.aspx?g=7c6b6a52-5ea7-47d4-aaae-521318a01cc5

November 30, 2012

Week in Review

By Martha Nimmer

More Time in the Penalty Box for Hockey Fans?

Much to the dismay of hockey fans across North America, the National Hockey League (NHL) has cancelled another round of games, this time nixing regular season games through December 14th, as well as the All Star Game scheduled for January 27, 2013. Fans fear, however, that the entire season may be the next thing on the NHL's chopping block, as was the case with the 2004-05 hockey season. This fear comes on the heels of continued disagreement between the NHL and the NHL Players' Association (NHLPA), the union for professional hockey players in the NHL. The NHLPA, according to its website, is charged with enforcing fair terms and conditions of employment for NHL members.

This latest NHL lockout stems from NHL owners' desire to reduce the players' union total hockey-related revenue percentage from 57 to 46%. The League's initial plan would also eliminate signing bonuses and would require that yearly salaries be the same for every year of a player's contract. Additionally, the proposed deal would also eliminate salary arbitration, according to reports from The New York Post.

On Wednesday, the players' union submitted its own proposal, which was subsequently rejected, leaving the owners and players at odds once again. Gary Bettman, commissioner for the NHL, commented that the two sides still remain "far apart." In this most recent proposal, the NHLPA offered to "link the players' share to revenue in the league's preferred percentage-based system," a move that some onlookers considered a substantial concession to the NHL. The lockout, however, continued.

Although the NHL and the NHLPA have yet to reach an agreement, most parties can easily agree that the latest rounds of game cancellations have resulted in millions of dollars of lost revenue. Commissioner Bettman said last week that the "damage incurred from the lockout has resulted in the league losing between $18 to $20 million by the day."

For more up to date information on this story, visit: http://espn.go.com/nhl/story/_/id/8665720/nhl-cancels-games-dec-14-plus-all-star-weekend

Fancy (and Fake?) Footwork

Earlier this month, shoe designer Charles Philip Shanghai filed suit against the Gap in federal court in Los Angeles, alleging trademark infringement and dilution. Charles Philip Shanghai, referred to simply as "Charles Philip" on the insoles of his designer slippers and moccasins, is seeking damages from Gap and is demanding that the California-based apparel company cease manufacturing and selling the copied footwear.

The Charles Philip loafers have been spotted on the feet of celebrities such as Jessica Alba, Rihanna, and other well-heeled stars, and retail for $135 to $160. In contrast, the Gap loafers cost less than $50. A notable feature of the Charles Philip shoes is the blue and white striped lining on the inside of the walls of the shoe. Previously, the Gap loafers in question sported a similar blue and white striped lining, and were referred to on the Gap website as the "Phillip Moccasin Slipper" and the "Phillip Slipper." (One wonders whether the addition of the second L in Gap's "Phillip Slippers" was intentional or a mere coincidence.) The loafers and slippers currently for sale from Gap, however, no longer have the striped lining and are not marketed under the name "Phillip."

For trademark law practitioners and fashionistas, this case should bring to mind the more than year-long legal battle wherein celebrity shoe designer and footwear demigod Christian Louboutin sued Yves Saint Laurent (YSL) over its use of red soles on the bottoms of its red high-heeled pumps. In that case, concluded in September, a federal appeals court held that Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a different color, thereby preserving YSL's right to create monochromatic red footwear.

http://www.huffingtonpost.com/2012/11/14/gap-lawsuit-charles-philip-shoes-flats_n_2130343.html?ncid=edlinkusaolp00000003#slide=1417597

Katt Williams' Onstage Meltdown

Katt Williams is no stranger to legal woes, and is now facing new legal troubles following a bizarre and disturbing onstage meltdown earlier this month in Oakland, California. When audience members arrived to the comedian's performance on November 16th at the Oracle Arena, they expected about an hour of stand-up comedy from the celebrity perhaps best known for his roles in the movie Friday After Next and the television show Wild 'N Out. Instead, Williams took off his clothes, confronted audience hecklers and attempted to fight three audience members before (mercifully) ending the show after just 10 minutes. Williams' own security team actually had to remove him from the stage. Attendees, who paid between $33 to $94 for tickets were, unsurprisingly, not happy. Luckily for audience members, Brian Herline, one of the attendees, has brought suit against Williams and promoter Live Nation Worldwide, Inc. for "failing to perform." The suit, filed on November 21st in Alameda County Superior Court, alleges breach of contract, unjust enrichment and violation of California's unfair competition law. The plaintiff, who is filing for class action status, seeks punitive damages and a refund of the ticket price paid for the November 16th performance.

Read the full complaint here: http://www.tidrick.com/Complaint-KattWilliams.pdf

http://www.huffingtonpost.com/2012/11/26/katt-williams-sued-for-non-performance_n_2191209.html

50 Shades of Copyright Infringement

Given the content of E.L. James' bestseller, 50 Shades of Grey, it was only a matter of time until someone decided to make a pornographic version of the book (although some may contend that the book itself already borders on the pornographic). Nevertheless, that did not prevent Smash Pictures, Inc. from going forward with an adult adaptation of the novel. Smash Pictures executive Stuart Wall explained the "artistic reasoning" behind his company's decision to go forward with the porn version: ""Since they are going to make a mainstream [film] of the books, too, dabbling in the adult world we're choosing to go with a XXX adaption which will stay very true to the book and its S&M-themed romance."

The Fifty Shades trilogy traces the erotic relationship of Anastasia Steele, referred to as a "naive college graduate", and Christian Grey, "a wealthy but tormented entrepreneur." The first book in the trilogy was released in the United States in April 2012, and has met with dramatic commercial success. According to the plaintiffs' complaint, worldwide sales of the books have exceeds more than 40 million copies, and all three books have been on the New York Times Paperback Trade Fiction Bestseller list. Given the books' acclaim, Universal Studios, which shelled out $5 million this year to acquire the movie rights to the series, is not pleased that Smash Pictures has made a XXX version of the book. In fact, Universal Studios and the publisher of Fifty Shades of Grey, Fifty Shades Limited, have joined in a suit to stop the "willful attempt to capitalize on the reputation of the book." Filed on Tuesday in the Central District of California, the plaintiffs allege that Smash and other defendants lifted "exact dialogue, characters, events, story and style" from the 50 Shades series. In fact, Universal and Fifty Shades Ltd. aver that the XXX adaption "is not a parody, and it does not comment on, criticize, or ridicule the originals. It is a rip-off, plain and simple." To wit, the plaintiffs' complaint contains pages and pages of side-by-side comparison of dialogue from the book and dialogue of the opening scene of the XXX adaptation. In addition to a claim of copyright infringement, the plaintiffs also raise trademark dilution, false designation of origin, false advertising and unfair competition claims, in addition to causes of action arising under California law.

Read the full complaint here: http://www.scribd.com/doc/114947086/Complaint-Fifty-Shades-Limited-v-Smash-Pictures

http://www.hollywoodreporter.com/thr-esq/fifty-shades-grey-porn-adaptation-395478#

It's A Pirate's Life For Me

And now, for something completely different: Richard O'Dwyer, 24 year old British student and founder of TVShack, has avoided extradition to the United States, at least for now. In January of this year, a judge in the United Kingdom ordered O'Dwyer's extradition to the United States to face legal action here for online piracy, specifically, profiting from links he provided on his personal website to free movies and television programs. In response to the extradition order, Wikipedia founder Jimmy Wales launched a campaign to stop O'Dwyer's extradition. If extradited, O'Dwyer faced 10 years in prison in the United States. Luckily for O'Dwyer, however, he will only have to pay a nominal fine and travel to the U.S. to execute the agreed to deferred prosecution agreement.

http://www.hollywoodreporter.com/thr-esq/richard-odwyer-piracy-suspect-wont-395165

A Case of the Cyber Mondays

Every Monday after Thanksgiving, still in a tryptophan-induced haze, millions of Americans log onto their computers to find online deals on countless products, from iPods to Coach handbags to DVDs of Homeland. A darker side to this flood of e-commerce is the growing number of companies and individuals selling counterfeit merchandise online. Luckily for consumers, however, Immigration and Customs Enforcement is on the case. In connection with cyber Monday, customs officials seized over 130 domain names allegedly selling counterfeit merchandise, such as NFL jerseys and Adobe software. According to an ICE official, "among the domain names seized was a site selling DVDs of 100 Years of Disney," despite the fact that studio was founded 89 years ago. Other seized sites include chapdvdwholesale.com, dvdhood.com, dvdboxsetwholesale.com, dvdsetshop.com and tvdvdset.com, as well as obamasell.com.

According to U.S. officials, 2012 "marks the third year that ICE has timed domain name seizures to Cyber Monday." This year, ICE officials also coordinated seizure efforts with authorities in Belgium, the United Kingdom, Denmark, France and Romania. The focus of customs officials was on seizing "sites selling pirated trademarked goods as opposed to those trafficking in streaming movies and file sharing."

http://www.variety.com/article/VR1118062618?refCatId=18

December 6, 2012

Week in Review

By Martha Nimmer

Friend Request Denied

U.S. District Court Judge Richard Seeborg has given his initial approval to a settlement offer made by Facebook in the case of Angel Fraley et al. v. Facebook, Inc. This is the social networking giant's second attempt to resolve a class action lawsuit that was commenced last year. The case, filed in the Northern District of California and involving over 100 million potential class members, centers on the "critical issue of proper notice to users of social media as to their relationship to advertising online . . . ." Specifically, the lawsuit involves the use of Facebook's main advertising vehicle "Sponsored Stories." Plaintiffs allege that their names and likenesses were used without their prior consent in Sponsored Stories ads shown to their Facebook friends, in violation of the plaintiffs' right of publicity. Judge Seeborg rejected Facebook's initial settlement offer from August, which failed to award money to Facebook users whose personal information had been used unlawfully.

Under Facebook's new settlement proposal, users may claim a cash payment of up to $10 each, the funds to be paid from a $30 million settlement fund. Facebook also agreed to develop new online tools that would permit members to see what personal content may have been displayed in Sponsored Stories advertisements. A hearing on the fairness of the settlement offer is scheduled for June 28, 2013.

This news comes just a day after Facebook started to allow its more than 1 billion members to begin voting on changes to the website's policies, changes that include new privacy practices stemming from Facebook's recent acquisition of photo sharing program Instagram. Another policy at issue would "loosen the restrictions on how members of the social network can contact other members using the Facebook email system." These changes to Facebook's privacy practices have gained the attention of privacy advocates and other watchdog groups around the globe. The Ireland-based Data Protection Commission has asked Facebook to provide more information about its policy proposals.

Facebook members have until December 10th to vote on the policies. The vote, according to Facebook, is only binding if at least 30% of users vote. The last two "elections" held by Facebook failed to reach that threshold, however. Whether these privacy policy changes bring Facebook new legal troubles remains to be seen.

http://newsandinsight.thomsonreuters.com/California/News/2012/12_-_December/U_S__judge_gives_initial_OK_to_revised_Facebook_privacy_settlement/

http://www.reuters.com/article/2012/12/03/facebook-vote-idUSL1E8N3FT320121203


America's Next Top Rapper

Whether your dream is to become a supermodel, live on a deserted island with a bunch of strangers, or be yelled at by fitness guru Jillian Michaels as you exercise, there is probably a reality television show that can make that goal a reality. This was the thinking behind the rap competition, "America's Next Top Rapper," scheduled for December of last year. A website promoting the competition claims that aspiring rap and hip hop artists can win $20,000, a record deal with Universal and help from "a hit production team." To garner media attention for the event, creators Omnipresent Media and Lawrence "Amar" Wright enlisted the help of hip hop artist "Trina"--also known as Katrina Taylor. Taylor agreed to promote the event and serve on a three-person panel that judged the rap competition. Taylor, however, failed to promote the competition and demanded more money to ensure her appearance, according to a complaint filed by Omnimedia and Lawrence Wright in Queens County Supreme Court in New York.

"Trina, despite being paid to do so, never attended or participated in the competition in any form or fashion as agreed," the complaint states. As a result of Taylor's breach, plaintiffs aver, event promoters were "forced to arrange for a substitute artist to appear, on short notice . . . ." Plaintiffs are seeking $50 million in damages.

http://www.courthousenews.com/2012/12/04/52801.htm

Royalty Rules (No, Not Kate Middleton and Prince William)

Meanwhile, in the nation's capital: the Copyright Royalty Board has issued new regulations for licensing public broadcasting organizations, such as National Public Radio (NPR) and Public Broadcasting Service (PBS). The Copyright Act requires that the federal government must update its licensing rules and rates for noncommercial television and radio broadcasting every five years.

The Copyright Royalty Board received input from various noncommercial broadcasting organizations concerned about the new regulations, among them the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and the Harry Fox Agency. The new rates will take effect on January 1, 2013 and will remain on the books until December 31, 2017.

Notable changes to the rates include the royalty rates paid by PBS and NPR: under the new rates, licensing a musical composition for use in a PBS feature presentation will cost $232.18; the performance of a work on a NPR feature presentation will now cost $23.53. The new rates also include a new tiered system for determining the royalty rates paid by college radio stations--the rates will be based on the number of students enrolled at a college or university. Finally, the rules also laid out tiered rates for Christian and talk radio stations, whose rates will be based on the number of people the station reaches.

http://www.courthousenews.com/2012/12/03/52782.htm

Read the final rate rules: http://www.loc.gov/crb/fedreg/2012/77fr71104.pdf

Read the petitions submitted as part of the determination of reasonable rates and terms for noncommercial broadcasting: http://www.loc.gov/crb/proceedings/2011-2/ptp/

Show Me the Money!

Crowdfunding uses the Internet to elicit small monetary contributions from a large number of contributors. Crowdfunding platforms such as Kickstarter and Indiegogo have made it easier for start-up projects and young entrepreneurs to raise funds, despite the fact that traditional lending institutions are not "loaning money like they used to." Now, there is a move to allow contributors to reap financial rewards from their contributions to indie film projects: according to Variety, "equity crowdfunding would allow investors to see a return on their money, opening the door for financiers to contribute from $100 up to $100,000 each toward the next breakout hit." The problem with this plan, however, is that it is not exactly legal--yet.

Crowdfunding risks running afoul of federal securities law on two grounds. First, some crowdfunding involves selling securities, which brings into play the registration requirements of the 1933 Securities Act. Second, the websites that make crowdfunding possible may fall under the definition of "broker" or "investment adviser," according to the amorphous language applied by the Securities and Exchange Commission. To clarify these ambiguities, the SEC has commenced the preliminary stages of the rule drafting process, which normally takes three months. Hopeful members of the independent film and crowdfunding communities are cautiously optimistic that the SEC will release guidelines by the second quarter of 2013.

http://www.variety.com/article/VR1118063122

For more information on crowdfunding, see: http://www.sec.gov/info/smallbus/acsec/bradford_crowdfunding.pdf and Ronald L. Barabas, Crowdfunding: Trends and Developments Impacting Entertainment Entrepreneurs, Volume 23, Number 2 of the Entertainment, Arts and Sports Law Journal, (Summer, 2012).

Same Suit, Different Defendant

Undeterred by previous unsuccessful attempts to sue Marvel Entertainment, Stan Lee Media, Inc. (SLMI) has now gone after Disney in an effort to regain control over famed and iconic characters Spider Man, X-Men and the Fantastic Four, among others. Stan Lee, the comics legend who created the Spider Man, X-Men and Fantastic Four comic books series, founded SLMI in 1998 after disputing with Marvel. SLMI's suit, filed in October in Colorado federal court, alleges that Lee (who is no longer associated with SLMI) did not properly assign the works to Marvel, and that Disney never recorded its agreement with Marvel with the U.S. Copyright Office. As a side note, it should be pointed out that Disney purchased Marvel in 2009.

In its complaint, SLMI seeks billions of dollars in damages for the unauthorized use of Lee's comic creations in numerous films such as Spider Man and The Avengers. SLMI, according to Hollywood Reporter, "hoped to put the burden of proving rightful ownership upon Disney." So far, however, that plan has yet to succeed: On November 30th, Disney filed a motion to dismiss SLMI's complaint, calling it "flawed beyond cure." Among Disney's assertions, the company states that there is "no conceivable basis" on which SLMI can bring a copyright claim against The Walt Disney Company. Firstly, Disney avers, Colorado lacks personal jurisdiction over the defendant. Additionally, Stan Lee Media's complaint neglected to "plead a plausible copyright infringement claim," by failing to mention which specific works and characters it owns, instead simply referring to "comic book characters . . . that (Lee) had previously created or would create." Finally, among the many deficiencies listed by Disney, SLMI's suit seeks to relitigate the issue of copyright ownership, even though three different courts on three different occasions ruled on the issue. "The instant suit is just plaintiff's latest attempt to assert the same rights allegedly stemming from the 1998 agreement," says the Disney motion to dismiss.

http://www.hollywoodreporter.com/thr-esq/disney-wants-stan-lee-medias-396751

Read the motion to dismiss here: http://www.scribd.com/doc/115375211/gov-uscourts-cod-136103-21-0

Time to Talk Turkey

And now, to a different type of art: ancient antiquities. On Monday, the Dallas Museum of Art returned an ancient mosaic to the nation of Turkey. The piece dates from approximately 194 C.E., and depicts Orpheus--the ancient Greek musician, poet and prophet--using his lyre to tame a group of wild animals. The museum decided to return the marble mosaic after researching its provenance and deciding that the work was likely looted years ago from an archaeological site in the area around the city of Sanliurfa, located in present day southeastern Turkey. The decision to return the ancient mosaic is part of the museum's plan to foster good relations with foreign museums, in an effort to facilitate exchange agreements with art institutions abroad. Maxwell L. Anderson, the director of the Dallas Museum of Art, also said that the return was part of a broader effort to tackle provenance issues head on: "[w]hat I didn't want to happen here was a succession of slow-motion claims coming at us." Turkish officials, according to Anderson, had been trying to locate the mosaic for some time, and "provided photographs of a looted site near [modern day Sanliurfa] whose physical characteristics closely matched those of the mosaic."

The decision of the Dallas Museum of Art follows robust efforts by Turkey to repatriate antiquities it says were unlawfully acquired by American and European museums. In the last few months, Turkey has demanded that the Metropolitan Museum of Art return artifacts that the Met says were legally acquired in the 1960s before being donated to the museum in the late 1980s. Unconvinced, Turkish officials filed criminal charges in Turkey this summer, seeking an investigation into the allegedly illegal excavation of 18 antiquities that are now part of the Met's Norbert Schimmel Collection. Directors from the Pergamon Museum in Berlin have even accused Turkish officials of "undue intimidation."

Turkey's efforts to reclaim allegedly looted antiquities from abroad has spurred international debate over who owns these priceless works of art, given the fact that national and regional borders have changed frequently in the last 100--let alone 1,000 --years. The UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is the international treaty that permits museums to "acquire objects that were outside their countries of origin before 1970." Although Turkey ratified this treaty in 1981, the country has relied on a 1906 law created during the Ottoman Empire that instituted a flat out ban on the export of cultural artifacts. Whether Turkey has any moral or cultural claim to these artifacts, however, is further complicated by the fact that its own museums are filled with pieces acquired by the Ottoman Empire during their rule over parts of the Middle East and southeastern Europe.

http://artsbeat.blogs.nytimes.com/2012/12/03/dallas-museum-volunteers-to-return-mosaic-to-turkey/

http://www.nytimes.com/2012/10/01/arts/design/turkeys-efforts-to-repatriate-art-alarm-museums.html?pagewanted=all&_r=0

Read the UNESCO Convention here: http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html

Tax Woe for LiLo

Lindsay Lohan is not having a very good year. Last month, the Liz & Dick star was arrested in New York for allegedly punching a woman in the face, and is now being charged with third-degree assault. This charge comes on the heels of charges filed against her in Los Angeles for obstruction of justice and lying to a police officer following a car accident this past summer. Now, the IRS has seized all of her bank accounts and has filed tax liens against the star for 2009 and 2010. The once-promising star also has unpaid taxes from last year. The Huffington Post reports that Lohan is said to owe the federal government over $230,000.

http://www.huffingtonpost.com/2012/12/03/lindsay-lohan-irs-back-taxes-charlie-sheen-debt_n_2233554.html

In Memoriam: Dave Brubeck

Dave Brubeck--the jazz musician best known for pieces such as "Take Five"--passed away on Wednesday, a day short of his ninety-second birthday.

Mr. Brubeck was born in 1920 near San Francisco, California. His mother, a choir director at a local church, introduced him and his two brothers to various musical instruments. Until attending college, however, Mr. Brubeck had no interest in pursuing a career in music--he planned to follow in his father's footsteps and become a cattle rancher. Luckily for the music world, however, Mr. Brubeck switched his major from veterinarian sciences to music.

After serving in the Army during World War II and playing with the Army band, Mr. Brubeck attended Mills College where he studied jazz and forged important connections with other musicians. Mr. Brubeck's first musical ensemble was composed of several fellow Mills students.

In 1954, Mr. Brubeck became the second jazz musician, after Louis Armstrong, to be featured on the cover of Time. That same year, he signed with Columbia Records, promising to deliver two albums a year, including the album "Time Out," recorded in 1959. Notably, "Time Out" has since sold about two million copies. By the end of the 1950s, Mr. Brubeck had "broken through with mainstream audiences in a bigger way than almost any jazz musician since the Second World War." The popularity of his music remains today.

In addition to jazz music, Mr. Brubeck is also remembered for his strong convictions. In the 1950s, the composer clashed with college deans who told him not to perform with a racially mixed band. In 1958, Mr. Brubeck refused to visit South Africa when it was revealed that he would be contractually required to play with an all white band. Additionally, as his obituary in the New York Times notes, the composer also used jazz "to address religious themes and to bridge social and political divides." Specifically, the work "The Gates of Justice" dealt with African Americans and Jews in America. Another piece, "Truth Is Fallen," commemorated the killing of students at Kent State University who were protesting the Vietnam War.

Mr. Brubeck was named a Jazz Master in 1999 by the National Endowment for the Arts, and in 2009, received a Kennedy Center Honor. He is survived by his wife, five children, ten grandchildren and four great-grandchildren.

http://www.nytimes.com/2012/12/06/arts/music/dave-brubeck-jazz-musician-dies-at-91.html?pagewanted=all&_r=0

December 13, 2012

Week in Review

By Martha Nimmer

This Means War

David Hester, "Storage Wars" personality and creator of "YUUUP!" catch phrase paraphernalia, has sued A&E Television Networks (A&E) over his allegedly wrongful termination from the hit reality TV series. Hester's suit also contends that the show is "rigged," in violation of the Communications Act of 1934. The suit, filed on Tuesday in Los Angeles Superior Court, states that "A&E has committed a fraud on the public and its television audience in violation of the Communications Act of 1934, which makes it illegal for broadcasters to rig a contest of intellectual skill with the intent to deceive the viewing public." Specifically, Hester alleges that A&E planted valuable items in some of the auctioned storage lockers, items ranging from a BMW mini car to newspapers from the day that Elvis died. The complaint avers that Hester was wrongfully terminated when he brought this practice to the attention of A&E producers. A&E has declined to comment on the suit, stating that it does not discuss pending litigation, but has previously asserted that the show is not faked.

"Storage Wars" follows the pursuits of "an eclectic group of modern day treasure hunters" who earn their living bidding on and selling off the contents of abandoned storage lockers located throughout southern California. According to the show's introduction, when a storage locker is not paid for or abandoned, the contents of the lockers are auctioned off to buyers. The buyers are usually given a few minutes to observe the lockers, but may not enter them or touch their contents. The buyers then bid on the lockers' contents, and only then may the winning bidder may enter the storage locker and inspect his winnings. The goal is to sell the contents of the locker at a profit. The original series debuted in 2010, with spinoffs in Texas and New York debuting in 2011 and 2013, respectively.

http://www.hollywoodreporter.com/thr-esq/storage-wars-star-david-hester-400585

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/A_E.pdf

Guardians of Eden Do Battle With Avatar

If you thought you were done hearing about Avatar for awhile, you were wrong. Since the movie was released in 2009, the entertainment world has been abuzz over the highest grossing film of all time. Unsurprisingly, this treasure trove of a movie has brought it with seemingly endless litigation aimed at getting a piece of the Avatar pie.

The latest lawsuit comes from Gerald Morawski, who met Avatar creator James Cameron in 1991. Morawski's complaint alleges that the plaintiff pitched a film called "Guardians of Eden" to Cameron in the early 1990s. The proposed film project recounted the "epic" struggle between evil mining companies set on destroying the planet to satisfy their greed, and a brave indigenous tribe that peacefully coexisted with the rainforest. Cameron, however, states that he remembers no such pitch meeting, and that his $2.8 billion dollar baby was his own, independent creation. In a 45 page declaration, Cameron recounts how he came up with the Avatar story, the idea for which came to him when he was a child in the 1960s. Morawski disputes this claim, however, noting that Cameron failed to commit the story line to paper until after meeting with the plaintiff. The defendants, however, are hoping to dispose of the suit via summary judgment.

http://www.hollywoodreporter.com/heat-vision/read-james-camerons-sworn-declaration-avatar-399979

Why Didn't the Mayans Predict This Lawsuit?

Cue the Indiana Jones theme music, because here comes a lawsuit involving the world-renowned adventurer!

Jaime Awe, a real-life Indiana Jones and director of the Institute of Archeology of Belize, filed suit last week in Illinois federal court on behalf of the nation of Belize. Awe is seeking the return of an ancient crystal skull, popularized by the 2008 film Indiana Jones and the Kingdom of the Crystal Skull (Crystal Skull), from the family that allegedly stole the piece almost a century ago from Belize. Dr. Awe has also named Lucasfilms, the new owner of the Walt Disney Co. and Crystal Skull distributor Paramount Pictures, for using a replica "likeness" of the skull in the most recent Indiana Jones movie. Among the damages alleged by Awe are the "illegal profits" of Crystal Skull. According to Hollywood Reporter, the movie grossed around $786 million.

According to the complaint, the skull is believed to have originated in Mayan culture. The Mayans, when they were not busy predicting the end of the world, carved the skull from clear or white quartz, and attributed supernatural powers to the object. Only four skulls are known to exist today: "three are on public display at the British Museum in London, the Musée du quai Branly in Paris and the Smithsonian in Washington." As for the fourth skull, Dr. Awe states that it was removed illegally from Belize in the 1920s by English adventurer F.A. Mitchell-Hedges. "Lucasfilm never sought, nor was given permission to utilize the Mitchell-Hedges Skull or its likeness in the Film," states the complaint. "To date, Belize has not participated in any of the profits derived from the sale of the Film or the rights thereto." Dr. Awe is suing the Mitchell-Hedges family for the removal of the skull from Belize. No word yet on whether Dr. Awe will make a cameo appearance in sequel to the Crystal Skull...

Read the complaint at the end of the story: http://www.hollywoodreporter.com/thr-esq/indiana-jones-lawsuit-seeks-hollywood-399236

Illegal Contact!

Bad news for EA Sports. A federal court in Maryland ruled last month that EA Sports' (EA) use of the Baltimore Ravens' former team logo does not constitute fair use. This case harkens back to events in 1995, when plaintiff Frederick Bouchat "created and copyrighted a drawing of a raven clutching a shield emblazoned with a capital letter B." The NFL team copied Bouchat's illustration and incorporated the design into its logo, which was used on the team's helmets during its first three seasons, from 1996 to 1998. The artist previously sued both the NFL and the Ravens for copyright infringement, seeking $10 million dollars in damages. Unluckily for Bouchat, however, the jury declined to award him damages, finding that "no part of the defendants' profits was attributable to [their] copyright infringement." The Ravens adopted a new logo in 1998.

The story, however, does not end there. Seeking to ensure that its Madden NFL series was highly realistic, EA added a "throwback jersey" feature to the 2010, 2011 and 2012 versions of its highly popular video game. Among the "throwback" options recreated by EA was the 1996 Baltimore Ravens uniform, which featured the infringing "Flying B" logo. Bouchat promptly filed suit against both the NFL and EA, alleging copyright infringement. The defendants moved for summary judgment, arguing that their use of the logo was protected under the fair use exception to the Copyright Act. The court agreed with Bouchat, analyzing and applying the four fair use factors listed in 17 U.S.C. § 107: "(1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for the original work."

Applying the first factor, the court held that the "purpose and character" of the use weighed in Bouchat's favor, stating that EA had used the logo in a nontransformative way, for a substantially commercial use. Similarly, the second and third factors also weighed against a finding of fair use, given the fact that Bouchat's drawing is a creative work deserving of robust copyright protection, and because the entirety of Bouchat's creation was used in the video game. Finally, as for the fourth factor, the court held it "is, if not neutral, only slightly favoring a finding of fair use." Taking all four fair use prongs together, the court ultimately found that EA's use of the Flying B logo in Madden NFL was not a fair use.

http://www.lexology.com/library/detail.aspx?g=21ed2ab6-80cb-46e2-8b43-7fdef0c721be

December 20, 2012

Week in Review

By Martha Nimmer

Picture This

Instagram, Facebook's billion dollar baby, is poised to change its Privacy Policy and Terms of Service starting in 2013. The proposed changes have already shocked the Instagram world, from professional photographers who use the app to showcase their works to a global audience, to Brooklyn hipsters who chronicle their newest vegan, locally sourced brunches. The changes will go into effect on January 16th, but will not apply to pictures uploaded to Instagram before that date.

The proposed changes include modifications to how Instagram utilizes users' personal information, to how Instagram may use and market users photos. For instance, under the new privacy policy, Instagram is permitted to share user information with its parent company, Facebook, and outside affiliates and advertisers. The goal behind this change, according to Instagram, is to permit it and Facebook to communicate more seamlessly about its users. Another change, which has received much uproar from users, has to do with the "Rights" section of the Terms of Service. Under the new Terms, Instagram is now allowed to use its users' photographs and identities in advertisements. Specifically, the Terms state: "You agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you . . . ." According to the New York Times, Marc Rotenberg, executive director of the Electronic Privacy Information Center, said that the use of a person's likeness in ads could "run into some state laws protecting people's privacy." Practitioners of privacy law and lawyers with even the most basic knowledge of state right of privacy/right of publicity laws will likely comment that this modification to the Instagram Terms of Service will likely run afoul of state law, possibly culminating in pricey class actions if these changes are actually implemented.

Instagram has also said that underage users are not exempt from the above changes. According to the New York Times, "Although Instagram says people must be at least 13 years old to sign up for the service, the new terms note that if a teenager signs up, they are agreeing that a parent or guardian is aware that their image, username and photos can also be used in ads." Although Instagram may insist that its underage users are not exempt under the new terms of service, state and federal laws aimed at protecting minors, such as the Children's Online Privacy Protection Act (COPPA), say differently. COPPA, which took effect in 2000, applies to websites that are developed expressly for children, but also covers any online service that is likely to be used by children or that collects information from children.

Creeped out yet? Upset? Too bad, says Instagram. The only way to "opt out" of these changes is to delete your account--Instagram's new Terms of Service state that "by accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service"), however accessed, you agree to be bound by these terms of use." In response to these changes, other photo sharing sites like Flickr have been trying to attract Instagram.

http://bits.blogs.nytimes.com/2012/12/17/what-instagrams-new-terms-of-service-mean-for-you/?ref=business

Read the text of the proposed changes here: http://instagram.com/about/legal/terms/updated/

Read the text of COPPA here: http://www.ftc.gov/ogc/coppa1.htm

"I'm your biggest fan, I'll follow you until you love me / Papa, paparazzi"

Many thanks to Lady Gaga for those fitting lyrics. Now, we turn to California, where the State's Attorney is hoping to save a state motor vehicles law enacted to dissuade paparazzi from reckless driving while pursuing celebrities. Last week, attorneys for the State of California petitioned the Appellate Division for a review of Los Angeles Superior Court Judge Thomas Rubinson's decision to overturn the 2010 law, calling it an impingement of the First Amendment. Paul Raef, a California-based photographer, was prosecuted under Section 40008 for allegedly driving 80 MPH on a busy Los Angeles street as he pursued teen heartthrob Justin Bieber in November of this year.

Raef's attorney argued that the law at issue was overbroad, thereby failing to satisfy constitutional scrutiny. The attorney added that if California wanted to prevent paparazzi from driving recklessly, the state should increase the penalties for such conduct, instead of passing a law that could be used to punish or deter members of the press from pursuing news-gathering or other First Amendment-protected activities. In response, the Los Angeles City Attorney argued that the criminal penalties used in the past have proven insufficient in deterring paparazzi from engaging in reckless driving. In their petition for appellate review, the State's attorneys also argue that Judge Rubinson used the wrong level of scrutiny when assessing the constitutional validity of the law, attributing this error to a fundamental misunderstanding of First Amendment jurisprudence.

Although at first blush the law appears exceedingly applicable to media outlets that drive recklessly when investigating the news, Section 40008 is actually applicable to any person, not just one carrying a camera or a microphone: "It was a criminal law of general application that applied to any person, including news-gatherers," states the appellate petition. The law is content neutral due to this general applicability and thus receives intermediate scrutiny as per U.S. Supreme Court precedent. Intermediate scrutiny requires the government to prove that the statute at issue involves important governmental interests, and that the law is substantially related to achieving an important governmental purpose.

The State's petition has requested an immediate stay of trial court proceedings.

Scroll down for the full text of the petition: http://www.hollywoodreporter.com/thr-esq/california-justin-bieber-paparazzo-state-401966

Read the California statute here: http://www.dmv.ca.gov/pubs/vctop/d17/vc40008.htm

Federal Felines

Ernest Hemingway is known for many things: his writing, his love of Cuba and his news coverage of the Spanish Civil War. Hemingway was also the proud owner of a six-toed cat named Snowball. Now, Snowball's polydactyl descendants are subject to federal regulation by the Department of Agriculture. How, you may ask? Well, they apparently "substantially affect interstate commerce," at least according to the 11th Circuit Court of Appeals.

These federal felines can be found at Hemingway's former Key West home, now a museum. The cats number from 40 to 50, and live and roam freely on the grounds that are enclosed by a brick fence at the property's perimeter. According to the decision, "no Hemingway cat has ever been bought or sold, although some cats have been given away at various times. However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats. Approximately 250,000 visitors from within and beyond Florida visit the Museum annually. The Museum's gift shop sells cat-related merchandise online and at its physical location." As the cats are so important to the museum's continued vitality and commercial success, the exhibition of the cats affects interstate commerce, which brings the cats under the purview of Congress and the Interstate Commerce Clause of the U.S. Constitution.

What does this mean for the whiskered residents of the Ernest Hemingway Home and Museum? It looks as if the museum will have to cage the cats at night, construct a higher fence to contain them or hire a security guard to keep on an eye on them at night. The museum may also have to "tag each cat and construct 'elevated resting surfaces' for the animals," according to the 11th Circuit.

http://www.abajournal.com/news/article/hemingway_cat_descendants_are_regulated_by_federal_law_appeals_court_says/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Read the decision here: http://www.ca11.uscourts.gov/opinions/ops/201114217.pdf

Slap Shot

Earlier this week, in anticipation of an antitrust suit brought by the National Hockey League Players' Union, the National Hockey League (NHL) and its teams filed suit in federal court in Manhattan against the players' union. The NHL's suit comes in response to actions by the Executive Committee for the NHL Players' Association (NHLPA) authorizing a vote to determine whether the union's leadership may "disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL." The NHL has called this move "an impermissible bargaining tactic," the goal (no pun intended) of which is to gain "more favorable terms and conditions of employment in ongoing collective bargaining negotiations with the NHL."

According to the NHL's 43-page complaint, the NHLPA's "improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement." The NHL has sought a declaration that the ongoing lockout does not violate antitrust laws, specifically, the Clayton Antitrust Act, and consequently, cannot be enjoined or result in any damages to the defendants. The owners further claim "that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout . . . ." This latest suit does not bode well for hockey fans: the owners' lockout threatens to cancel the entire NHL season, for the second time in nine years.

Football fans will recall a similar turn of events in the 2011 case Brady v. NFL, et al., wherein the National Football League Players' Union was "decertified" by the players, who professed to have become not a union, but "simply a collection of individual players." Essentially, the NFLPA members felt that by decertifying their union, the players could "force" antitrust scrutiny of the owners' lockout. Whether a similar outcome results in the ongoing dispute between NHL players and owners remains to be seen.

http://www.courthousenews.com/2012/12/17/53170.htm

Read the Norris-LaGuardia Act here: http://uscode.house.gov/download/pls/29C6.txt

I Volunteer As Tribute!

Unfortunately for online retailer Yagoozon, Inc., it does not appear as if anyone will be volunteering to take its place in a lawsuit brought against it by Lions Gate Entertainment, the producer and distributor of the hit movie The Hunger Games.

Last week, Lions Gate filed suit in the Central District of California, alleging claims of federal and common law trademark infringement, false designation of origin, federal and state law trademark dilution, state and common law unfair competition and copyright infringement. The crux of the suit centers on Yagoozon's production of a "mockingjay pin," a version which was used on the cover of Suzanne Collins' book and appears on the official poster for the next film in the trilogy, The Hunger Games: Catching Fire. Readers familiar with the book or the first film will recall that the mockingjay pin was protagonist Katniss Everdeen's "tribute token" during the annual Hunger Games, and came to symbolize rebellion against the Games and its organizer, the Capitol. The pin has also become part of a billion-dollar franchise, and Lions Gate has "taken a number of steps to register the 'mockingjay logo' at the Trademark Office."

Given how popular the Hunger Games trilogy has become, Lions Gate has been robust in defending its intellectual property rights in the works. According to the complaint, the defendants attempted to purchase Hunger Games merchandise, including the mockingjay pin, from Lions Gate licensee National Entertainment Collectibles Association (NECA). Yagoozon CFO Benjamin Joseph later sent a letter to NECA, threatening an antitrust lawsuit if NECA did not sell the requested merchandise. NECA still refused to supply the items, and shortly thereafter, Lions Gate discovered that the defendants were selling counterfeit Hunger Games merchandise online, including the iconic mockingjay pin. Included with the pin, the plaintiff claims, was packaging "virtually identical" to NECA's Lions Gate-authorized packaging. Looking at the complaint (linked to below), one can see from the exhibits that the packaging is essentially indistinguishable, aside from, perhaps, the slightly sepia tone on Jennifer Lawrence's face on the Yagoozon packaging. In its prayer for relief, the studio seeks a permanent injunction against the production, sale or marketing of the infringing items, as well as damages and disgorgement of profits earned as a result of the infringement.

Given the degree of similarity between the NECA-produced Hunger Games merchandise and the allegedly counterfeited Yagoozon-made items, it does not appear that that odds will be ever in the defendants' favor...

http://www.hollywoodreporter.com/thr-esq/lionsgate-sues-protect-hunger-games-405093

Read the complaint here: http://www.scribd.com/doc/117497980/Hunger-Games

January 14, 2013

Week in Review

By Martha Nimmer

Itʼs a Bird, Itʼs a Plane, Itʼs...the Ninth Circuit Court of Appeals?

Warner Brothers is breathing a huge sigh of relief. Last week week, the Ninth Circuit Court of Appeals decided that a lower court incorrectly ruled that DC Comics -- a Warner Brothersʼ company -- brokered a deal in 2001 with the estate of Superman creator, Jerome Siegel. Absent the deal, the Siegel estate would not be able to recapture its rights in the highly successful comic book hero. This decision comes just months after a federal judge ruled in October of last year that the estate of Superman co-creator Joseph Snyder would not be able to recapture its own copyrights in the brawny superhero. This is all good news for Warner Brothers: now, the company is permitted to "exploit the Superman franchise without fear of substantial legal hassles" from the Shuster and Siegel estates.

Given the widespread success of the Superman character, the estates of his co-creators have devoted many years attempting to "exploit" the termination provision of the 1976 Copyright Act, with the ultimate goal being the recapture of valuable copyrights in the character. That provision of the Copyright Act, according to the its drafters, was to give artists who gave up their copyrights before the true value of the works became known another "bite at the bargaining apple." Facing financial hardship many years ago, Siegel and Shuster gave up their rights to Superman, but for very little money, not knowing how successful their flying superhero would become. Once Supermanʼs fame and notoriety "took off," the Siegel and Shuster estates have been
determined to recapture their rights.

http://www.hollywoodreporter.com/thr-esq/warner-bros-wins-blockbuster-victory-410871

Read the decision here: http://www.hollywoodreporter.com/sites/default/files/custom/
Documents/ESQ/Superman.pdf

Aloha from Hawaii Five-O

Bad news for George Litto, the talent agent who represented the creator of the original Hawaii Five-O series: a judge has granted CBSʼ demurrer to a lawsuit brought against it by Litto, meaning that "barring any reconsideration or appeal, the network has escaped any liability."

Now, why would George Litto sue CBS over the remake of a television show that ended over 30 years ago? It turns out, at least according to Litto, that he was prevented from participating in the creation and production of the new, highly successful Hawaii Five-O series that debuted in 2010. This exclusion, Litto says, prevented him from making "big money" on the remake. The original series aired from 1968 to 1980.

Back in the 1960s, Littoʼs talent agency represented the original Hawaii Five-O creator, Leonard Freeman. Freeman died in 1974. That year, according to the Hollywood Reporter, "an amendment to the contract [between CBS and Freeman] gave CBS the right to produce the show in the future and shifted responsibility of production from Freeman's company to CBS. The Freeman estate got a huge backend profit participation, and CBS wasn't allowed to recoup production overages." Freemanʼs widow and Litto also allegedly reached an agreement in 1996 to work together on future production of the series. Later, in 2010, CBS made a deal with the Freeman heirs, intent on going forward with a remake of the popular show. This deal, at least according to Litto, cut him out of the picture--and the profits. Fast forward to May 2012: Littoʼs agency sues Freemanʼs heirs for cutting the former agent out of dealmaking. Litto has stated that this "backstabbing" has cost him tens of millions of dollars.

The case history gets even more detailed and complex, but ultimately, the presiding judge on the suit decided to dismiss CBS from the case, for a (thankfully) simple reason: "Litto had waited too long to bring the claims," the judge wrote. Specifically, Los Angeles Superior Court Judge Gregory Alarcon stated that the "[p]laintiff instituted this current action over two years after the 2010 amendment was signed. CBS has already produced the television series and to restore the consideration would essentially require CBS to 'un-make' or, in the alternative, pull what has become a very popular television series." Not wanting to disappoint the showʼs fans, and finding it impossible to "unmake" the show, Judge Alarcon decided to dismiss CBS from the suit.

http://www.hollywoodreporter.com/thr-esq/cbs-wins-lawsuit-hawaii-five-409829

The(Mis)Adventures of Bristol Palin

If you thought you heard the last of the Palins, you were wrong.

Last week, A&E Networks settled a lawsuit with Disney Channel actor Kyle Massey over the idea for a reality show featuring Bristol Palin and her son, Tripp. In the suit, brought by Massey and his mother, the plaintiffs alleged that the Masseys created a written, halfhour series featuring the Massey and Palin families. The show, entitled Bristol-ogy 101, followed the families through their normal routines, including watching Bristol attend college while raising her child. Ms. Palin, it is alleged, agreed to work with the Masseys on the show. Two years later, however, found Ms. Palin working with A&E producers on a different show, this one called Bristol Palin: Lifeʼs a Tripp. The show aired on Lifetime, a subsidiary of A&E.

The Masseys alleged that the Lifetime show, which was subsequently removed from Lifetimeʼs prime time lineup, is substantially similar to their original show concept. The plaintiffs also raised claims of copyright infringement, fraud, breach of contract, misappropriation of name and likeness, tortious interference and unfair competition,
among other claims. Before a judge could decide whether the case could go to arbitration, however, the parties came to resolution. Details of the settlement have not been made public.

We still await news, however, about whether Sarah Palin can actually see Russia from her house...

http://www.hollywoodreporter.com/thr-esq/bristol-palin-lawsuit-ae-reality-series-409160

Vimeo or Vime-Uh Oh?

And now, to the wonderful world of the Web! Capitol Records and other major players in the music business asked a federal judge in New York last Friday to grant their summary judgment motion against the user-generated video website Vimeo. The suit, filed in New York federal court, commenced three years ago. Among the claims the
plaintiffs raise are those of copyright infringement, based on Vimeoʼs alleged copying, performing and distributing well known sound recordings by artists such as The Beatles, Coldplay, the Beach Boys and Nat King Cole. The initial dispute has taken three years to resolve because, as the Hollywood Reporter writes, "there was a pertinent piece of litigation about to go before appeals judges that considered the copyright liability of user-generated-content sites, Viacom v. YouTube." The Second Circuit has now decided what is required before ISPs, like YouTube and Vimeo, may gain safe harbor from copyright liability; essentially, the court ruled that that an ISP has to possess "actual knowledge of specific infringements through takedown notices or something else before being required to remove copyright material expeditiously."

Now that the Second Circuit has decided the Viacom v. YouTube case, record label attorneys have gone full force into filing for summary judgment. According to the motion, Vimeoʼs business model intentionally varies significantly from the business approaches followed by YouTube and Veoh. Vimeo, the plaintiffs write, regularly uploads its own infringing videos and expressly tells its users it is lawful to have infringing music in their videos, even instructing users to do so. In essence, plaintiffs complain, Vimeoʼs business model is to infringe copyrighted music as much as possible.

In its motion for summary judgment, Vimeo denied taking such an active role in copyright infringement, stating that in light of "the sheer volume of video content uploaded every day, Vimeo does not -- and cannot -- view every video uploaded by its users to attempt to determine whether it infringes a copyright or otherwise violates
Vimeo's terms of service. Instead, Vimeo relies upon copyright holders to inform it if a user has uploaded an infringing video." Vimeo has yet to tackle, however, a video it provided to CBS for possible inclusion in a 60 Minutes piece about Vimeo owner Barry Diller. According to the Hollywood Reporter, in the video, Vimeo is said to have "questioned whether it should use the video because the music wasn't licensed, with an employee suggesting, ʻ[i]f you want me to make a version that does not have copyrighted music in it, I will do that for you.ʼ"

Scroll down for the text of the suit: http://www.hollywoodreporter.com/thr-esq/bigrecord-labels-push-copyright-408708

January 21, 2013

Week in Review

By Martha Nimmer

Furniture Fights

It is unlikely that anyone will ever refer to the current era of reality TV as the "Golden Age" of television, but this television genre has nonetheless produced an array of interesting -- and often weird -- lawsuits. The latest noteworthy suit comes from high-end furniture maker Heptagon Creations Ltd. Last year, Heptagon sued real estate brokerage firm Core Group for copyright infringement. The suit alleged that Core Group used images of Heptagon's furniture without permission, ultimately using the images to create a "virtual, fully-furnished replica of [an] apartment to show interested buyers" on the HGTV series Selling New York. A judge dismissed this claim last year, but Heptagon appealed the decision to the Second Circuit Court of Appeals. The Second Circuit has affirmed the lower court's ruling, stating that "copyright protection does not extend to 'useful articles,' but individual design elements that comprise a portion of a utilitarian article may be eligible for copyright protection if the design element is either physically or conceptually separable form the article's functional elements."

http://www.hollywoodreporter.com/thr-esq/appeals-court-denies-copyright-claim-411452

Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/74331957-ff26-421c-8cf4-290b68ebf656/1/doc/12-317_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/74331957-ff26-421c-8cf4-290b68ebf656/1/hilite/

Family Feud

Lady Gaga is well-known for her unconventional music, and perhaps even more for her 'unconventional' hair styles and clothing materials (meat dress, anyone?). At least for the near future, however, Lady Gaga will be known for being at the center of a father-daughter legal battle over one of her songs.

Last week, music producer Teddy Riley filed suit in California against his daughter, Taja, concerning a song that he allegedly developed with Lady Gaga back in September 2009. According to the complaint, Lady Gaga shared with Mr. Riley her concept for a composition that was originally entitled, "Show Me Your Teeth," which made it onto her Monster album as the song "Teeth." The music was written by Teddy Riley, he alleges, with lyrics from the Mother Monster herself. What followed next seems to be a classic case of sibling jealously: Taja Riley "'desirous of starting her own career in the music and entertainment business' and aware that her older sister Deja had been 'granted a gift of songwriting credit' by their father," initiated a discussion with her father about whether he would also gift a songwriting credit to Taja. Mr. Riley denies ever giving her such a credit.

Nevertheless, Taja Riley is said to have later signed a deal with EMI Music Publishing and EMI Virgin Music, claiming a co-writing credit and a 24% interest in the song "Teeth." Mr. Riley states that "the representations made by Taja Riley as to participation in the creation of the composition, authorship, and ownership are all false and untrue and that Defendant Taja Riley did not participate in any way in the creation of the composition, and did not own any rights whatsoever to The Song."

Mr. Riley raises several causes of action against his daughter, including copyright infringement, fraudulent copyright registration, unfair competition and accounting. EMI and Sony/ATV have also been named as defendants.

Hopefully for the Rileys, however, the family that sues together stays together...

http://www.hollywoodreporter.com/thr-esq/lady-gaga-producer-sues-his-412327

Read the complaint here: http://www.scribd.com/doc/120358477/Gov-uscourts-cacd-551682-1-0

Thou Shall Not Bid

A famous Hollywood prop is now at the center of a lawsuit filed in Los Angeles Superior Court last week by auction house Profiles in History. The auction house claims that a bidder owes it $60,000 for the Ten Commandments tablets used in the famous Cecil B. DeMille film, The Ten Commandments. Profiles in History claims that Albert Tapper and two unnamed co-defendants successfully bid for the tablets in December. The defendants also won at auction a letter written by Hollywood legend Clark Gable; the winning bid for the letter, according to the plaintiff, was $8,000.

The plaintiff also claims that, following the auction in mid-December, its offices were closed for Christmas and the New Year. After the winter break, however, Profiles in History "sent invoices to defendants and requested payment. Defendants . . . refused to purchase the substantially more expensive [tablets] but represented that they would purchase the . . . [Clark Gable letter]." According to the complaint, the defendants claimed that they would not pay for the tablets because they "did not receive an immediate confirmation that they had won the items but instead had to wait two weeks to find out." The auction house continues to state that the "[d]efendants concealed from plaintiff the fact that they had no intention of paying for the major item purchased at auction, but that defendants carried out an elaborate plan in which they would agree to purchase the substantially less expensive item while keeping the major item for which they were the successful bidder from being sold to anyone else at the auction. This could only have been done through intentional manipulation."

The tablets were originally created by the Paramount Pictures prop department in 1956 for the classic movie The Ten Commandments. According to the complaint, the tablets measure 23 inches by 12 inches by 1 inch, and were "(c)onstructed of richly hewn fiberglass on wood backing ... in an early Canaanite script practiced in the late Bronze Age (c. 13th century B.C.) Moses era. These tablets were created by Paramount Studios scenic artist A.J. Cirialo, who made them to be slightly irregular with molded chips, craters and dings since they were to be carved with God's fire bolts, and he painted them in great detail to appear as carved stone." Also included in plaintiff's suit is a description of the Clark Gable letter. The letter dates from fall 1928, written just before Gable's "breakout performance on Broadway." The letter, cited in full in the complaint, hints at the difficult relationship the Hollywood star had with his estranged father, Will.

The auction house demands $81,600 and punitive damages for fraudulent concealment, fraudulent misrepresentation, negligent misrepresentation and breach of written contract.

http://www.courthousenews.com/2013/01/15/53920.htm

Framed

More legal trouble for Facebook: Instagram--Facebook's recently acquired photo sharing service was served last month as part of what appears to be the first civil lawsuit to result from the photo service's newly revised terms of service. The suit, filed in federal court in San Francisco, raises breach of contract and other claims against the company. The complaint laments the fact that "customers who do not agree with Instagram's terms can cancel their profile," but then are forced to forfeit rights to photos they had previously shared on the service. "In short," the plaintiff states, "Instagram declares that 'possession is nine-tenths of the law' and if you don't like it, you can't stop us."

Instagram's new terms of service sparked outrage across the Internet over a new provision in the terms that would allow the company to utilize users' photos without compensation. The new provisions also included a mandatory arbitration clause, which forced "users to waive their rights to participate in a class action lawsuit, except under very limited circumstances." According to CNBC, the former terms of service contained no such "liability shield." Displeasure with the new terms of service eventually led Instagram founder and CEO Kevin Systrom to "retreat partially" from the new terms, ultimately deleting the language about displaying photos without compensation. Instagram did, however, keep language that "gave it the ability to place ads in conjunction with user content." The new terms also state that "[Instagram] may not always identify paid services, sponsored content, or commercial communications as such." Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, previously criticized Instagram for its revised terms of service; Opsahl later went on to say, however, that he was "pleased that the company rolled back some of the advertising terms and agreed to better explain their plans in the future."

So, unfortunately for Facebook and Instagram, it does not appear that 2013 will be a litigation-free year. Be sure to look out for class action notices in the mail, fellow Facebook and Instragram users!

http://www.cnbc.com/id/100339681

January 28, 2013

Week in Review

By Martha Nimmer

Barbie v. Bratz

Good news for Barbie! A federal appeals court in California has ruled that Mattel, Inc. will not have to pay $172 million to MGA Entertainment, Inc. to settle a trade secrets theft suit. The court also did away with an additional $85 million in enhanced damages imposed by a lower court judge against Mattel. The court, however, kept in place more than $100 million in attorney's fees awarded to MGA.

The heart of the suit centered on MGA's big-eyed, pouty-lipped, sometimes scantily-clad Bratz dolls, introduced by the then-relatively unknown toy-maker in 2001. According to Thompson-Reuters, the "long-running saga" over MGA's Bratz dolls began in 2004 as the toys soared in popularity, ultimately leading Mattel to accuse the Van Nuys, California-based doll maker of "stealing its designs by hiring one of Mattel's key employees." In 2008, a jury ruled that MGA and its chief executive, Isaac Larian, would have to pay Mattel $100 million in damages. MGA appealed, and the 9th Circuit threw out the verdict in 2010. Following a retrial in 2011, a jury rejected Mattel's copyright claims, finding the toy maker liable on new trade secret allegations raised by MGA at retrial. Those new counterclaims were the basis of the 9th Circuit Court of Appeals' decision to throw out the 2011 jury award against Mattel. In siding with Mattel, the 9th Circuit ruled that MGA's counterclaims were not "compulsory," in that they were not "based on the same underlying facts as Mattel's trade-secret theft claims against MGA." As such, the lower court judge erred by allowing MGA's additional trade secrets claims to be part of the case. "That both Mattel and MGA claimed they stole each other's trade secrets isn't enough to render MGA's counterclaim compulsory," the court said. "What matters is not the legal theory but the facts."

The 9th Circuit closed with the following piece of advice: "[w]hile this may not be the last word on the subject, perhaps Mattel and MGA can take a lesson from their target demographic: Play nice."

The case is Mattel Inc. v. MGA Entertainment Inc., 11-56357, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

http://www.bloomberg.com/news/2013-01-24/mga-bratz-win-over-mattel-partly-erased-by-appeals-court.html

http://newsandinsight.thomsonreuters.com/Legal/News/2013/01_-_January/Appeals_court_sides_with_Mattel_in_latest_Bratz_fight/

Royal Intrigue

The Queen of Versailles, one of the hit films last year at the Sundance Film Festival, follows the daily life of the Siegel family. They are just like any other family, except that they live in a $75 million replica of the Palace of Versailles. The film shows the mansion being put on the market for a fraction of the home's value, as the global economic crisis comes to a head. This "rags-to-riches-to-rags" story of David Siegel, self-made time-share baron of the Westgate Resorts empire, made for an intriguing, if at times cringe-inducing, film. Mr. Siegel, however, is not a fan of the movie--he filed a defamation action last year against the movie's director, Lauren Greenfield.

Last month, the parties gathered for an evidentiary hearing as part of Mr. Siegel's defamation suit against the film's director. Both Mr. Siegel and Ms. Greenfield testified in court, and submitted briefs on the question of whether the film was, in fact, defamatory.

However, a judge must now rule if the dispute should be resolved in arbitration. This would seem like a cut-and-dry issue, considering that the director has a signed released form, stipulating that disputes would be resolved through arbitration. To get around that form, however, Mr. Siegel alleges that his son, Richard, who signed the form, lacked the "full authority to bind Westgate Resorts to arbitration." Essentially, as Hollywood Reporter stated, Mr. Siegel is "selling out his own son . . . ." Although Richard Siegel is a vice president of Westgate Resorts, the plaintiff contends that this was a "strictly honorary" designation, "unaccompanied by any of the traditional corporate authority such as a position might otherwise garner its occupant." In fact, the plaintiff is quick to point out, "that title . . . has been bestowed upon approximately a dozen other individuals working for one of the distinct companies within the Westgate Resorts organization."

Defense counsel, in response, writes that the plaintiff's claim that Ms. Greenfiled's work was unauthorized is "incredible on its face," adding that David and Richard Siegel both authorized the making of the film and the giving of the Westgate Resorts release, and hundreds of people were aware of it. How could over 200 personal releases be signed after shooting company activities if David did not give authority -- real or apparent -- to Richard?" the defendants ask. "The content of the film is the best evidence that David is lying."

A judge is expected to rule on the case soon.

Sixteen Seconds of Fame

The 7th Circuit Court of Appeals has dismissed a woman's invasion of privacy and misappropriation of image claims against comedienne Joan Rivers. Plaintiff Ann Bogie sued Rivers, IFC Films and others following the release of the documentary Joan Rivers: Piece of Work. The documentary follows Joan Rivers and features her performing one of her stand-up comedy routines. During one particular performance, Ms. Rivers discussed her dislike of children, but said that she would have made an exception for a young Helen Keller, "because she didn't talk." Upset by the joke, an audience member heckled Ms. River for the comment. Following the show, Ms, Rivers was approached backstage by the plaintiff, and the two shared a few words that were captured by the cameras filming the documentary. Ms. Bogie told Rivers that she (Bogie) "never laughed so hard" in her life." Ms. Bogie referred to the heckler as "[that] rotten guy," adding that she "was ready to get up and . . . 'tell him to leave.'" This interaction appeared in the documentary, which aired on IFC. Ms. Bogie was none too pleased, however, and sued.

Unconvinced by her claims, the 7th Circuit Court of Appeals wrote in its decision that Ms. Bogie "voluntarily approached a celebrity just after a public performance," adding that "[a]ny reasonable person would expect to encounter some kind of security presence, and indeed here that presence was visible. Furthermore, the camera crew must have also been visible to Bogie as they were filming both Rivers and, of course, Bogie. Courts have found that even performers themselves cannot count on a reasonable expectation of privacy in their own backstage areas."

Now that the suit has been dismissed, Ms. Rivers can concentrate fully on her two self-described interests: making fun of people and getting plastic surgery.

http://www.hollywoodreporter.com/thr-esq/joan-rivers-wins-privacy-dispute-413473

Read the decision here: http://www.ca7.uscourts.gov/tmp/P91EVT32.pdf

Unsportsmanlike Conduct?

Citing the importance of football in the "social lives of Arizonans," the Arizona attorney general has sued the state's NFL team, the Cardinals, in an attempt to force the team to provide captioning for the deaf on all monitors in the team's stadium. Attorney General Tom Horne filed the suit last week on behalf of Michael Ubowski, a deaf Cardinals fan. According to the complaint, Ubowski made numerous, albeit unsuccessful, "attempts between October 2005 and 2007 to consult with Arizona Cardinals' management and encourage them to adopt effective auxiliary aids and services to provide deaf and hard of hearing patrons an experience like that enjoyed by other Arizona Cardinals fans, as the team previously had at Sun Devil Stadium". According to Courthouse News Service, the team perviously used open captioning--a service that transmits information to every person in the stadium--at Arizona State's Sun Devil Stadium in Tempe from 1988 to 2006; that practice ended, however, when the Cardinals moved to the then-new University of Phoenix Stadium. Notably, the New England Patriots, Pittsburgh Pirates, Washington Redskins, and New York Yankees use open captioning in their stadiums, according to the complaint.

Two years after moving to the University of Phoenix Stadium in 2008, the Cardinals had removed the caption-enabled monitors, and began using three wireless personal digital assistants capable of displaying captions, but allegedly "failed to post information about the availability of this auxiliary aid on their website until August 2011, one year after the devices first became available." The complaint states that Ubowski and his father tried to use a PDA during a Cardinals game on September 26, 2010, but "found that the PDA was difficult to locate, obtain, and use." Additionally, there were "delays in the transmission of the captions and frequent device malfunctions," and the PDA "made it impossible to communicate in sign language, cheer, clap, eat, and drink, and also diverted [Ubowski's] attention from the field and scoreboard."

The Arizona Attorney General is seeking a permanent injunction against the defendants so that they will "permanently provide open captioning at the stadium during Arizona Cardinals' football games and events at University of Phoenix Stadium," on all monitors, and to train their employees "regarding operation of the captioning equipment and assistance for people with sensory disabilities."

http://www.courthousenews.com/2013/01/21/54096.htm

She's a He

Bizarre is the only word that describes the Manti Te'o Internet girlfriend hoax. Fearing that this hoax may have legal repercussions, the alleged voice of Manti Te'o Internet girlfriend Lennay Kekua has hired an attorney. The lawyer for the man who has been identified as the creator of the hoax, Ronaiah Tuiasosopo, told the New York Daily News that his client "disguised his voice and assumed the identity of Lennay Kekua to try to develop a relationship with Te'o." Attorney Milton Grimes said that Te'o "thought it was a female he was talking with. It was Ronaiah as Lennay." Grimes added that Tuiasosopo was not trying to hurt Te'o: "[t]his wasn't a prank to make fun. It was establishing a communication with someone . . . It was a person with a troubled existence trying to reach out and communicate and have a relationship."

Earlier this week, the Notre Dame star linebacker appeared on Kate Couric's show, Katie, to explain his role in the apparent hoax. "It didn't sound like a man," Te'o told Couric during the interview that aired on Thursday. Te'o added "[i]t sounded like a woman. It's incredible that he can make that noise." To support his story, Te'o provided voicemails to the program that he says are from the person whom he thought was Kekua. Although the quality of the recording is poor in some of the supplied clips, in a few, the voice does, in fact, sound female. According to Te'o, Tuiasosopo called him to confess and apologize shortly before the hoax came to light this January.

For readers who have been lucky enough to miss this story, the hoax was revealed earlier this month when sports blog Deadspin.com reported that the relationship had been faked. In September, Te'o told media outlets that he had lost both his grandmother and girlfriend "within the span of one day." The Notre Dame star said that his girlfriend, Lennay Kekua, had survived a car accident, but died after an unsuccessful battle with leukemia. Despite the loss of both his grandmother and Kekua, Te'o did not miss any football games for Notre Dame, saying that he had promised his deceased girlfriend that he would play even if something had happened to her. Sports media outlets reported on these tragedies during Te'o's strong 2012 season for Notre Dame when he emerged as a Heisman Trophy candidate. After receiving an anonymous email tip on January 11, 2013, however, Deadspin.com reporters Timothy Burke and Jack Dickey conducted an investigation into the identity of Kekua. On January 16th, they published an article that said they found no record of a woman named Lennay Kekua, and that the story of her death was actually a hoax. According to the report, "the pictures published in the media supposedly of Kekua were actually taken of Diane O'Meara, an acquaintance of Ronaiah Tuiasosopo."

In a press conference following the Deadspin.com report, Notre Dame athletic director Jack Swarbrick tearily confirmed that the university had hired private investigators to uncover the source of the hoax, adding that Te'o's relationship with Kekua was "exclusively an online relationship." This characterization conflicted with Te'o's father's previous account of his son's relationship with Lennay Kekua; Brian Te'o, the football player's father, said that Te'o and Kekua had met after a football game and that she visited him in Hawaii. Te'o previously told Sports Illustrated that she had seen him at a USC game when he was a sophomore.

To make this story even stranger, Ronaiah Tuiasosopo has met with Dr. Phil to discuss the hoax in an interview scheduled to air next week.

http://espn.go.com/college-football/story/_/id/8875990/lawyer-ronaiah-tuiasosopo-was-voice-talking-manti-teo

February 1, 2013

Week in Review

By Martha Nimmer

Food Fight

Custom Television Productions (Custom TV) has sued television producer Kyra Shelgren and her loanout company, Another Division, calling Shelgren's business practices "tantamount to extortion." Shelgren and her company, which helped produce a Food Network TV series entitled "$," is accused of refusing to "hand over dozens of consent forms signed by people on the show, unless the plaintiff company [paid] her $14,000." Custom TV is seeking damages for breach of oral contact and conversion, and seeking delivering of roughly thirty photography releases. As a general practice, Food Network requires releases from anyone filmed as part of a show segment. The network has withheld payment of $93,000 to Custom TV until it supplies the required releases.

Shelgren was hired by Custom TV president Steve Stockman as a producer in connection with a pilot called "$24 in 24 Hours," to air on Food Network. The series follows host Jeff Mauro "as he travels to a different city each week to track down the best breakfast, lunch and dinner he can find with only $24 in his pocket." Stockman later learned, however, that Food Network never received approximately 30 releases for the last episode of the show, shot in Philadelphia, despite promises from Shelgren that she would send the show's remaining paperwork to the channel. According to the complaint, "[o]n or about December 5, 2012, Mr. Stockman requested that Ms. Shelgren immediately send him the releases to give to The Food Network. On or about December 8, 2012, Ms. Shelgren stated that she would not return the releases unless Mr. Stockman paid her $14,000 via wire transfer, a demand tantamount to extortion."

It is unclear when--or if--the new television show will air.

http://www.entlawdigest.com/2013/01/24/2104.htm

It Is About the Book

More bad news for Lance Armstrong. A federal class action has been brought in Sacramento, CA, alleging that Armstrong and his publishers defrauded consumers by marketing and selling the athlete's book as nonfiction. It's Not About the Bike spent weeks on the bestseller list after being released in 2000. Armstrong's second book, Every Second Counts, also met with similar success.

The lead plaintiff in the suit, Rob Stutzman, has sued the cyclist, Penguin Group, G.P. Putnam's Son, Random House and others for fraud, negligent misrepresentation and various business law violations. In his complaint, Stutzman states that he bought the bestseller, It's Not About the Bike, "sometime between 2001 and 2003." The plaintiff claims that he met Armstrong in 2005 when Stutzman was a member of then-Governor Arnold Schwarzenegger's public relations staff; Stutzman allegedly told Armstrong that he (Stutzman) had recommended the book to friends.

This suit comes on the heels of Armstrong's revelations earlier this month that he used banned, "performance-enhancing drugs" to win all seven of his Tour de France victories. As a result of this revelation, he was stripped of his Tour de France titles, and has lost virtually every single one of his endorsement deals.

The 59-page complaint demands an accounting, restitution, attorney's fees, damages and an injunction. Now, we wait to see if purchasers of the once-ubiquitous yellow "Livestrong" bracelets file suit against the disgraced cyclist.

http://www.entlawdigest.com/2013/01/23/2097.htm

Bell of the Bar

Forgetting Sarah Marshall star Kristen Bell has sued the managers of Hollywood tequila bar L Scorpion, claiming that the bar failed to repay a $20,000 loan made by the actress. She also accuses the managers of skimming profits. Bell, along with several television executives and producers, seek damages for breach of fiduciary duty, breach of contract, conversion, unjust enrichment, unfair business practices and access to the defendants' books and records.

According to the complaint, defendants Meridian Restaurant Group, Scorpion Management and managers Christopher Heyman and Joshua Woodward "orchestrated a scheme to raise $400,000 from investors, including plaintiffs, to funnel the funds into their failing businesses and rob plaintiffs of their investment." Bell and other plaintiffs allegedly each invested $20,000 in the Hollywood Boulevard L Scorpion bar, in exchange for a 5% aggregate ownership interest in the bar. The actress claims that in July 2005, "Scorpion Management and its parent company Meridian agreed to repay Bell and the other investors 115 percent of their original investment, and distribute pro rata net profits." Despite this promise, Heyman and Woodward are accused of diverting food, money, and beverages away from L Scorpion to the defendants' other, failing businesses. According to the complaint, these funds and items were never repaid. Notably, no one seems to be sure if the bar is even still in operation: "[c]urrently, plaintiffs and the remaining investors do not know if the L Scorpion is still open for business, who is managing the restaurant, and who owns the licenses."

Looks like the party's over.

http://www.courthousenews.com/2013/01/29/54345.htm

Touchdown for Free Speech

Citing First Amendment concerns, U.S. District Judge Kurt Engelhardt issued an injunction last week restraining the city of New Orleans from enforcing its "Super Bowl Clean Zone" law, which restricted signs and banners from being displayed during Super Bowl week. The Super Bowl will be played this Sunday, February 3rd, at the Mercedes Benz Superdome in New Orleans, Louisiana.

The suit was brought by Tara Jill Ciccarone, an Occupy NOLA protester, and Reverend Troy Bohn, a street preacher in the iconic and historical French Quarter. The city enacted the controversial law on December 6th, with the goal of restricting the use or placement of signs throughout the downtown area of the city as well as the French Quarter. The ban was to be in place from January 28th to February 5th. Violations were punishable by a $500 fine and up to six months in jail. The law prohibited "[i]nflatables, cold air balloons, banners, pennants, flags, building wraps, A-frame signs, projected image signs, electronic variable message signs, and light emitting diode signs of any kind shall be prohibited except for those sanctioned or authorized by the City. . . or by the National Football League." Yes, you read that correctly--the city of New Orleans placed partial control over citizens' free speech rights in the hands of the NFL.

In response to the ordinance, Ciccarone sued, stating that she and other Occupy NOLA protesters planned to demonstrate in the city and display signs, and that these constitutionally-protected activities would be infringed if the Clean Zone law were enforced. The signs that the protesters planned to display read "M]oney is not more important than constitutional rights, despite what Clean Zone would indicate" and "Your Tax Dollars Working to Help the Rich Get Richer." Rev. Bohn and his congregation regularly preach on Bourbon Street, carrying crosses and signs such as "I Love Jesus" and "Ask Me How Jesus Changed My Life." Ciccarone and Bohn argued that the city violated the Constitution "by vesting unbridled discretion in a private entity - the National Football League - to control the content of signs and other public media in the Clean Zone."

In a victory for free speech and sanity, Judge Engelhardt agreed with the plaintiffs, ruling that "plaintiffs have demonstrated a likelihood of success that this likely infringement is impermissible under the First Amendment to the United States Constitution."

http://www.courthousenews.com/2013/01/29/54349.htm

Billionaire vs. Millionaire

Three paintings by renowned artist Jasper Johns are at the center of a lawsuit commenced late last week by billionaire Henry Kravis and his wife against art collector and businessman Donald L. Bryant, Jr. According to the Kravises, they purchased Johns' "Tantric Detail" series jointly with Bryant, with the intention of sharing the works and eventually donating them to New York's Museum of Modern Art (MoMA). The Kravises decided to purchase the paintings with Bryant in 2008, and worked out an agreement wherein one owner would transfer possession of the works to the other owner's chosen residence annually, so that Kravis and Bryant could each enjoy the paintings until they were eventually donated to the museum. Such an arrangement successfully took place between 2008 and 2012, according to the complaint. On January 14th of this year, however, the agreement appeared to fall through when Bryant allegedly refused to transfer the paintings to the Kravises. Instead, the complaint states that Bryant is holding the works "hostage" until a new agreement is worked out, one without the pledge to give the works to MoMa.

http://newsandinsight.thomsonreuters.com/Legal/News/2013/01_-_January/Businessman_sues_art_collector_over_Jasper_Johns_paintings/

Striking Out Performance Enhancing Drugs

The Drug Enforcement Agency (DEA), along with Major League Baseball (MLB), are investigating the link between self-described Miami "biochemist" Anthony Bosch and MLB players Alex Rodriguez, Melky Cabrera, Gio Gonzalez, Nelson Cruz and Bartolo Colon. Bosch is currently being investigated by the DEA for his work at his now-defunct anti-aging clinic in south Florida.

The names of the baseball players, along with detailed patient files, payment records and handwritten notes were found in Bosch's files at his clinic. The players' names were then "leaked to a South Florida weekly paper by a former employee of the clinic," the New York Daily News reports. Alex Rodriguez's name also allegedly appears many times in Bosch's reports and in a notebook, under Rodriguez's real name as well as the aliases "Alex Rod" or "Cacique." The notebook is said to contain information that shows that Rodriguez received testosterone cream and insulin-like growth factor and other types of growth hormone from Bosch. Upon learning of this revelation, Rodriguez hired a Miami-based attorney.

According to sources, "MLB, which has turned over information from its own investigation to the DEA, will now move to question the players and will ask for assistance from the feds in verifying the report." Baseball's drug program, run jointly by MLB and its Players Association, permits "MLB to discipline players for performance-enhancing drug infractions, even if players had not tested positive for controlled substances." Readers will recall that in 2009 MLB suspended Los Angeles Dodgers pitcher Manny Ramirez under this drug program policy. Ramirez was suspended for 50 games when MLB discovered through a review of the player's medical records that he had received a prescription for a banned drug.

Read more: http://www.nydailynews.com/sports/baseball/new-balco-a-rod-big-name-stars-linked-new-probe-article-1.1250257#ixzz2JOWuSwFM

Stranger Than Fiction

More legal drama has sprung from the Broadway show that never was--"Rebecca." Producers for the failed production have sued the show's former publicist, Marc Thibodeau, for defamation, breach of contract and bread of fiduciary duty. The producers allege that Thibodeau "scared off" a potential investor whose last-minute monetary investment could have saved the production from folding.

The anonymous investor retracted his $2.25 million offer in September, supposedly after receiving an email from a fictitious "Sarah Finkelstein." The email from the fictitious Finkelstein describes the various problems that plagued the doomed show, warning that "the walls are about to cave in" on "Rebecca" and its lead producer, Ben Sprecher. The Broadway production of "Rebecca" was indefinitely postponed in early fall, following "revelations that a middleman had concocted four investors who were responsible for $4.5 million of the show's $12 million capitalization, followed by a separate fiasco, the departure of the last-minute investor in response to Mr. Thibodeau's e-mail."

The alleged scheme by the middleman, Mark C. Hotton, came to light after a New York Times article "questioned the existence of one Hotton investor, "Paul Abrams," who had supposedly died of malaria in London." Hotton is now facing federal charges for fraud; he was arrested at his Long Island home by federal authorities in early October 2012.

In response to the suit filed against Thibodeau, several Broadway compatriots rose to the publicist's defense. In an email to the New York Times, veteran press agents and business partners Chris Boneau and Adrian Bryan-Brown wrote "Marc Thibodeau is one of the most outstanding press agents in the business. His extreme loyalty and dedication over three decades speaks for itself." Thibodeau's lawyer has also stated that his client was only trying to warn the innocent investor "that the show was caught in a 'web of deceit.'" The attorney applauded his client's efforts, calling him "an innocent whistle-blower."

The plot thickens.

http://theater.nytimes.com/2013/01/30/theater/rebecca-producers-sue-publicist-marc-thibodeau.html?_r=0

Read the complaint here: http://www.nytimes.com/interactive/2013/01/30/theater/20130129-rebecca.html

February 19, 2013

Week in Review

By Martha Nimmer

Flunking Franco

Whoever said that 90% of life is just showing up should probably share that bit of wisdom with actor James Franco, who is facing a default judgment in New York State Court. This default action, filed last week by Francoʼs former NYU professor Jose Angel Santana, stems from a defamation suit filed by Santana in September. Francoʼs former professor filed the lawsuit against the actor based on allegations that Franco had made disparaging and inaccurate public statements" against Santana after receiving a "D" in his class in 2010.

Santanaʼs suit concerns public comments by Franco that his former teacher was "awful," and that Franco "didnʼt feel like [he] needed to waste [his] time with a bad teacher." In response to Franco's comments, Santana's attorneys argue that Franco's actual reason for not attending class was having to work on the film 127 Hours. New York University, a co-defendant in Santanaʼs action against Franco, answered the plaintiffʼs suit in November. In its answer, NYU stated that the suit was nonsense; the university added that Francoʼs comments "consisted of nothing other than Franco's personal opinions regarding Santana's teaching skills" and hence could not be considered defamatory.

Franco could easily make the same argument, but for this to happen, he first has to hire an attorney and actually show up to court.

http://www.hollywoodreporter.com/thr-esq/james-franco-hasnt-bothered-answer-421369

From Gospel to Gangsta Rap

Gospel singers Clara Shepherd Warrick and Jimmy Lee Weary have sued some of the biggest names in rap music: last week, the musicians brought suit against Rick Ross, Dr. Dre, Jay Z, Universal Music Group, Universal Music Publishing Group and Island Def Jam Music Group in federal court in Illinois. Warrick and Weary claim that the hip-hop superstars sampled their music without permission on Ross's Grammy nominated album "God Forgives, I Don't," and "laced plaintiffs' gospel work" with profanity and other offensive language.

The gospel work at issue, "Iʼm So Grateful," was created by the plaintiffs in 1976. According to the complaint, "Plaintiffs' song was first distributed circa 1976 by their gospel singing group, Crowns of Glory, on an album titled ʻGod Save the Children.ʼ Since the release of the song, Shepherd and/or Weary have performed plaintiffs' song all over the world." Last July, Rick Ross and Def Jam released the rap album "God Forgives - I Don't," which contains a song entitled "3 Kings." It is in this song, the plaintiffs complain, that the unauthorized sampling occured: "Defendants sampled and copied additional, substantial original elements of plaintiffs' Song without plaintiffs' permission, when they wrote, recorded, performed and made derivative works of the 3 Kings song."

Unfortunately for the gospel singers, "3 Kings" contains some pretty foul language. Unsurprisingly, the plaintiffs are not happy that their music has--allgedly--been used in such a way. Warrick and Weary argue that "Defendants' use of plaintiffs' work in the manner used continues to destroy the commercial value of the song in gospel circles. Defendants' use of plaintiffs' work is also destroying rather than enhancing the overall integrity and longevity of plaintiffs' gospel song. After the current use of plaintiffs' copyrighted work on the rap album by Rick Ross, Dr. Dre, Jay Z and Jake One, Plaintiffs' song will soon have no value in the gospel community."

It should also come as no surprise that Warrick and Weary object to the "3 Kings" music video, which "features a montage of clips of Rick Ross, Dr. Dre and Jay Z throughout their careers." According to the complaint, this video has received millions of views, and "upon information and belief, the video was prepared at the direction of defendant Dr.Dre. The video includes very graphic depictions of drug use, vulgarity, nudity, gun violence, criminal conduct, actions demeaning to women and many other items that are certainly inconsistent with plaintiffs' wishes for how plaintiffs' song would be portrayed." The plaintiffis seek an injunction prohibiting the defendants from performing "3 Kings" or selling the album that contains the offending song. Weary and Warrick also seek punitive damages for copyright infringement, unfair trade practices, unfair competition, conspiracy and unjust enrichment.

http://www.entlawdigest.com/2013/02/11/2143.htm

Pennsylvania Goes to Court for Penn State

Earlier this month, the NCAA filed suit in Pennsylvania court, asking a federal judge to throw out a lawsuit brought by the stateʼs governor that challenged the penalties imposed on Pennsylvania State University following the Jerry Sandusky child-abuse case. According to the NCAA, Pennsylvania Governor Tom Corbett lacks standing to
bring the case, and is seeking to undo an agreement "freely entered into" by Penn State officials. "This lawsuit is an inappropriate attempt to drag the federal courts into an intra-state political dispute," the NCAA added.

Readers will recall that Governor Corbett sued the NCAA in January, challenging a $60 million fine imposed on Penn State for its failure to prevent sexual abuse perpetrated by former assistant football coach Jerry Sandusky, who was convicted last year of molesting ten boys. The stateʼs complaint accuses the NCAA of using the Sandusky
crimes as a "pretext" to impose unprecedented sanctions, which, Governor Corbett aruges, violate antitrust laws. In addition to the multimillion dollar fine, the NCAA stripped Penn State of 112 football wins from 1998 through 2011, and barred the school from bowl games for four years.

According to the NCAA, Penn State has the authority under Pennsylvania law "to manage its own athletics program, voluntarily join the NCAA and agree to contracts." The governor, who is a member of the Penn State governing board that approved the NCAA agreement, is attempting to "usurp the discretion that the legislature delegated to PSU," the NCAA wrote.

Pennsylvania will seek an injunction against all the sanctions. The case is Corbett v. National Collegiate Athletic Association, 13-cv-6, U.S. District Court, Middle District of Pennsylvania (Harrisburg).

http://about.bloomberglaw.com/2013/02/08/ncaa-seeks-to-toss-pennsylvania-suit-oversandusky-fine/

To the Batmobile!

Cue the Batman theme music, because we have some important news! In a victory for DC Comics, a federal court in California ruled last week that the iconic Batmobile is a "copyrighted comic book character" that cannot be replicated by an autobody business. DC Comics introduced the famous Batmobile back in 1941. The black, streamlined car was also featured in the "Batman" TV show, starring Adam West in the 1960s, and in the 1989 Batman movie, starring Michael Keaton.

DC Comics sued Mark Towle, owner of California-based auto shop Gotham Garage, in May 2011. The plaintiff claimed that Towle's work constituted copyright infringement, unfair competition and trademark infringement. DC Comics owns the copyright on the words "Batman" and "Batmobile", as well as the Batman logo, the licensing of which has proven to be an extremely lucrative business. Towle and Gotham Garage do not hold such a license, but this did not prevent them from turning cars into Batmobiles, "styled as either the model in the 1966 TV show or the 1989 movie."

In ruling with the plaintiffs, U.S. District Judge Ronald Lew found that Towle "copied not only a car, but a character." In that regard, Lew wrote: "the Batmobile, in its various incarnations, is a highly interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime. Even though the Batmobile is not identical in every comic book, film or television show, it is still widely recognizable
because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet-black." The judge also pointed out the importance of the Batmobile to the plot of Batman: "[t]he comic books portray the Batmobile as a superhero. The Batmobile is central to Batman's ability to fight crime and appears as Batman's sidekick, if not an extension of Batman's own persona." Judge Lew ultimaltey ruled that Towle's use of the Batmobile and Batman-related symbols were likely to cause confusion in the marketplace.

At least for now, it looks as if Gotham City can rest easy that no unlicensed Batmobiles are out on the streets...

http://www.entlawdigest.com/2013/02/12/2147.htm

February 22, 2013

Week in Review, Part 2

By Martha Nimmer

Free Sherlock

How can a literary work, which first appeared some 125 years ago, still be subject to copyright protection? That, essentially, is the question posed by Sherlock Holmes scholar Leslie Klinger in a civil complaint filed last week in Illinois federal court. Klinger argues that many licensing fees paid to the Arthur Conan Doyle estate have been unnecessary and not legally required, as the main characters and elements in Sherlock Holmes are derived from materials published before January 1, 1923, and thus no longer subject to the protection of U.S. copyright law.

Leslie Klinger is a renowned scholar on the subject of Sherlock Holmes, and serves as the editor of the three-volume, nearly 3,000-page Annotated Sherlock Holmes. According to The New York Times, Klinger's complaint "stems from In the Company of Sherlock Holmes, a collection of Holmes-related stories by various authors, edited by Mr. Klinger and Laurie R. King, herself the author of a successful mystery series featuring Mary Russell, Holmes' wife." According to the complaint, the estate of Sherlock Holmes author Sir Arthur Conan Doyle contacted the publisher of In the Company of Sherlock Holmes, hinting that the sale of the work could be threatened unless the estate received a licensing fee. Klinger states that he reluctantly paid the fee along with his co-editor. Unhappy with having paid the fee, and reportedly tired of the thinly veiled threats from the Conan Doyle estate, Klinger has asked the court to make a declaratory judgment that the basic "Sherlock Holmes story elements" are in the public domain.

Klinger points out that the goal of his legal action is not to interfere with the estate's legitimate rights in ten Sherlock Holmes stories that were published after January 1, 1923, and enjoy copyright protection until 2023. Given the huge success of Sherlock Holmes-inspired series "Elementary" and "Sherlock," as well as the hit Robert Downey, Jr. film, when the remaining Holmes stories enter the public domain in 2023, more legal drama is likely to play out.

http://artsbeat.blogs.nytimes.com/2013/02/15/public-domain-my-dear-watson-lawsuit-challenges-conan-doyle-copyrights/

Read the complaint here: http://www.scribd.com/doc/125554239/Sherlock-Holmes-Complaint

The Central Park Five

In a victory for "the precious rights of freedom of speech and the press," a federal judge in New York quashed a subpoena by New York City that demanded notes and outtakes from the Ken Burns documentary film The Central Park Five. The film details the story of the five men wrongfully convicted in the infamous 1989 "Central Park Jogger" rape case. The men were released from prison eight years ago "after another man in an upstate prison confessed to the crime and provided DNA that exonerated the five." Following their release from prison, the five men filed a $50 million lawsuit against New York City, claiming that their confessions were coerced. The city is still defending the lawsuit, and sought the documentary's outtakes to "support its arguments that authorities were acting in good faith and relying on the best information available at the time."

In response to the city's subpoena, Florentine Films, the producer of the documentary, argued that the outtakes and other non-confidential news-gathering materials were protected by New York's Journalist Shield Law. The law, N.Y. Civ. Rights Law § 79-h, codifies the First Amendment privilege that protects journalists from the forced disclosure of confidential sources or materials obtained while gathering information for reporting purposes. U.S. District Judge Ronald Ellis agreed with Florentine Films that a reporter has a qualified evidentiary privilege for information gathered as part of a journalistic investigation, adding that "any discussion of the reporter's privilege begins with an inquiry into whether a journalist can first establish entitlement to the privilege by demonstrating the independence of her journalistic process." The "independence standard," however, is a challenging one to satisfy, and has been the death knell of journalist shield litigation in the past. For instance, in an example cited by The Hollywood Reporter, filmmaker Joseph Berlinger failed to satisfy the independence standard when he attempted to prevent outtake footage from his documentary Crude from being obtained by oil company Chevron. Chevron subpoenaed the material to aid the company's defense of litigation in Ecuador stemming from the alleged contamination of an indigenous community in the Amazon Rainforest.

Judge Ellis ruled that Florentine Films had established its independence, rejecting various arguments from city attorneys that argued to the contrary. The city argued, for instance, that the Central Park Five filmmakers had a "point of view in favor of the plaintiffs," which would eviscerate any argument in favor of journalistic independence. Dismissing this argument, Justice Ellis wrote that having a point of view was not dispositive of whether the filmmakers were, in fact, independent under Berlinger. Other factors to consider in resolving the question of independence--funding for the work, editorial independence, among others--weighed in Florentine Films' favor. Additionally, the court found that the city had failed to make a sufficient showing that the information demanded was of likely relevance, and not reasonably available from another source.

http://www.hollywoodreporter.com/thr-esq/ken-burns-wins-fight-new-422495

Read the decision here: http://www.scribd.com/fullscreen/126303350?access_key=key-1e3c52kg79vfn9hjhkze

Read the text of the Journal Shield Law here: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVR79-H$$@TXCVR079-H+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=15272944+&TARGET=VIEW

Penney Pains

Martha Stewart is no stranger to legal woes, and now, her company--Martha Stewart Living Omnimedia, Inc. (MSLO)--is being sued by Macy's Inc. (Macy's) in New York State Supreme Court. Macy's, one of the largest U.S. department-store chains, is hoping to block MSLO's agreement with retailer J.C. Penney to produce Martha Stewart-branded home goods. A nonjury trial in the case began earlier this week before state Supreme Court Justice Jeffrey K. Oing in Manhattan. Justice Oing previously granted Macy's preliminary injunction in July, which barred MSLO from developing home goods products with J.C. Penney. The company in December 2011 acquired a 17% stake in MSLO for $38.5 million, as part of an effort to revive sales with new mini-stores dedicated to Martha Stewart and other brands.

According to Macy's pre-trial memorandum, "Macy's contracted with MSLO at a time when the MSLO brand was associated with the significantly downscale Kmart and Ms. Stewart was just being released from prison." Macy's eventually moved the brand into "soft home goods upscale," which, Macy's attorneys called, "a herculean task" that initially resulted in financial losses for the Ohio-based retailer. Macy's attorneys argue that MSLO is now trying to reap the rewards of Macy's rebranding efforts, which took the Martha Stewart Living brand from the barren shelves of K-Mart into the more reputable Macy's storefront.

MSLO, in turn, has defended its agreement with J.C. Penney, accusing "Macy's of breach of contract and saying the retailer stocked and priced Martha Stewart products in a manner that favors private-label brands." Specifically, lawyers for MSLO argue that its original 2006 agreement with Macy's permitted it to "design and sell products within the exclusive categories as long as they are sold through the Internet, television or at any retail store branded with the Martha Stewart name that's operated by the company or its affiliates or "prominently" features the brand." In other words, the original 2006 contract "gives Macy's the exclusive right, with important exceptions [emphasis added], to sell Martha Stewart-branded products in certain exclusive product categories." The agreement, as construed by MSLO, does not give Macy's an exclusive right to design, promote or sell any product outside certain named categories.

Justice Oing has set aside three weeks for the trial. Martha Stewart may be called to testify at trial, according to lists of potential witnesses.

The cases are Macy's Inc. v. Martha Stewart Living Omnimedia Inc., 650197/2012, and Macy's Inc. v. J.C. Penney Corp., 652861/2012, New York State Supreme Court (Manhattan).

http://about.bloomberglaw.com/legal-news/macys-and-martha-stewart-head-to-court-over-penney-pact/

Developments in the Oscar Pistorius Murder Case

South African police have replaced the lead investigator in the Oscar Pistorius murder case in light of revelations that lead investigator Hilton Botha is being charged with attempted murder in an unrelated case. Botha, who is facing seven charges of attempted murder, was replaced by Lieutenant-General Vinesh Moonoo. Prosecutor Gerrie Nel said that the attempted murder charges arise from a 2011 incident wherein Botha and two others fired at a minibus taxi that they were trying to stop.

The replacement announcement followed a bail hearing in a Pretoria Magistrates court where Botha stated that Pistorius and his girlfriend, Reeva Steenkamp, argued before he fatally shot her. Pistorius' lawyer called Botha's evidence "tainted," adding "Botha was not a credible witness." "We cannot sit back and take comfort he is telling the full truth," Pistorius' lawyer added.

The prosecution has disputed Pistorius' account of how he shot Steenkamp through a bathroom door at his home during the wee hours of Valentine's Day; Pistorius said that he thought Steenkamp was a burglar. If convicted of premeditated murder, Pistorius faces a maximum term of life in prison. The state considers Pistorius a flight risk, and opposes bail. The athlete's family said in a statement that his "iconic status internationally" made it highly unlikely that he poses a flight risk.

Pistorius, deemed "Blade Runner" because of his prosthetic running blades, was born without fibulas and had both legs amputated below the knee at 11 months old. The runner was included on Time Magazine's list of the world's 100 most-influential people, and is the winner of six Paralympic gold medals. Pistorius was the first amputee runner to compete at the Olympic Games.

In other developments, sporting-goods company Nike has reportedly suspended its contract with Pistorius. Additionally, a spokesman for eyewear company Oakley said that the company also suspended its contract with the athlete "effective immediately." Finally, Clarins SA's Thierry Mugler perfume brand said on Twitter that it was "removing all campaigns featuring Oscar Pistorius, out of respect and sympathy to families involved in the tragedy."

http://about.bloomberglaw.com/legal-news/pistorius-seeks-bail-as-police-investigator-faces-charges/

March 3, 2013

Week in Review

Martha Nimmer

Embracing the Evil

According to a panel of trademark judges in the nation's capital, "there is only one Evil Empire in baseball and it is the New York Yankees." Now, this may sound like bad news for the Bronx Bombers, but actually, it is quite the opposite: the statement came from the court in response to a request earlier this month from a private entrepreneur, known as Evil Enterprises, Inc., to register the trademark for the phrase "Baseballs [sic] Evil Empire." The Yankees objected to the registration, arguing that the team possessed the exclusive rights to the phrase in connection with baseball. The court agreed, stating "allowing anyone else to use the phrase exclusively would likely cause confusion."

Evil Enterprises initially applied for trademark registration of the "evil empire" phrase in 2008. According to The Wall Street Journal, the term was "coined in regard to the Yankees by Larry Lucchino, the president and chief executive of the Boston Red Sox, back in 2002." Lucchino referred to the Yankees as the "evil empire" upon learning that the team had acquired sought-after Cuban pitcher Jose Contreras. Unfazed by the
Red Sox, the Yankees embraced the evil empire label, even playing music from "Star Wars" during their home games.

Lawyers for Evil Enterprises are unsure if they will appeal the panel's ruling.

http://online.wsj.com/article/SB20001424127887323549204578320531185286140.html?mod=e2fb

The Great Intern Revolt of 2013

In what is sure to send chills throughout the boardrooms of corporate America, summer 2013 may be the last hurrah for unpaid intern labor. As it turns out, people -- yes, even students -- like to be paid for their work, which is what led two former interns for Fox Entertainment Group to sue Fox Searchlight in September 2011. The former interns, who worked on the hit movie "Black Swan", claim that the company's unpaid production internship program runs afoul of minimum wage and overtime laws. Broadly, the plaintiffs argue that the interns performed work for the film company that displaced paid employees; that Fox financed, closely monitored and set employment conditions on productions like Black Swan; and that the internship program didn't qualify as a bona fide training program under the Labor Department's "Six Factor Test." The suit against Fox Searchlight was later expanded to cover Fox's entire internship program. An amended complaint in the suit lists damages of at least $5 million.

Fearing an unfavorable ruling, Fox has filed numerous court papers, the latest one being a motion for summary judgment. Fox has also filed a motion to strike the class claims, in essence arguing that the typicality requirement for class action certification is not satisfied: "[f]our named Plaintiffs seek to certify five different classes of student interns, some of whom may have interned on any one of 27 movie productions (putative Production Interns) or may have interned at any of over 500 corporate offices nationwide (putative Corporate Interns). Plaintiffs make dozens of wage and hour claims under a host of state and federal laws against Defendants Fox Searchlight Pictures, Inc. and its parent company Fox Entertainment Group, Inc., neither of whom employed much of the putative class." To prevail in its motion to strike, Fox must convince the court that Fox was not a "joint employer," that the company's role was limited in organizing production internships, and that it is not feasible, or desirable, to adjudicate the array of claims made by individuals with unique and varied internship experiences with Fox.

http://www.scribd.com/doc/126599952/Interns-Dismissal

Read the plaintiffs' motion for summary judgment here: http://www.scribd.com/doc/126600276/Interns-Summary

Read Fox's motion for summary judgment here: http://www.scribd.com/doc/126599952/Interns-Dismissal

Six Strikes, You're Out

After years of planning, five major Internet Service Providers (ISPs) have finally launched the much anticipated and debated "Copyright Alert System." The goal of the program is to educate Internet users about content theft and decrease incidents of copyright infringement. The five ISPs are Verizon, AT&T, Comcast, Cablevision and Time Warner.

Under the Copyright Alert System, also dubbed the "Six Strike Policy" because of its graduated penalty system, content owners monitor P2P sites and look for material that has been uploaded without permission. Notices detailing the illicit uploads are then sent to the ISPs, which in turn send warnings to their users. The first warning, or "alert," sent to a user is used to notify an ISP subscriber that a customer has "made content available illegally through their connection." Subsequent alerts become more serious, and the consequences riskier.

Each ISP participating in the Copyright Alert System has its own mitigation measures, writes The Hollywood Reporter. AT&T, for example, plans to require repeatedly-targeted customers to complete an "online education tutorial on copyright." AT&T also reserves the right to cut off access to certain websites, and, after the fifth alert, share the offending customer's personal information with the content owner if it wishes to pursue legal action.

Unsurprisingly, the new system has its critics. Privacy advocates have denounced ISPs' plans to share user information with content owners. Small business owners who provide open WiFi access to customers, such as cafes and bookstores, also worry about the impact of the Copyright Alert System on the businesses' ability to use and provider Internet access. Even more concerned are the ISP customers, who want to know how they will be able to appeal an alert or a strike lodged against them. According to The Hollywood Reporter, The Center for Copyright Information, in collaboration with ISPs, suggests a review process handled by the American Arbitration Association as a way to allow customers to appeal strikes. Users who contest strikes will have to pay $35 for a review, although the fee is waived if financial hardship can be shown; refunds are given when appeals are successful.

Whether this program has any notable effect on clamping down on Internet piracy remains to be seen.

http://www.hollywoodreporter.com/thr-esq/internet-providers-launch-copyright-alert-424231

Fox and Dish

Fox just won't quit: last week, Fox Television filed an amended lawsuit and a new injunction in a California federal court, targeting Dish's Hopper with Sling, also known as "Dish Anywhere." Last July, a federal judge denied Fox's first motion for a preliminary injunction, ruling that that "copies made within Dish's system as an "intermediate" step to a user's time-shifting" qualified as fair use, and did not pose the threat of irreparable harm.

Dish's Hopper service was introduced in January, and received "widespread attention when CBS prohibited its CNET subsidiary from awarding a Best of Show prize." The Consumer Electronics Association eventually overruled CBS' decision, and awarded the product the prize. Fox, however, remains unimpressed. "Paying Dish for a satellite television subscription does not buy anyone the right to receive Fox's live broadcast signal over the Internet or to make copies of Fox programs to watch 'on the go,' because Dish does not have the right to offer these services to its subscribers in the first place," writes Fox in a memorandum in support of its preliminary injunction motion.

A Dish spokesperson responded to the lawsuit, saying, "[w]ith its latest motion, Fox continues its war against how Americans watch TV. Dish has long argued consumers have the right to privately watch shows anywhere, anytime, and it looks forward to continuing its fight on behalf of customer choice and control."

So, in the meantime, it looks like TV watchers are stuck with the tyranny of commercials...

http://www.hollywoodreporter.com/thr-esq/fox-asks-judge-stop-dishs-423295

Read Fox's preliminary injunction memo here: http://www.scribd.com/doc/126786202/Fox-Injunction-Motion

March 8, 2013

Week in Review

By Martha Nimmer

A Losing Bet

Siding with the NCAA and the NFL, a New Jersey federal judge has struck down a law that was set to legalize sports betting in the state. Both the NCAA and the NFL sued to prevent the law from going into effect, which was signed into law by New Jersey Governor Chris Christie in January 2012. The law permits betting on professional and college sports at racetracks and Atlantic City casinos.

The petitioners, which include the NCAA, the NFL, the NBA, the NHL and MLB, argued that the law, if permitted to go into effect, would undermine the integrity of professional sports. The petitioners also relied on a federal law from 1992 that required states to restrict sports betting. Specifically, the U.S. Professional and Amateur Sports Protection Act of 1992 bans sports betting in all but four states: Nevada, Delaware, Montana and Oregon.

New Jersey, in turn, argued that the 1992 law was unconstitutional. Unfortunately for New Jersey, the court did not agree: "[a]fter careful consideration, the Court has determined that Congress acted within its powers and the statute in question does not violate the United States Constitution," wrote U.S. District Judge Michael Shipp. To make matters worse for the Garden State, the judge also issued an injunction prohibiting the state from "sponsoring, operating, advertising, promoting, licensing, or authorizing a lottery, sweepstakes or other betting, gambling, or wagering scheme" based on college or professional sports.

The case is National Collegiate Athletic Association v. Christie, 12-4947, U.S. District Court, District of New Jersey (Trenton).

http://about.bloomberglaw.com/legal-news/new-jersey-sports-gambling-law-blocked-in-win-for-leagues/

Mad Model

Even though the photo in question was taken more than half-a-century ago, former fashion model Gita Hall May is not pleased that her image is being used in the Emmy winning television show, "Mad Men".

May rose to fame as a fashion model and actress in the 1950's and 1960's. The photo in question, taken by acclaimed photographer Richard Avedon, was used in a Revlon advertisement in the early 1960s. Fast forward more than fifty years, and the photo, according to the complaint, is the centerpiece of the hit show's opening credits. According to May, she only gave permission to Revlon to use the photo in connection with the promotion of cosmetics, and did not "agree to allow, forty years later, her image to be cropped from the photo [. . .] and inserted as a key element in the title sequence of a cable television series, without her consent and for commercial purposes." The former model seeks compensation for "the value her image contributed to their property or the revenues that her image contributed to their profit." According to the complaint, "Mad Men" has earned over $1 billion to date.

Although the series has been on the air since 2007, the suit explains that May only learned about the alleged unauthorized use of her image in 2012, when the show became available on home video. Apparently, May did not know that the show was on cable TV...

http://www.hollywoodreporter.com/thr-esq/model-79-sues-appearance-mad-425671

"Born This Way"...Except in Indonesia

As it turns out, Lady Gaga cannot count conservative Islamic groups among her fans, but she probably will not lose sleep over that. Her tour promoter, however, is pretty upset. The Mother Monster was scheduled to perform in Jakarta on June 2, 2012 as part of her Born This Way tour, but backed out following protests and threats from various Islamic groups. Specifically, the Jakarta Globe reported on May 17, 2012 that the "hardline Islamic Defenders Front (FPI) said it would dispatch 30,000 of its members to prevent Gaga from entering Jakarta." Now, Live Nation LGTours is trying to collect on part of the tour's insurance policy.

Citing millions of dollars in losses, Live Nation has sued a Lloyds of London syndicate in California federal court for not living up to the terms of a "Terrorism Policy," calling the defendant's conduct "despicable." The plaintiff states that this conduct subjected it "to cruel and unjust hardship in conscious disregard of the Plaintiff's rights... with the intent to vex, injure or annoy the Plaintiff, such as to constitute oppression, fraud or malice..." According to the lawsuit, the concert was canceled in order "to prevent bodily injury and property damage and to protect the lives and safety of Lady Gaga, all members of the Born This Way Tour, and the public." Following the cancellation, Live Nation tried to collect on its "Terrorism Insurance" policy. The language of the policy, according to The Hollywood Reporter, stated indemnification for the "ascertained net loss" for cancellations due to "the sole and direct result of Terrorism and/or Sabotage or Threat."

The plaintiff is seeking punitive damages and damages of at least $75,000 of "Ascertained Net Loss" for breach of contract and breach of the implied covenant of good faith and fair dealing.

http://www.hollywoodreporter.com/thr-esq/lady-gaga-concert-promoters-sue-426047

Read the complaint here: http://www.scribd.com/doc/128664504/Gov-uscourts-cacd-555670-1-0

Dotcom Defeat

The walls may finally be closing in on Megaupload founder Kim Dotcom. Last Friday, a New Zealand appeals court overturned a lower court decision, ruling that the United States government does not have to turn over documents as part of its claim that Dotcom participated in a "mega conspiracy." The appeals court also "offered key guidance" that will likely make it easier for the U.S. government to secure Dotcom's extradition to a Virginia for prosecution on racketeering and copyright infringement charges. An extradition hearing is set for August.

The documents originally ordered to be handed over by American officials were "copyright ownership records, records obtained from covert operations by agents to identify infringements on Megaupload's network, communications between copyright holders and Megaupload and more." The documents were sought by Dotcom's legal counsel to bolster their argument that the company, shut down in January 2012, cannot be held liable for copyright infringement because of the absence of intent. The attorneys also cite protections for Internet Service Providers under the Digital Millennium Copyright Act.

If the U.S. is to secure Dotcom's extradition, the government will have to convince a New Zealand judge that there is a "prima facie case that justifies extradition in the same manner that would persuade a judge to allow a trial in New Zealand." The hearing, according to the appeals court, involves only a "limited weighing of evidence," and the U.S. is presumed to be a reliable party. The defendant is permitted, however, to challenge that assumption.

Enjoy your freedom for now, Dotcom, and see you in August.

http://www.hollywoodreporter.com/thr-esq/kim-dotcom-extradition-case-us-425521

Read the decision here: http://www.scribd.com/doc/127949910/Usa-v-Dotcom-1

March 14, 2013

Week in Review

By Martha Nimmer

Legal Louboutins

The Second Circuit Court of Appeals has told shoe designer Christian Louboutin to back off. Late last week, the three judge panel ruled that the footwear demigod cannot interfere with the decision of the U.S. Patent and Trademark Office (USPTO) to limit the trademark protection for his coveted red-soled pumps.

The Louboutin legal drama began in 2011 after the shoe designer sued French fashion house Yves Saint Laurent (YSL) following his release of monochrome women's shoes, which included a red pair with red soles. Louboutin had been painting the soles of his shoes red since 1992, and trademarked the red sole in 2008. A federal judge in Manhattan ruled for YSL, holding that a single color cannot serve as a trademark in the fashion industry. Happily for Louboutin, the Second Circuit later concluded in September of last year that Louboutin's red sole "acquired limited 'secondary meaning' as a distinctive symbol that identifies the Louboutin brand." The clerk of the court then issued a mandate to the USPTO to "make appropriate entry upon that Office's records to reflect that U.S. Trademark Registration No. 3,361,597, held by Christian Louboutin and dated January 1, 2008, is limited to a red lacquered outsole on footwear that contrasts with the color of the adjoining ('upper') portion of the shoe." Unhappy with that directive, Louboutin filed a letter with the clerk of the court, requesting a modification of that mandate. Unswayed, the Second Circuit ruled last week to deny the motion for modification.

In denying Louboutin's motion, the court cited four factors underlying its decision not to recall the mandate: "[w]e have previously identified four factors to consider in determining whether to recall a mandate: (1) whether the governing law is unquestionably inconsistent with the earlier decision; (2) whether the movant brought to the Court's attention that a dispositive decision was pending in another court; (3) whether there was a substantial lapse in time between the issuing of the mandate and the motion to recall the mandate; and (4) whether the equities 'strongly favor' relief." The designer, according to the court, "made no showing that any of the factors favor recall and modification of the mandate. In short, this matter does not present the 'exceptional circumstances' required to grant such a request."

Read the decision here: http://www.entlawdigest.com/2013/03/13/ysl.pdf

http://www.entlawdigest.com/2013/03/13/2220.htm

Stopping Sexual Orientation Bias in the NFL

New York Attorney General Eric Schneiderman has asked the National Football League (NFL) to take steps to ensure that its teams do not discriminate against players or recruits based on their sexual orientation. Schneiderman stated that he sent a letter to NFL Commissioner Roger Goodell about the issue after three prospective players said that they had been asked questions relating to their sexual orientation. University of Colorado tight end Nick Kasa stated in a radio interview last month that several teams at an NFL scouting session asked him personal questions possibly aimed at determining his sexual orientation. University of Michigan quarterback Denard Robinson and Michigan State University running back Le'Veon Bell have alleged similar actions, writes ESPN.

The NFL, headquartered in midtown Manhattan, said in a statement last month that it planned to investigate one recruit's claims of sexual orientation bias, adding that teams are "expected to follow applicable federal, state and local employment laws." According to the Attorney General's letter, least 20 of the league's 32 teams are in jurisdictions that prohibit discrimination in hiring and employment based on sexual orientation. This, however, does not go far enough, according to Schneiderman, who wants the NFL "to issue a public statement and leaguewide [sic] policy that any form of discrimination or harassment on the basis of sexual orientation by teams against recruits or players 'constitutes a violation of state, local and, in some cases, contractual law, and will not be tolerated.'" Schneiderman has asked for a meeting with NFL officials to discuss the issue.

http://about.bloomberglaw.com/legal-news/nfl-must-block-sexual-orientation-bias-n-y-says/

The Metropolitan Museum of Deceptive Practices?

Meanwhile, on the Upper East Side, the Metropolitan Museum of Art (the Met) has found itself in the middle of a legal battle over admission fees. A class action filed earlier this month in New York County Supreme Court alleges that the Met tricks visitors into paying admission fees to visit the museum, despite a 19th-century agreement with New York City that the museum would follow a no-fee policy, in exchange for a perpetual, rent-free lease of the building situated on Fifth Avenue. The agreement contained no mention of rent, according to the complaint, but required that the museum be open free of charge at least four days a week. Those terms were later expanded, but after the museum expressed concerns about costs, lawmakers set the free-admission schedule at five days a week, including Sunday afternoons, plus two evenings a week. According to the complaint, this agreement was meant to provide access to the arts for citizens "without regard to financial means."

Now, lead plaintiff Filip Saska claims that the museum has become "an expensive, fee-for-viewing, elite tourist attraction, where only those of financial means can afford to enter this publicly subsidized institution situated on prime city-owned land." The plaintiffs claim that the "unlawful and deceptive" fees paid by the class number in the tens of millions of dollars annually. The complaint also states that the museum violates state consumer protection law with signs and cashier stations that lead visitors to believe they must pay to enter.

Specifically, the complaint points to a $25 admission fee posted in a large, bold font at the main entrance of the Met, while the word "recommended" is in "tiny, unbold print." Cashiers, the plaintiffs allege, are trained "to pressure and embarrass" visitors into paying the stated admission fee. "Nowhere in the building is any visitor advised that admission to the museum exhibition halls is free for most days of each week," the complaint states. The class also claims the Met uses deceptive practices online, specifically on its website and websites of third-party vendors, where advance-purchase admission and package deals are advertised.

The class seeks an injunction, costs and actual damages, and an end to admission fees on free days and any activities that "insinuate that payment of any sum is required" on those days, such as signs, brochures and promotions." The plaintiffs also want the museum to promote its free days in New York's economically disadvantaged communities.

http://www.entlawdigest.com/2013/03/08/2208.htm

Read about an earlier suit here: http://artsbeat.blogs.nytimes.com/2012/11/15/met-museum-being-sued-over-admission-fees/

"Argo F Yourself"

Sorry, Ben Affleck, but it turns out that Iran isn't so keen on Argo. The film, which won the Oscar for Best Picture just a few weeks ago, depicts the harrowing escape of six American embassy staffers from Iran following the 1979 attack on the U.S. Embassy in Tehran. The six staffers were hidden by the Canadian ambassador to Iran, and escaped from the country by pretending to be part of a Canadian film crew scouting movie locations for a sci-fi flick. Unsurprisingly, Iranian officials have dismissed Argo as pro-CIA, anti-Iran propaganda.

The decision to file suit came after a group of Iranian cultural officials and film critics viewed the film in a private Tehran theater late Monday. Cultural officials dismissed the movie as a "violation of international cultural norms," although the statement did not specify which cultural norms. A statement issued after the screening also said that "awarding an anti-Iran movie is a propaganda attack against our nation and entire humanity." The press release did not specify how the movie was allegedly unrealistic, but Iranian officials have stated that the film depicts Iranians as "too violent." Luckily for fans of sanity and free speech, it remains unclear what specific claims Iran could raise against Argo's producers, and what court the country could turn to for relief. According to several media outlets, French lawyer Isabelle Coutant-Peyre is in Iran for talks with officials over how and where to file the lawsuit.

http://news.yahoo.com/reports-iran-mulls-suing-hollywood-over-argo-082542562.html


March 22, 2013

Week in Review

By Martha Nimmer

Fifty Shades of Gray Goods

The U.S. Supreme Court has ruled that copyrighted materials manufactured abroad can be resold in the United States. The 6-3 decision, issued on Tuesday, affects a multibillion dollar "gray goods market," in which parties import copyrighted or trademarked goods into the U.S. In some cases, these "gray goods" are then resold online or at discount retailers across the country. The goal behind this practice is to acquire goods made and sold abroad at lower prices, and then sell them at a profit in the U.S. Companies such as eBay and Costco have engaged in this practice for years, despite arguments that this practice violates American law.

The case, Kirtsaeng v. John Wiley & Sons, Inc., decided on Tuesday, involved a mathematics student from Thailand who helped pay his tuition at Cornell and the University of Southern California by selling textbooks that friends and relatives had purchased in his home country and then sent to him. The student, Supap Kirtsaeng,then resold the books on eBay. He is said to have made about $100,000 profit. Unsurprisingly, one publisher, John Wiley & Sons (Wiley), was not pleased, and sued Kirtsaeng for copyright infringement. Wiley won $600,000, with the lower court ruling that Kirtsaeng had violated U.S. copyright law by importing books without the permission of the copyright owner. Kirtsaeng appealed to the U.S. Supreme Court, arguing that his actions were permissible under the first sale doctrine. Under that doctrine, "buyers of books and other copyrighted goods may lend or sell them as they wish." Fearing the extension of the first sale doctrine to goods purchased abroad and then resold on the American market, a bevy of companies in publishing, software, and other industries warned the Court that a decision in favor of Kirtsaeng would harm their ability to sell products at lower prices in developing nations, and could possibly result in higher prices overall.

The high Court, however, was unmoved. Writing for the majority, Justice Stephen Breyer noted that Congress did not intend to limit the first-sale doctrine with a "geographical interpretation," which "would threaten ordinary scholarly, artistic,commercial and consumer activities." Consequently, the goods, once sold lawfully abroad, can now be resold in the U.S. without the copyright holder's permission. Justices Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy were in the dissent. Calling the majority's opinion a "bold departure from Congressʼ design," Justice Ginsburg wrote that the majority was casting aside an explicit goal of American copyright law -- "to protect copyright owners against the unauthorized importation of low-priced, foreign-made copies of their copyrighted works." Justices Elena Kagan wrote a concurring opinion, in which Justice Samuel Alito joined. Acknowledging the dissent's concerns, Kaganʼs opinion noted that Congress is free to modify the law if it feels that copyright owners need more protection.

http://www.npr.org/blogs/thetwo-way/2013/03/19/174757355/supreme-court-oksdiscounted-resale-of-gray-market-goods

Read the opinion here: http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

Shape Up

With names like "Spanx" and "Yummie Tummie," you know youʼre in for an interesting legal battle. Things get even juicier when you add a "Real Housewife" to the mix. Enter the case of Spanx, Inc. v. Times Three Clothier, LLC. Filed in Atlanta federal court by billionaire (yes, with a B) shapewear creator Sara Blakley against The Real Housewives of New York City member Heather Thomson, the Spanx suit seeks a declaratory judgment that Spanx has not infringed Yummie Tummieʼs design patents. This suit comes shortly after Thomson publicly "accused Blakely of copying several of her camisoles . . . She specifically demanded that Blakely stop selling items called Spanx Total Taming Tank and Top This Cami," according to Business Week. A Spanx spokesperson responded that Spanx "was making shaping camisoles long before Yummie Tummie." Blakely started Spanx in 2000, while Thomson created her line in 2008. The earliest of Thomsonʼs camisole patents is from 2009.

What makes this case particularly notable is that it involves a dispute about design patents, not trademark or copyright law, which are the more frequently looked to fields in the realm of fashion design protection. In fact, some observers believe that this emphasis on patents signals a new trend in design protection: yoga clothier Lululemonʼs fight with Calvin Klein late last year, as well as Apple Samsung Electronics legal drama, have also been over design patents.

Given the barbs that the parties have traded, it looks like this case is "shaping up" to be a dramatic legal battle.

http://www.businessweek.com/articles/2013-03-13/spanx-v-dot-yummie-tummie-in-court

Read the complaint here: http://www.businessweek.com/pdfs/Spanx_v._Times_Three_Clothier.pdf

Have You Seen This Priceless Work of Art?

Twenty-three years ago, two thieves pulled off a $500 million dollar art heist at the famed Isabella Stewart Gardner Museum in Boston. The thieves, who posed as police officers, overpowered the museumʼs night security guard, tied him up and made off with 13 priceless works of art, including pieces by Vermeer, Rembrandt, Manet and Degas. The crime remains unsolved, but investigators are getting closer to cracking the case.

On Monday, federal officials went public with news that they had learned the identities of the thieves, who allegedly belong to a criminal organization based in New England and the Mid-Atlantic states. Although officials did not reveal the exact names of the alleged thieves, the FBI did say that the paintings had been traced to Connecticut and the Philadelphia area 10 years ago. A special agent in charge of the FBIʼs Boston office added that the bureau planned to launch a publicity campaign aimed at gathering leads from the public, "and possibly from acquaintances of the thieves, [or] anyone who may have glimpsed one of the paintings over a mantel, say, or in an attic," writes The New York Times. The FBI plans to put up billboards in Connecticut and Philadelphia that feature images of the pilfered art work. Following the FBIʼs announcement, museum representatives reiterated the museumʼs earlier promise of a $5 million reward for information leading to the recovery of the works, with the understanding that they be in good condition.

Perhaps seeking to counter fears of criminal prosecution, attorney Carmen Ortiz added that the statute of limitations had expired for the crime of art theft. Anyone in possession of the art could, however, still face charges for the possession of stolen property. The FBI agent in charge of the Gardner heist also said it was possible that the people in possession of the works may not even be aware of their significance, or that they were stolen.

So, if youʼre in Connecticut or Philadelphia and you come across one of the missing paintings and it looks too good to be a reproduction, itʼs probably not.

http://www.nytimes.com/2013/03/19/us/fbi-says-it-has-clues-in-1990-isabella-stewart-gardner-museum-art-heist.html?adxnnl=1&hpw=&adxnnlx=1363960957-6KjyeMQMbMV9Qh76nXdAtA

Masks, Swords, and Smoke & Mirrors

Zorro is in the public domain and belongs to the masses, at least according to a lawsuit filed last week in Washington State federal court. The suit, brought by playwright Robert Cabell, asserts that defendants have "built a licensing empire out of smoke and mirrors" even though the copyright interests in the Zorro works expired years ago. Cabell claims that a 1919 story by Johnston McCulley, "The Curse of Capistrano", was "the first Zorro story." Cabell published a musical--"Z--The Musical of Zorro"--in 1996, and was threatened with litigation by Zorro Productions, Inc. owner John Gertz after licensing the musical last year to a performance company in Germany. The plaintiff claims that his work is based on author Johnston McCulleyʼs first Zorro story from 1919 and the 1920 Douglas Fairbanks film. Fearing legal action, Cabell has gone to court in the hopes of having it declare Zorro to be in the public domain. Specifically, the plaintiff avers that the "Defendants have fraudulently obtained federal trademark registrations for various Zorro marks and falsely assert those registrations to impermissibly extend intellectual property protection over material for which all copyrights have expired. Defendants also fraudulently assert that copyrights for later-published material provide defendants with exclusive rights in the elements of the 1919 story and the 1920 film." The complaint continues: "[n]early one hundred years later, the character is well-known as the masked outlaw who defends the public against tyrannical officials and other villains . . . Although Mr. Cabell's rights to use these public domain works is clear, the defendants have engaged in a campaign of intimidation and coercion aimed at preventing Mr. Cabell (and any other third party) from the legitimate use of this public domain material."

In support of the claim, Cabell points to a lawsuit filed by Sony Pictures over a decade ago against Paramount Studios over the television series Queen of Swords. (Sony, as readers will recall, made the 1998 Zorro film starring Antonio Banderas.) The plaintiff also relies on a footnote from a 2001 federal court decision, wherein the judge said, "[i]t is undisputed that Zorro appears in works whose copyrights have already expired, such as McCulley's story The Curse of Capistrano and Fairbanks's movie, The Mark of Zorro."

Cabell seeks a declaratory judgment that his musical does not violate any intellectual property rights held by defendants, and a preliminary and a permanent injunction against defendants prohibiting them from making claims that the musical infringes any of their intellectual property rights. Cabell also demands the cancellation of defendants' federal trademark registrations for the mark Zorro.

http://www.entlawdigest.com/2013/03/14/2224.htm

http://www.hollywoodreporter.com/thr-esq/zorro-rights-challenged-as-invalid-428561

March 28, 2013

Week in Review

By Martha Nimmer

Secret Strikes

A federal judge for the U.S. District Court for the District of Columbia has handed a legal victory to the Office of Management and Budget (OMB), ruling that the OMB and other government entities do not have to turn over additional documents relating to the recent adoption of the Copyright Alert System. The system, implemented by major Internet Service Providers (ISPs) in February, following years of discussion and negotiations with entertainment representatives and government officials, is more commonly known as the "Six Strike Policy." It is based on the graduated penalties imposed on Internet users who make infringing material available online.

This demand for additional documents related to the adoption of the system arose after ACLU policy analyst Chris Soghoian "pushed to uncover more information about the program and the government's role in fostering cooperation that led to the adoption of the Copyright Alert System." Soghoian, however, met with limited success: he was able to file a Freedom of Information Act (FOIA) request to obtain limited information on the Obama Administration's involvement in the negotiations between entertainment industry leaders and ISPs. The U.S. government refused, however, to comply with Soghoian's full request for documents, declining to turn over material related to discussions about the "Memorandum of Understanding" between the MPAA, RIAA and ISPs; the potential costs and risks associated with the Copyright Alert System; and other opinions and recommendations that did not end up in the final agreement, among other documents.

Unfortunately for Soghoian and other advocates of government transparency, the court was not convinced. Judge Royce Lamberth ultimately ruled that some of the information provided by entertainment and ISP representatives during Copyright Alert System talks qualified as "trade secrets and commercial or financial information," thereby falling under one of the exemptions provided in the Freedom of Information FOIA. As for communications from the Obama Administration and other information that did not qualify for the trade secrets exception, Judge Lamberth wrote: "[p]rotecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision."

http://www.hollywoodreporter.com/thr-esq/government-anti-piracy-six-strike-431549

Read the decision here: http://www.scribd.com/doc/132841735/Foi-a-Denial

Yoko No No

Brooklyn fashion designer Haleh Nematzadeh has sued Yoko Ono and posh retailer Opening Ceremony in Brooklyn federal court, alleging copyright infringement of her design sketches for her clothing collection "Gonna Walk the Night." Nematzadeh claims that Ono and Opening Ceremony "stole the designs of [Nematzadeh], an up and coming designer, and pawned them off as their own" after meeting with her last summer.

According to the complaint, the plaintiff "was introduced to photographers working for OC [Opening Ceremony] to do a photo shoot of the collection in July 2012 ... so that it may be featured for sale in OC's catalog and stores worldwide." During the shoot, Nematzadeh claims that she showed sketches and pictures of her designs to Opening Ceremony photographers, who are alleged to have abruptly cancelled the shoot after viewing the plaintiff's sketches and designs. The plaintiff claims that she later published her designs with the help of a different photographer, although the complaint fails to detail when or where the designs were published. The complaint continues: "[s]oon after the plaintiff launched the collection, within which her designs were published, the defendants published an identical collection ('Offending Collection') . . . The offending collection copied exact designs as well as imitated the designs and concepts from plaintiff's collection." "To conceal their thievery," the complaint continues, the defendants renamed the collection and called it a collection for men, even though one of the designs that Ono allegedly copied from Nematzadeh's collection included a bra-like top.

Nematzadeh seeks $10 million for copyright infringement, disgorgement of unjust profits and delivery or destruction of the infringing products.

http://www.courthousenews.com/2013/03/25/56019.htm

True Crime

Lifetime viewers can breathe a sigh of relief: Lifetime Television will be able to air Romeo Killer: The Christopher Porco Story this Saturday, despite an injunction issued earlier this week by a New York Supreme Court judge. According to The Hollywood Reporter, the network made a successful emergency appeal after the injunction was issued on Tuesday. The New York Supreme Court's appellate division has given Porco until April 10th to show cause as to why the injunction order should not be lifted.

The legal dispute arose when the movie's namesake, Chris Porco, brought suit, arguing that the film violated "his rights to his name and image." According to Fox News, Lifetime prevailed in its appeal by arguing that the judge's "unprecedented ruling would have 'devastating financial' impacts on Lifetime and cost the network 'millions of dollars in investment, lost revenue and untold harm to its brand.'" The appeal stated that the network had spent more than $2 million to obtain the rights to the film, and an additional $1 million promoting it. "It's a sad day when a convicted murderer who has exhausted all of his appeals can convince any court to stop people from exercising their First Amendment right to talk about his crime," a representative from Lifetime commented.

The Lifetime movie at the heart of the case "tells the true story of University of Rochester student Christopher Porco, who was convicted of brutally murdering his father and attempting to kill his mother." Porco is currently serving a minimum 50 year prison sentence.

So, fellow readers, be sure to sets your DVRs to record what Lifetime has called "the movie that Chris Porco doesn't want you to see."

http://www.foxnews.com/entertainment/2013/03/21/lifetime-movie-about-christopher-porco-wont-air-judge-rules/

April 8, 2013

Week in Review

By Martha Nimmer

First Sale Fallacy

Last week, a federal judge in New York ruled that the first sale doctrine does not apply to digital music. On Monday, U.S. District Judge Richard Sullivan held "the first-sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce." This comes as bad news for ReDigi, a company started in October 2011 that sought to apply the first sale doctrine to the resale of "used" digital music purchased from iTunes. According to The Hollywood Reporter, ReDigi's system permitted "song files to be stored in a cloud. The company assured that it had technical measures in place to delete those files from a user's hard drive after the files were resold." Google, a supporter of this novel approach to selling digital music, tried to file an amicus brief in support of ReDigi. Judge Sullivan, however, declined to rule in the defense's favor.

In holding that the first sale doctrine does not permit the re-sale of used digital music, Judge Sulllivan first addressed a copyright owner's reproduction rights; these, the judge wrote, are "the exclusive right to embody, and to prevent others from embodying, the copyrighted work (or sound recording) in a new material object (or phonorecord)." The judge also pointed to previous P2P infringement cases that distinguished between the copyrighted work and the material--digital--object: "when a user downloads a digital music file or 'digital sequence' to his 'hard disk,' the file is 'reproduce[d]' on a new phonorecord within the meaning of the Copyright Act." Judge Sullivan did not stop with the Copyright Act, however, turning later to the "law of physics": "[t]his understanding is, of course, confirmed by the laws of physics," the judge said. "It is simply impossible that the same 'material object' can be transferred over the Internet. ... Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act."

So, at least for now, it seems unlikely that used digital music "stores" will be popping up across the Internet.

http://www.hollywoodreporter.com/thr-esq/judge-hands-defeat-business-selling-432110

Read the decision here: http://www.scribd.com/doc/133478866/redigi

Mendelssohn Heirs Seek Return of Picasso

Descendants of the Mendelssohn family--the same family that produced famed Romantic composer Felix Mendelssohn--have sued the Bavarian government, seeking return of the famed 1903 Picasso work "Madame Soler." The plaintiffs claim that their ancestor, Berlin banker and art collector Paul von Mendelssohn-Bartholdy, was forced to sell the painting in question in 1934 to Berlin art dealer Justin K. Thannhauser, following threats and pressure from the Nazis.

These "paradigmatic forced transfers" of art and other valuable goods arose as a result of "Nazi policies to eradicate Jewish-owned banks and bankers." Mendelssohn-Bartholdy, facing "escalating Nazi predation directed at his real estate property - and with no reasonable expectation of receiving any sustainable future income" from his other corporate holdings, began "liquidating his art collection to protect his residual estate from Nazi seizure and to offset his precipitate deficit," the complaint states. The government in Bavaria eventually acquired the painting from Justine Thannhauser in 1964, ignoring the "conspicuous possibility that Nazi policies had deprived Mendelssohn-Bartholdy" of the work of art, and the fact that the initiator of the purchase for Bavaria, Halldor Soehner, was himself an ex-Nazi. Furthermore, the complaint avers, at the time of the Madame Soler acquisition, the Bavarian government was planning a secret sale of some 113 paintings that former Nazi officials had acquired prior to and during the Second World War. The complaint continues: with the help of ex-Nazi Halldor Soehner, Bavaria successfully auctioned 106 of these works in 1966-67 by concealing the provenance of these paintings, leaving prospective buyers unaware that notorious Nazi leaders once owned these priceless pieces of art that likely were acquired from persecuted Jewish families.

Hoping to recover the Picasso work, Mendelssohn-Bartholdy submitted a claim to recover the piece, "which included an 86-page memorandum and scores of exhibits proving that Nazi duress had compelled Mendelssohn-Bartholdy to relinquish the painting." The Bavarian government declined to return Madame Soler, stating "there is no connection between the sale of the artwork and the persecution of Paul von Mendelssohn-Bartholdy by the National Socialist regime." According to the complaint, Bavaria later refused to submit the claim to a special commission in Germany, charged with resolving Holocaust-era art recovery claims.

At its peak, the "Mendelssohn-Bartholdy's private art collection comprised approximately 60 master works by luminaries such as Picasso, van Gogh, Braque, Monet, Renoir and others. When he died of a heart attack at age 59 in 1935, Mendelssohn-Bartholdy had sold or consigned some 16 of these artworks in a period of less than 1.5 years of Nazi rule (September 1933 through February 1935) - having never sold a single major work in the more than 25 years that he had collected art before the Nazis took power in 1933." The heirs demand return of the painting or $100 million. They claim that by withholding the Picasso, "Bavaria in effect has ratified the wrongdoing of the Nazi government that purposefully compelled Mendelssohn-Bartholdy to forfeit the painting."

http://www.entlawdigest.com/2013/03/29/2267.htm

Fox Sports Sued for Race Discrimination

Last week, a former executive at Fox Sports sued Fox Cable Network Services, alleging he was denied a promotion and eventually fired because of his race. The suit, filed last Friday in Los Angeles Superior Court by Jerry Davis, states that he worked at Fox for over fifteen years as a director in the music department. Davis, who is African American, says that when the job above his became available on four different occasions, he was passed over "because, as a black man, he did not fit neatly in the company's corporate culture." Davis states that during his fifteen years at Fox, he did not receive a single promotion. According to the complaint, the defendant eventually "eliminated [Davis'] position when he was on disability leave 'without providing any interactive process or attempts at accommodation.'"

A lack of diversity plagues broadcast programming at Fox, at least according to Davis. "In the division that runs broadcast / 'over the air' sports programming for Fox, there are currently approximately 34 individuals employed at or above the vice president level. None are [sic] black," the lawsuit states. The complaint goes on to state that, "to the best of Mr. Davis' knowledge, no black person has ever held any position at or above vice president in that division's 19 year existence."

The suit alleges causes of action for unlawful discrimination based on race and disability, as well as retaliation and a failure to accommodate disability, wrongful termination and intentional infliction of emotional distress.

http://www.hollywoodreporter.com/thr-esq/fox-sports-sued-race-discrimination-434018

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/bc504990.pdf

Close Call for Netflix

Netflix CEO Reed Hastings can breathe a sigh of relief: the U.S. Securities and Exchange Commission (SEC) has declined to bring regulatory sanctions against Hastings for announcing monthly viewing results on his Facebook page. In July of last year, Hastings made the mistake of posting on his Facebook page that viewing on Netflix's service had "exceeded 1 billon hours for the first time."

Under SEC Regulations, publicly-held companies are obligated to report findings and other information in a public filing before releasing the information via other media. The SEC's decision not to sanction Hastings arises, in part, from uncertainty surrounding whether SEC disclosure requirements apply to social media, such as Facebook. Following Hastings' announcement, onlookers called for the SEC to allow social media platforms to be used to communicate with investors. Last week, the SEC responded with an investigation that states that companies may utilize social media to announce key information, provided that investors have been told where this information can be found online.

Don't forget to "Like" Reed Hastings on Facebook...

http://www.bloomberg.com/news/2013-04-02/netflix-ceo-won-t-face-sec-claims-over-disclosures-on-facebook.html

Read the SEC investigation here: http://www.sec.gov/litigation/investreport/34-69279.pdf


April 19, 2013

Week in Review

By Martha Nimmer


"Spider Man: Turn Off the [Lawsuits]"

The Broadway production of "Spider-man Turn Off the Dark" ("Spider-man") has been plagued by problems, whether they be legal or safety related. Last week, however, the show received some welcomed good news: after more than a year of legal brinksmanship, former "Spider-man" director Julie Taymor announced a settlement among the feuding parties. The agreement will avoid a messy and high-profile trial that was set to commence on May 28th in a federal courtroom in Manhattan. The settlement terms were not made public, but likely concerned everything from copyright claims to artistic credit to profit sharing.

Taymor originally filed suit back in 2011 after being terminated by the show's producers. Sources close to Taymor say that she will receive a hefty financial settlement if the show receives wide acclaim. In return, the show's producers will no longer need to obtain the former director's approval for future tour dates or changes to the show's staging or script, which Taymor helped create. The effect of this "artistic divorce" is to allow the producers to "have a free hand to transform 'Spiderman' from its current form--a traditionally structured Broadway musical--into an arena-style special-effects extravaganza . . . ." that could be performed in Las Vegas or other, larger venues abroad.

Another notable aspect of the settlement, according to The New York Times, involves the "unusually high weekly operating expenses of the current New York production, running at the Foxwoods Theater." The Times writes that the show currently costs between $1.1 million and $1.2 million a week, the highest on Broadway. This hefty price tag can be attributed to the show's many aerial stunts and technical complexity. The problem with those expenses is that ticket sales as of late are only reaching between $1 million and $1.5 million during most weeks. With those expenses and box-office grosses, the musical is struggling to recover its $75 million capitalization. No longer needing Taymor's approval to alter the show script or staging can allow the producers to cut down on some of the revenue draining aerial stunts, while making it easier for the show to turn a profit. In essence, "the settlement basically removes a number of impediments toward having a long and commercially healthy run on Broadway and having future productions of the show around the world that will benefit everyone involved," according to an individual close to the show's producers.

http://artsbeat.blogs.nytimes.com/2013/04/10/taymor-producers-reach-settlement-in-spider-man-legal-battle/?ref=julietaymor

Raging Retailers

Bad news for retail giant Macy's: the judge presiding over the company's lawsuit against Martha Stewart and J.C. Penney ruled last week to permit the sale of Martha Stewart merchandise in J.C. Penney stores, despite objections by Macy's that it has the exclusive right to sell Martha Stewart sheets, towels and cookware. According to ABC News, "the items covered by [last week's] ruling do not carry Stewart's name, but were designed for J.C. Penney by her company." Macy's had hoped that the judge would prevent retail rival J.C. Penney from selling anything connected to Martha Stewart. Last week's ruling, writes ABC, will "free[] up about $100 million worth of merchandise J.C. Penney had sitting in storage." Macy's is filing an appeal.

Readers will recall that Macy's sued Martha Stewart Living earlier this year for breach of contract, stating that "an agreement to sell products at J.C. Penney in 2011 ran counter to Stewart's deal with Macy's in 2006." Macy's later sued J.C. Penney, arguing that the latter had interfered with the former's Martha Stewart contract. The retailers were ordered by presiding Judge Jeffrey Oing to enter mediation, but failed to reach an out of court agreement by an April 8th deadline.

A spokesman for J.C. Penney stated that the company was "pleased with the court's ruling to allow the sale of 'JCP everyday merchandise' in our stores."

http://abcnews.go.com/Business/partial-ruling-favors-jc-penney-macys-suit-martha/story?id=18942572#.UXBguRyDBQN

Hopi Artifacts Controversy

Despite protests and public outcry, a sale of Hopi Indian artifacts went forward last week at a Paris auction house. The auction of these items brought in an estimated $1 million in sales, despite the presence of protesters who urged auction patrons not to bid on the sacred pieces. One of the items at auction was an 1880s headdress called "Crow Mother." According to The New York Times, bidding on this piece "soared" from the estimated $80,000 value to over $200,000. When the piece was eventually sold, a woman in the sales room shouted "Don't purchase that. It is a sacred being."

The auction of the Hopi artifacts was at the center of international scrutiny and diplomatic talks between the United States and French officials last week. A few hours before the auction, a municipal court judge in Paris ruled that the sale could go forward, finding that the objects, "despite their divine status among the Hopis, could not be likened to dead or alive beings." An attorney for the Hopis had argued that the tribe believes that the works embody living spirits, making it "immoral" to sell them under French law. According to the Hopi tribe lodge, the artifacts, known as Katsinam, or "friends," were stolen from tribal lands in Arizona. The auction house responded to these allegations by stating that the pieces were legally obtained from a French collector decades ago.

Five of the 70 Hopi artifacts did not sell, with many pieces selling below the low estimate. On a brighter note, a foundation that purchased one of the pieces plans to return it to the Hopi tribe.

http://artsbeat.blogs.nytimes.com/2013/04/12/french-judge-rules-that-auction-of-hopi-masks-can-proceed/

Their Day in Court

Last week, lawyers for the National Football League (NFL) appeared before U.S. District Court Judge Anita B. Brody to argue that a lawsuit for fraud and negligence, brought against them by over 4,000 former NFL players, should be dismissed. The NFL's lawyers argued that the case "should be dismissed because the players had agreed to a collective bargaining agreement and therefore an arbitrator, not a judge, should hear their cases." On the other side, lawyers for the retired players and their families stated that their clients' cases should be heard in court because of the fraud accusation, adding that "fraud would supersede any labor agreement." Judge Brody may either dismiss the entire lawsuit, or permit parts of the case to proceed. This decision, coupled with appeals and lengthy discovery, could take years.

Following the hearing, spokespersons for both sides made statements about the events that day. Lawyers for the NFL repeated that any injuries to former players were governed by a collective bargaining agreement and hence, could not form the basis of a lawsuit against the NFL. Attorneys for the players and their families again accused the NFL of negligence and indifference to players' injuries, some of them life-threatening and even life-ending. "What they were doing there when they brought us so much pleasure, they were also suffering insidious injuries," said one of the lawyers. He also accused the NFL of willful blindness towards signs that players had sustained serious injury that risked causing long-term, irreversible damage: "the league knew or should have known that these repeated blows to the head caused significant neurological injury."

It is unclear when the judge will rule.

http://www.nytimes.com/2013/04/10/sports/football/judge-hears-nfl-arguments-to-dismiss-head-trauma-cases.html?_r=2&

"Operation BearLove Good, Cancer Bad": Tales from the Internet

The Internet, and much of the litigation that surrounds it, are gifts that keep on giving. Since we could all do with some comedy, get comfortable as I tell you the tale of "Operation BearLove Good, Cancer Bad."

Like many online controversies, "Operation BearLove Good, Cancer Bad" began with some alleged copyright infringement, with a side of hurt feelings and sarcasm. After Matthew Inman, creator of popular comic website The Oatmeal, complained online in 2010 that content aggregator website FunnyJunk.com was using some of his work without his permission, Charles Carreon, an attorney for Funny Junk, sent Inman a demand letter, seeking $20,000 in damages. The letter also demanded that Inman remove all references on his blog and website to Funny Junk and the alleged misuse of his works. Laughing off the demands, Inman launched a fundraiser called "Operation BearLove Good, Cancer Bad," which sought to raise $20,000, with the proceeds donated to charity instead of to FunnyJunk.com. The fundraising campaign featured a cartoon, drawn by Inman, of an obese woman in her underwear, trying to seduce a bear.

Operation BearLove ultimately raised $200,000, which Inman gave to the National Wildlife Federation and the American Cancer Society. Charles Carreon, however, was not too pleased, eventually filing a defamation lawsuit over the cartoon and the statements made by Inman in his fundraising campaign. Carreon also claimed that Inman did not actually intend to raise money for charities, but sought to "revile Inman's legal adversaries," and to "initiate a campaign of trolling and cyber vandalism against them . . . ." Carreon kept going, adding the American Cancer Society and the National Wildlife Federation to his suit, stating that neither charity had "disavowed their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign." (Yes, an attorney actually wrote that and filed it in court.) Carreon later dropped his suit against Inman, the online fundraising platform Indiegogo, and the two charities. This, however, is not where our story ends.

While Carreon was crusading against an Internet comic, other Internet bloggers took notice. One of these people was blogger Christopher Recouvreur. Recognizing comedic gold, Recouvreur set up a website, charles-carreon.com, where he used "exaggerated language to parody the tone of Carreon's demand letters and other communications." After coming across this website, Carreon threatened Recouvreur with legal action. In response, Recouvreur filed an anonymous declaratory judgment complaint wherein he alleged that Carreon had "threatened to sue him for trademark infringement." Additionally, Recouvreur argued that he should be permitted to use the charles-carreon.com domain name for his satirical website, adding "the website was designed to make clear that it was a parody, with the phrase "censorious douchebag" appearing in the title tag on each page of the site."

After several unsuccessful attempts to serve Carreon with the suit, service of which Carreon refused to waive, Recouvreur's attorney was finally able to serve Carreon in person, outside a courtroom. Later, Recouvreur moved for expenses and attorneys' fees, leading Carreon to offer a judgment of $725 pursuant to Rule 68 of the Federal Rules of Civil Procedure. The offer stated that Carreon would "deem Recouvreur's use of the domain name and current use of the website as not violating his rights and as protected under the First Amendment. It specified that $725 would cover the filing fee and service costs." Recouvreur accepted this offer, but filed a second motion for $77,765.25 in fees pertaining to the work that his attorney, Paul Levy, prepared on the two motions.

Hopefully putting this weird tale from the Internet to rest, U.S. District Judge Richard Seeborg ruled last Friday that these attorney's fees are available to Recouvreur under the Lanham Act, finding that Recouvreur's "acceptance of the $725 judgment offer did not moot the fees request since that judgment 'specifically referred to the 'filing fee' and 'costs of service.'" Judge Seeborg calculated the fee award to be $37,650.25. He also cast aside Carreon's claims that his litigation threats are protected by the litigation privilege of California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law.

Thus, dear readers, it appears that the tale of Operation BearLove Good, Cancer Bad has come to a close.

http://www.entlawdigest.com/2013/04/17/2312.htm

Read the decision here: http://www.courthousenews.com/2013/04/16/carreonruling.pdf

April 25, 2013

Week in Review

By Martha Nimmer

Prince Prevails

In what is being called a decision that could influence the future of art and "the nature of art," artist Richard Prince has prevailed against photographer Patrick Cariou. Two years ago, Prince was found by a federal court to have violated U.S. copyright law when he used Cariou's photographs of Rastafarians in Jamaica to create a series of collages and paintings. These photos appeared in Cariou's book, Yes Rasta, which featured a series of portraits from Cariou's travels in Jamaica. The book was published in 2000. Prince admitted using the photos, incorporating them into a series of works called Canal Zone, which he exhibited in 2007 and 2008. The works have generated over $10 million in sales.

Surprisingly, when questioned during depositions, Prince did not rely on the fair use exception to the Copyright Act, an argument that "probably could have defended his appropriation better. . . ." Instead, Prince merely said that his art "doesn't really have a message." This somewhat nonchalant approach to copyright law and fair use likely led the lower court to rule against Prince in 2011. Last week, however, the Second Circuit found that 25 of Prince's 30 works actually did qualify as protected fair use because "they "have a different character" from Mr. Cariou's work, give it a "new expression" and employ "new aesthetics with creative and communicative results distinct" from the work that Mr. Prince utilized. In that regard, Judge Barrington Parker, Jr. wrote, "[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince's work could be transformative even without commenting on Cariou's work or on culture, and even without Prince's stated intention to do so."

http://www.nytimes.com/2013/04/26/arts/design/appeals-court-ruling-favors-richard-prince-in-copyright-case.html?ref=arts

http://www.hollywoodreporter.com/thr-esq/appropriation-artist-richard-prince-prevails-446479

Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5da8dc66-179e-4dc0-94cc-09e213bfffe3/1/hilite/

#TalesfromTwitter

Devin Ebanks is better known for being a forward on the Los Angeles Lakers, but found himself at the center of a rape investigation in September 2011. Three months later, Ebanks was cleared of the charges. As to be expected, TMZ published a story on the matter, including "some crazy details" about the alleged incident. That, however, is not where the story ends. After learning that he was cleared of the charges, Ebanks went straight to the World Wide Web and "took some delight" in the TMZ story on Twitter. Later, a Twitter followed named Junior, who, according to The Hollywood Reporter, introduced Ebanks to his female accuser, tweeted at Ebanks, "glad you got cleared...." To this, Ebanks responded, "thanks bro next time u wanna hook me up, dnt lol."

Ebanks' accuser later anonymously sued Ebanks for sexual assault. What set this case apart from other actions involving sports starts, however, is that the plaintiff "included a claim for defamation for what was said by [Ebanks] on Twitter." The Laker responded with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the defamation claim, stating that Ebanks' tweet was protected free speech. That argument opened the door to a strange and unexpected argument by the plaintiff's attorneys:

"When Defendant responded to the Twitter message, 'I'm glad you got cleared on that incident,' Defendant Ebanks adopted the false statements included in the TMZ article, thus defaming Plaintiff Jane Doe. While the issue of rape and violence against women are very well issues of public interest, the TMZ article was nothing more than a salacious article to spread gossip and intrigue. More to the point, the Twitter messages [were] not about rape, or even about a Laker member being cleared, but about Defendant Ebanks' personal, private desire not to be 'hooked up' with women who would actually dare to report a rape to law enforcement. His hook-ups and personal, private preferences serve no issue of public interest. His comments served only to 'gather ammunition' for his private and self-serving interests."

Essentially, what the plaintiff's attorneys claimed was that a Twitter user who refers, even indirectly, to a possibly untrue news account "attaches" himself to the "inaccuracies inherent." As The Hollywood Reporter further stated, "because the tweet happened on the same day as the TMZ article, the woman's lawyers say that he [Ebanks] 'adopted' the inaccuracies" -- and that readers "reasonably interpreted the Twitter messages as referring to the TMZ article."

Last week, Los Angeles Superior Court judge Samantha Jessner moved to strike the defamation claim. Applying the two-prong analysis under which a special motion to strike is considered, Judge Jessner ruled that the first prong weighed in the defendant's favor. The first prong requires the defendant to show that the "act or acts of which the plaintiff complains were taken 'in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Referring to that burden, Judge Jessner wrote that a public issue existed here because of the defendant's celebrity and the "gravity of the rape charge." Additionally, Ebanks' actions on Twitter were in furtherance of his right to free speech. Weighing the second prong--the likelihood of the plaintiff's prevailing on the claim--Judge Jessner wrote "[t]he use of the words 'clear' or 'cleared' by Junior does not amount to an adoption of the content of the TMZ article, as plaintiff argues, because these words are quite common when speaking of the dropping of criminal charges. It is reasonable to infer that Junior saw the TMZ article, but it is not reasonable to then conclude that defendant adopted the contents..." As it was not reasonable to conclude that Ebanks adopted the contents of the article, the plaintiff could not demonstrate a likely possibility of prevailing on her claim.

http://www.hollywoodreporter.com/thr-esq/la-lakers-player-beats-strange-445785

Read the ruling here: http://www.scribd.com/doc/137766448/EBANKS-Jane-Doe-Ruling

Suing Hungary

A minor victory for the heirs of a deceased Hungarian art collector: the nation of Hungary is amenable to a lawsuit brought by the heirs of a deceased art collector for Hungary's alleged collaboration with Nazi Germany for the plunder of Baron Mor Lipot Herzog's art collection. Baron Herzog was a Budapest banker and a passionate art collector who collected over 2,000 paintings, sculptures and other works of art. Some of the pieces in the collection included works by El Greco, Velazquez, Renoir and Monet. Herzog passed away in 1934, shortly before Nazi Germany and the Hungarian government began stealing Jewish-owned property and assets. Fearing the confiscation of their father's priceless art collection, the Herzog children tried to hide the pieces in one of the family's factories. Eventually, however, the artworks were discovered and taken to Adolf Eichmann's headquarters in Budapest. Eichmann picked out many of the pieces for display near Gestapo headquarters. The works that were not chosen became part of the Hungarian National Gallery and the Budapest Museum of Fine Arts.

According to the heirs' complaint, the Herzog descendants tried on numerous occasions to secure the return of the pieces, stating that the family had agreed to let the government of Hungary display the art after the war, while still retaining the right to demand their return. An appellate court in Hungary dismissed the family's claim in 2008, citing the Peace Treaty between Hungary and the Allied Powers and a later agreement between the U.S, and Hungary concerning the settlement of war-related claims. The Herzog descendants then sought relief from the American courts.

Last week, a three-judge panel of the D.C. Circuit Court affirmed a 2011 ruling of a U.S. District Court Judge, and revived claims that she had previously dismissed. According to the D.C. Circuit, "Hungary's argument falters for the simple reason that the Herzog family's claims fall outside the treaty's scope," Judge David Tatel wrote. "Article 27 concerns property discriminatorily expropriated during World War II. As we have explained, however, the family's claims rest not on war-time expropriation, but rather, on breaches of bailment agreements formed and repudiated after the war's end. Accordingly, the Peace Treaty presents no conflict with Hungary's amenability to suit under the FSIA [Foreign Sovereign Immunities Act]."

So, at least for now, it appears that the Herzog family will get their day in court.

http://www.entlawdigest.com/2013/04/23/2325.htm

Read the decision here: http://www.courthousenews.com/2013/04/23/herzog.pdf

Read the FSIA here: http://uscode.house.gov/download/pls/28C97.txt

May 24, 2013

Week in Review

By Martha Nimmer

Good Curtains Make Good Neighbors

Before you take that nap or read the paper in your bathrobe, you may want to draw the curtains, especially if you happen to live across the street from artist Arne Svenson. Last week, Svenson's show--"The Neighbors"--debuted at the Julie Saul Gallery in Chelsea. "The Neighbors" showcases a collection of photos taken by Svenson from his second-floor apartment in New York City. The photos are of various residents of the glass-walled luxury Zinc Building engaged in mundane, everyday activities: "in one photo, a woman is on all fours, presumably picking something up, her posterior pressed against a glass window. Another photo shows a couple in bathrobes, their feet touching beneath a table. And there is one of a man, in jeans and a T-shirt, lying on his side as he takes a nap." The faces of the subjects are obscured. The largest photos are being sold for $7,500. Svenson stated that the idea for the photo array came from a friend, an avid birdwatcher who recently died and left his telephoto lens to the artist.

Not surprisingly, Svenson's neighbors are not pleased with the show. "I don't feel it's a violation in a legal sense but in a New York, personal sense there was a line crossed," said Michelle Sylvester, who lives in the Zinc Building. "I think there's an understanding that when you live here with glass windows, there will be straying eyes but it feels different with someone who has a camera," she said. Svenson, when asked about the privacy concerns echoed by many building residents, responded, "for my subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high." Civil rights attorney Norman Siegel said that Svenson's subjects may have legal recourse against the artist, although the prospect remains doubtful: "the question for the person who's suing is, if you're not identifiable, then where's the loss of privacy?" he said. "These issues are a sign of the times. How do you balance the right of privacy vis-à-vis the right of artistic expression?"

In the meantime: say cheese!

http://www.huffingtonpost.com/2013/05/16/arne-svensons-neighbors-e_n_3286940.html

http://www.foxnews.com/leisure/2013/05/17/nyc-artist-secret-photos-neighbors-raise-privacy-issues-for-some-line-crossed/

Slim Sorta Shady

Mark Zuckerberg, who reportedly used to call himself "Slim Shady" in his younger days, is now facing a lawsuit from the real Slim Shady. On Monday, Eight Mile Style, LLC, the company that oversees the rights to Eminem's music, filed a lawsuit against Facebook in Michigan federal court. The complaint accuses Facebook of copyright infringement based on misappropriation of Eminem's musical composition "Under the Influence." Specifically, Eight Mile Style alleges that a television commercial for Facebook Home incorporates music that was "substantially similar" to "Under the Influence". The commercial, referred to in the complaint as the "Airplane advertisement" aired around the world last month. The song in question was allegedly chosen by ad firm Widen + Kennedy (W + K), which created the advertisement. The complaint goes on to "tell[] the story of how Facebook's advertising company attempted to use Eminem to attract the liking of Mark Zuckerberg . . . ." Specifically, the lawsuit states "W+K incorporated said music into the Airplane advertisement in an effort to curry favor with Facebook by catering to Zuckerberg's personal likes and interests."

The complaint also recounts that attorneys for the plaintiff sent a cease-and-desist letter to the defendants in April shortly after the Facebook Home commercial aired. The letter was met with a reply from defense counsel "brimming with bellicose language and replete with gross factual inaccuracies," according to the complaint. Included in these inaccuracies was the "bizarre allegation" that Dr. Dre "ripped off" a Michael Jackson song when composing "Under the Influence". The plaintiffs pointed out, however, that a simple Internet search would reveal that Dr. Dre did not even create the song. So much for that strategy, Facebook...

The plaintiff is seeking statutory damages (up to $150,000 per infringement) for the defendants' allegedly willful misappropriation of Eminem's song.

http://www.hollywoodreporter.com/thr-esq/eminems-music-publisher-suing-facebook-525687

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/eminem_facebook.pdf

Dungeons and Dragons and Reversion Rights, Oh My

Hasbro and its subsidiary Wizards of the Coast, makers of the popular role-playing fantasy game Dungeons & Dragons, have sued a Hollywood production company in California federal court for allegedly creating an unauthorized film adaptation of the game. Defendants Sweetpea Entertainment and Sweetpea B.V.I. [British Virgin Islands] Ltd. are allegedly "working with Warner Bros. to make a movie, Chainmail, using many elements of Dungeons & Dragons." Warner Brothers is not a party to the complaint.

At the heart of the dispute is a 1998 settlement between Sweetpea and TSR, the original owner of Dungeons & Dragons. TSR was acquired in 1997 by Wizards of the Coast. In 1998, TSR sued Sweetpea for breach of a license agreement granted in 1994 that allowed Sweetpea to create Dungeons & Dragons movies, sequels, prequels, remakes, live action television series and television movies. TSR and Sweetpea eventually settled. As part of the settlement, the parties formed an agreement that included reversion rights if "Sweetpea failed to make another theatrical movie based on the role-playing game within five years of the initial movie's release." Sweetpea, according to the complaint, produced box office "flop," Dungeons & Dragons, more than a decade ago, and later used its license to create two television movies that aired on the SyFy channel: "2005's "Wrath of the Dragon," and 2012's "The Book of Vile Darkness." Thus, the complaint states, "the first television movie represented an exercise of the television rights and did not reset the sequel rights' five-year reversion clock." In other words, "The Book of Vile Darkness" release on SyFy was an exercise of television, not sequel, rights. Consequently, Hasbro argues, "the sequel rights reverted to Hasbro as early as December 8, 2005, but in no event later than October 8, 2010, five years after the initial broadcast of the first TV Movie." This reversion would thus deprive Sweetpea of its license to create a new film adaption of the Dungeons & Dragons game, thereby putting "Chainmail" and any other film produced by the defendant in violation of Hasbro's copyrights in the game.
Hasbro is seeking statutory and actual damages, in addition to a permanent injunction against the defendant, and a declaratory judgment that the plaintiff owns the film and television rights to the game.

http://www.entlawdigest.com/2013/05/15/2385.htm

No More Fashion Victims

Facing mounting pressure to improve working conditions for garment workers abroad, "fast fashion" retailer H&M has signed an agreement that would contractually compel Western retailers to invest in improving worker safety in Bangladesh and other developing countries engaged in apparel manufacturing. This decision came just two weeks after a building collapse in Bangladesh left over 1,000 workers dead or severely injured. According to The New York Times, no clothes produced by H&M had been found in the collapsed facility.

Even before the April 24th tragedy in Bangladesh, which is being called one of the worst industrial accidents in history, the Swiss retailer had already been working to convince other "cheap chic" retailers to join it in improving the safety of factories used by its suppliers. These efforts, however, did not prevent hundreds of customers from taking to H&M's Facebook page and "littering it" with complaints following the April 24th disaster. H&M is, after all, known "as a purveyor of 'cheap chic' and a leader in the so-called fast-fashion business, which relies on rapid turnarounds from order to delivery" and thus frequently utilizes facilities like the one in Bangladesh to produce the company's apparel. Following H&M's signing off on the agreement, other major European retailers, such as Marks & Spencer and Inditex, parent company of Zara, announced last week that they, too, would sign the accord. This announcement appears to be "setting the stage for an industrywide collaboration to improve factory safety." The Bangladeshi government has also promised to improve safety practices at factories and revise labor laws to allow unions to form; this announcement comes, writes The New York Times, after numerous earlier pledges went largely unfilled.

The main goal of the agreement signed by H&M is to raise fire safety awareness among manufacturing facilities in Bangladesh and other developing countries, while also making structural improvements to the buildings that house countless workers and heavy machinery. Under the accord, all signatories have 45 days to "work out the details of the program." No party, however, has yet to work out the estimated overall cost of implementation, but there will be caps on what companies have to spend: "for the biggest companies, like H&M, the annual contribution for the first five years will be capped at 500,000 Euros ($640,000)."

Citing legal concerns, American retailers such as Gap, J.C Penney and Wal-Mart have declined to sign on to the accord, but have promised to continue pursuing worker safety initiatives. PVH, the American parent company of Calvin Klein and Tommy Hilfiger, and Tchibo, a German retailer, endorsed a plan last year for Western companies to finance fire safety efforts and structural upgrades to Bangladeshi factories. That agreement, however, was not to take effect until more companies signed on. Although these agreements are a welcomed and overdue effort aimed at improving worker safety abroad, much more has to be done to make a serious impact on the often frightening, unsafe conditions faced by apparel workers around the globe. Just last week, for example, a factory in Cambodia that produced shoes for Asics collapsed, killing three employees.

http://www.nytimes.com/2013/05/20/business/global/hm-led-labor-breakthrough-by-european-retailers.html?ref=style

June 2, 2013

Week in Review

By Martha Nimmer

It's Bananas

After more than a year of legal wrangling, attorneys for the Andy Warhol Foundation (the Foundation) and the band The Velvet Underground (the Band) have reached a settlement over one of the "most famous album covers of all time." The album cover, created by Andy Warhol for the 1967 album The Velvet Underground & Nico, features a drawing of a yellow banana on a white background. When the album debuted in the 1960s, the banana design was not registered with the Copyright Office, and the album was reportedly not published with a copyright notice. The famous artwork stirred up legal controversy after reports circulated that the Foundation planned to license the design for iPod and iPad products, such as iPad cases. In January 2012, the Band sued the Foundation in New York federal court, claiming that the cover art had become "a symbol, truly an icon, of the Velvet Underground." In that regard, the Band sought a declaratory judgment that the image was in the public domain, thus barring the Foundation from asserting any copyright ownership over the image. The plaintiff, however, withdrew that claim after the Foundation "offered the band a covenant not to sue on copyright grounds."

Still remaining, however, was the issue of trademark law; specifically, the likelihood of confusion: the Band said that the Foundation's licensing activities were "likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties." The defendant pointed out, however, that the Band broke up over 40 years ago, in 1972, and had not licensed its album artwork or any images associated with the Band for over a decade. On Tuesday, however, the case came to a close: a federal judge dismissed the case after receiving a letter from an attorney for the Foundation, announcing that a confidential settlement had been reached between the parties.

http://www.hollywoodreporter.com/thr-esq/velvet-underground-andy-warhol-foundation-559966

Chew On This

Only in New York court could a piece of art made with chewing gum be valued at $500,000.

Earlier this month, the Stephan Stoyanov Gallery was alleged to have bounced a check for $585,000 to a collector in a "like kind exchange" featuring chewing gum art valued at $500,000. Art collector Jane B. Holzer sued the Stephan Stoyanov Gallery and Stephan Stoyanov in New York County Supreme Court last week, claiming that she and Stoyanov agreed to exchange four artworks, two on each side, in a "like kind exchange" under Section 1031 of the Tax Code. The pieces at issue are Mike Kelley's 1985 acrylic "Rainbow Coalition" and Dan Colen's 2010 "Cardboard Cutout," created with chewing gum on an unprimed canvas. In exchange, Stoyanov planned to give Holzer two Richard Prince works from 2012, both called "Untitled (Cowboy)." These pieces are said to be worth $405,000 and $585,000.

According to the Entertainment Law Digest, "Section 1031 exchanges are common transactions and may involve all manner of property, with strict time limits within which the trade must be done. Section 1031 exchanges may include "boot" -- commonly, the money paid in one direction to even out the exchange." For the boot, Holzer claims, she paid Stoyanov $253,000, in checks of $166,500 and $86,500, plus a transaction fee of $1,500 for each. The plaintiff also alleges that Stoyanov wrote a check to the Gagosian Gallery for $405,000 for the smaller of the "Untitled (Cowboy)" works, then a $585,000 check two weeks later to the same gallery for the larger Prince work. The complaint states that Stoyanov promised the Gagosian Gallery, which is not a party to this case, that he would "arrange to cover the check from his current location in Belgium but, failing that, he would make the check good upon his return to the United States by the end of the week." Holzer claims, however, that Stoyanov's check for the larger "Untitled (Cowboy)" work was dishonored and subsequently returned, and Stoyanov failed to return to United States because, he claimed, he had to travel back to Bulgaria for a family matter. Stoyanov insists, however, that the bounced check was a "mix-up," but Holzer claims "Stoyanov has been diverting and expending proceeds from plaintiff's escrowed funds for his own benefit on his current travel to Europe." Holzer demands $585,000, with interest, and punitive damages for breach of contract, breach of fiduciary duty and unjust enrichment.

http://www.entlawdigest.com/2013/05/23/2413.htm

The Cat's Meow

Yes, it's true: the 2013 Meme of the Year, Grumpy Cat, now has a movie deal, which begs the question: "do animals have likeness rights?"

In case you are not familiar with Grumpy Cat, allow me to dazzle you: last year, Bryan Bundesen posted pictures online of his sister's cat, Tardar Sauce (AKA Grumpy Cat). After the famously grumpy-faced cat hit the World Wide Web, a digital star was born. Now, after all of this online success, Grumpy Cat has found herself an agent, Ben Lashes, who represents other cats made famous online. (Yes, you read that correctly: "other cats made famous online.") According to the Wall Street Journal, "this week, Mr. Lashes helped negotiate the sale of a film option based on Grumpy Cat's persona... Terms of the one-picture deal weren't disclosed." So, now that Grumpy Cat has a film deal, the question arises whether she also possesses likeness rights.

Likeness rights, which fall under the umbrella right of publicity, evolved from the right of privacy. As The Hollywood Reporter points out, deceased legal scholar Melville Nimmer wrote in 1954 that likeness rights could, in fact, extend to animals: "It is common knowledge that animals often develop important publicity values. Thus, it is obvious that the use of the name and portrait of the motion picture dog Lassie in connection with dog food would constitute a valuable asset. Yet an unauthorized use of this name could not be prevented under a right of privacy theory, since it has been expressly held that the right of privacy 'does not cover the case of a dog or a photograph of a dog.'" Unfortunately for famous animals, this view has not gained much traction over the years, but that trend may be changing in light of the growing popularity of funny online animal videos. Take, for example, the case of "Keyboard Cat": after Charles Schmidt made a video of his cat Fatso wearing a shirt and sitting upright at a keyboard, the video went viral and the Keyboard Cat meme was born. Now, Schmidt is suing Warner Brothers and 5th Cell Media, "alleging that the studios have ripped off the meme in a computer game called Scribblenauts Unlimited." The complaint avers that the Keyboard Cat meme is entitled to copyright and trademark protection. The Hollywood Reporter points out that although the suit does not include any direct likeness claim, the complaint does state that Schmidt did not "authorize defendants to copy, reproduce, perform, or use Keyboard Cat or Fatso's image in any Scribblenauts game." For now, at least, it remains to be seen how this case develops and if a judge will treat Keyboard Cat like a movie or TV show character.

In the meantime, here are the famous cats' websites: http://www.grumpycats.com/ and http://playhimoffkeyboardcat.com/

http://www.hollywoodreporter.com/thr-esq/grumpy-cat-gets-movie-deal-560658

Read the Keyboard Cat case here: http://www.scribd.com/doc/144705848/Keyboard-Cat

.book is Big Business

Facing the very real possibility that Amazon.com may control URL addresses ending in .book, a trade group of more than 450 booksellers has joined Barnes & Noble Inc. (B&N) in objecting to the online retailer's application to obtain ownership of the .book domain. The Internet Corporation for Assigned Names and Numbers (ICANN), the non-profit Web administrator that manages Internet functions under a contract with the U.S. Commerce Department, is examining applications for more than 1,400 new top-level domains, i.e. the words to the right of the dot, such as .com or .net. The first of the new domain names are expected to launch by the end of the year.

Amazon and countless other companies paid $185,000 for each application for a new domain. Google, for example, applied for 101 domains, including .search, .map and .mail. Given how much money and publicity the Internet generates, it is no surprise that companies across the world are vying for these new, eye-catching domain names. In addition to attracting new customers, "winning applicants can make money by charging for new addresses under their domains, or could use new domains for just proprietary content."

This rush to assume control over a new domain promises to lead to conflict and legal battles. According to ICANN, 230 names have more than one applicant, and disputes over who gets control may have to be resolved through auctions. The U.S. Polo Association, which governs the sport, has objected to Polo-brand clothing maker Ralph Lauren Corp.'s application for .polo. The new domains also raise competition concerns: Amazon, which controls around 60% of the market for e-books and 25% of the market for printed books, would use the addresses "to stifle competition," New York-based B&N said in a letter to ICANN. In its application, Amazon stated that it would use the .book domain "as needed to reflect Amazon's business goals." This revelation, some critics believe, would hurt competition and drive out smaller businesses. In light of such concerns, the European Commission has launched an investigation into whether Google harms competition in the market for Web searches. The U.S. Federal Trade Commission concluded its review in January of Google's search business without taking action.

Other criticisms of the new domain names also deal with concerns other than financial gain and market competitiveness. For instance, the government of Montenegro, the smallest former Yugoslav republic, has asked ICANN to deny Google's request for .meme. The term, the government claims, is too similar to Montenegro's established domain, .me, and "will only serve to cause substantial confusion in the domain name market." These objections, according to an ICANN spokesman, will go before three independent bodies, "which may resolve some arguments by August while others linger for 'a few months.'"

http://about.bloomberglaw.com/legal-news/bartlebys-prefers-not-to-see-amazon-run-web-books-domain/

Meet The Bluths (Again)

After a seven year hiatus, cult comedy "Arrested Development" has returned, this time as a semi-original series on Netflix. The video streaming service reported that within just 24 hours of the show's premier, it had been pirated over 100,000 times. The show, cancelled by Fox in 2005, tells the story of a wealthy, yet highly dysfunctional, Orange County, California family who struggle to stay together despite a crumbling a family business brought down by an unscrupulous father.

http://www.hollywoodreporter.com/thr-esq/arrested-development-pirated-more-100000-559205

June 8, 2013

Week in Review

By Martha Nimmer

Trademark Trouble for Oprah

The Second Circuit doesn't seem to be a fan of Oprah, at least from a legal standpoint.

Late last week, the U.S. Court of Appeals for the Second Circuit ruled that Oprah Winfrey failed to prove that her use of the "Own Your Power" mark qualified as fair use. This decision reverses the lower court's ruling and revives the Lanham Act claim of Simone Kelly-Brown, owner of the motivational services company Own Your Power Communications Inc., against Winfrey, her company Harpo Productions Inc. and the Hearst Corporation, the publisher of O The Oprah Magazine.

In addition to hosting a motivational radio show, Brown writes a blog and organizes conferences and other events aimed at "owning" one's power. She registered the "own your power" mark in May 2008. While the registration was pending, Winfrey, Harpo Productions and Hearst Corporation tried to register a mark in a new venture, the Oprah Winfrey Network, or OWN. Two years later, the Winfrey defendants "launched a series of publications, events and online initiatives using the phrase "Own Your Power." For instance, states the complaint, "the Sept. 13, 2010, edition of O used the words "Own Your Power" followed by subheadings reading "How to Tap Into Our Inner Strength"; "Focus Your Energy"; and "Let Your Best Self Shine." Following the launch of these events and publications, Brown claims that she began to receive phone calls from people who were confused about her business and whether it was connected to Oprah Winfrey and her television network. Brown later filed suit in July 2011, but Southern District Judge Paul Crotty granted the defendants' motion to dismiss in 2012, stating that the use of the words "Own Your Power" constituted fair use. Undeterred, Brown appealed to the Second Circuit.

Judge Chester Straub, writing for the three-judge panel, concluded that the plaintiff had plausibly alleged that "Oprah was attempting to build a new segment of her media empire around the theme or catch phrase 'Own Your Power,' beginning in the October Issue and expanding out from there." Turning to the defendants' fair use argument, the court wrote that the defendants had failed to prove good faith, even going so far as to state that it was "implausible" that someone as famous as Oprah "would attempt to trade on the goodwill of someone relatively obscure like Kelly-Brown." Unconvinced, the court wrote, "We agree that these allegations do plausibly suggest that the defendants had knowledge of Kelly-Brown's mark, liked it, and decided to use it as their own. In other words, defendants' allegations that they did not intend to trade on Kelly-Brown's good will, even if true, do not preclude a finding of bad faith." This decision will thus clear the way for Brown's trademark lawsuit against Oprah and the other defendants.

In the meantime, it seems unlikely that the Second Circuit's ruling will make Oprah's Book Club.

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202602466184&Circuit_Revives_Suit_Against_Oprah_Over_Slogan_Trademark&slreturn=20130504104848

En Garde!

The French appear ready to declare "defeat" in their efforts to crack down on digital media piracy.

Facing decreased media industry revenue, French lawmakers launched new efforts in 2009 aimed at fighting unauthorized file-sharing; this effort was touted by some as "the toughest anti-piracy law in the world." According to the New York Times, "repeat offenders who ignored two warnings to quit downloading movies or music illegally were confronted with the prospect of a suspension of their Internet connection." Now, however, it appears that French President Francoise Hollande is ready to give up, shutting down the agency created to enforce the new anti-piracy law put in place by his predecessor, Nicolas Sarkozy. Fleur Pellerin, the French minister in charge of Internet policy, essentially stated that the policy was unenforceable, likening Internet access to access to clean water: "Today, it's not possible to cut off Internet access," she said. "It's something like cutting off water."

Now, instead of cutting off Internet access, the French government may choose to impose a 60 Euro fine on Internet pirates. Some members of the government have even suggested doing away with the entire warning system and accompanying potential penalties. These same lawmakers, however, fail to offer other ideas for cracking down on France's media piracy problem, which, by all accounts, is getting worse. SNEP, a French recording company, said Friday that "industry revenue fell by 6.7 percent in the first quarter of the year. More alarmingly, revenue from digital outlets fell by 5.2 percent -- the first quarterly decline -- though the organization said several special factors played a role in this." At the same time, however, visits in France to illegal music sites grew by 7 percent in just two years.

http://www.nytimes.com/2013/06/03/technology/03iht-piracy03.html?src=recg

Batter Up

It was only a matter of time until we heard more about the sale of the Dodgers. On Wednesday, a Los Angeles Superior Court judge ruled that the terms of the 2012 sale of the baseball team should be made public. Guggenheim Baseball Management purchased the team for, if rumors are to be believed, $2.15 billion. Readers will recall that the Dodgers were sold after team owner Frank McCourt reached a $131 million divorce settlement with his then-wife, Jamie. Following the sale of the team, the former Mrs. McCourt sued to void the settlement on the grounds that the team's value was "grossly undervalued" in the divorce proceedings.

http://www.hollywoodreporter.com/thr-esq/terms-la-dodgers-sale-become-563596

BMI Battles with TMZ

Someone should probably tell TMZ what "exclusive" means.

On Wednesday, TMZ reported that Broadcast Music Inc. (BMI), one of the main organizations that collects public performance royalties on behalf of songwriters, composers and music publishers, had sued 12 bars and restaurants in the United States for the unauthorized use of its clients' musical works. Even though BMI sues numerous establishments across the country every year, TMZ thought that this case was special and decided to call its report "exclusive." Not shy about pushing the envelope, TMZ went further with its story and said that BMI would be to blame if "a bunch of small-town bars possibly get[] forced out of business for the capital offense of playing their songs." TMZ also reported that BMI "thinks it is entitled to $150,000 for every song played." Apparently, no one at TMZ is familiar with copyright law, which "theoretically allows successful plaintiffs to collect up to $150,000 per infringement." BMI, unsurprisingly, was unhappy with these remarks, and demanded a retraction, calling the TMZ story a misrepresentation.

TMZ should probably stick to taking unflattering photos of celebrities on the beach and leaving the legal interpretation alone.

http://www.hollywoodreporter.com/thr-esq/bmi-freaks-tmz-copyright-story-564170

Read the TMZ story here: http://www.tmz.com/2013/06/05/bmi-lawsuit-michael-jackson-lil-wayne-lady-gaga-rolling-stones-small-bars/

June 30, 2013

Week in Review

By Martha Nimmer

Score!

College athletes may one day be eligible to receive compensation for appearing on televised sports events. Last week in California federal court, U.S District Judge Claudia Wilken heard arguments over class certification in a case that began as a suit involving former NCAA athletes, but has quickly evolved into a suit that could include current NCAA players. Judge Wilken, The Hollywood Reporter writes, must decide "whether to certify a class of former athletes like Ed O'Bannon, Bill Russell and Oscar Robertson; to certify a class of athletes playing the games right now; to certify both; or to certify neither." Observers at the hearing report that the judge may be going for "the big one," that is, certifying a class of both former and current NCAA athletes.

At the hearing last Thursday, Judge Wilken remarked that she anticipates asking for an amended complaint, which is expected to include the name of a current NCAA athlete as a class representative. In response, the lead attorney for the plaintiffs stated that he had "been anticipating this for quite some time and there are a number of current athletes who have expressed a desire and an interest in joining the case." It remains unclear, however, who that current NCAA athlete will be.

The lawsuit, which now potentially affects thousands of current and former NCAA players, has changed dramatically over the course of four years. The suit, originally filed in 2009, initially involved publicity rights. In its sports-themed videogames, videogame maker Electronic Arts (EA) allows users to go into "dynasty mode" to "control characters with the same jersey numbers and other identifiable characteristics" of former NCAA players." This feature, among other factors, helped form the basis of the plaintiffs' initial suit. The NCAA argued, however, that Ed O'Bannon and other ex-players relinquished their publicity rights in release forms signed at the time they were in school; unfortunately for the NCAA, that argument shifted the focus of the lawsuit to "alleged antitrust injuries inherent in forcing athletes to sign waivers and having licensing partners enforce a boycott against ex-players making their own deals." Later, an amended complaint proposed that current NCAA athletes be included as a class to discipline the NCAA for allegedly creating "collusive restraints" not to pay athletes for "their names, images and likenesses in connection with live television broadcasts of games and video games."

When determining whether to certify the proposed classes, Judge Wilken will weigh a handful of factors, including whether the named plaintiffs adequately represent a class, whether there is commonality "in the questions of law and fact that support the claims," and whether a class action is the best avenue for deciding the case.

http://www.hollywoodreporter.com/thr-esq/judge-considers-ncaa-athletes-challenging-573301

U.S. Releases its 2013 Joint Strategic Plan on Intellectual Property Enforcement

Last week, the Obama Administration issued its annual report on intellectual property (IP) enforcement. Included on the "action items" list of the 2013 Joint Strategic Plan on Intellectual Property Enforcement (the 2013 Report)is improving transparency in IP lawmaking and international negotiations, in addition to enhancing law enforcement communication with IP owners and educating authors on "fair use."

The 2013 Report provides a survey of recent activity by the administration on the IP front, from negotiations with trade partners abroad to crackdowns on counterfeit goods, ranging from counterfeit pharmaceuticals to infringing purses. Included in the report are statistics about how various departments and agencies of the federal government, such as Immigration and Customs Enforcement (ICE) and the Justice Department, have been fighting IP theft. According to The Hollywood Reporter, "the past year was also one in which Hollywood studios and ISPs enacted voluntary initiatives to discourage piracy -- something noted amid the administration's willingness to foster more cooperation among what it calls the stakeholders." The report also includes a section on transparency, underscoring the administration's long-stated goal of being more open. As part of this plan for increased transparency, IPEC has maintained an "open door policy, meeting with hundreds of stakeholders, large and small, across a broad range of sectors in developing and implementing the Administration's strategy for intellectual property enforcement."

Although the 2013 Report's section on enforcement efforts is not terribly specific, it does discuss the need for federal law enforcement officials "to continue to regularly engage rights-holders." Included in the section are statistics about various law enforcement efforts in the United States and abroad. According to the 2013 Report, customs seizures and criminal IP actions have risen modestly since President Obama took office. Since 2009, the U.S. Attorney's Offices have filed 178 IP cases against 254 defendants--a 2% increase in cases filed, and a 14% increase in defendants charged, compared to the previous year. Additionally, ICE and Homeland Security initiated 1,251 IP investigations and effected 691 arrests last year, compared to 730 investigations and 266 arrests in 2009.

Enforcement efforts are not limited to the United States, however. In November, for instance, the IPR Center issued its first international intelligence bulletin to INTERPOL, Europol, and the World Customs Organization reporting the dangers of counterfeit airbags. ICE, Homeland Security and the National Traffic Highway Safety Administration (NHTSA) issued a safety advisory to U.S. consumers in October, "as a result of testing conducted by the NHTSA of airbags purchased online by ICE-HSI agents during the course of criminal investigations into the distribution of counterfeit airbags through online sales." The airbags, the report states, were ordered online directly from China or from foreign-based wholesale business to wholesale business websites, and were described as the genuine manufacturer's part. "In an effort to share information with international partners, the IPR Center transmitted an international intelligence bulletin to consumers outside the U.S. who could be at risk if these airbags are installed in their vehicles."

The 2013 Report also includes a section on educating authors about fair use, stating "the Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists, songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine." To that end, the Copyright Office will soon begin publishing "major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations."

Read the full report here: http://www.whitehouse.gov/sites/default/files/omb/IPEC/2013-us-ipec-joint-strategic-plan.pdf

http://www.hollywoodreporter.com/thr-esq/obama-issues-new-anti-piracy-572483

Problems with Picasso

Citing concerns from Italian law enforcement that the painting was part of an embezzlement and bankruptcy fraud scheme, U.S. customs officials intercepted the sale of Pablo Picasso's 1909 work "Compotier et tasse" last month. Special agents with U.S. Immigrations and Customs Enforcement located and recovered the Picasso piece in New York on May 21st, where the work was being offered for $11.5 million as part of a private sale. The United States plans to repatriate the work to Italy in the coming weeks.

The painting's current owner, Gabriella Amati, is under criminal investigation and prosecution in Italy for numerous counts of embezzlement and fraud. Prosecutors in Milan had charged Amati and her late husband, Angelo Maj, with embezzlement and fraudulent bankruptcy offenses, according to the Justice Department. Amati and Maj are alleged to have worked with a Naples government official on various schemes to misappropriate city tax receipts. These schemes to embezzle Naples' tax revenue included "the use of fraudulent service contracts, forged accounting records, inflated operational expenses and fraudulently claimed refunds to Naples taxpayers," according to the Justice Department. The couple is charged with causing Naples to sustain $44 million in losses by transferring taxes that were collected for the city to the couple's own bank accounts.

http://www.entlawdigest.com/2013/06/25/2487.htm

Siri, Do I Have a Claim?

A federal judge in California ruled last week that Apple does not need to compensate a photographer for the company's use of an image of actress Zooey Deschanel's band in an iPhone commercial. The commercial aired from April 5, 2010 through April 18, 2010, showing numerous images including an iPhone 3GS, a demonstration of the phone's "Shazam" application and album cover art for the band. The photo in questions appears in the video montage for less than 5 seconds of the 30-second commercial.

Taea Thale, the photographer who shot the photo, sued Apple for copyright infringement in 2011, claiming that the company lacked permission to include her photo of the band, She & Him, in the commercial for iPhone 3GS. Thale did concede that she licensed the photograph to Merge Media for "limited use in magazines and posters to promote the band's appearances," but stated that the license explicitly excluded the right to use the photo to promote other entities or products. Unfortunately for the plaintiff, U.S. District Judge Yvonne Gonzalez Rogers agreed with Apple that Thale failed to "proffer sufficient non-speculative evidence to support a causal relationship between the infringement and the profits generated indirectly from such infringement." Judge Gonzalez Rogers added that Thale "misinterpreted her burden on this motion for summary judgment and her factual support on causation is lacking." Adding to Thale's list of legal deficiencies, the judge also pointed out that the plaintiff mistakenly relied on precedent from different circuits, an error usually confined to first year law students. Thale, for instance, cites an 8th Circuit decision in Andreas v. Volkswagen of America Inc., which "reinstated a jury's profit award where the infringing use was 'the centerpiece of a commercial that essentially showed nothing but the TT coupe.'"

The plaintiff, the court wrote, also failed to prove that her photo was the "centerpiece" of Apple's commercial and helped promote the company's image. "Even assuming arguendo that these facts are undisputed, they are not material to causation, and in fact, they fail to address causation between the use and revenue altogether," Rogers wrote. "At best, Thale's facts establish that Apple liked the photo, used it, approved of the 'Concert' commercial, and hoped that it would generate sales of iPhones." Thale, in a tautological argument for the ages, also tried to argue "the only reasonable conclusion is that the intentional selection and use of the Thale photograph did have an impact in iPhone sales - no other logical conclusion can reasonably be reached." (Emphasis in ruling.) Judge Gonzales Rogers ruled, however, that "logical and reasonableness ... do not equate to causation for the purposes of this motion."

Maybe next time, Thale should ask Siri for legal advice.

http://www.entlawdigest.com/2013/06/28/2502.htm

July 9, 2013

Week in Review

By Martha Nimmer

Nobody Expects a Spinoff Litigation!

Did you know that there was a seventh member of Monty Python? Neither did I, but, according to Mark Forstater, the producer of the 1975 film Monty Python and the Holy Grail, he is (sort of) a member of the famous British comedy group. The Chancery Division of the High Court of Justice in the United Kingdom has ruled that Forstater is owed a larger share of profits from Spamalot, a musical "lovingly ripped off" from the 1975 motion picture.

The musical at issue, Spamalot, was written by original Monty Python member Eric Idle and debuted in 2005. Forstater claimed that he was due financial compensation arising from "spin-offs" of the Monty Python movie, pursuant to a 1974 agreement between him and the "Pythons, which along with Idle comprise Michael Palin, Graham Chapman, John Cleese, Terry Jones and Terry Gilliam." Under the agreement, Forstater received a "£5,000 fee plus a share of profits." The agreement also mentioned "merchandising" and "spin-off rights," but included provisions and formulas for instances when the Pythons contributed materially to the creation of the new work. In some of these instances, according to The Hollywood Reporter, "50 percent of revenue from exploitation -- the "Top Half" -- would first go to a film company set up by the Pythons, then the remaining money would be then put into a pot for division among all profit participants." The plaintiff argued that he was, for the purposes of profit sharing, the "seventh Python," and that the other members could not reduce his share of the profits without his permission. Additionally, Forstater claimed that he was entitled to a one-seventh share of the so-called "Top Half" earned by Spamalot, and that he should have received "twice as much in money and only paid half as much in expenses." The plaintiff estimated about $400,000 in damages.

Last year's trial, which included readings from one Python's journal, proved both humorous and contentious, with group members stating that Forstater was "ungrateful." In a journal excerpt from 1975, Python member Michael Palin recounted his reaction to the plaintiff's request for more money: ... as we are a soft lot and not at all businesslike, I think it would be in the finest traditions of Python irrationality if we gave Mark an extra £1000 and a silver tray with some cut glass sherry glasses and told him to stop writing to us for more money. Beyond that even I am not prepared to go. Oh, all right, some cheese straws to go with the sherry glasses.

Ultimately, however, a U.K. high court judge agreed with Forstater, ruling that he was due a larger share of profits from Spamalot. The exact amount due the plaintiff, however, has yet to be determined.

http://www.hollywoodreporter.com/thr-esq/monty-python-members-lose-spamalot-581082

Read the decision here: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/forstater-v-pytghon-pictures-other.pdf

Can You Keep a (Trade) Secret?

According to IMAX, one of its former employees could not, and now, the Canadian corporation claims that its trade secrets have wound up in China. IMAX has sued California LLC, GDC Technology USA (GDC)and two companies based in the Caribbean to "stop GDC's illegal commercial exploitation of IMAX's trade secret large format digital theatre projection system and film conversion technologies." The complaint goes on to state that a former IMAX employee, Gary Tsui, stole the proprietary technology in question, and then "surreptitiously provided it to film companies in China, including a company now called China Giant Screen, for which he is the 'chief engineer.' China Giant Screen uses IMAX's trade secrets under the name 'China Film Giant Screen' ('CFGS')." Notably, neither Tsui nor China Film Giant Screen are defendants.

Allegedly, Tsui's bad behavior dates back to 2009. That year, IMAX discovered that Tsui had made off with the company's proprietary and trade secret information relating to IMAX's core projection and conversion technologies, including highly valuable software source code. While working for IMAX, but "unbeknownst to it," Tsui started his own company in competition with IMAX, and "used IMAX's trade secrets to compete against - and beat out - IMAX on a bid for a significant project in China." As part of an international, cross-border investigation, IMAX uncovered "voluminous, conclusive proof of Tsui's retention and theft of IMAX's confidential and proprietary trade secrets, including CDs containing the source code for IMAX's 2D/3D conversion process and re-mastering technology, as well as the repeated use of IMAX's trade secrets to form companies in Canada and China in direct competition with IMAX." Currently, states the complaint, Tsui remains an "international fugitive, and his plan to profit unlawfully from the technology stolen from IMAX has now touched U.S. soil with defendant GDC's efforts to market CFGS with the benefit of public funding."

IMAX seeks a declaratory judgment, an injunction and punitive damages for misappropriation of trade secrets, unjust enrichment and unfair competition. The company also seeks "reasonable royalties" for its trade secrets.

http://www.entlawdigest.com/2013/06/28/2503.htm

iWhat?

Exciting news for Apple devotees: last month, the company that gave us the iPod, the iPhone and the iPad filed an application with the Japan Patent Office to trademark "iWatch" in Japan for wearable devices. According to the application, Apple is seeking protection for the iWatch name, which is "categorized as being for products including a handheld computer or watch device." This move comes as Apple rival and courtroom sparring partner Samsung Electronics Co. prepares its own wearable smartphone device.

Little is known about what the iWatch will do or when it will be released. Apple is said to employ a team of about 100 product designers working on a watch-like device that could perform some of the tasks currently confined to the iPhone and iPad. iWatch rumors have abounded for most of the year, but to date, there is no clear idea of what the wearable device will look like. One report speculated that the watch would run a version of Apple operating system iOS, but suggested that battery life issues could be an issue, as any iPhone owner can attest. The watch might also include a pedometer and other features to help the product compete with tech accessories like Nike's FuelBand and the Fitbit.

This dearth of information has fueled speculation across the Internet about what the iWatch will look like, with various observers offering their own visions of what may be the next big Apple device. One website has compiled all the known patent diagrams for the iWatch: http://www.businessinsider.com/apples-iwatch-patent-diagrams-2013-7?op=1

In the meantime, feel free to enjoy your Google Glasses before they go the way of the Casio calculator watch.

http://about.bloomberglaw.com/legal-news/apple-seeks-to-trademark-iwatch-in-japan-for-devices/

http://www.cnn.com/2013/07/01/tech/mobile/apple-iwatch-patent

Don't Scan On Me

Although commenced in 2005, a lawsuit pitting authors and book publishers against the search engine powerhouse Google has still not been resolved. The latest wrinkle in the case came last week when the Second Circuit Court of Appeals vacated a June decision that certified a class of authors suing Google for scanning millions of works without permission as part of their "Google Books" program. In vacating the class certification, the appeals court remanded the dispute to a federal court to examine Google's fair use defense.

The copyright infringement suit, brought by The Authors Guild and the Association of American Publishers over what was then called "Google Book Search," was initially settled when the parties reached a $125 million agreement that "would have set up a new royalty program where rights-holders would have received a share of revenues from institutional subscriptions to the collection of books made available through Google." In March 2011, a judge rejected that settlement agreement, calling it "incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission." Undeterred by that setback, Google reached another settlement late last year with several large publishing companies, among them John Wiley & Sons, McGraw-Hill Companies, the Penguin Group and Simon & Schuster. As part of that settlement, publishers had the option of making their digitized books and journals available through the Google Library Project. The litigation with the authors pressed on, however.

Google took issue with class certification, citing problems with standing, and argued that the plaintiffs failed to allege sufficient commonality among the plaintiffs who were poised to represent the class of complaining authors. Google did not carry the day with this argument, however, eventually appealing to the Second Circuit. According to the Second Circuit's ruling, which did not directly debate the defendant's claim about class certification, the court believed that the resolution of the lawsuit may lay in Google's fair use defense: "[p]utting aside the merits of Google's claim that plaintiffs are not representative of the certified class -- an argument which, in our view, may carry some force -- we believe that the resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues."

In concluding that the class certification was "premature," the court sent the case back to New York district court, where Google will be able to press its fair use defense.

http://www.hollywoodreporter.com/thr-esq/appeals-court-orders-fair-use-578009

Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/d81662ba-45b4-4c1a-912c-8195ee8ec0ad/1/doc/12-3200_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d81662ba-45b4-4c1a-912c-8195ee8ec0ad/1/hilite/

July 12, 2013

Week in Review

By Martha Nimmer

A Bad Apple

Following a June trial, Southern District Judge Denise Cote ruled on Wednesday that Apple violated antitrust laws when the company fixed e-book prices with five major publishers. Judge Cote wrote, "the evidence is overwhelming that Apple knew of the unlawful aims of the conspiracy and joined the conspiracy with the specific intent to help it succeed." Assistant attorney general William Baer hailed the decision as "a victory for millions of consumers who choose to read books electronically." The major publishers involved in the suit -- Simon & Schuster, Inc., HarperCollins Publishers, Inc., Penguin, Hachette Book Group and Macmillan -- previously settled with the federal government.

The Department of Justice commenced the suit in April 2012, claiming that Apple had "acted as the 'hub' in a hub-and-spoke conspiracy to move the book industry from a 'wholesale' model dominated by Amazon.com to an 'agency' model where Apple and other e-retailers would take commissions." To effect that change, Apple first met with publishers in December 2009, and discussed moving to the agency model that included "use of most favored nation clauses--an arrangement that enabled the publishers to force Amazon, then dominating the market for e-books with its Kindle reader, to switch from its wholesale model to the agency model." Eventually, the publishers and Apple agreed on a plan wherein Apple would sell e-books and take a 30 percent commission, thereby, according to Judge Cote, "ensur[ing] that Apple would make a profit from every e-book sale in its iBookstore without having to compete on price." The publishers also convinced Google to move to that same model in late January 2010, just as Apple was introducing the iPad and the iBookstore.

Disputing the government's claims, Apple tried to argue that evidence of "rapid-fire negotiations with publishers were contentious," thereby extinguishing any notion that there was a meeting of the minds necessary to form a conspiracy. Judge Cote rejected that argument, however, writing that tense negotiations do not "preclude a finding of liability." In its closing argument, Apple tried to convince the judge that "Apple should be applauded and not condemned for its beneficial impact on the e-book market." Unmoved, Judge Cote concluded that "in any event, the Plaintiffs have shown that the Agreements did not promote competition, but destroyed it."

The case will now move to a new phase, where a judge will decide Apple's penalties for participating in an antitrust conspiracy. Adding to Apple's legal troubles is the fact that the tech powerhouse is currently being pursued by various states attorney generals who are seeking damages on behalf of customers who paid inflated e-book prices.

Executives and attorneys in the tech industry are likely to study this ruling closely, particularly because books, movies and music are now increasingly sold online. That said, industry members will be looking for guidance on how to work with other companies and establish business relationships, without violating antitrust regulations.

http://www.hollywoodreporter.com/thr-esq/apple-loses-governments-antitrust-lawsuit-583093

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202610245900&thepage=1

Read the opinion here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=306

Think Before You Post

The next time you say that a beauty pageant is rigged, don't. That is the lesson being learned by Sheena Monnin, the former Miss Pennsylvania USA 2012, who claimed on Facebook and the Today Show that the 2012 Miss USA pageant followed a "script" directing the final 16 contestants and the top five finishers. Now, Monnin must pay a $5 million damages award for defamation.

After winning the title of Miss Pennsylvania USA in 2012, Monnin "signed three contracts with Randy Sanders of Sanders & Associates, which owns the franchise for the Miss Pennsylvania USA pageant." One of the contracts contained an arbitration clause that required any dispute arising between the beauty queen and the Miss Universe organization to be resolved in arbitration. Despite this requirement, Monnin's attorney, Richard Klineburger, inexplicably refused to participate in arbitration before retired Magistrate Judge Theodore Katz in 2012.

During the opening scenes of the televised beauty pageant, 51 contestants assembled on the stage. That number, however, rapidly fell to 16, based on preliminary scoring. Monnin was one of the dismissed contestants, but she did not go quietly. While waiting to return to her dressing room, Monnin alleged that Miss Florida USA, Karina Brez, told Monnin that she (Brez) "had seen a paper in a notebook with a list of the top five finishers already written out." Incensed, Monnin texted the owner of the Miss Pennsylvania USA franchise, writing "[t]his is f-ing rigged Randy. I'm done. This is ridiculous," and "[i[t's so obviously rigged so the girl they want can shine; they kept several beautiful girls out for that reason." Monnin eventually resigned from the pageant, but her outrage did not abate: "a media frenzy was triggered that same day when Monnin went public with her allegations in a Facebook post and then posted them again on June 5."

Following her comments on Facebook, Monnin received a hand-delivered letter from Miss Universe, stating its intent to "assert claims for her false and defamatory statements." Monnin, however, did not keep quiet, eventually appearing on the Today Show for an interview with Ann Curry, during which Monnin repeated her allegations about what Miss Florida USA had told her backstage. Fed up, Miss Universe took Monnin to arbitration, seeking $10 million in damages. The defendant, however, did not attend the arbitration because her legal counsel claimed that she was not obligated to arbitrate because she had resigned from her contract in June 2012. The arbitrator issued his award in December of last year, writing that Monnin's comments about "rigging" caused "the Miss Universe organization to lose a $5 million site fee from BP to sponsor the 2013 Pageant on the Gulf Coast." The arbitrator added that Monnin's comments on Facebook and the Today Show were "obviously harmful to MUO's business" and made with "actual malice."

Monnin, who finally got herself new legal counsel, appeared before presiding Judge J. Paul Oetken last month. The defendant claimed that her previous attorney told her that "she was not bound by any agreement to arbitrate and that [Monnin] need not respond to any communications" from the arbitration service. Monnin added that her previous attorney also failed to keep her apprised of the situation, and she therefore lacked notice of the arbitration. Unfortunately for the former Miss Pennsylvania USA, the judge rejected the notice argument: "[w]hile it is unfortunate and perhaps unfair that Klineburger, likely in violation of the Model Rules of Professional Conduct, failed to communicate with his client for several months, despite receiving repeated entreaties and status updates regarding the Arbitration, it is well established that notice to an attorney constitutes notice to the represented client."

So with that, remember: think before you post, think again before you go on the Today Show, and definitely think harder before you choose not to participate in arbitration.

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202609712822&M_Award_in_Pageant_Slander_Case_Is_Upheld

Heads Up on the NFL Concussion Case

U.S. District Court Judge Anita B. Brody has ordered the National Football League (NFL) and the former players suing the NFL over concussion-related injuries to mediate. Layn Phillips, a retired federal judge, will serve as the mediator in the case. Judge Brody originally planned to rule on the NFL's motion to dismiss on July 22. Her decision to send the case to mediation "signals a belief that a settlement is possible with continued negotiations," writes NFL.com. The judge has indicated that she would not rule on the motion to dismiss until September 3, so as to give the mediator sufficient time to hear the case and work with the parties. She also issued a gag order for both sides.

As mediator, Phillips will meet jointly with the lead counsel for both parties to the dispute, with each side giving a presentation highlighting the merits of its case and the drawbacks and weaknesses of the other side's position. At that point, Phillips will meet individually with each side and attempt to "create a situation where a deal can be struck."

Readers will recall that the former professional football players have alleged that the NFL "concealed for years and even decades" what it knew about the long-term effects of repeated impacts to the head. Unsurprisingly, the NFL has rejected that claim, adding that it issued warnings in line with medical knowledge available at the time. The NFL also points to a collective bargaining agreement negotiated between it and the players, which governs player safety.

It remains unclear how this case will evolve. At the end of the summer when the mediator reports back to Judge Brody, he will hopefully have a proposal worked out between the parties. On the flip side, the mediator may request more time to work out an agreement between the NFL and the former players, or may come up empty handed, thereby sending the case back to court. If the case does, in fact, return to court, the judge may decide to rule on the NFL's motion to dismiss, urge the parties to settle, or commence discovery. Undoubtedly, the NFL, the thousands of former players affected by the suit, and the countless observers and fans across the nation will be monitoring the case closely.

http://www.nytimes.com/2013/07/09/sports/football/judge-orders-nfl-concussion-case-to-mediation.html?src=recg&_r=0

http://www.nfl.com/news/story/0ap1000000216763/article/federal-judge-orders-mediation-in-nfl-concussions-case

July 19, 2013

Week in Review

By Martha Nimmer

Playing the Plaintiff

Six current college football players have joined the Ed O'Bannon/NCAA antitrust lawsuit, which hopes to turn the "economic model of big-time college sports" on its head, by forcing the NCAA and its member conferences to share revenue with their players. In June, Judge Claudia Wilken asked the plaintiffs to add a current player to the suit; later this summer, the judge will rule on whether to certify the class of current and former players, which would pave the way for it to pursue its claims as a group instead of as individuals.

The newest members of the O'Bannon suit, all of whom are seniors at BCS schools, hail from top football programs. The current football players who have joined the suit include Vanderbilt linebacker Chase Garnham; Clemson cornerback Darius Robinson; linebacker Jake Fischer and kicker Jake Smith from Arizona; tight end Moses Alipate and wide receiver Victor Keise of Minnesota. These athletes "join a roster of 16 former NCAA athletes, including former UCLA basketball player Ed O'Bannon," according to CBS Sports. In joining the suit, originally filed in 2009, the players greatly increase the chances that damages in the suit could hit upwards of a billion dollars. Yes, billion.

As detailed in an earlier post, the O'Bannon suit argues the NCAA, EA Sports and Collegiate Licensing Co.--the nation's leading trademark and licensing firm--violated antitrust laws. The suit also accuses the NCAA of "fixing at zero the amount that players can receive from video games and other products that use players' names, likenesses and images." The plaintiffs later amended their lawsuit, asking that current NCAA athletes be included in the suit, arguing that they deserve to share in the billions of dollars of revenue that are earned by the NCAA, their conferences and member schools.

http://espn.go.com/espn/otl/story/_/id/9491249/six-current-football-players-join-ed-obannon-ncaa-lawsuit

http://www.cbssports.com/collegefootball/blog/eye-on-college-football/22818559/six-current-players-join-obannon-suit-against-ncaa

Former Penn State President Sues Former FBI Director

Louis Freeh, the former director of the FBI who led an investigation into the Jerry Sandusky sex abuse cover-up, will soon be facing legal action from former Penn State University President Graham Spanier. According to the cover sheet filed along with the five-page notice, Spanier is suing Freeh for "slander, libel or defamation." Readers will recall that Freeh's seven month-long investigation "placed Spanier at the center of the cover-up" of the sex abuse scandal that rocked the university these last few years. Specifically, Freeh concluded in his investigation that Spanier, former head football coach Joe Paterno, and two other senior school officials "hid critical facts surrounding Sandusky's abuse." Spanier and Paterno were fired in November 2011. Paterno died last January. Sandusky, who was convicted in June 2012 of 45 criminal counts, is serving a minimum 30-year sentence.

Spanier's decision to sue Freeh comes just eight months after Spanier's being charged in November with endangering the welfare of a child in connection with a 2001 allegation against Sandusky. Timothy Curley, a former Penn State athletic director, and Gary Schultz, an ex-vice president in charge of university police, were also indicted. Both individuals, writes Bloomberg Law News, "had previously been charged with perjury in connection with the 2001 incident." Freeh's report stated that "red flags" involving Sandusky were "numerous" and that Spanier and officials ignored the warnings to avoid bad publicity.

A state court judge has scheduled a preliminary hearing for Spanier, Curley and Schultz to begin on July 29th to determine whether there is sufficient evidence to hold the men for trial.

http://about.bloomberglaw.com/legal-news/ex-penn-state-president-spanier-files-notice-to-sue-freeh/

Requiem for a Lawsuit

Yesterday, a federal judge in Mississippi ruled that the use of a nine-word quote from American author William Faulkner's Requiem for a Nun was de minimis and fair use under the Copyright Act.

The lawsuit, launched by the owners of the rights to the Faulkner works, argued that Sony Pictures' use of the quote in the Woody Allen movie Midnight in Paris violated the Copyright and Lanham Acts. Midnight in Paris stars Owen Wilson who travels to Paris and "finds himself spending time with literary greats," such as F. Scott Fitzgerald, Ernest Hemingway and Gertrude Stein. In the film, Wilson describes his amazing meetings, saying, "[t]he past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party." In Requiem for a Nun, Faulkner wrote, "[t]he past is never dead. It's not even past."

As to be expected, the presiding judge weighed the various factors that make up a claim of fair use in order to determine whether Sony's use of the Faulkner quote was permissible. In analyzing whether the market for Faulkner's famous literary work is likely to be harmed by the film, District Judge Michael Mills remarked that the film, in fact, "helped the plaintiff and the market value of Requiem if it had any effect at all." Ultimately, the court concluded that "no substantial similarity exists between the copyrighted work and the allegedly infringing work, and Sony's use in this matter was de minimis. The use is not actionable, and this claim is dismissed." Judge Mills, according to The Hollywood Reporter, also added that Sony's First Amendment rights superseded any Lanham Act claim that the film misled viewers into believing that there was an endorsement or connection with the famous writer's estate.

http://www.hollywoodreporter.com/thr-esq/sony-pictures-wins-midnight-paris-588515

Read the opinion here: http://www.scribd.com/doc/154578618/Faulkner-Requiem

First the Devil, and Now Netflix

T. Allen Chey, the creator of the film, Suing the Devil, now has a new enemy: Netflix. Chey, who is also an attorney, accuses Netflix of "the most egregious act ever committed by a film distributor," i.e. declining to stream his movie. The outraged director wrote in his complaint, filed in Los Angeles federal court, "[i]t is a well-known fact in Hollywood that independent filmmakers and artists are constantly mistreated, scammed, and abused by film distributors of all sizes . . . . This case takes the worst 'Scam-the-Artist' to a new low."

In his complaint, Chey argues that Netflix used Suing the Devil to "lure" subscribers "both old and new," and "deprive him of traditional moviegoers, who can wait for Netflix to stream the movie or offer it on DVD." After its limited August 2011 theatrical release, Suing the Devil became a hit on Walmart's movie streaming service, Vudu, and was distributed through Redbox DVD kiosks. Netflix, according to the complaint, refused to make the title available to its subscribers. Chey claims that Netflix "never intended" to stream the movie, and "purposefully and methodically uses the image of a filmmaker's work to bring that customer base in to sell to their own subscription base." Chey then goes on to state that he was "extremely shocked" when Netflix refused to distribute his film; the plaintiff claims the "enormous damages" it caused him are "incalculable at raw glance."

Seemingly unaware of the outrageousness of his comments, Chey goes on to claim that he is on a mission to "protect innocent filmmakers from having to go through what he endured." To further that crusade, Chey has asked a judge to grant TMZ, Variety, The Hollywood Reporter and The Wrap unrestricted access to cover his anticipated "obvious and complete victory" in court. Yes, he actually wrote that. To conclude, Chey calls Netflix's actions "the most egregious, humiliating, discriminatory acts" in the history of film distribution, and goes on to state he has never seen such "horrific conduct." Really?

Chey seeks a $10 million judgment, a figure that may seem low to some readers, in light of his supposed outrage. He also seeks damages for fraud and deceit, intentional misrepresentation, negligent misrepresentation, unjust enrichment, copyright infringement, intentional infliction of emotional distress, and interference with prospective business advantage.

http://www.entlawdigest.com/2013/07/12/2542.htm

Frozen Yogurt Fraud?

According to a lawsuit filed this week, the Food Network's new reality show, "Giving you the Business", does not actually "give you the business," much to the disappointment of the lawsuit's plaintiff, Kris Herrera.

The show, which premiered on April 25th this year and just wrapped its first season, features food service workers who must face new and unusual challenges at their restaurants. The employees are unaware that they are being filmed by hidden cameras. Whoever handles the situation best wins his or her own franchise of the episode's featured restaurant. Herrera won the "Giving You the Business" episode that aired on May 23rd and featured the New York frozen yogurt franchise 16 Handles. Herrera, who managed a New York City 16 Handles, says in his complaint that he was "repeatedly promised his own 16 Handles location." Instead, however, Herrera says that he received a single, non-transferable, non-voting share of common stock in the frozen yogurt company's parent, and nothing else. Unhappy, Herrera sued the Food Network and its parent company, Scripps Network, on Tuesday in New York court. Herrera also named 16 Handles founder Solomon Choi and parent companies Yogurt City and Yo Fresh and Food Network producer Cineflex as defendants.

According to the complaint, when the May 23th episode finished filming, the network "began advising [Herrera] that he was going to be awarded only a 'part of a franchise' or a 'stake in a franchise.'" Herrera's questions about what, exactly, he would receive went unanswered, ultimately culminating in his receipt of a single share of the above-described stock.

Herrera has sued for breach of contract, fraud and violation of his right to privacy and publicity.

http://m.hollywoodreporter.com/thr-esq/food-network-show-contestant-sues-587827

http://www.scribd.com/doc/154527215/Yogurt

Battle of the Bands

Even decades after their breakup, the Beatles remains one of the most popular and iconic musical groups in the world. Hoping to capitalize on that popularity, numerous tributes bands have formed to honor the British group. Now, instead of harmonizing on stage, two of those tribute groups find themselves doing battle in a New York courthouse.

This battle of the tribute bands arises from the premier of the musical, "Let It Be", set to begin next week on Broadway. The creators behind another tribute show, "Rain", have filed suit against "Let It Be's" producers, claiming copyright infringement. "Rain" appeared on Broadway for nine months from 2010-2011. The suit claims that "Let It Be" "owes a significant debt to "Rain," from the musical arrangements to the between-song patter to the mop-toppy wigs," writes The New York Times. Additionally, the suit alleges "[a]ll but 3 of the 31 songs in "Rain" are also in 'Let It Be,'"and "the artwork used as background during the performance of many of those songs are similar or identical." Notably, the plaintiffs have not tried to interfere with the running of "Let It Be" in London, but instead, ask for a 50-50 split of show revenue. The suit also seeks that the Rain Corporation be listed as a joint author of "Let It Be". According to the suit, the Rain Corporation and the defendants originally agreed to create a music production in 2005. In 2009, however, the agreement was modified as a "'50-50 percent partnership' for what was then called 'Rain -- A Tribute.' The parties involved were all listed as producers of the Broadway production of 'Rain.'" The complaint further states that the Rain Corporation supplied the producers of "Let It Be" with "Rain's" "script and blocking, sent 'Rain' cast members to Nevada for 'Let It Be'" rehearsals and also "oversaw the cast's costume fitting and wig cutting/styling."

The 2009 agreement detailed above expired two days before "Let It Be" began in London in September 2012. According to the lawsuit, "Let It Be" producers later "sent an e-mail saying that the 50-50 partnership agreement no longer pertained and that the "Rain" creators were now entitled to 7.125 percent of the revenue." Overall, the Rain Corporation suit seeks to maintain the original revenue distribution for the Broadway production and subsequent productions of "Let It Be".

Hopefully, the bands can get out of the courtroom sooner rather than later and return to the stage, Sgt. Pepper costumes and all.

http://theater.nytimes.com/2013/07/16/theater/a-beatles-tribute-show-seeks-half-the-revenues-of-another.html?_r=0

July 29, 2013

Week in Review

By Martha Nimmer

From MVP to SWP (Suspended Without Pay)

Major League Baseball (MLB) announced that Milwaukee Brewers outfielder Ryan Braun had been suspended without pay for the rest of the season. Braun will miss 65 games during his suspension. He has earned $9.61 million this season, but the suspension will cost him $3.85 million in salary. Previously in 2012, baseball commissioner Bud Selig unsuccessfully attempted to suspend Braun for a urine sample that tested positive for elevated levels of testosterone. An arbiter ruled, however, that the sample had been mishandled, ultimately leading to Braun's successful appeal of the suspension.

Braun, the former 2011 National League MVP, is the first player suspended following MLB's Biogenesis investigation, although the commissioner's officer did not indicate that the suspension was related to the investigation. Earlier this year, the names of more than 80 MLB players, including Alex Rodriguez, Bartolo Colon, Nelson Cruz and Melky Cabrera, appeared in documents from the now closed Miami clinic founded by Tony Bosch. Braun's suspension now raises a number of legal and financial concerns for the players implicated in the Biogensis scandal. Sports lllustrated's Michael McCann summarizes some of the issues that Braun and his fellow players may face.

Firstly, McCann writes, the Brewer outfielder can breath a (small) sigh of relief: Braun will likely avoid criminal charges arising from his purchase of performance enhancing drugs (PED). Braun has been careful not to mention specifics about his use of PEDs--instead, Braun merely points out that he "made some mistakes" and is far from perfect. The baseball player may have a tougher time, however, avoiding a defamation action. As part of Braun's effort to challenge a positive drug test result in 2012, Braun, according to McCann, "attacked the character of the test collector, Dino Laurenzi Jr. in February 2012." Braun could argue, however, that he was only stating his opinion of Laurenzi, and not airing false facts about the test collector.

The most challenging issue confronting Braun at this point is the Brewers' ability to void his contract. According to Sports Illustrated, the team is "set to pay Braun $133 million over the next eight years as part of a 2011 contract extension." If the Milwaukee team decided to void the player's contract, the team "would likely cite two paragraphs in the Uniform Player Contract. Paragraph 7(b)(1) allows for contract termination if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules.' Paragraph 7(b)(3) allows the club to do the same if a player 'fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract.'"

Whatever Braun's fate is, legally and professionally speaking, it is likely that his problems are far from over.

http://sportsillustrated.cnn.com/mlb/news/20130723/legal-implications-of-ryan-braun-suspension/#ixzz2aOOZaiVs

http://www.usatoday.com/story/sports/mlb/brewers/2013/07/22/ryan-braun-suspended-milwaukee-season/2576215/

Stupid and Stupider

Believe it not, there is a legal battle unfolding over who will get to make the sequel to Dumb and Dumber. Brad Krevoy and Steve Stabler, who produced the 1994 movie, have filed counterclaims against the company seeking to exclude them from a sequel that will again star Jim Carrey and Jeff Daniels.

The controversy began earlier this month, when Red Granite Pictures filed suit in Los Angeles Superior Court against Krevoy and Stabler, seeking to keep out the pair from "any involvement as producers" in the upcoming movie. According to Red Granite, run by Riza Aziz and Joey McFarland, the company has "no contract with Krevoy and Stabler for what the company is calling Dumb and Dumber To." The original Dumb and Dumber was distributed by New Line and Warner Bros.

Now, the defendants are fighting back. Stabler and Krevoy's counterclaim, filed this week, disputes the plaintiffs' contention that no agreement exists between Red Granite and Krevoy and Stabler. In the counterclaim, the defendants point to the contract they signed for the first film, which "entitled them to $600,000 in producer fees, a hard floor of 15 percent of net profits and a 25 percent royalty on video revenues." Further notable is the fact that the first agreement gave Stabler and Krevoy a "right of first negotiation for sequels and remakes on terms at least as favorable as their terms for producing the Original." This term, according to the defendants, is a standard clause in the entertainment industry that paves the way for producers to get paid "even if the studio decides to hire another producer for the sequel, so long as the producer is willing and able to produce the sequel."

The defendants also call into question whether McFarland and Aziz will honor any of their commitments to the "key talent" working on Dumb and Dumber To. The defendants also make it known that they doubt the Red Granite pair can even pull off a sequel: "Red Granite will not succeed with money alone because McFarland's and Shahriz Bin Abdul Aziz's experience producing motion pictures during their short tenure in the industry consists of cavorting at nightclubs with Paris Hilton and making dinner reservations at posh nightclubs in New York and Los Angeles." That, however, may be all the skills the Red Granite producers need to make a film called Dumb and Dumber To.

http://www.hollywoodreporter.com/thr-esq/dumb-dumber-sequel-insults-fly-590082

http://www.hollywoodreporter.com/thr-esq/dumb-dumber-sequel-red-granite-585635

American "I"-Strain

Ten former contestants on American Idol have sued the popular reality competition show. Named as defendants in the suit are Fox Broadcasting, executive producer Nigel Lythgoe and many of Idol's corporate sponsors, including Ford Motors, Coca-Cola and AT&T. The suit, authored by the contestants' attorney James H. Freeman, numbers in the hundred of pages--429, to be exact. The complaint begins with a quote from former U.S. Supreme Court Justice Thurgood Marshall, and then provides an overview of Enlightenment and the founding of the United States, just in case the presiding judge needs a refresher course on American history.

Joking aside, what distinguishes this action from other discrimination suits filed in the entertainment industry is "the alleged way that producers have obtained, disseminated and exploited the criminal background of the show's black contestants," writes The Hollywood Reporter. In other words, the suit claims that the defendants used the plaintiffs' criminal records as a way to reinforce pernicious stereotypes: "Rather than allow them to compete for the valuable prizes on the basis of their individual merit as artists, the program's top senior executives, British showrunners Nigel Lythgoe and Ken Warwick ran interference on them, sabotaging their promising careers as recording artists and gutting them of the opportunity they rightfully earned to become the next American Idol. Why? Because the Plaintiffs' identities could be used to scandal-monger Nielsen ratings while reinforcing the age-old stereotype of the 'black criminal'."

The goal of this behavior was to "systematically disqualify and publicly humiliate . . . virtually every top-ranking Black American Idol contestant who had a record of arrest (no matter how petty the alleged crime and no matter whether there was a conviction or an acquittal)." In contrast, states the complaint, the criminal records of Caucasian contestants were rarely made public, and if they were, the Caucasian contestants were "championed as models of redemption." This differing treatment, according to the complaint, helped Caucasian contestants prevail over the disqualified Black contestants on the program. The suit also alleges that White show participants were permitted to sing any songs of their choosing, while Black contestants were pushed to choose songs from the jazz or hip-hop genres.

Ambitious and sweeping though this lawsuit may be, it may not be long for this world: one of the first challenges that the plaintiffs will have to confront is whether a New York federal court has jurisdiction over the case. Before appearing on American Idol, the contestants signed various agreements, which likely included an arbitration clause that would typically require contestants to go to arbitration to settle disputes. The plaintiffs aver, however, that the agreements made with American Idol should be rescinded as "highly oppressive, unconscionable Willy Wonka contracts."

http://www.hollywoodreporter.com/thr-esq/american-idol-racism-lawsuit-429-594058

Read the complaint here: http://www.scribd.com/doc/156189462/Andrews-vs-Fremantle

August 2, 2013

Week in Review

By Martha Nimmer

"Passing Off" a Popstar

Popstar Rihanna can now count United Kingdom High Court Justice Birss among her many fans. On Wednesday, Justice Colin Birss ruled that a Topshop jersey sold with the singer's image "caused consumers of the London-based retailer to be misled into thinking she had endorsed" the item. In ruling in Rihanna's favor, Justice Birss also called the artist a "style icon."

Rihanna initiated the lawsuit in the U.K. after seeing her image on an oversized, sleeveless jersey sold by the British apparel label Topshop. The "style icon" alleged that the retailer was "passing off" her approval of the shirt, essentially making a claim similar to what in the United States would constitute a claim of false advertising. (It should be noted that Great Britain does not recognize rights of publicity, so that cause of action was unavailable to the popstar.) In weighing Rihanna's claim, Justice Birss was tasked with investigating why consumers purchase t-shirts and other items that feature the faces of celebrities. Essentially, the Court pondered, did consumers buy t-shirts and the like because they thought that the celebrity depicted endorsed the product, or was it because buyers simply liked the look of the items?

In this case, Justice Birss concluded that, although the mere sale of a t-shirt featuring the likeness of a celebrity is not "passing off" an item, "the sale of this image of this person [Rihanna] on this garment by this shop in these circumstances is a different matter." What made this situation different is that Rihanna is regarded by many people as a style icon, and as such, those individuals are interested in Rihanna's opinions of and preferences in fashion: "if Rihanna is seen to wear or approve of an item of clothing, that is an endorsement of that item in the mind of those people." This perceived endorsement, however, does not rise, on its own, to the level of "passing off." "Selling a garment with a recognizable image of a famous person is not, in and of itself, passing off. To be passing off, a false belief engendered in the mind of the potential purchaser must play a part in their decision to buy the product." Justice Birss, however, was convinced that Topshop had, in fact engendered such a false belief, writing that even though a notable number of consumers would acquire the t-shirt without "giving the question of authorization any thought at all, in [his] judgment a substantial portion of those considering the product will be induced to think it is a garment authorized by the artist."

http://www.hollywoodreporter.com/thr-esq/rihanna-declared-style-icon-winning-597072

Players Get Played, Plaintiff Claims

Electronic Arts (EA) has another class action on its hands: this week, in a suit filed in Brooklyn federal court, plaintiff Justin Bassett alleged that EA sold games online and then eliminated them, despite claims to consumers that the games would be available for unlimited time.

In his complaint, Bassett states that he purchased several sports-themed video games for Xbox 360, relying on the videogame maker's representation that the games were enabled for unlimited, online play. The games included FIFA Soccer 2011 for PCs and videogame consoles for PlayStation 3, Wii and Xbox 360; EASports Madden NFL 10 for Xbox 360; EA Sports NCAA Football 10; EA Sports Tiger Woods PGA Tour; EA Sports NHL 09; EA Sports Tiger Woods PGA Tour 09; and EA Sports NHL 08. Despite paying around $59.99 for each, the games were available for only a limited time, he states. "Had plaintiff known at the time that he would not be able to play the products online for a certain amount of time, he would not have purchased the products or paid the price he paid for the products," avers the complaint. Bassett claims that EA engaged in this activity in order to reduce market share for other, similar videogame products. This campaign to defraud consumers is, the complaint declares, "misleading and deceptive to consumers because EA only provided online support for the products for a limited time." "Consumers," the complaint continues, "frequently rely on labels in making purchase decisions. Here, plaintiff and the other class members reasonably relied to their detriment on defendant's misleading representations and omissions. Defendant's misleading affirmative statements about the capability of online play for the products obscured the material fact that defendant failed to disclose about the limited nature of its online support for the products."
The plaintiff seeks compensatory, statutory and punitive damages for consumer law violations; false advertising, unfair competition and breach of warranty.

So for now, just remember: EA giveth, and EA taketh.

http://www.entlawdigest.com/2013/07/31/2591.htm

Fear and Loathing in Sochi

Seemingly unafraid of an international backlash, Russia has announced its intentions to enforce a new and controversial law targeting gay rights activism when the country hosts the 2014 Winter Olympics in Sochi. The decision was announced on Thursday by the country's sports minister, despite assurances to the contrary from the International Olympic Committee that the law would not be enforced during the 2014 games.

Russia's draconian law was signed into law by President Vladimir Putin in late June. The law will impose fines on individuals accused of spreading "propaganda of nontraditional sexual relations" to minors. Specifically, the law allows for the punishment of foreign citizens, including fines of up to 100,000 rubles ($3,000), time in prison for up to 15 days, deportation and denial of reentry into Russia. The statute also "proposes penalties for those who express these views online or in the news media." Unsurprisingly, gay pride rallies and other public displays of support are also banned under the law.

Seeking, perhaps, to counter its image as a bastion of anti-gay sentiment and fear-mongering, the Russian government assured Olympic hopefuls and tourists that "an athlete of nontraditional sexual orientation isn't banned from coming to Sochi, but if he goes out into the streets and starts to propagandize, then of course he will be held accountable." This clarification, however, brings little comfort to gay athletes and others planning to attend the Olympic Games. Just recently, four Dutch citizens filming a documentary about gay rights in the northern Russian town of Murmansk were the first non-Russian nationals to be detained under the new law. Fortunately, their case did not go to court, according to Russian government-run news agency RIA Novosti.

In response to the oppressive law, some gay rights activists and organizations have called for a boycott of Russian-made products in North America, leading at least one bar in the United States to stop serving and stocking Stolichnaya vodka. Other critics of the law have called for a complete boycott of the 2014 Winter Olympics, while some athletes have called for protests, such as a pride parade, to be held during the games. Some American media outlets, however, have yet to map out their strategy for dealing with the law. Human rights activists have called on American news networks and athletic sponsors to boycott the games; other observers, citing the United States' strong commitment to free speech and freedom of the press, have encouraged American media to report on the controversial law. Mark Lazarus, chairman of the NBC Sports division, recently commented that the International Olympic Committee had assured Olympic athletes, fans, and media "that there won't be any issues," with the enforcement of the new law. Lazarus later added, however, that should the new law affect any part of the Winter Olympics "we will make sure we are acknowledging it and recognizing it."

http://news.findlaw.com/apnews/721b7a87956641e9af7ef482c8f209c9

http://www.jdsupra.com/legalnews/us-media-to-report-on-russias-anti-ga-57092/

NCAA Gets Tough

Don't mess with the NCAA: The athletic association is now holding "everyone more accountable" with the debut of harsher punishments that were approved in October of last year, but which just took effect today.

The tougher penalties facing NCAA rule breakers come more than a year after Pennsylvania State University (Penn State) faced punishment for the Jerry Sandusky child sex abuse scandal. Now, instead of what some critics have called an "outdated" two-tiered penalty structure and deliberative hearing process, the NCAA has adopted new policies that "could result in the suspension of coaches and more consistent punishments for major infractions," writes the Associated Press (AP). In the past, infractions were categorized as major or secondary. Now, there will be four categories, and corresponding punishment will be lightened or beefed up, depending on the presence of mitigating or aggravating circumstances. Teams or colleges that are found to be "in serious breach of conduct" with aggravating circumstances present would face the most severe penalties, even approaching those levied on Penn State. Readers will recall that Penn State faced a four-year postseason ban and a $60 million fine.

Head coaches are not immune from the stricter penalties, either. These coaches will, according to the AP, find themselves under more scrutiny: "by changing the burden from "presumption of knowledge" to "presumption of responsibility," head coaches could now be suspended for up to one full season if any member of their staff commits a serious rules infraction." The goal of this change, according to the NCAA, is to encourage head coaches to be aware of and more actively involved in the day-to-day activities of the team and its members. The effect of this burden shifting will, according to NCAA President Mark Emmert, make "the coaches have a responsibility to set the tone in that room on a daily basis and if they are not, then they will be held accountable."

The infraction committees charged with meting out punishment will also change under the new rules. The NCAA has already increased the number of committee members from ten to eighteen, and could add up to six more members. Emmert believes that this change will lighten committee members' workload, allow smaller groups to conduct many more hearings each year, and speed up a decision-making process that has long been decried as "far too slow." Additionally, under the new regulations, former college coaches will be permitted to hear cases and issue decisions.

Rule breakers beware.

http://news.findlaw.com/apnews/14d5cbc6a29f48b68d30c2e7737096ca

August 12, 2013

Week In Review

By Martha Nimmer

Slugger Suspended

Another MVP has been SWP (suspended without pay). Last Monday, Major League Baseball Announced that New York Yankees third basemen Alex Rodriguez would be suspended without pay for 211 games, based on his alleged violation of league rules that ban the use of performance-enhancing drugs (PEDs). Rodriguez's suspension comes just two weeks after MLB suspended Milwaukee Brewers player Ryan Braun for 65 games.

Rodriguez's suspension began last Thursday, and covers the remainder of the 2013 and the entire 2014 regular season. The 38-year old Yankee announced his intention, however, to appeal his suspension. Pursuant to baseball's collective-bargaining agreement, A-Rod is permitted to play and be paid during that appeals process, which may take a few months to complete. If an independent arbitrator upholds the 211 game suspension, the punishment would be the longest non-lifetime ban in MLB history, costing Rodriguez more than $31 million in lost salary. It is unlikely that the arbitrator will weigh in on Rodriguez's appeal before November, "meaning the suspension, if upheld in its entirety, would not take effect until 2014 and then would cover part of the 2015 season, when Mr. Rodriguez will be turning 40 years old."

The MLB has also accused A-Rod of attempting to obstruct a League investigation into banned drugs. This allegation explains why the former 2003 American League MVP received a much harsher punishment than the other 12 baseball players who were also punished on Monday. The suspended players include Jhonny Peralta of the Detroit Tigers, Everth Cabrera of the San Diego Padres, Antonio Bastardo of the Philadelphia Phillies and Francisco Cervelli, another New York Yankee. Each of these 12 players must sit out 50 games, roughly the remainder of the regular MLB season. All suspended players, according to The Wall Street Journal, are connected to Biogenesis, a now closed Florida clinic that MLB alleges distributed PEDs to athletes.

http://online.wsj.com/article/SB10001424127887324809004578637683563569160.html?mod=e2fb

A Jumpstart for Crowdfunding

Beginning on September 23rd, start up companies will be able to advertise investment opportunities on television, via Facebook, Twitter, and at crowdfunding sites, such as Indiegogo. This change, signed into law in April 2012 by President Obama, comes courtesy of the Jumpstart Our Business Startups Act (JOBS). One of the goals of JOBS is to do away with "some Depression-era restrictions on how fledgling businesses raise money could boost the economy."

Currently, startups are "required to pitch investment opportunities to individuals rather than broadcast them to the masses." Under the new law, filmmakers could gain "access to $300 billion from regular Joes with net worth over $1 million who can own part of the movies they fund." Under the new law, potential investors must be "accredited," meaning an individual (or married couple) with a net worth of $1 million--excluding his/her/their primary residence(s)--or an income exceeding $200,000 in the two most recent years ($300,000 for a couple). About nine million Americans fit those parameters, the effect of which is to open "up access to a lot of capital for filmmakers," according Jason Best, co-founder of Crowdfund Capital Advisors. "There's a lot of people who are passionate about film but can't make one themselves, but they want to be a part of one. Soon, they can."

People who do not qualify as "accredited" can also participate in the new investment scheme: individuals with a net worth or annual income of $100,000 can invest 10% of their income, and individuals with a net worth or incomes less than $100,000 may invest up to 5% of their incomes, or $2,000, whichever is greater. This part of the law will go into effect in 2014. A limitation on the use of unaccredited investors is that a filmmaker may raise only up to $1 million a year per film from these investors.

The new law does have its detractors, however. Critics worry about unsophisticated investors losing money, "especially considering Hollywood's notoriously opaque accounting practices." Supporters of the new investment strategy remain optimistic, crossing their fingers that equity crowdsfunding will be a boon to the still struggling economy. Jason Best estimates that the equity crowdfunding market could reach $4 billion in four years, "with a nice chunk of that going to filmmakers." The new investment measure also has the potential to empower moviegoers and involve them in the filmmaking process: "in the future, predicts EarlyShares chairman Stephen Temes, 'The audience will see a trailer and not only say, Wow, that looks great. I'd like to see it, but also, That looks like such a great movie, I want to invest my hard-earned money into it.'"

http://www.hollywoodreporter.com/news/forget-kickstarter-how-obamas-new-600233

Nava-no

Urban Outfitters is unlikely to win an award for cultural sensitivity. Merchandise sold in Urban Outfitters stores has managed to offend African-Americans, Mexicans, Jews, Democrats, Republicans and eating-disorder awareness groups, among others. Native Americans have also joined the list. The Navajo Nation sued the hipster retailer in March of last year for the company's use of the trademark "Navajo" in connection with the sale of underwear and a flask wrapped in what was described as "Navajo Print Fabric." Other items mentioned in the lawsuit included an "Unknown Techno Navajo Quilt Oversized Crop Tee" and a "Truly Madly Deeply Navajo Print Tunic," according to court papers. Now, Urban Outfitters and the Navajo Nation have announced that mediation efforts ordered by a federal court in New Mexico have failed.

Last September, the Philadelphia-based retailer attempted to have the trademark lawsuit moved from New Mexico to Pennsylvania. Urban Outfitters argued that the New Mexico court was inconvenient for the parties, including the Navajo Nation, headquartered in Arizona. The retailer also argued that the Philadelphia court was "particularly well-versed in intellectual property matters," and that the case would, consequently, be decided more quickly. Unconvinced, U.S. District Judge C. LeRoy Hansen rejected Urban Outfitters' arguments, saying the transfer would inconvenience the plaintiff. Judge Hansen also took issue with the retailer's argument that the Philadelphia court was more experienced in handling IP disputes, adding "all federal courts are presumed to be equally competent" in federal-question cases.

The court eventually sent the dispute to mediation, which took place on July 17th. The mediation, however, proved unsuccessful. Consequently, "pretrial events are scheduled throughout 2014, with the trial set for some time after May 1 2015, according to an Aug. 2 joint filing."

http://about.bloomberglaw.com/legal-news/gsk-urban-outfitters-craigslist-intellectual-property/

Peace, Love & Trademarks

The U.S. Patent and Trademark Office (U.S.P.T.O.) has rejected Craigslist's bid to register the peace sign as a trademark. The San Francisco-based company filed three applications in March 2010 to register the peace sign for use in the company's ad services, online computer databases and interactive online bulletin boards. According to Bloomberg Law, the peace sign "was created in 1958 by British designer Gerald Holtom, for use by the Campaign for Nuclear Disarmament." The symbol is "based on the semaphore symbols for the letters N and D, standing for nuclear disarmament." Since 1958, the symbol has been used in everything from jewelry, anti-war protest signs, bellbottoms and recently, a McDonald's print ad in Finland (http://www.huffingtonpost.com/2011/05/27/mcdonalds-ad-cow-udder_n_868046.html).

The U.S.P.T.O. rejected the first registration, later issuing a second rejection after Craigslist "tried to limit its application to cover only purple-colored representations of the peace sign." This limitation, however, did not change the minds of the trademark examiners. In an opinion, the board said that adding the color purple did "nothing" to render the mark distinctive and hence eligible for trademark protection. "We find that the purple color claim is not sufficiently distinctive to transform the universal peace symbol into an inherently distinctive mark, even as to the applicant's specific services," wrote the board. The board ultimately concluded that the peace sign is a "universal symbol that retains its message in all context. As a result, it "fails to function as a mark."

Peace out, Craigslist.

http://about.bloomberglaw.com/legal-news/gsk-urban-outfitters-craigslist-intellectual-property/

August 18, 2013

Week in Review

By Martha Nimmer

Faking It

An elderly man from Queens appears to be at the heart of an $80 million art forgery scandal, according to a federal indictment filed earlier this week. The federal government alleges that Pei-Shen Qian, a 73 year old Chinese immigrant living in the Woodhaven section of Queens, created dozens of paintings modeled after America's Modernist painters, which "were later sold as their handiwork for more than $80 million." Notably, Qian is not named in the indictment, according to The New York Times, but his neighbors report that the FBI searched his home earlier this week. One individual named in the indictment is Glafira Rosales, an art dealer, who is accused of selling the fakes. She is also charged with money laundering and tax evasion.

Qian came to the United States more than 30 years ago, but had struggled to make a living in the American art world, despite meeting with some success in his native China. By the 1990s, Qian had "becoming increasingly disenchanted with his own work." He was eventually "discovered selling his art on the streets of Lower Manhattan in the early 1990s by Ms. Rosales's boyfriend and business partner, an art dealer named Jose Carlos Bergantiños Diaz, who recruited him to make paintings in the style of celebrated Abstract Expressionists." Over the next 15 or so years, the painter "churned out at least 63 drawings and paintings that carried the signatures of artistic giants like Jackson Pollock, Barnett Newman, Robert Motherwell and Richard Diebenkorn, and that Mr. Bergantiños Diaz and Ms. Rosales boasted were authentic." These works were not copies of paintings, but were touted as newly discovered works by famed American artists. Rosales then sold or consigned the works to two well-known Manhattan dealers, Knoedler & Company and a former Knoedler employee named Julian Weissman. These dealers then sold the pieces for millions of dollars, even though the works did not come with any supporting documentation of authenticity. Rosales explained to the dealers that many of the paintings came from a collector who had inherited the works from his father, and refused to be identified. This unnamed owner eventually came to be referred to as "Secret Santa" and "Mr. X."

The scheme, writes The New York Times, began to collapse in 2009, "when questions raised about the authenticity of some Motherwells reached the FBI." Once these concerns about authenticity came to light, angry buyers began to file lawsuits, demanding millions of dollars in damages and reimbursement from the dealers. One of the plaintiffs is a Kuwaiti sheikha.

It remains unclear the extent of Qian's knowledge of the fraud. It is not, after all, against the law to make a replica of a famous painting, or even to sign the name of an acclaimed artist, as long as the work is "clearly identified as a fake." What is illegal, however, is to market the work as authentic. As for Qian, his house in Queens lays empty. He and his wife, according to neighbors, had left suddenly a few months ago. Although he is known to travel frequently to China, his current whereabouts remain unknown.

http://www.nytimes.com/2013/08/17/nyregion/struggling-immigrant-artist-tied-to-80-million-new-york-fraud.html?pagewanted=all

Sorry, I'm Suing You

"Plaintiffs, who have the utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies, reluctantly file this action . . . ." is how singers Robin Thicke and Pharrell Williams' began their lawsuit against the heirs of Marvin Gaye. Who knew that a legal action could be so apologetic?

Thicke, Williams and Clifford Harris, Jr. filed the lawsuit on Thursday in California federal court "in the face of multiple adverse claims from alleged successors in interest to those artists." The complaint says that the Gaye family has continued to allege that "Blurred Lines" and Gaye's "Got to Give It Up" "feel" or "sound" the same. The family of Marvin Gaye and Bridgeport Music are also accused of threatening litigation if the plaintiffs did not pay a monetary settlement. The suit, not so apologetically this time, also claims that the "Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work." Thicke, Williams and Harris, however, hope to put that controversy to rest.

In their suit, the plaintiffs adamantly maintain that "Blurred Lines"--the musical hit of the summer--was created "without copying anyone else's composition." Thicke, Williams and Harris, Jr. seek a declaration that that "there are no similarities between plaintiffs' composition and those the claimants allege they own, other than commonplace musical elements." Further requested is a declaration from the court that says the "Gayes do not have an interest in the copyright to the composition 'Got to Give It Up' sufficient to confer standing on them to pursue claims of infringement of that composition."

http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/Robin_Thicke_Complaint%20for%20Declaratory%20Relief%202013.08.15.pdf


Breathing New Life into The Beatles

Fearing that later generations will grow up without The Beatles, Owen Husney, a veteran music executive, has teamed up with a small music publisher to breathe new life into the famed musical works. This collaboration is, it turns out, "the result of a little-known kink in the Beatles' business history." The publishing rights for most of the British group's works are owned by Sony/ATV Music Publishing, a joint venture between Sony and the estate of Michael Jackson; the North American rights to six early songs, however, were owned separately by the Pincus family of publishers in New York. According to The New York Times, Round Hill Music, a small publisher, and the Adage Group, an intellectual property rights firm, purchased these rights from the Pincus family for an undisclosed figure early last year. Usually, for most Beatles works, a party seeking to utilize a song would need the approval of Sony/ATV, EMI, the Beatles and their estates. Just last year, for example, the popular AMC show Mad Men paid an estimated $250,000 to use the Beatles' "Tomorrow Never Knows." According to Matthew Weiner, the creator of the show, it took several years for him to get the required approvals to use the song.

Seeking to capitalize on their investments, Round Hill Music and Adage Group began commissioning covers of the six songs. The earliest example of this licensing strategy appeared on Sunday night's episode of the HBO show True Blood: "a version of 'I Wanna Be Your Man' -- a song that John Lennon and [Paul] McCartney wrote for the Rolling Stones in 1963 and also recorded with the Beatles -- played by Mobley, an indie band from Austin, Tex."

A new Beatles album will also be born of this licensing plan. The album, "Beatles Reimagined," will be released on October 1, 2013 by Community Music, and will feature songs such as "She Loves You," "I Saw Her Standing There" and other early Beatles works. Mostly "underground bands," including Badwolf and the Well Pennies, will play on the album.

http://www.nytimes.com/2013/08/15/business/media/licensing-plan-gives-fresh-plays-to-beatles.html?ref=arts&_r=0&gwh=22FED07535D30A99CCDCAAC4A63532D5

Crime and Punishment

The state of North Carolina and the city of Charlotte have sued the gang Hidden Valley Kings (HVK) and its record label, ICEE Money, in Mecklenburg County Court. The plaintiffs claim "the gang uses its hip-hop label to promote its drug deals, armed robberies and drive-by shootings." According to the complaint, Charlotte says it has no "other adequate means of stopping gang members from associating with one another to plan and commit crimes." The city further claims that the gang, which "has developed a social hierarchy comprised of member 'tiers,'" formed its rap label, which stands for "I See Money," as a front for HVK. "According to its members, ICEE is a record label that promotes gangster rap . . . However, public source information provided by the 'promoters' on YouTube and Twitter accounts, along with interviews conducted by police with ICEE associates, clearly indicates that ICEE is predominately comprised of Tier 1 HVK members is being operated as a front for HVK."

The gang was formed in the late 1980s, and rose to infamy when it was featured in an episode of the television show Gangland, titled "Killing Snitches," which aired in 2009. "On information and belief, HVK is believed to be responsible for several drive-by shootings which are deployed to protect their turf or to retaliate against other gangs or persons. While the Hidden Valley Neighborhood in general is a safe place to live, the increase in HVK's violent actions threatens the health, safety and welfare of the neighborhood and surrounding areas." Unfortunately, the citizens who live and work in the Hidden Valley community are "suffering immediate and irreparable harm" because they are "being denied the quiet enjoyment of their homes and businesses due to the criminal street gang activity engaged in by the defendants and other identified gang members."

The city seeks an injunction under the North Carolina Street Gang Nuisance Act to prohibit gang members and associates from criminal gang activity. As a result of the injunction, HVK members would be prohibited from "driving, sitting, standing, walking, gathering or appearing anywhere in public with other gang members, except to attend church, school or counseling."

http://www.entlawdigest.com/2013/08/15/2628.htm

Time Warner Woes

Time Warner Cable (TWC) has another problem on its hands. First, CBS pulled its channels from TWC's service in several major markets, including New York City and Los Angeles. Now, the cable provider has been hit with a class action lawsuit related to the blackout. In a suit filed Wednesday in Los Angeles Superior Court by James Armstrong, Michael Pourtemour and Vatsana Bilavarn, the plaintiffs say that they were "enticed into subscribing to TWC service by the promise of CBS-owned channels CBS, Showtime, Movie Channel and Los Angeles station KCAL, but have been unable to access them due to the two-week blackout."

CBS and TWC are in the middle of a standoff over CBS' attempt to increase carrying fees for its channels. TWC, however, refuses to budge on pricing. As a result, CBS has pulled its channels. Many New Yorkers are affected by the blackout, but are being "treated" to free re-runs of 1990s family movies on the Starz channel, thanks to TWC's generosity...or fear of losing customers.

In the suit, the lead plaintiffs claim that if they had known of the threat of a program blackout, they would not have subscribed to TWC. Pourtemour specifically states that he would not have purchased TWC's Internet services, either, if the cable TV service was not offered "to his satisfaction." The plaintiffs further state that they had complained to the defendant that they could not watch Big Brother, the PGA Championship, Dexter and Ray Donovan because of the blackout. They also quote TWC advertisements from October 2012 that promise "six free months of Showtime for signing up to TWC basic cable services." "The courtesy replacement programming," the plaintiffs state, "is not a reasonable substitute for programming blacked out, as it does not include a fungible offering of programs relative to CBS and Showtime."

The suit raises several causes of action, including breach of contract, unjust enrichment and violations of California's business and professions code. The class action also hopes to encourage other TWC customers to join the suit. The plaintiffs are seeking an unspecified reimbursement for subscription fees paid.

Enjoy your free Starz while you can!

http://www.hollywoodreporter.com/thr-esq/time-warner-cable-hit-class-606634

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/bc518210_WM.pdf

United States of America v. One White Crystal-Covered "Bad Tour" Glove and Other Michael Jackson Memorabilia: A 'Thriller' of a Case!

Michael Jackson is a common topic in litigation nowadays. The singer's wrongful death lawsuit is in its fourth month, but the federal government takes the prize for Michael Jackson-related litigation, although the relation is tenuous, at best: the United States government's legal wrangling to seize a Jackson glove from a dictator's son is currently in its 28th month, and is headed for a hearing on Monday, according to The Hollywood Reporter.

The United States initiated its suit in April 2011 when the federal government filed a complaint for forfeiture in rem. The purpose of this action was to obtain over $70 million of possession from Teodoro Nguema Obiang Mangue, the son of the president of Equatorial Guinea. More than 70% of the population of Equatorial Guinea lives in poverty, yet the president's son is said to have somehow "amassed over $300 million in net worth, all while earning an income of less than $100,000 per year as an unelected public official appointed by his father." How did Mangue accomplish such a financial feat, you ask? Officials in the country are corrupt, according to the complaint, and have used bank accounts scattered across the globe to launder funds earmarked for public infrastructure improvement and development. The U.S. government alleges that some of these funds were used to purchase, among other things, the famous "white crystal-covered glove" worn on tour by the late pop star.

Despite the government's efforts, obtaining this glove has not proven easy. In April 2012, after Mangue's legal counsel "objected to the vague charges against him," a California federal judge threw out the complaint, stating that the government had failed to show how Mangue had accumulated wealth in a manner in violation of his country's laws. The judge, however, permitted the United States to file an amended complaint. Now, Mangue is accused of committing bank fraud.

A hearing in Los Angeles is scheduled for Monday. Thus, we await the fate of the "white crystal-covered 'Bad Tour' glove."

http://www.hollywoodreporter.com/thr-esq/us-battling-dictators-son-michael-607295

September 7, 2013

Week in Review

By Martha Nimmer

Concussion Case Closed?

The National Football League (NFL) has agreed to a $765 million settlement with roughly 4,500 former NFL players who alleged brain injuries caused by repeated concussions on the playing field. This announcement came last Thursday after two months of negotiations. Notably, the settlement does not include any admission of liability from the NFL. The $765 million settlement, if approved by presiding U.S. District Court Judge Anita Brody, will go towards compensating "the 4,500 or so living plaintiffs who claim dementia and other injuries, as well as fund medical exams and medical research." Specifically, $675 million "will go to compensate former players who have suffered cognitive injuries." As much as $75 million, it is rumored, will be earmarked for medical exams. The remainder of the settlement funds will be devoted to research and providing notices to class members. Additionally, according to the American Bar Association, "an unspecified amount of legal fees will be paid separately in addition to the settlement amount." Under the agreement's framework, the NFL is required to pay 50% of the settlement amount over three years, and the balance over the following 17 years.

The settlement, hailed by Judge Brody as "historic," came just a week before the NFL regular season began. The NFL will benefit from the agreement by avoiding a finding of liability. It can also avoid long, drawn out discovery regarding "what the league knew and when concerning a claimed connection between head injuries and degenerative brain disease, as well as the possibility of a mega-verdict if the case had gone to trial that could have made it difficult or impossible for the NFL to obtain insurance coverage." As for both current and retired players and survivors of players who have died, those parties "will be taken care of without having to fight a lengthy court battle," stated plaintiffs' attorneys. Parties who want to pursue separate claims are still able to opt out of the proposed settlement.

http://www.hollywoodreporter.com/thr-esq/nfl-reaches-765-million-settlement-617539

http://www.abajournal.com/news/article/nfl_to_pay_765m_to_settle_player_concussion_litigation/

Happy Birthday to No One

Warner/Chappell Music wants you to have a happy birthday, but whatever you do, do not sing the "Happy Birthday" song, at least not without a license. Why? Well, according to Warner/Chappell Music, the "English language's most recognized song" is not in the public domain.

Last Friday, the mega music publisher went to court to respond to a lawsuit that claims that "Happy Birthday" is in the public domain. According to The Hollywood Reporter, the plaintiff in the "Happy Birthday" case has "traced the origins of the popular composition to a schoolteacher named Patty Smith Hill and her sister Mildred Hill in the late 19th century." The plaintiff also provided evidence that "much of what we know about the song was already published by the time a copyright registration was attempted. As such, the lawsuit seeks to confirm that 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935."

Unsurprisingly, Warner/Chappell is moving to dismiss this action. First, the publisher says that allegations by the plaintiff that Warner/Chappell violated California unfair competition and false advertising laws are "preempted by federal copyright law." Additionally, the defendant is also "looking to have the lawsuit narrowed by having a judge reject state-based claims." These arguments aim to limit Warner/Chappell's liability "and to test the resolve of the plaintiffs' attorneys."

In the meantime, find another way to wish your loved one a happy birthday, preferably a way not set to music!

http://www.hollywoodreporter.com/thr-esq/warner-music-aims-keep-happy-619757

Read the motion to dismiss here: http://www.scribd.com/doc/165236111/wchb

Sirius Problems

SiriusXM has some major legal problems: the satellite radio giant was just hit with its fourth $100 million lawsuit in the last month--and you thought you had problems!

The satellite radio company's latest legal woes arose from its longstanding assumption that SiriusXM had "the right to distribute and perform pre-1972 recordings." Turns out, however, that this may not be the case. Last month in California court, Flo & Eddie of the music group the Turtles filed a "proposed $100 million class-action lawsuit against the satellite radio giant, premised on the theory that because sound recordings didn't fall under federal copyright protection until 1972, then SiriusXM couldn't rely on statutory royalty rates for these older tunes." The duo did not stop there, however. The plaintiffs recently filed another, similar lawsuit in New York, and then filed a third proposed class action suit in Florida. SoundExchange then initiated its own $100 million lawsuit last week against SiriusXM, alleging that the satellite radio company should not have subtracted recordings made before 1972 from gross revenue calculations. Specifically, SoundExchange avers that "SiriusXM has taken the position that the federal statutory license does not cover pre-1972 sound recordings, and on information and belief, SiriusXM is not separately licensing the pre-1972 sound recordings from their owners, even though they are subject to common law copyright or equivalent protection under state law."

The defendant, likely still reeling from this string of $100 million legal actions, has not responded to any of the suits, "except to remove one filed in California state court to California federal court." Given the financial magnitude of the lawsuits facing SiriusXM, a response should be coming soon.

http://www.hollywoodreporter.com/thr-esq/siriusxm-hit-fourth-100-million-620793

Taxing the King of Pop

Yes, even music royalty has to pay taxes, although this reality may have eluded the executors of Michael Jackson's estate.

The Internal Revenue Service (IRS) is currently seeking more than $700 million in tax penalties from the pop star's estate. The IRS has valued Jackson's estate at more than $1.1 billion, claiming that executors "significantly undervalued his property, resulting in a tax deficiency of more than $505 million and additions to tax of more than $196 million." In July, the singer's estate filed a petition that challenged the numerous deficiencies and penalties alleged by the IRS; in that petition, specific dollar valuations were redacted. The IRS, in turn, responded last week and "included a non-redacted copy of the government's deficiency notice." One of the assets of note is a 2001 Bentley Arnage driven by the deceased recording artist and valued by the estate at $91,600; the IRS, in contrast, valued the car at a cool $250,000. Other assets noted in the deficiency notice include: Jackson's "share of artist mechanical rights related to Jackson 5 master recordings," valued by the estate at $11.19 million, compared with $45.49 million by the IRS; tangible personal property valued by the estate at zero, compared with $47.46 million by the IRS; and a contingency non-appearance and cancellation policy issued by Lloyd's of London, valued by the estate at zero, compared with $17.5 million by the IRS. Most notably is the divergent valuation of Jackson's "image and likeness." While the Jackson estate claimed the ridiculously low value of a mere $2,105 for Jackson's image and likeness, the IRS determined a value of more than $434 million. The generally applied method for valuing an individual's image and likeness when he or she dies, according to Bloomberg News, is to "use an income-stream model where the executor "forecasts the income streams to be earned in the future and applies a capitalization rate to reach a present value." Perhaps the Jackson estate should check its math...

http://about.bloomberglaw.com/legal-news/michael-jacksons-bentley-valued-at-250000-by-irs-taxes/


September 16, 2013

Week in Review

By Martha Nimmer

Don't Film On Me

Unless, of course, you have a permit!

The Department of the Interior (DOI) has issued new rules for commercial filming and photography on the nation's public lands. The requirements, which go into effect on September 23rd, are "meant to align fee structures and requirements among the three DOI land management agencies. Previously, the types of commercial filming and still photography activities needing a permit varied from agency to agency." Yet what, exactly, is considered commercial filming, at least according to the DOI? Surprisingly, news gathering and documentary filmmaking are treated as commercial filming under the new rules, but, as the DOI stated, "news gathering should not be treated in the same manner as other commercial filming activities, and the agencies intend to allow news media access to federal lands to gather news." What that means is that news outlets may still need a permit, "when time allows and the agency determines that a permit is required to protect agency resources, to avoid visitor use conflicts, to ensure public safety, or to authorize entrance into a closed area." The DOI continued: "if the news story is such that the requirement for a permit would interfere with the ability of the entity to gather the required footage or photographs, then the permit requirement will be waived, but the activity is still subject to the oral instructions of the agency representative in order to protect cultural and natural resources and to maintain order and ensure the safety of the public, agency personnel, and the media."

As to be expected, these new permitting rules have raised First Amendment and censorship concerns. In response to critics' concerns over potential government censorship of protected photographic activities, the DOI stated, "the decision to approve or deny a request for a commercial filming or still photography permit is not based on the content of the material ... [but] on the potential impact the activity may have on cultural and natural resources, on other visitors, on agency operations, and on the health and safety of visitors, permittee staff and agency employees." [brackets added]

The DOI's reply to comments that some wording in the new rules was "too vague" and "overbroad" was to define further terms such as "model," "sets and props" and "resource damage." Hopefully, this additional clarification will satisfy Constitutional scrutiny, but it seems likely that implementation of these new rules will quickly lead to claims of First Amendment abridgment and government censorship.

http://www.entlawdigest.com/2013/08/29/2668.htm

Breaking Bad Apple

Fans of the hit television show Breaking Bad will understand when I say that Apple should "tread lightly" when it comes to interfering with customers' ability to watch the show. It turns out that fans of Breaking Bad are incensed that Apple has allegedly sold "season passes" for the final season of the show, then divided the season in two and charged customers twice to watch it, according to a federal class action suit. Breaking Bad is a popular, highly-acclaimed show about a high school chemistry teacher turned (spoiler alert) meth dealer and murderer. Season 5 of the hit series, produced by AMC Networks, was announced as the final season and was to include 16 episodes.

Lead plaintiff in the class action, Noam Lazebnik, accuses Apple of deceptive and unfair trade practices arising from the way the company sold Breaking Bad on iTunes. "When a consumer buys a ticket to a football game, he does not have to leave at halftime. When a consumer buys an opera ticket, he does not get kicked out at intermission. When a consumer buys a 'Season Pass' to a full season of a television show on iTunes, that consumer should get access to the whole season," Lazebnik states in the complaint. AMC announced in a 2012 press release that the final season of the show "consists of 16 episodes, with the first eight episodes beginning July 15th and culminating with the series' final eight episodes next Summer 2013." Since making that announcement last summer, AMC has collectively referred to the eight episodes broadcast in 2012, and the eight episodes currently airing, as "Season 5." To wit, this season's episodes are listed as "Season 5, Episode 9 (509), Season 5, Episode 10 (510), etc."

When the fifth season of Breaking Bad became available for download on iTunes, customers were offered a "Season Pass" for $21.99 for high definition and $13.99 for standard definition. In exchange, the complaint avers, customers were promised: "[t]his Season Pass includes all current and future episodes of Breaking Bad, Season 5." Additionally, the information page on the season pass "claims that the pass will give consumers access to every episode in the season, at a better price than it would cost to buy the episodes one at a time." "Therefore, customers who purchased a 'Breaking Bad: Season 5' Season Pass from iTunes reasonably believed that they would receive access to all 16 episodes of Season 5, as announced and promoted by AMC," Lazebnik argues. Unfortunately for Breaking Bad season pass holders, when the second half of the final season became available on iTunes in early August this year, customers with a season pass had to pay another $22.99 (or $14.99 for standard definition) to access the episodes. "Apple's behavior was deceptive, fraudulent and undertaken only to maximize its revenue with regard to Season 5 of 'Breaking Bad,' the most popular TV program on iTunes, all at the expense of its customers," the lead plaintiff claims. Lazebnik demands that Apple "refund the second-half charge it took from each class member," and seeks damages for breach of contract, deceptive trade and unfair competition.

Apple has not commented on the lawsuit. Better call Saul!

http://www.entlawdigest.com/2013/09/09/2681.htm

From Kids' Craze to Courtroom Battle

There is a looming legal battle in U.S. courtrooms. In August, the founder of Rainbow Loom -- a rubber-band jewelry-making kit -- sued Zenacon LLC, claiming that the rival company copied the "distinctive trade dress" of Rainbow Loom's "'unique' C-shaped clips with [Zenacon's] competing FunLoom product." Just 6 millimeters wide, the plastic C-shaped fastener at issue allows the crafting-inclined to connect loops of colored rubber bands to form bracelets. According to The Wall Street Journal, "the fasteners are key to rubber-band bracelet crafting because they're used to connect bands that have been woven together with a loom. The looming technique, which dates back to the 1800s, creates looped knots called Brunnian links." Steven Verona, whose company Zenacon produces the FunLoom product, denies the allegations. "Is a loom something new and novel?" he asks. "It isn't. It has been around for hundreds of years. Same as rubber bands." Furthermore, added Verona, the C-clip in FunLoom's kit is better, "given that it is larger and therefore easier for children to handle, plus it can hold more elastic bands."

Even though this now highly popular weaving method is far from new, Rainbow Loom founder Cheong Choon Ng took little comfort in that fact. He claims he "made this famous," adding that he has sold more than 1.2 million Rainbow Loom kits. "I worked on it for three years and now everyone wants to come in." Ng says he came up with the idea for the Rainbow Loom in 2010 after struggling to make bracelets with his young daughters. He applied for a for a patent on the Rainbow Loom kit, including its C-clip, that same year. The U.S. Patent and Trademark Office granted him a patent in July of this year.

The plaintiff also filed a lawsuit last month against toy retail powerhouse Toys "R" Us, which sells another competing kit. As part of this action, Ng is also suing LaRose Industries LLC of Randolph, N.J., the creator of Cra-Z-Loom, another kit for making rubber-band bracelets. According to the complaint in the suit against LaRose Industries, filed on August 9th, Ng seeks to stop Toys "R" Us from selling Cra-Z-Loom, plus unspecified damages. In response, LaRose Industries filed a countersuit on August 28th against Ng's firm, Choon's Design LLC, alleging that "Choon's actions were not motivated by a legitimate business purpose, but were instead maliciously calculated to procure a breach of contract, and were otherwise fraudulent, dishonest and illegal."

In happier news for Rainbow Loom, the company finalized an exclusive contract in August "to sell its products through national crafts chain Michaels Stores Inc. for one year," writes The Wall Street Journal.

http://online.wsj.com/article/SB10001424127887323864604579067670192375310.html?goback=%2Egde_3904169_member_273459570#%21

September 25, 2013

Week in Review

By Martha Nimmer

V for Victor

It turns out that you can stop the music, at least if you're Victor Willis.

Willis, singer and former member of the Village People, has proven victorious in a six year-long legal battle to reclaim his rights to more than 30 of the musical group's hit songs. The singer and songwriter, who dressed as a police officer in the band, left the Village People in 1979, and transferred his rights to 33 tracks, including "Y.M.C.A." and "In the Navy," to his publisher. After "experiencing a change of heart" and seeking to recover his rights in the musical works, Willis invoked Section 203 of the Copyright Act, the termination of transfers and licenses granted by the author provision. Section 203 grants musicians and songwriters "termination rights," which allow the musicians or songwriters to regain control of their works after 35 years have lapsed since their transfer; this provision applies even if the musician/songwriter is the party who originally transferred his/her rights in the musical composition! The purpose behind this part of the Copyright Act, added in 1976, was to protect composers and other musicians who had relinquished their rights in their creative works before becoming aware of the works' commercial success.

It is on this provision of the Copyright Act that the former Village People member relied when he filed suit to regain control of his ownership rights in the 33 musical works. Willis then "became locked in a bitter fight with the bosses behind the Village People's catalogue," but last year prevailed when a judge granted his "motion to dismiss the publishers' claims against his proceedings, allowing the termination to go forward." Now, more than three decades after he wrote the lyrics to the hit song "Y.M.C.A.," Victor Willis "will gain control of his share of the copyright to that song and others he wrote when he was the lead singer of the . . . Village People."

Little, however, is simple in the legal world: the litigation over the Village People catalog is not over. Although Willis' songwriting partner, Jacques Morali, died in 1991, the name of a third author, record producer Henri Belolo, is listed as a co-writer on "Y.M.C.A." and other songs, and the distribution of songwriting credits and revenues is now being decided in court. "The termination is going to occur," stated Jonathan Ross, one of Willis lawyers. "What is in dispute is how much he is getting back, one-half or one-third."

http://www.nytimes.com/2013/09/11/arts/music/a-copyright-victory-35-years-later.html

http://www.hollywood.com/news/brief/55033389/victor-willis-claiming-victory-in-longrunning-copyright-case

Read 17 USC § 203 here: http://www.law.cornell.edu/uscode/text/17/203

Rewriting the Rules

Earlier this month, radio giant Clear Channel reached an agreement with Warner Music Group (WMG) that will give the recording company and its artists a share of the revenue earned from radio station airplay. This agreement will be the first time that a record label and its artists will be able to collect royalties when their musical works are performed on Clear Channel's 850 stations. "In exchange," according to The New York Times, "Clear Channel will receive a favorable rate in the growing but expensive world of online streaming."

Under the current system of royalty payments, "terrestrial broadcasters are not required to pay royalties to labels and performing artists for the records they play on the air." As for Internet radio, however, "services such as Pandora, as well as broadcasters like Clear Channel through its station Web sites and iHeartRadio app, pay these royalties, but they have complained that the statutory rates for licensing music are too high. The New York Times points out that Internet and satellite radio services have default royalty rates determined according to formulas set by federal statute, while "most other kinds of digital music companies, including on-demand services like Spotify and Rhapsody, rely on all-encompassing licenses negotiated directly with labels and publishers."

Recently, Clear Channel has reached a number of similar licensing agreements with smaller companies, including Taylor Swift's label, Big Machine. WMG, however, is the first major company to make such a deal with Clear Channel, underscoring the significance of streaming in the music world, and the "continuing debate in the music industry over how music should be licensed and paid for," particularly in light of laws that have struggled to keep up with the rapid changes in technology.

http://www.nytimes.com/2013/09/13/business/media/clear-channel-warner-music-deal-rewrites-the-rules-on-royalties.html?ref=media&_r=0

Patented Leather

French designer Céline, whose iconic handbags have been spotted on the arms of Rihanna, Oprah and the Olsen twins, now has another accolade to add to its collection: patent protection. Earlier this month, the fashion house received U.S. patent protection for two of its designs: according to The Fashion Law Group, "the patents extend to the design of the house's Diamond clutch (from its Fall 2013 collection) and its Case bag (which debuted for Spring 2013)."

Even though the process of successfully obtaining a design patent is long and arduous (read: expensive) this has become the industry trend as of late for protecting fashion designs. For well-known designers, however, who have the financial resources to spare and who plan "to reintroduce a design or offer a design for longer than the one or two seasons, design patents provide protection that are not available to the vast majority of designs in the U.S. (where design piracy is rampant and the shift away from logo-covered purses makes trademark infringement a difficult avenue to fight fakes)." This move towards patent law as a way to protect design comes as fashion houses and IP attorneys have struggled to use trademark and copyright law, in their current forms, to safe guard fashion design adequately. A design patent, however, is no fail-safe against copycats and counterfeits, but only part of a company's intellectual property protection arsenal.

http://www.luxurydaily.com/celine-patents-handbag-designs-to-protect-brand-image/#">www.luxurydaily.com/celine-patents-handbag-designs-to-protect-brand-image/#">www.luxurydaily.com/celine-patents-handbag-designs-to-protect-brand-image/#

See the drawings submitted to the USPTO here: http://www.fashion-law.org/2013/09/celine-was-granted-tw">www.fashion-law.org/2013/09/celine-was-granted-tw

Pandora's Music Box

Pandora users can breath a sigh of relief: last week, U.S. District Judge Denise Cote granted Pandora's summary judgment motion that will prevent it from losing the right to stream thousands of popular songs contained in the repertory of the American Society of Composers, Authors and Publishers (ASCAP), a leading performing rights organization that represents over 470,000 songwriters, composers and music publishers.

The legal controversy dates back to 2011, when Pandora obtained a five-year "blanket license" from ASCAP. Heavy hitters in the music business -- including EMI Music and Sony/ATV Music -- then "withdrew from ASCAP the right to license their compositions to 'new media' services, such as Pandora. Pandora later reached an agreement with Sony/EMI in June 2012, only to see Warner, Universal and BMG announce their intentions "to withdraw new media rights as well." This turn of events caused Pandora to go to court, "seeking a determination that ASCAP publisher withdrawals did not impact the scope of [Pandora's] overall ASCAP license." Unfortunately for ASCAP, however, Judge Cote agreed with Pandora; the U.S. district court judge ultimately ruled that the consent decree under which ASCAP operates requires the organization to provide Pandora with a license to perform all of the works in the ASCAP repertory, "even if it purports to lack new media rights."

The consent decree at the heart of the dispute dates back to 1941. The decree came about, according to The Hollywood Reporter, "when the Justice Department filed an antitrust lawsuit alleging monopolization of performance rights licenses. A consent decree was reached and it has been adjusted over the years, most recently in 2001, in what is known as the "Second Amended Final Judgment" (AFJ2). The effect of the AFJ2 is to restrict how ASCAP may grant licenses; the AJF2 also establishes a framework for establishing fees for licenses when a license applicant cannot come to an agreement with ASCAP. Pandora currently finds itself in such a situation, which will go to trial in December.

http://www.hollywoodreporter.com/thr-esq/judge-allows-pandora-maintain-license-631671

Players Push for Reform

Last Saturday, college football viewers may have noticed that some players wore the letters "A.P.U." (all Players United) emblazoned on their equipment or on their wrists. The group behind the protest, the National College Players Association(NCPA), reported that 28 players from Northwestern University, the University of Georgia and Georgia Tech participated. The NCPA, founded by a former UCLA football player, has been advocating for a variety of changes to to how sports are played at the collegiate level, including "better health care of college athletes, more scholarship money, and to lift NCAA restrictions on legitimate employment and the players' ability to directly benefit from commercial opportunities." Another goal of the A.P.U. campaign is to "[s]how support for the players who joined the O'Bannon v. NCAA, EA Sports lawsuit regarding the use of players' images/likeliness."

The next step for the movement focuses on momentum, specifically, "on whether more players at more universities join the protest and if the N.C.P.A. and other organizations with similar aims can turn three words into a catalyst for reform." The NCAA has come under increased fire lately as a result of the O'Bannon lawsuit. In response to that criticism, NCAA President Mark Emmert remarked that "the board anticipates a lot of change" in the next six to eight months. The NCAA failed, however, to respond to the All Players United protest launched last Saturday.

http://www.nytimes.com/2013/09/25/sports/ncaafootball/with-simple-protest-players-join-push-for-ncaa-reform.html?ref=sports

http://www.huffingtonpost.com/2013/09/21/all-players-united-ncaa-college-football-players-apu_n_3968876.html

Of Beanie Babies and Bank Accounts

H. Ty Warner, the man who brought the world the Beanie Baby in the 1990's, is a tax cheat. It turns out that federal prosecutors claim that the person who created the plush, bean-filled animals hid $3 million in a Swiss bank account. Warner will plead guilty to a charge of tax evasion, a charge that potentially "carries a maximum penalty of five years in prison, a $250,000 fine, plus liability for the back taxes plus interest." He also owes approximately $885,000 in additional taxes on this unreported income, according to the government. Warner faces a civil penalty of $53 million. I guess it's time to start auctioning off those Beanie Babies on eBay...

http://www.entlawdigest.com/2013/09/19/2709.htm

October 4, 2013

Week in Review

By Martha Nimmer

A Score to Settle

Attorneys for NCAA college athletes announced last week that a settlement with Electronic Arts (EA) had been reached regarding ongoing claims that the video game maker impermissibly used players' likenesses. According to The Hollywood Reporter, a stipulation of settlement has been filed in a California federal court, and now awaits approval from U.S. District Judge Claudia Wilken. She is expected to approve the settlement.

The details of the settlement have not been made public, but the particulars are expected to include licensing payments to athletes, although who, exactly, will receive payments, and in what amounts, remain to be seen. The settlement is also expected to be of interest to many other companies in the entertainment field, "particularly television networks with billion-dollar deals with the NCAA." This potential settlement could thus end "one battle in the ongoing fight over whether amateur athletes get compensated, but it doesn't finish the larger war," writes The Hollywood Reporter.

Other legal issues still remain, however. The plaintiffs in the suit, including Ed O'Bannon, Bill Russell and Oscar Robertson, "continue to push antitrust claims against the NCAA for forcing athletes to sign waivers and allegedly enforcing group boycotts among its licensing partners." A ruling is expected soon from Judge Wilken about whether to certify a class action; additionally, the NCAA has indicated its willingness to take the case to the U.S. Supreme Court, if necessary. Steve Berman, lead attorney for EA in this litigation, indicated "[w]e are looking forward to presenting our case against the NCAA to a jury at trial. We believe the facts will reveal a startling degree of complicity and profiteering on the backs of student athletes."

http://www.hollywoodreporter.com/thr-esq/electronic-arts-reaches-settlement-agreement-638228

"Not Liable"

A jury in California unanimously found that concert promoter AEG Live was not liable for the death of Michael Jackson. The family of the late singer sued AEG Live a year after Jackson died in June 2009, claiming that the concert promoter "negligently hired and controlled" Jackson's physician, Dr. Conrad Murray. Murray, readers will recall, was found guilty in 2011 of involuntary manslaughter for administering propofol, a sedative, to Jackson shortly before his death.

Specifically, the jury ruled that even though the defendant promoter hired Murray, he was "not unfit for his job," thereby rejecting the main premise of the lawsuit brought by Jackson's mother, Katherine, and other members of the Jackson family. AEG Live's counsel argued that there was insufficient evidence to show that it was responsible for Murray's hiring, adding that the doctor had been Michael Jackson's longtime physician, and that AEG had only "administered the relationship." Jackson's family, in contrast, attempted to show that AEG's executives were aware of Jackson's poor health, and "in advance of the planned 'This Is It' tour, placed pressures on Jackson and his team that eventually led to his death." Ultimately, however, the jury found for AEG; a legal victory for the family could have netted hundreds of millions of dollars in damages for Jackson's mother and his three children.

http://www.hollywoodreporter.com/thr-esq/michael-jackson-trial-aeg-not-641706

http://www.entlawdigest.com/2013/10/03/2748.htm

"Only God (and a Court) Can Judge Me"

Tupac Shakur's mother, Afeni, has re-filed a lawsuit against Entertainment One and Death Row Acquisition LLC, seeking $1.1 million in royalties and the master copies of her late son's unreleased songs. In her suit, Ms. Shakur claims that Entertainment One failed for over four years to pay her royalties for her son's works, and refused to return masters of unreleased recordings. Ms. Shakur had originally filed the same suit in federal court last year, but learned this month that an Entertainment One partner was based in Delaware, thereby eliminating "complete diversity and, therefore, the district court's subject matter jurisdiction."
Ms. Shakur became the administrator of her son's estate following his murder in 1996. She created Amaru Entertainment, which is a co-plaintiff to the instant action, to manage her son's intellectual property. According to her lawsuit, Tupac entered into a contract with Death Row Records for three albums, and released his first "long-play recording on the label," "All Eyez on Me," in 1996. Under a 1997 settlement agreement with Death Row Records, the estate "secured all rights to Tupac's Death Row master recordings and audiovisual works." The Shakur estate, in turn, agreed to accept a payment from Death Row "within 60 days of the 10-year anniversary of the agreement for one album featuring unreleased Tupac recordings," his mother claims. She added that royalties from past and future Tupac releases were part of the agreement.

Fast forward to 2003, however, and Death Row entered into a decade-long distribution deal for Tupac's recordings with Koch Entertainment. Pursuant to that agreement, Koch Entertainment was prevented from assigning distribution rights to any other party absent Afeni Shakur's approval, "unless the assignment was part of an assignment, public offering, or private placement of substantially all of Koch's assets," [emphasis added] according to the lawsuit. The record label later filed for bankruptcy in 2006, eventually leading a trustee to exercise the assignment option on the album of unreleased Tupac songs; the label then paid $100,000 to the estate, according to the complaint. In 2009, Death Row was sold for $100 million to the entertainment development company WideAwake Death Row Entertainment. The sale included Tupac's 1995 handwritten contract, the estate's agreement with the label, and the 2003 distribution agreement with Koch Entertainment, now known as Entertainment One. Ms. Shakur claims that she has given defendant Entertainment One a "29-page audit breaking down how much it owes," but the company is holding the money "hostage," and refuses to deliver her son's master recordings.

Ms. Shakur seeks an injunction, an accounting, and damages for breach of contract, breach of faith, and unfair competition.
http://www.entlawdigest.com/2013/09/26/2738.htm

X Marks the Trademark Violation

Don't tell ExxonMobil that copying is the sincerest form of flattery--it doesn't want to hear it.

On Wednesday, the oil giant sued FXX network in Texas federal court, alleging trademark infringement. The globally-known oil and gas corporation says it has a "design mark over a stylized EXXON and has continuously used it since 1971," according to The Hollywood Reporter. The interlocking X logo of the newly launched FXX Network--whose parent company is Fox--"is likely to cause confusion, to cause mistake, or to deceive customers and potential customers of the parties ... as to some affiliation, connection, or association of Defendants' business with ExxonMobil," according to the complaint. Although ExxonMobile fails to cite specific evidence that consumers are, in fact, confused about the source or origin of the cable TV logo, the oil company does point to a few Internet postings that are "making an association" between the ExxonMobil and FXX logos.

ExxonMobil claims trademark infringement, trademark dilution, unjust enrichment and unfair competition. The plaintiff is demanding a permanent injunction, treble damages, an accounting of Fox's profits and legal fees.

So, the next time you pull up to an Exxon station, don't expect Danny Devito from It's Always Sunny in Philadelphia to pump your gas.

http://www.hollywoodreporter.com/thr-esq/exxonmobil-claims-foxs-fxx-network-642481

Read the complaint here: http://www.scribd.com/doc/173106641/Exxon

October 18, 2013

Week in Review

By Martha Nimmer

Graffiti or Aerosol Art?

G&M Realty, the development company hoping to turn a collection of warehouses in Long Island City into high rise apartment buildings, is being sued by the self-proclaimed "aerosol artists" who tagged the buildings known as "5Pointz." Just yesterday, the New York City Council unanimously approved a $400 million development plan for the site. In response, the artists have gone to court, asserting their copyright interests in the endangered works.

Graffiti artist and lead plaintiff Jonathan Cohen claims that the property owner, Gerald Wolkoff, has allowed graffiti artists to tag the buildings since 1993. Cohen, who tags under the name Meres One, also clams that Wolkoff granted him "full authority" to determine what could be spray painted at 5Pointz, even giving the aerosol artists keys to the buildings and space to store spray paint, ladders and other supplies. What developed from that arrangement was a "graffiti mecca," featuring over 350 works by graffiti artists. According to the lawsuit, "hundreds of tourists" from around the world visit the site every week.

Now, however, it appears that 5Pointz's days are numbered: the buildings are slated to be knocked down to make room for a 1,000 unit luxury apartment complex. Fearing the destruction of their works, the artists have sued, seeking to exercise their copyright ownership rights over the tagged interiors and facades of the 5Pointz buildings.

Cohen says that he has applied for copyright registration for several of his paintings, adding that removing them from 5Pointz would cause their "destruction, distortion, mutilation or modification."

Applying traditional copyright law to what some observers would dismiss as mere graffiti, or a public nuisance, will be no easy task, however: the plaintiffs will have to "elevate the perception of their art form from just simply graffiti to legitimate 'works of visual art' in need of protection from demolition." To convince a court that their works deserve protection from a real estate developer's wrecking ball, the plaintiffs highlighted in their suit the notoriety and popularity of the site as a tourist destination, adding that "because of its stature in the international art community and its high visibility, having a work of visual art accepted and displayed on 5Pointz adds considerable prestige to an artist's reputation. For aspiring aerosol artists, having a work of visual art accepted and displayed on 5Pointz is guaranteed to raise their profile and enhance their credibility in the art world." Essentially, the plaintiffs argue, the acclaim and prestige that 5Pointz enjoys among some members of the art world have turned "mere graffiti" at the site to works of art that are deserving of copyright protection. Ultimately, the artists aver that destroying their works would cause "irreparable harm, and that "each of the plaintiffs has the right to prevent such destruction, distortion, mutilation or modification of his or her works of visual art for a term consisting of the duration of his or her life."

The plaintiffs seek an injunction barring defendants from destroying their art.

http://www.entlawdigest.com/2013/10/14/2759.htm

The Singer and the Civil RIghts Leader

Famed singer and entertainer Harry Belafonte has sued the estate of longtime friend Martin Luther King, Jr. The suit, filed earlier this week in Manhattan federal court, seeks damages of an unspecified amount and a declaration that Belafonte is the rightful owner of three documents that he tried to sell at auction in 2008. One of the documents is an outline for the civil rights leader's 1967 speech "The Casualties of the War in Vietnam," written on a legal pad by Dr. King during a visit to Belafonte's New York apartment. The second document at issue is a condolence letter from President Lyndon B. Johnson to Mrs. King, received shortly after her husband's assassination in 1968. The third document is an envelope that Dr. King carried in his pocket the day he was assassinated. According to The New York Times, Dr. King had written notes on the envelope for a speech that he was to have given in Memphis. In his suit, Belafonte claims that the three documents were given to him by Dr. King, by his widow, Coretta Scott King, and by Dr. King's aide, Stanley Levison.

Belafonte attempted to auction the items at Sotheby's in December 2008 to raise money for Barrios Unidos, a charity that works with street gangs. Before the sale could occur, however, Dr. King's estate challenged Belafonte's ownership of the papers, alleging in a letter to Sotheby's "they are 'part of a wrongfully acquired collection.'" After receiving the letter from the King estate, Sotheby's removed the documents from the auction catalogue and put them in a storage vault, where they have remained since December 2008. As the The New York Times notes, "[u]nder state law, Sotheby's faces liability to the actual owner if it releases property to the wrong party, and so has refused to return the documents to Mr. Belafonte until the dispute is settled."

http://www.nytimes.com/2013/10/16/arts/belafonte-sues-the-king-family.html?src=me

http://www.politico.com/story/2013/10/harry-belafonte-sues-king-estate-98374.html

Cuban Cleared

Following a two week trial, a Texas jury has cleared Dallas Mavericks owner Mark Cuban of insider trading. Cuban was charged with insider trading by the Securities and Exchange Commission (SEC) after allegedly "trading on non-public information when he sold his 600,000 shares in Internet search company Mamma.com - worth $7.9 million - and avoided a $750,000 loss," writes Reuters.

The SEC brought its civil lawsuit against Cuban in November 2008; the suit, however, was dismissed in 2009, only to be revived the following year by an appeals court. Despite advice from his attorneys, Cuban refused to settle the case and decided to go to trial, even though, he claims, his attorneys' fees have exceeded the possible fines for admitting to insider trading. He could have faced up to $2 million in fines, according to his attorneys. "It's personal. You take all these years of my life, it's personal," an angry Cuban remarked.

At trial, federal prosecutors claimed that Cuban sold his stake in Mamma.com soon after learning from the company's Chief Executive, Guy Faure, that the company was "planning a private placement that would dilute his holdings in the company." Shares in the Montreal-based company ended up plummeting 9.3% the morning after the offering was announced. Cuban, however, had already sold his shares, raising red flags for the SEC. Cuban, who sold his company Broadcast.com to Yahoo in 1999 for $5.7 billion dollars, testified that there were many innocuous reasons for selling his shares, "including the private placement and Mamma.com's possible association with a known stock swindler." Counsel for Cuban also suggested "that word of the private placement had leaked into the market because potential investors were being contacted to participate in the private placement," according to Reuters.

At a press conference following the jury's verdict, Cuban expressed relief that the case was over, and took the opportunity to lambaste the SEC. "Jan Folena, who represents the United States of America, stood up there and lied . . . I'm the luckiest guy in the world and I'm glad I could stand up to them," he said.

Now that the suit has concluded, Cuban can stop yelling at the SEC and get back to screaming from the stands at the Mavericks.

http://www.reuters.com/article/2013/10/16/us-usa-sec-cuban-verdict-idUSBRE99F0ZM20131016

Refusing to Settle

A group of former NFL players is set to oppose the NFL's image rights settlement, initially approved in April by U.S. District Judge Paul A. Magnuson. On the line is a $50 million settlement in the 2009 lawsuit against the League. Players alleged in the 2009 suit that the NFL profited from using their images without permission. The agreement would create an agency that would be charged with managing former player image licensing. The League would also pay a whopping $42 million into a fund administered by NFL retirees for their peers. Another $8 million would be paid by the NFL to help cover the plaintiffs' legal expenses.

Part of the settlement agreement, and the factor leading some former NFL players to oppose the deal, is that retirees from the game receive no individual payout or benefit from the league. Dan Gustafson, an attorney for the plaintiffs, defended the settlement: "[t]he settlement's combination of the Common Good Fund and the Licensing Agency thoughtfully addresses the interests of all class members, not just those who may have more valuable claims, but also those whose claims -- although less valuable -- may have greater individual needs." Additionally, Gustafson said, settling with the League prevents the plaintiffs from being subjected to a long, drawn-out trial, where the outcome could come out in the NFL's favor. Former New York Jets defensive linemen Mark Gastineau and Abdul Salaam, among others, oppose the accord. Their attorney has asked Judge Magnuson for permission to argue at the hearing, which is scheduled to take place today in federal court in St. Paul, Minnesota.

http://www.bloomberg.com/news/2013-10-17/ex-players-oppose-nfl-properties-image-rights-settlement.html

November 1, 2013

Week in Review

By Martha Nimmer

Stocks, Bonds and Professional Athletes

Houston Texans running back Arian Foster and San Francisco 49ers tight end Vernon Davis have signed brand contracts with athlete stock corporation, Fantex, Inc. As part of the deal, Foster will "receive $10 million in exchange for Fantex's receipt of a right to 20 percent of the running back's future on-and-off field income." Additionally, Davis recently "agreed to $4 million in return for a 10 percent interest in the tight end's brand income (as defined in the brand contract)." These payments, however, are contingent on Fantex's ability to obtain financing to pay the purchases prices. The company hopes to secure this funding by selling shares in a "tracking stock" that is linked to a player's economic performance, a metric that includes the value of playing contracts, brand endorsements and appearance fees. Fantex also hopes to expand beyond football players and into other sports and entertainment fields in the near future.

Since news of Fantex's deal with Arian Foster was released two weeks ago, the company has been causing quite a stir on and off the playing field. In evaluating the economic potential of Fantex, some financial professionals appear unconvinced, citing Fantex's "complex structure and many risks, including the chance that an injury could cut short a player's career and earnings potential." Additionally, Forbes raises another important question, namely, "who controls the Arian Foster brand and determines what opportunities are best for him?" Fantex CEO Buck French responded: "[w]e absolutely will provide advice and perspective on who we believe are endorsements or partners that align with the [athlete's] brand. It's advice that he does not have to take. He is in charge of his own brand . . . we are just at the table. Arian is represented by William Morris Endeavor; they will decide what they want to do and whether they want to take our advice or not. The ultimate decision rests with the athlete." That answer, however, may not sit well with traditional investors, who are accustomed to companies acting in the best interest of the shareholder. Additionally, potential investors may be hesitant to invest in a company where they lack any discernible power to shape the future of the brand or determine the future of the company. These are concerns that Fantex will have to tackle head on, so to speak, if the company wants to attract the necessary financing needed to keep Foster, Davis and other potential NFL players on its payroll.

For the braver investors among us, however, reservations for customers interested in purchasing "Fantex Series Arian Foster Convertible Tracking Stock" will open next week. Currently, however, the company is not accepting orders for the I.P.O.s.

http://dealbook.nytimes.com/2013/10/31/fantex-adds-another-athlete-to-its-i-p-o-roster/?_r=0

http://www.forbes.com/sites/darrenheitner/2013/10/31/athlete-stock-company-signs-49ers-vernon-davis-but-buyer-beware/

Family Feud

For decades, the families of renowned American sculptor Alexander Calder and his art dealer Klaus G. Perls enjoyed a bond founded on what one descendant of Calder described as complete trust. Now, however, that bond appears to be severed for good. In a complaint filed in New York State Supreme Court, the Calder estate claims that the Perls family secretly kept hundreds of Calder's works and, writes The New York Times, "swindled the artist's estate out of tens of millions of dollars." Shockingly, the suit also claims that Perls -- "a dealer with a sterling reputation who campaigned to rid his industry of forgeries" -- sold dozens of fake Calder works. The suit goes on to claim that Perls was a tax cheat who hid millions of dollars in a Swiss bank account, "a secret his daughter said she maintained by paying off a former gallery employee with $5 million." In response, attorneys for the Perls family claim in court papers that the Calder lawsuit is a "sham and manufactured claim." The Perls family has asked the court to dismiss the case, adding that the statute of limitations has expired.

The family feud and ensuing legal battle began in 2010 with a "chance discovery" at a Canadian art gallery. The gallery, unnamed in The New York Times article, contacted the Calder Foundation about a $1.5 million wooden mobile, "Standing Constellation." The piece had reportedly been purchased from the Perls Foundation, a trust set up following the shuttering of the Perls Gallery in 1997. Alexander S.C. Rower, chairman of the Calder Foundation and grandson of the late sculptor, said he was "puzzled because 'Standing Constellation' had not been listed on an inventory of holdings provided by the Perls Gallery after Calder's death, nor had the Calder estate received any payment from its sale." His interest piqued, Rower set out to track down the history of the sculpture in question. Rower, who "has spent more than 15 years compiling the definitive catalog of Calder's work," consulted the Foundation's provenance records and "said he found several other works in the Perls inventory that were later sold without the estate's knowledge." Many of the pieces were listed as being delivered by a woman in Switzerland known simply as "Madame Andre," because what art mystery would be complete without a shadowy character named "Madame Andre"? Armed with this information, Rower and the rest of the Calder family eventually sued the Perls estate, Perls' daughter, and the woman known as "Madame Andre."

"Standing Constellation" was just one of many unaccounted for pieces in the Perls family's possession, the Calder investigation revealed. According to court papers, "nearly 700 Calder bronze sculptures, jewelry and other works worth well in excess of $20 million that had been in the Perlses' hands and are unaccounted for." Eventually, the Calder family also learned that "Madame Andre" was not a person, but a Swiss bank account: "Katherine Perls [daughter of dealer Klaus Perls] acknowledged in an affidavit, 'Madame Andre' was a euphemism for her father's Swiss account, 'perhaps even a humorous or shorthand reference for this account, or to avoid disclosing to others who were present that he did have this Swiss account.'" Additionally, the Calder family has claimed that a former employee of the Perls Gallery said that the gallery had sold approximately 30 fake Calders.

With familial betrayal, international intrigue and millions of dollars of priceless art at stake, the plot in this family feud is undoubtedly due to thicken.

http://www.nytimes.com/2013/10/30/arts/design/alexander-calder-estate-sues-heirs-of-klaus-g-perls.html

Legendary Producer v. the King of Pop

Grammy Award winning music producer Quincy Jones has sued Michael Jackson's record label, MJJ Productions, and Sony Music Entertainment in Los Angeles Superior Court for $10 million in royalties that the plaintiff and his production company claim the defendants owe him on contracts from 1978. In the complaint, the plaintiff "alleges that master recordings he worked on were wrongfully edited and remixed so as to deprive him of backend profit participation." Jones also claims that he has been denied credit for his work on the singer's posthumous releases and that MJJ Productions and Sony have entered into "side deals" that divert profits that should have been included in the calculation of royalties owed to Jones.

Quincy Delight Jones Jr. -- winner of 27 Grammy Awards and producer of the King of Pop's best-selling albums Off the Wall, Thriller and Bad -- co-produced Michael Jackson's 1982 Thriller album with Jackson. Over 66 million copies were sold, making it the best selling record in history. Jones also co-produced Jackson's 1987 album Bad, which sold 45 million copies, and wrote music for the 1978 movie "The Wiz", which starred Jackson. Jones claims that he entered into agreements with the pop legend in 1978 and 1985 for work on the singer's solo albums. The contracts, according to the complaint, "stipulated that Jones be given the first opportunity to re-edit or remix any of the master recordings, that the coupling of master recordings with other recordings required his prior written consent, and that he be given producer credit for each of the master recordings." The deal also entitled Jones, as producer, to additional compensation, including upfront payment and a "backend" percentage if remixed masters were released.

Following Jackson's death in June 2009, the pop star experienced a huge "resurgence of popularity." Seeking to capitalize on the singer's renewed fame, Columbia Pictures released "This Is It" from AEG Live and The Michael Jackson Company, which showed footage of preparations for what would have been the singer's final concert tour. Two years later in 2011, Cirque du Soleil debuted a show entitled "Michael Jackson: The Immortal Tour," which is rumored to have grossed an astounding $300 million to date. Earlier this year, Cirque du Soleil also began a new production called "Michael Jackson: One." Soundtracks for "This Is It" and the Cirque du Soleil shows have also been released. Despite the enviable commercial success of the remixes and re-edits of the Michael Jackson works, Jones, however, is not pleased, stating that the terms of his deal with Jackson and Sony "were breached when MJJ allowed third parties to exploit these works 'without first providing a reasonable opportunity to Jones to perform such remixes and/or re-edits.'"

Jones is seeking at least $10 million in damages for breach of contract and demands an unspecified amount of "unpaid royalties due to him, remixing fees that would otherwise have been paid, and compensation for the loss of the value of credit he would have received." He is also demanding an accounting.

The complaint is available at: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/quincyjones.pdf

http://www.hollywoodreporter.com/thr-esq/quincy-jones-files-10m-lawsuit-651045

http://www.entlawdigest.com/2013/10/28/2794.htm

November 11, 2013

Week In Review

By Martha Nimmer

Lost & Found

After being hidden away for almost seven decades, over 1,500 works of art stolen by the Nazis have been discovered in an unassuming apartment in Munich. The collection is said to include pieces by Henri Matisse, Pablo Picasso, Paul Klee and Marc Chagall.

The priceless collection of art, considered "degenerate" by the Third Reich and confiscated from Jewish collectors during World War II, "eventually made their way to a German art collector, Hildebrand Gurlitt," during World War II, writes NBC News. Gaining control of such an unparalleled art collection was not just a stroke of good fortune, however, as the The New York Times makes clear. As it turns out, Hildebrand Gurlitt was one of the Nazi era art dealers chosen by Joseph Goebbels to gather degenerate art from Jewish collectors. In some instances, certain confiscated art would be "paraded in an exhibition of shame." The exhibition, however, proved too popular, which met with dismay and disapproval from the Third Reich. After that, instead of being paraded around, thousands of stolen works of art simply disappeared, whereabouts unknown for decades -- that is, however, until some of those works of art turned up in 2011 in a Munich apartment following a raid by Bavarian police. Police officials, writes NBC, raided Gurlitt's apartment as part of a 2010 inquiry into his finances.

The works, re-discovered back in 2011, were hidden by the now deceased Gurlitt's son, Cornelius. According to NBC News, Cornelius "kept the works hidden in darkened rooms, selling a painting every now and then when he needed a cash infusion . . . ." The paintings' time out of the shadows was short lived, however. After their initial discovery, they were transported to a Munich warehouse for storage and safe keeping. Since then, German officials have been silent about their discovery "due to the diplomatic and legal complications stemming from the loot," particularly claims for restitution.

Unsurprisingly, this week's revelation by the German government of its two-year old discovery has raised many questions for European and North American governments and Holocaust survivor advocates. Just last Wednesday, The Wall Street Journal reported that the U.S Department of State was considering "a formal push to get Germany to cooperate more with other governments and private groups in returning the Nazi-confiscated artworks discovered in a Munich apartment to their rightful owners . . . ." According to an unnamed source close to the State Department, the Department "believes that prosecutors in Germany violated the Washington Principles of 1998, international norms that govern the handling of claims to art seized or looted by the Nazis. The specific provision violated calls for a speedy publication of information regarding the discovery of stolen works." The source also indicated that the State Department would push Germany to revise its "30-year statute of limitations for filing claims in cases where the artwork is found to have been held by a private individual," although such a move, with its far-reaching implications for German sovereignty, is unlikely to succeed.

Advocates for Holocaust survivors and their families, along with the State Department, have also demanded that the German government release a full list of the recovered art. Last Thursday, New York's superintendent of financial services, Benjamin Lawsky, sent a letter to German prosecutors, urging them to release a complete list of the artworks contained in the Gurlitt cache; Lawsky's Department oversees New York's Holocaust Claims Processing Office. In the letter, Lawsky also urged Reinhard Nemetz, the Augsburg, Germany, prosecutor leading the investigation, to permit the international community to assist in the identification and return of the stolen art.

Given the vast number of priceless works of art involved, and the deeply sad and painful history behind their disappearance, it is clear this controversy is just beginning to unfold.

http://worldnews.nbcnews.com/_news/2013/11/03/21299433-1500-works-of-art-looted-by-nazis-recovered-in-munich-magazine-reports?lite

http://www.nytimes.com/2013/11/05/arts/design/trove-of-apparently-nazi-looted-art-found-in-munich-apartment.html

http://online.wsj.com/news/articles/SB10001424052702303309504579182344224511578

http://online.wsj.com/news/articles/SB10001424052702304672404579184123980760710

Polo Prevails

October was a good month for what some have called the sport of kings: polo. In mid-October, the sport of kings prevailed against Ralph Lauren Corporation (RLC) in a dispute over ownership of the .polo top level domain.

The expert panel of the International Chamber of Commerce, acting under the authority of the Internet Corporation for Assigned Names and Numbers (ICANN), "upheld a community objection filed by the United States Polo Association against Ralph Lauren Corporation's application to run the .polo top level domain name." In siding with the U.S. Polo Association, the panel wrote that "[a]s the registration of the '.polo' domain names would only be available to RLC and its affiliate entities and as RLC would be allowed unlimited automatic renewals of ".polo", RLC would have the ability to own and operate the ".polo" domain to the exclusion of all others, including members of the polo sports community. This barrier to entry cannot be counterbalanced by the Applicant's statement that it will not allow any secondary domains in its gTLD to infringe trademark rights of others." The panel went on to air its concern that the interests of the polo sports community would not be safeguarded if RLC was to own and operate the .polo domain, adding "RLC fails to provide effective security protection for internet users wishing to access the webpages of members of the polo sports community."

http://domainnamewire.com/2013/10/16/polo-sport-beats-polo-brand-in-polo-top-level-domain-name-dispute/?goback=%2Egde_3904169_member_5803873399381966852#%21

Read the decision here: http://domainnamewire.com/wp-content/polo.pdf

One Fish Two Fish Red Fish Sue Fish

Two collectors of Dr. Seuss books have sued a New York gallery in New York Supreme Court, claiming that the defendant lost "two rare and very valuable" consigned artworks from Dr. Seuss's book You're Only Old Once!

Plaintiffs Clifford Davis and James Otis stated in their complaint that they jointly purchased artworks associated with one of Dr. Seuss' books for adults, You're Only Old Once! A Book for Obsolete Children, in October 2008. They later consigned the artworks to the defendant Illustration House Gallery on November 13, 2012, expecting the pieces to be sold or returned within 60 days. That, however, never occurred. Otis claims that shortly after the 60-day period expired, he contacted the gallery by phone and by email. Gallery president Roger Reed told Otis "the two Dr. Seuss artworks were missing and could not be located by Illustration House, Inc. Staff," according to the complaint.

The complaint goes on to say that in April this year, an Illustration House, Inc. administrative assistant contacted Otis by email, indicating that the gallery would contact the plaintiffs as soon as it had located the artworks; according to the plaintiff, he indicated that he "would need the two Dr. Seuss artworks within ten (10) days so that the works could be displayed at the art gallery of Linda Jones Enterprises." The plaintiffs, however, never received the Dr. Seuss works; Otis nows claims that he lost the opportunity to sell the pieces to an interested buyer in May because the works had not been returned. Otis and Davis seek replevin and damages for conversion, breach of consignment agreement and breach of fiduciary duty. The pieces of art are each valued at $75,000.

http://www.entlawdigest.com/2013/11/05/2800.htm

Mike Pouncey Served Last Month

Less than an hour after the Patriots defeated the Miami Dolphins at Gillette Stadium in Foxborough, Massachussetts, Dolphins center Mike Pouncey was served with a grand jury subpoena related to Aaron Hernandez's possible role in interstate gun trafficking. A source with knowledge of the investigation told Sports Illustrated that investigators in several states, including New York, Massachusetts and Florida, are focusing on business dealings and transactions that the disgraced former Patriots player had in those locales. If evidence emerges that Pouncey was connected to those transactions, he may also face charges. In September, Hernandez was indicted and pleaded not guilty to six charges, including first-degree murder. The other five charges were weapons-related, "as police seized at least three different types of ammunition."

Mike Pouncey and his twin brother, Maurkice, a Steelers center, were close to Hernandez. The three men lived together in Gainsville for periods of time when they played for the University of Florida. The Steelers declined comment when asked if Maurkice Pouncey had been served with a grand jury subpoena.

The grand jury subpoena of Mike Pouncey is just one of many controversies in which the NFL has found itself embroiled as of late. The subpoenaing of the Dolphins player suggests, according to an analysis by attorney and Sports Illustrated contributor Michael McCann, that "Hernandez's alleged wrongdoing was not entirely disconnected from other NFL players. The possibility that multiple NFL players may have engaged in questionable dealings through the sale of guns would be a devastating turn for the NFL as it tries to distance itself from Hernandez."

Read More: http://sportsillustrated.cnn.com/nfl/news/20131028/mike-pouncey-subpoena-legal-analysis/#ixzz2k1b17Mc8

http://sportsillustrated.cnn.com/nfl/news/20131027/mike-pouncey-subpoena-grand-jury-aaron-hernandez/?sct=hp_t1t_a4&eref=sihp

http://sportsillustrated.cnn.com/nfl/news/20131028/mike-pouncey-subpoena-legal-analysis/index.html

November 22, 2013

Week in Review

By Martha Nimmer

Settled, Not Stirred

After more than five decades, it appears that the ownership rights of Agent 007 have been settled. Last week, Danjaq, LLC (Danjaq), the producer of James Bond films, and Metro-Goldwyn-Mayer (MGM), the films' distributor, announced that they had reached an agreement with the estate of Kevin McClory.

In 1959, McClory met with Ian Fleming, the author who created the famous British secret agent. According to McClory, at that meeting, he proposed the idea for making the Fleming spy novels into motion pictures. A writer was eventually hired to create the movie "Thunderball", which later became a Fleming novel. In 1961, after the Thunderball novel was released without credit to McClory, he filed suit, claiming co-authorship and creation of "Thunderball" characters and elements. Fans of the Bond films will realize, however, that "Thunderball" was not the first Bond movie; as it turns out, instead of making "Thunderball" into the first Bond film ever released, Fleming licensed "Dr. No" into production, which came out in 1962. Eventually, Fleming and McClory arrived at a settlement, thereby paving "the path for the latter's Thunderball in 1965."

That period of harmony was short lived, however. According to the firm BakerHostetler, which represented McClory, "interpretation over the intellectual property rights granted in the McClory/Fleming settlement resulted in law suits over Bond for decades. Most famously, a significant ruling in the London courts in 1983 held that McClory was allowed to produce James Bond films." Armed with that court ruling, McClory went on to make the 1983 Bond film "Never Say Never Again". Years later, McClory eventually tried to sell his rights to make Bond films, but a judge enjoined the attempted sale to Sony in 2001. McClory died in 2006.

Now, as part of an agreement with MGM and Danjaq, those companies will acquire the McClory family's rights to make Bond films. So for now, the James Bond character is safe. Evildoers beware.

http://www.hollywoodreporter.com/thr-esq/james-bond-mgm-danjaq-settle-656432

Unsportsmanlike Conduct

The National Collegiate Athletic Association (NCAA) has sued video game maker Electronic Arts Inc., or EA Sports, claiming that the company has "breached contractual and fiduciary duties when acting as its business partners in producing popular college-sports videogames [sic]." The suit, filed in the Superior Court of Fulton County, Georgia, also names as a defendant the licensing rights firm Collegiate Licensing Co. (CLC), which manages licensing rights for many universities, as well as the NCAA. CLC, the complaint states, "failed to adequately supervise" co-defendant EA Sports. According to the NCAA, this failure has thus "subjected the NCAA to potential liability in several lawsuits currently being litigated relating to EA's alleged use of NCAA student athletes' names, images, and likenesses in EA's NCAA-themed video games."

The lawsuits to which the NCAA is referring include the Ed O'Bannon NCAA likeness case commenced by the former UCLA player in 2009. The NCAA's filing against EA Sports came just two months after a "$40 million settlement agreement announced in September by EA Sports and CLC, which used to be co-defendants with the NCAA in the O'Bannon case." The NCAA's suit against EA Sports and CLC says that CLC breached its duties, including the prohibition against self-dealing, when CLC acted in settlement negotiations without the NCAA's knowledge, authorization or participation." The NCAA seeks to prevent EA Sports and CLC from completing the $40 million settlement agreement, and hopes to have EA Sports held responsible for future liability judgments and legal fees.

http://online.wsj.com/news/articles/SB10001424052702304607104579210550694720172

Just Say No

Pharmaceutical company AbbVie Inc. (AbbVie), the owner of prescription pain medication Vicodin, has sued California-based boutique Kitson in Los Angeles federal court for trademark infringement. According to the complaint, the popular store sells a line of sweatshirts and jerseys made by designer Brian Lichtenberg, which feature the names of prescription drugs, such as Vicodin, Xanax and Adderall. The clothing bearing the mark Vicodin, AbbVie avers, "makes it seem as if 'popping Vicodin is a cool, 'in' thing to do.'" To make matters worse, the plaintiff claims, Kitson also displays the apparel in its window with the slogan "Just What the Doctor Ordered."

In addition to claims of trademark infringement, AbbVie also claims that the items featuring the Vicodin name harm the public by glamorizing illegal and irresponsible prescription drug use. "This harm is especially acute for those influenced by fashion trends promoted through trendsetting retailers like Kitson, as they will be led to believe that AbbVie thinks popping Vicodin is a cool, 'in' thing to do," the company writes. The plaintiff added that it intentionally avoids marketing Vicodin directly to the public; additionally, AbbVie has also invested in promoting "safe and responsible prescription drug use," which the company fears may be undone by the production and sale of the Vicodin jerseys.

AbbVie Inc. seeks an injunction and an unspecified monetary award, which the pharmaceutical company says will be donated "in its entirety to prescription drug abuse outreach and educational programs."

http://www.entlawdigest.com/2013/11/20/2826.htm

Collecting on Copyrights

The copyright industry added one trillion dollars to the United States Gross Domestic Product in 2012, according to a study by the International Intellectual Property Alliance, a Washington-based trade group. The study tracks the economic contributions of U.S. industries that create, produce, distribute or exhibit copyright materials, such as books, newspapers, music, films and video games.

According to the report, 2012 marks the first year that U.S. copyright industries added one trillion dollars to the American economy in a single year. That figure also accounts for almost 6.5% of the nation's economy. Furthermore, the copyright industries also generated a staggering $142 billion in foreign sales and exports. Additionally, these industries employ nearly 11.1 million workers, roughly 8.4% of the U.S workforce. On average, these workers receive annual compensation of $75,926, which is 18% higher than the average annual U.S. wage.

Bravo, copyright industry!

http://about.bloomberglaw.com/legal-news/authentic-brands-apple-netapp-intellectual-property/

Read the report here:
http://www.iipa.com/pdf/2013_Nov19_Press_Release_Copyright_Report.pdf

December 6, 2013

Week in Review

By Martha Nimmer

It's a Bird! It's a Plane! It's...an Invalid Copyright Termination!

A decade long legal battle may have finally come to an end. Last week, the Ninth Circuit Court of Appeals affirmed a district court decision that held a copyright termination claim filed by the heirs of Superman co-creator Joseph Shuster to be invalid.

In 2003, defendant Mark Peary, acting as executor of the estate of Joseph Shuster, filed a copyright termination notice, seeking to reclaim the copyrights to Superman that Shuster had assigned to plaintiff DC Comics in 1938. DC Comics, in turn, sought a declaratory judgment that the notice of termination was invalid based on a 1992 agreement with Shuster's siblings, which gave them "pensions for life in exchange for a revocation of the 1938 assignment of copyrights to DC and a re-grant to DC of all of Shuster's copyrights in Superman." In other words, the plaintiffs argued that "because the 1976 and 1998 statutes permitting the filing of copyright termination notices permit only the termination of assignments 'executed before January 1, 1978,' 17 U.S.C. § 304(c), (d) . . . [the] 1992 Agreement forecloses the estate's 2003 notice of termination, in that it leaves no pre-1978 assignment to terminate (instead creating a new assignment effective 1992)." The district court judge agreed, granting DC Comics partial summary judgment on the company's claim for declaratory relief. Just last month, the Ninth Circuit affirmed, holding that the 1992 agreement between DC and Shuster's siblings formed "a new, 1992 assignment of works to DC -- an assignment unaffected by the 2003 notice of termination."

So, at least for now, it looks as if Superman's fate rests safely in the hands of DC Comics.

http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/11/21/12-57245.pdf

Morel Prevails

Late last month, a federal jury awarded photojournalist Daniel Morel a $1.2 million verdict stemming from the unauthorized use of his photos by Agence France-Presse (AFP) and Getty Images. Morel, a native of Haiti, took the photographs of Haitian earthquake survivors following the devastating 2010 earthquake that claimed over 250,000 lives in the small Caribbean nation; Morel later posted the photos to his Twitter account, and an editor at Agence France-Presse eventually discovered Morel's photos through another Twitter user's account. Agence France-Presse used these photos without Morel's permission, and provided them to Getty Images. Getty Images then "widely disseminated" the gripping photos to various clients, including several television networks and the Washington Post. Some of these clients, among them the Washington Post, CBS, ABC and CNN, settled earlier with the photographer for undisclosed amounts.

U.S. District Judge Alison Nathan, who presided over the trial, ruled in January that the two companies were liable for infringement; the jury trial was held only to determine the amount of damages due to Morel. The $1.2 million verdict was the maximum statutory penalty available under the Copyright Act. AFP had originally asked for the award to be set at $120,000. Morel was also awarded damages of $400,000 pursuant to the Digital Millennium Copyright Act.

The case is Agence France-Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.

http://www.reuters.com/article/2013/11/22/us-media-copyright-twitter-idUSBRE9AL16F20131122

A Hell of a Legal Strategy

Despite the group's outlaw image, the Hells Angels Motorcycle Club has become increasingly litigious. No, the motorcycle group is not suing the police department for wrongful arrest or other criminal law-related activities. Actually, the group has taken an interest in the civil side of the judicial system, frequently turning to the courts to protect the club's intellectual property. In less than a decade, the organization has sued big name companies such as Toys "R" Us, Alexander McQueen, Amazon, Saks, Zappos, Walt Disney and Marvel Comics, alleging infringement on clothing, jewelry, posters, and even yo yos. The "Angels" have also challenged Internet domain name registrations and "a Hollywood movie -- all for borrowing the motorcycle club's name and insignias," according to The New York Times. Notably, one of the group's earliest intellectual property suits was launched in 1992 against Marvel Comics, which had named a comic book and its lead character "Hell's Angel." Marvel later agreed to change the name of the comic and the protagonist to "Dark Angel," and agreed to donate $35,000 to a children's charity, according to The New York Times.

Although sitting at the plaintiff's table in a federal courtroom is perhaps not where the Hells Angels would like to be imagined, over the years the group has capitalized on its tough guy image, eventually "becoming a recognizable marque and promoting itself on items as varied as T-shirts, coffee mugs and women's yoga pants. Sonny Barger, 75, the longtime Hells Angels leader, at times has offered his own online bazaar of goods that bear his name: sunglasses, bottles of cabernet sauvignon and books he has written. Not surprisingly, as the brand's popularity has grown, so has the desire to copy it and provide cheap knockoffs. More surprisingly, however, is the group's willingness to turn to "the same legal system they deride as part of the machinery that has unfairly defined them as criminals." In fact, the group has become more deliberate in protecting its image from misuse, even in light of crackdowns by law enforcement officials who say the Hells Angels "represent a criminal gang on six continents, trafficking drugs and guns and engaging in money laundering, extortion and mortgage fraud." Notably, the Hells Angels often settle their suits on favorable terms, obtaining concessions "from the accused parties by getting them to stop using the trademarks, destroy and recall merchandise and, in a few instances, pay some damages." Whether to credit effective legal strategizing or the group's macho leather vests for those victories, however, is up to you.

http://www.nytimes.com/2013/11/29/us/despite-outlaw-image-hells-angels-sue-often.html?pagewanted=1&_r=1&smid=tw-nytimes&partner=rss&emc=rss

A Long Journey Back to Germany

After spending nearly seven decades in the United States, a 3,000-year old gold Assyrian tablet is heading back to a Berlin museum, a Nassau County Surrogate Court's judge announced this week. The tablet, said to be smaller than a credit card and weighing only a third of an ounce, is known as the Ishtar Temple Tablet. It was allegedly stolen during World War II from a German museum, and later owned by a Holocaust survivor in Europe, "who may have gotten it in a trade with Russian soldiers for some cigarettes." The Holocaust survivor, Riven Flamenbaum, took the tablet to New York with him when he immigrated to the United States after war. His family did not know of the relic's existence until 2003, however, when Flamenbaum died. Attorney Raymond Dowd, who represents the Vorderasiatisches Museum in Berlin, said Flamenbaum's son, Israel, "made inquiries after its discovery about the tablet's true ownership." That investigation eventually developed, however, into the court battle that decided the tablet's fate last week.

Counsel for the Flamenbaums argued that the tablet was a spoil of war, saying that the Soviet government, upon invading Germany, gained title to the museum's property as a "spoil of war," and then later transferred that title to Flamenbaum. This argument was rejected, however, by the New York State Court of Appeals. The court stated that there was "no proof" that the Soviet Union ever possessed the tablet, adding that that it was U.S. policy during World War II to forbid the pillaging of cultural artifacts.

The tablet's ancient history can be traced to prsent day Iraq. German archaeologists excavated the gold tablet around a century ago from the Ishtar Temple in what is now northern Iraq. The tablet went on display in 1934, but disappeared around 1945. According to court documents, the Ishtar Temple Tablet dates to 1243 to 1207 B.C. The gold tablet is said to have been placed in the foundation of the temple of the fertility goddess -- the 21 lines of script on the tablet call on those who find the temple "to honor the king's name."

http://www.dailyfreeman.com/general-news/20131204/3000-year-old-gold-tablet-taken-in-war-going-back-to-german-museum

Grand Theft Image

Lindsay Lohan is sick of being the defendant, so it looks as if she will try her hand at playing the plaintiff. According to media reports, the troubled star plans to sue Rockstar Games, the maker of the ultra-popular video game series Grand Theft Auto, over the alleged unauthorized use of her image.

A story posted last week on TMZ reports that the actress' attorneys are "currently crafting a lawsuit - demanding Rockstar Games pay some serious money for using Lindsay's image in the game." The TMZ report suggests that Lohan's claim arises from an illustrated promotional poster of a woman in a red bikini, holding a mobile phone and making the "peace" sign, in addition to a "Random Event mission" in the video game where "a Lindsay Lohan look-alike asks the player to take her home and escape the paparazzi."

Lohan is the second celebrity to be taking legal action against Rockstar Games over Grand Theft Auto V. Shortly after the game's release in October, rapper Daz Dillinger sued Rockstar over the alleged unauthorized use in the video game of two of his musical works.

http://www.videogamer.com/xbox360/gta5/news/lindsay_lohan_sues_rockstar_over_gta_5.html

http://www.tmz.com/2013/12/01/lindsay-lohan-grand-theft-auto-v-gtav-video-game-image-lawsuit/

A Record for Rockwell

Three paintings by famed American artist Norman Rockwell sold this week for almost $60 million, a new record for the artist. "Saying Grace," the best known of the three works, which depicts an elderly woman and a boy saying grace at a busy restaurant, sold for $46.08 million at Sotheby's. That figure was more than double the estimated "high sale price" for the work as well as more than three times higher than Rockwell's prior record setting sale price of $15.4 million for "Breaking Home Ties" in 2006, writes Business Insider.

http://www.businessinsider.com/three-norman-rockwell-paintings-sell-for-nearly-60-million-2013-12#ixzz2mf0ODx2A

Not So Hotfile

What's worse than Napster, Grokster and Limewire, and "indistinguishable" from Megaupload? Well, according to legal papers filed by the Motion Picture Association of America (MPAA), that would be cyberlocker Hotfile. Unfortunately for Hotfile, which was sued by the MPAA in February 2011, U.S. District Judge Kathleen Williams agreed with the plaintiff, stating in August that "the extent of infringement by Hotfile's users was staggering." She also ruled that the defendant was vicariously liable for the actions of its users. Fearing more bad news, Hotfile decided to settle with the MPAA instead of going to trial next Monday for a determination of damages. Maximum statutory damages for willful copyright infringement can be as high as $150,000 per work, meaning Hotfile was staring at a potential bill of about $500 million. On Tuesday, the parties announced that the MPAA will collect $80 million from Hotfile. Additionally, according to the MPAA, the court has ordered the defendant to cease operations unless it implements "copyright filtering technologies."

To avoid liability, Hotfile had originally tried to rely on the safe harbor provision of the Digital Millennium Copyright Act (DMCA). Judge Williams rejected that argument, however, stating that the defendant had failed to address piracy problems adequately, a prerequisite for claiming safe harbor protections under the DMCA. Hotfile, for instance, "had only terminated the accounts of 43 [users] before the lawsuit was filed," despite receiving 8 million notices of piracy problems associated with 5 million user accounts. "Aside from infringement notices," the judge continued, "Hotfile had no alternative method for preventing repeat infringements by its users." Judge Williams also chided Hotfile for not responding promptly to copyright infringement notices and for failing to designate and register a DMCA agent.

The settlement with Hotfile is another feather in the cap of the MPAA. Just two months ago, "Hollywood studios announced a $110 million deal with IsoHunt that resulted in the shutdown of the BitTorrent indexer."

http://www.hollywoodreporter.com/thr-esq/mpaa-will-collect-80-million-661668

January 2, 2014

Week in Review

By Martha Nimmer

Welcome to the Public Domain, Detective

Late last month, an Illinois federal judge declared the famous British detective Sherlock Holmes to be in the public domain.

Author and editor Leslie Klinger initiated the lawsuit in February of last year, seeking a declaration that many of the stories and characters in the Holmes oeuvre had passed into the public domain. Klinger, a Sherlock Holmes expert who authored The New Annotated Sherlock Holmes and contributed to an anthology called In the Company of Sherlock Holmes, went to court after repeatedly being threatened with legal action by the estate of Sir Arthur Conan Doyle.

How, exactly, could a character who first appeared in publication in 1887 not be anything but public domain, you ask? As noted by The Hollywood Reporter, "all but about 10 of Doyle's Sherlock Holmes stories predate 1923, and the essential issue of this dispute was to determine what that meant exactly." In response to Klinger's suit, the Doyle estate argued that the Sherlock Holmes character was developed over time in a series of works that spanned decades, which would make it virtually, if not impossible, to carve out the detective's "personality into both in- and out-of-copyright parts." Essentially, the estate's attorneys averred, "to deny the estate copyright on the whole character would be to give the detective 'multiple personalities.'"

Unfortunately for the late author's estate, U.S. District Judge Ruben Castillo was unconvinced, stating that "[i]t is a bedrock principle of copyright that 'once work enters the public domain it cannot be appropriated as private (intellectual) property,' and even the most creative of legal theories cannot trump this tenet." Judge Castillo was careful to point out, however, that some elements of the Sherlock Holmes story are still protected by copyright. Dialogue, characters and traits first introduced in stories published after 1923 are still subject to copyright.

http://www.hollywoodreporter.com/thr-esq/sherlock-holmes-judge-declares-popular-667755

Read the complaint here: http://www.scribd.com/doc/125702680/Holmes

Read the ruling here: http://www.scribd.com/doc/194106658/Gov-uscourts-ilnd-280181-40-0

Oh, Snap

On New Year's Day, millions of Snapchat users were greeted with news that a hacker had published a database said to contain 4.6 million Snapchat user names and phone numbers. The popular disappearing photo app, which boasted 350 million users as of September, has yet to comment on the data breach.

The hacker, or hackers, known as "Lightcontact," originally posted the database on the social news and entertainment website Reddit, as well as on a website called SnapchatDB.info. The site was removed, "but not before the data quickly circulated around the Web, with programmers building web tools - such as GS Lookup and Snapcheck - to help Snapchat users check to see if their own user names or phone numbers were leaked," writes The Wall Street Journal. Snapchat users around the world have found their user names and phone numbers in the database.

This data security breach comes just five months after Gibson Security, a computer security research firm, warned the Venice Beach, California-based company that its data were vulnerable to hacking. After its warnings went unheeded, Gibson Security published a blog post, alerting Snapchat users to the risk of personal data theft.

http://blogs.wsj.com/digits/2014/01/01/snapchat-alleged-leak-4-million-users/

"Bound" to Be Sued

The music video for Kanye West's new single, "Bound 2," has received attention from comedians and talk show hosts. The (bizarre) video for the song features Kanye West on a motorcycle, with a naked Kim Kardashian holding on to the singer as they ride off into a southwestern sunset. Despite the inexplicable video, the song itself has become quite popular. Unfortunately for West, this acclaim has also brought with it certain legal implications.

Last month, Ricky Spicer, the former soul singer of The Ponderosa Twins Plus One, filed suit in New York court against West, Roc-a-Fella Records, Universal Music Group and Island Def Jam Music Group. According to the complaint, Spicer seeks an "injunction and damages for alleged violations of New York civil right of publicity law (section 51), unjust enrichment and common law copyright infringement."

The suit states that the plaintiff's voice is the audible, albeit altered, "vocal heard throughout the chorus of the Yeezus track, singing the lyrics, 'Bound, bound / Bound to fall in love.'" Specifically, "Mr. Spicer's voice is sampled exactly as he recorded it and his voice, altered by the Defendants, is also heard several times," the 13-page complaint states. Spicer further alleges that this audio was sampled without his authorization, and that he has received no compensation for its use.

Spicer was discovered in the late 1960s after singing with friends at a local high school talent competition. According to The Hollywood Reporter, "Chuck Brown of Suru Records introduced [Spicer] to The Ponderosa Twins, and the group recorded 'Bound' when Spicer was 12 years old. Though he performed with Gladys Knight and James Brown, the court papers say that 'for all of his accomplishments, Mr. Spicer was not fairly compensated.""

http://www.hollywoodreporter.com/thr-esq/kanye-west-sued-bound-2-667655

http://www.cnn.com/2013/12/24/showbiz/kanye-west-sued/index.html

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/west.pdf

Little Bill, Big Problems

Heirs of the late-artist Varnette Patricia Honeywood have sued Viacom, MTV and Nickelodeon for allegedly defrauding the cartoon artist's estate of millions of dollars of residuals for her work on the "Little Bill" cartoon series, based on books by (nonparty) Bill Cosby.

Filed in Los Angeles Superior Court, the heirs' complaint claims that Honeywood, who died in 2010, created the original art for the "Little Bill" television series, "which the defendants exploited, 'but failed and continue to pay substantial 'residual' compensation due" to the trust." According to the suit, this residual compensation amounted to over $500,000 a year for broadcasts of the cartoon in just the Los Angeles television market alone.

The series, set in Philadelphia, feature an imaginative and inquisitive five year old boy -- "Bill/little Bill" -- and his family members. The main character is based on Bill Cosby's deceased son, Ennis William Cosby. The series is broadcast by the Nick Jr. Network, sister channel of Nickelodeon.

Honeywood's heirs demand an accounting, money owed plus interest, and damages for fraud and breach of contract.

http://www.entlawdigest.com/2014/01/02/2888.htm

January 11, 2014

Week in Review

By Martha Nimmer

Settling the Score

The National Basketball Association (NBA) has reached an agreement with the owners of the long defunct American Basketball Association team (ABA), the Spirits of St. Louis. The team owners, Daniel and Ozzie Silna, will receive a staggering $500 million from the NBA, and will continue to receive a share of the revenue generated by the NBA's broadcasts of Spirits games. The Silnas have also received over $300 million from the NBA in the years since the ABA and the Spirits met their end. In other words, the Silna family has managed to amass almost a billion dollars from a team that has not played a game since Gerald Ford was president.

How, exactly, did Ozzie and Daniel Silna find themselves in such an enviable position? Their agreement with the NBA dates back to 1976, the year that the ABA closed up shop. The ABA tried to merge with the much more successful NBA, but ultimately, only four teams were successfully incorporated into the NBA: the New York Nets, Denver Nuggets, Indiana Pacers and San Antonio Spurs. The NBA, according to The Hollywood Reporter, offered the other teams $3 million to cease operations. The Silnas, however, refused, and eventually "received what the merging teams got: a share of the NBA's "visual media" rights." The NBA has "long regretted" that decision, even trying to buy out the brothers in 2008 before the Great Recession made the deal go south. The Silna brothers were also unhappy with their arrangement with the NBA, and ended up suing in New York district court, arguing that they were entitled to a portion of the NBA's money from international broadcasts, its cable network and digital and online streaming, including NBA League Pass. The NBA countered that those new sources of revenue could "never have been imagined" back in 1976.

Decades later, it appears that the NBA is almost rid of the Silna brothers. The agreement between the Silnas and the NBA was announced on Tuesday. The NBA declined to comment, however, because the settlement must still be approved by the presiding judge, Loretta A. Preska.

http://www.hollywoodreporter.com/thr-esq/nba-settles-historic-dispute-tv-668931

http://www.nytimes.com/2014/01/07/sports/basketball/payout-may-come-for-an-aba-team-that-is-long-gone.html?_r=1

Be Careful What You Tweet

On Monday, Courtney Love will "become the first celebrity to defend an allegedly defamatory tweet inside a U.S. courtroom," writes The Hollywood Reporter. Love, the widow of Nirvana frontman Kurt Cobain, is being sued by attorney Rhonda Holmes over a 2010 tweet wherein Love said, "I was fucking devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off." Holmes' defamation action against Love also involves comments that she made during an interview. Love retained Holmes to pursue a fraud case against the individuals managing Cobain's estate.

During the trial, which promises to entertain and probably confound, one of the jury's responsibilities will be to determine whether those who follow Love on Twitter "reasonably understood the statement to be about her former lawyer (and her law firm)." The jury must also tackle the issue of intent: Love claims that she meant to send a "DM" (a private, direct message to an individual), but unintentionally made the tweet public by posting it to her followers. As Holmes is a "limited-purpose public figure," she must prove that Love acted with "malice" when she posted her tweet.

Although the former singer is free to pursue a "mistake" defense, this strategy risks opening "a wider inquiry into Love's larger behavior," which, in the past, has ranged from odd to downright bizarre and even disturbing. Other witnesses scheduled to testify include journalists, former Love assistants, and "economic and language experts versed in the medium of Twitter." Yes, those experts actually exist.

http://www.hollywoodreporter.com/thr-esq/trial-alert-courtney-love-defend-669832

Chris Kluwe Retains Legal Counsel

After calling Minnesota Vikings special teams coach Mike Priefer a bigot and saying that former coach Leslie Frazier and current general manager Rick Spielman were cowards for their reaction to his advocacy of marriage equality, former Vikings punter Chris Kluwe has retained legal counsel. This decision comes after the team hired former Chief Justice of the Minnesota Supreme Court Eric Magnuson and former U.S. Department of Justice trial attorney Chris Madel to lead an independent investigation into Kluwe's accusations, according to CBS Sports.

The media firestorm began last week when Kluwe published a piece on Deadspin that claims that he was fired in May from the Vikings after eight years on the team because of his support of gay marriage. According to Kluwe, problems with the team started to arise in 2012, when the punter began to speak out in support of marriage equality. In 2012, Kluwe aligned himself closely with the LGBT rights group Minnesotans for Marriage Equality, which fought to defeat the Minnesota Gay Marriage Amendment, which was working "to define marriage as being between a man and woman in the state's constitution." Minnesotan voters failed to approve this amendment, and same-sex marriage has since been legalized in the state.

Kluwe also found himself in the spotlight in 2012 "after writing a blistering open letter to Maryland state delegate Emmett Burns, in which he blasted the politician for his 'vitriolic hatred and bigotry.'" State Delegate Burns had written to Baltimore Ravens owner Steve Bisciotti, demanding that he prohibit linebacker Brendon Ayanbadejo from publicly endorsing same-sex marriage. According to Kluwe, after his letter was published, former Vikings Head Coach Leslie Frazier approached him and instructed him "to be quiet, and stop speaking out on this stuff." After that encounter, Kluwe says that he was "approached on different occasions by Frazier and Spielman with similar requests to be silent, but he was also ridiculed and treated unfairly by Special Teams Coordinator Mike Priefer."

The Vikings have denied the athlete's claims, stating "any notion that Chris was released from our football team due to his stance on marriage equality is entirely inaccurate and inconsistent with team policy. Chris was released strictly based on his football performance."

http://www.huffingtonpost.com/2014/01/02/chris-kluwe-vikings-gay-rights_n_4532821.html?ncid=edlinkusaolp00000009

Dennis Rodman, North Korean Ambassador?

Despite decades of human rights abuses and recent revelations that North Korean leader Kim Jong Un ordered the execution of his uncle, Dennis Rodman was able to convince six other former NBA players to accompany him on a trip to North Korea. To celebrate the 31st birthday of the "Dear Leader," Rodman, along with Kenny Anderson, Cliff Robinson, Vin Baker, Doug Christie, Craig Hodges, and Charles D. Smith played against "a top North Korean Senior National team" in a Pyongyang sports arena on Wednesday. Attendees were prohibited from bringing cameras into the event, but video posted online shows Rodman leading the crowd in song in honor of his friend, the dictator. The North Korean team won by a score of 47-39, according to Associated Press.

This latest trip marks Rodman's fourth visit to North Korea. The former NBA player's "basketball diplomacy" has not been so well-received stateside, however. Rodman's trip has drawn criticism from "several members of Congress as well as the family of Kenneth Bae, a tour guide and U.S. citizen who has been held captive in the country for more than a year." Rodman later apologized to the family of Bae after an outburst on CNN during which the former Chicago Bulls player implied that the American was to blame for being held captive.

http://www.latimes.com/world/worldnow/la-fg-wn-dennis-rodman-north-korea-cnn-apology-20140109,0,223935.story#ixzz2px0m98KC

http://www.latimes.com/world/worldnow/la-fg-wn-dennis-rodman-happy-birthday-north-korea-20140108,0,4827481.story#ixzz2pwzPQ3rJ

January 16, 2014

Week in Review

By Martha Nimmer

May It Please The Court

The U.S. Supreme Court has decided to hear an appeal from television networks including ABC, NBC Universal, Fox and CBS, as part of the "hotly debated issue of whether the online dissemination of television broadcasts infringes on network rights." Aereo, a service that uses mini antennas to stream broadcast television online, is the brainchild of IAC/InterActiveCorp and Expedia, Inc. Chairman Barry Diller.

Since its founding in February 2012, Aereo has found itself at the center of a complex legal battle: "[t]he main complaint from the networks is that Aereo is violating copyright law by retransmitting signals without paying the same retransmission fees that cable and satellite providers pay." Supporters of the new service counter, however, that Aereo has broadened the public's access to the media, decrying the major networks' control of the airwaves.

Hoping to shut down Aereo's feed, ABC, CBS and NBC sued Aereo in New York federal court in 2012. U.S. District Judge Alison Nathan sided with Aereo, however. Last April, a divided three-judge panel of the Second Circuit affirmed the trial court's decision in favor of Aereo. Now, Aereo and the nation's biggest television networks find themselves ready to go before the Supreme Court. In response to the high court's granting of cert., Aero released a lengthy statement that touched on everything from consumers' rights to cloud storage. Dana McClintock from CBS corporate communications was more concise, tweeting "we are pleased that our case will be heard and we look forward to having our day in court."

http://www.theverge.com/2014/1/10/5296222/aereo-case-to-be-taken-up-by-the-supreme-court#

http://www.entlawdigest.com/2014/01/14/2895.htm

Banned from Baseball

On Saturday, an arbitrator handed Alex Rodriguez a season-long suspension for his use of performance enhancing drugs (PEDs). This punishment, "the most severe punishment in the history of baseball's drug agreement," comes as a result of a lengthy investigation by Major League Baseball (MLB) into the now-shuttered Florida health clinic, Biogenesis of America. Biogenesis founder, Anthony Bosch, appeared before the arbitration panel "after reaching an agreement with MLB to provide evidence."

The decision by arbitrator Fredric Horowitz to suspend the Yankees' third baseman for the entire 2014 season reduced the August 5th suspension issued by baseball Commissioner Bud Selig from 211 games to this year's entire 162-game regular-season schedule, plus any postseason games. Despite the ban, baseball's rules permit Rodriguez to participate in spring training and exhibition games, although the Yankees may tell him not to report for spring training.

Rodriguez, a 14-time All Star, is the most high profile and successful player to have been found in violation of the MLB's "drug rules, which were first agreed to in 2002 as management and union attempted to combat the use of steroids and other performance-enhancing drugs." Rodriguez admitted in 2009 that he had used PEDs while playing for the Texas Rangers from 2001-2003, but has adamantly denied using such substances since then.

As a result of the suspension, the Yankee will lose approximately $22 million of his $25 million salary. Rodriguez has been baseball's highest paid player under a $275 million, 10-year contract, although he has spent periods throughout the last six seasons on the disabled list. Rodriguez will be 39 years old when he is eligible to return to the game in 2015. According to the Associated Press, he is signed with the Yankees through the 2017 season.

http://m.apnews.com/ap/db_289563/contentdetail.htm?contentguid=tzNne3ZS

A-Rod Back in Court

Seeking to vacate his season-long suspension from baseball, Yankees third baseman Alex Rodriguez has sued Major League Baseball (MLB) and the Major League Baseball Players Association (MLBPA) in New York federal court. In his lawsuit, Rodriguez claims that he was unfairly suspended from the game "for allegedly using banned drugs, 'without a positive test result.'" The 42-page lawsuit, with 37 pages of attachments, goes on to accuse Fredric Horowitz--MLB's chief arbitrator -- of "manifest disregard for the law," and calls the 162-game ban "wholly unjustifiable." The complaint further alleges that Horowitz "ignored the stipulation of baseball's Joint Drug Agreement," which sets out a 50 game ban for a first time drug offense. Rodriguez also alleges that Horowitz was not impartial, adding that "he refused to hear evidence in Rodriguez's appeal of the suspension imposed against him last year" by MLB Commissioner Bud Selig. Specifically, the lawsuit accuses Horowitz of denying Rodriguez and his attorneys the right to cross-examine Biogensis founder Anthony Bosch and Commissioner Selig. Additionally, Rodriguez claims that Horowitz denied his attorneys the opportunity to examine the BlackBerries that the MLB says were used to "transmit incriminating text messages" between Rodriguez and Bosch.

Rodriguez has petitioned the court to vacate the arbitration award, hold the players' union "responsible for its breaches of the duty of fair representation owed to Mr. Rodriguez prior to and during the grievance process, and to hold MLB responsible for its violation of the collectively bargained agreements between MLB and the MLBPA by imposing a suspension upon Mr. Rodriguez without just cause."

It appears unlikely, however, that Rodriguez will prevail in his latest legal maneuvering. Judges are generally hesitant to intervene in arbitration proceedings in a situation where private parties have agreed to arbitrate as a means for resolving disputes. To succeed, Rodriguez will need to establish that Horowitz was unfair or biased. Rodriguez will likely have a difficult time convincing a judge that the arbitrator was unfair or biased, however, considering that Horowitz heard 12 days of testimony in the case, and reviewed other evidence, such as text messages between Bosch and Rodriguez, before issuing his decision.

http://www.courthousenews.com/2014/01/13/64490.htm

http://espn.go.com/new-york/mlb/story/_/id/10288380/alex-rodriguez-sues-mlb-union-seeking-reversal-suspension

http://www.cbssports.com/mlb/eye-on-baseball/24408397/arod-suing-mlb-mlbpa-in-effort-to-overturn-suspension

http://www.nytimes.com/2014/01/17/sports/baseball/rodriguez-seems-to-accept-that-suspension-will-stand.html

Saving Detroit, One Work of Art at a Time

In an effort to save the Detroit Institute of Arts' renowned collection and avoid cuts to retirees' pensions, nine philanthropic foundations have committed $330 million, according to mediators working in the city's bankruptcy proceedings. This commitment would "essentially relieve the city-owned Detroit Institute of Arts museum of its responsibility to sell some of its collection to help Detroit pay its $18 billion in debts." Specifically, the allocated funds can help "reduce a portion of the city's obligations to retirees, whose pensions are at risk of being reduced in the bankruptcy proceedings." According to some estimates, the city's pensions are underfunded by a staggering $3.5 billion.

This plan is a much-needed "sign of progress" in the mediation with Detroit's creditors to help resolve the city's financial woes. As part of the plan, ownership of the museum would be transferred from Detroit to the control of a nonprofit; this arrangement also has the added benefit of protecting the museum from future municipal financial threats. Another facet of the plan is that Detroit must put the money received from the philanthropic foundations into the city's ailing pension system.

City and museum officials worry, however, that $330 million may not be enough to save the museum's entire collection from the auction block. According to The New York Times, "as much as $500 million may be needed to protect the art from an auction, officials have said, so additional philanthropic donations are being sought."

http://www.nytimes.com/2014/01/14/us/300-million-pledged-to-save-detroits-art-collection.html?hp

Embattled Barbie

MGA Entertainment, the maker of the highly popular Bratz dolls, has demanded $1 billion in damages from Mattel for misappropriation of trade secrets. This is just the latest move in a nearly decade-long legal fight over Bratz, the skinny doll with the big head and flashy outfits.

Last year, the Ninth Circuit vacated a $172 million judgment against Mattel, leading MGA to move the case from federal to state court. In its decision, the Ninth Circuit ruled that MGA's claim of theft of trade secrets was "not logically related" to Mattel's claim that a former employee still worked for Mattel when he showed MGA a concept that spawned the Bratz doll. Undeterred by the Ninth Circuit's unfavorable ruling, MGA went back to court, and filed suit again against Mattel on Monday. In the lawsuit, MGA claims that the Ninth Circuit ruling covered a "technical procedural issue having nothing to do with the merits of the claims." In addition to the $1 billion in general and actual damages, the plaintiff has also requested a jury trial.

http://www.entlawdigest.com/2014/01/14/2891.htm

January 24, 2014

Week in Review

By Martha Nimmer

A Killer of a Case

American Psycho, the 1991 novel about a Manhattan investment banker turned serial killer, is an unlikely plot for a musical, but a fact pattern more suited for a courtroom. This case, however, does not take place in criminal court, but instead, on the civil side.

Claiming tortious interference and breach of contract, Nate Bolotin has sued The Johnson-Roessler Company and ACT 4 Entertainment -- the producers of the musical stage version "American Psycho" -- in New York court. Bolotin claims that he "came up with the idea" for an "American Psycho" musical over five years ago while working for Collective Management Group (Collective), which is not a party to the suit. The plaintiff claims that he tried "to bring the project to the stage," but ended up signing a separation agreement with Collective and leaving the company in June 2008. Bolotin further alleges that under the terms of his contract with Collective, he agreed to create the musical "in exchange for paying the management company a 25 percent cut of any money he received from the project," with Collective agreeing to pay him a 75 percent share of the musical's revenue. Collective, Bolotin states, eventually partnered with the defendant producers in late 2008 to develop an "American Psycho" musical, "'fully aware' of the separation agreement and his right to 37.5 percent of income from the musical as a 'third-party beneficiary' of the original partnership." According to the complaint, in August 2012, the defendants claimed that Bolotin had violated the separation agreement, and moved to "shut him out of the project."

Bolotin seeks damages for breach of contract and tortious interference with contractual relations, lost earnings and costs.

http://www.entlawdigest.com/2014/01/14/2893.htm

ICP v. FBI

Detroit hip-hop duo Insane Clown Posse (ICP) and four fans have sued the Department of Justice (DOJ)and FBI in Detroit federal court to challenge what the band calls an "unwarranted and unlawful decision to designate [Insane Clown Posse] supporters as a criminal gang." "Organized crime is by no means part of the Juggalo culture," the complaint reads, calling the gang designation "unlawful" and "unconstitutionally vague." ICP fans, who call themselves "Juggalos," also alleged that as a result of the FBI's designation, "state and local police routinely stop, detain, interrogate, photograph and document Juggalos, with some fans even being denied consideration for employment."

The DOJ officially identified Juggalos as a "loosely organized hybrid gang" in 2011 when the Department included the fan group in the National Gang Threat Assessment. Juggalos are recognizable "by the way they paint their faces to look like clowns" and for using the band's "hatchetman" logo on clothes, skin or bumper stickers. According to the American Civil Liberties Union, the federal government estimates that there are more than one million Juggalos in the United States.

The ICP and its fans seek an injunction, declaratory judgment and damages for violations of the First Amendment, due process under the Fifth Amendment, arbitrary and capricious agency action, and violations of the Administrative Procedure Act.

Read the complaint here: http://www.aclumich.org/sites/default/files/Complaint%20-%20Parsons%20v%20DOJ%20-%20FINAL.pdf

http://www.entlawdigest.com/2014/01/14/2896.htm

http://usnews.nbcnews.com/_news/2014/01/08/22232523-insane-clown-posse-sues-fbi-justice-department-over-juggalo-gang-classification?lite

Viking Victory

The Minnesota State Supreme Court lacks jurisdiction to hear a challenge brought by three Minneapolis residents to the planned sale of $468 million in bonds to help pay for a new stadium for the Minnesota Vikings, according to an unsigned ruling. The statute under which the residents sued "does not confer original jurisdiction on the court to resolve all challenges to legislation authorizing the use of appropriation bonds," wrote six members of the court. The court's seventh member, former Vikings defensive tackle Alan Page, did not participate in the case. The justices did note, however, that the residents could "file a lower-court case raising a constitutional challenge to a matter involving taxation," but did not hint at whether such a claim would be successful. Doug Mann, lead petitioner in the case and a one-time Minneapolis mayoral candidate, said in an emailed statement that he would consider his "appeal options" against the city.

The residents' lawsuit, filed on January 10th, claimed that the financing plan for the new football stadium "unconstitutionally relied upon city sales taxes to pay the bond debt." According to Bloomberg News, Minneapolis is required "to pay debt service on its share of a principal amount of $150 million plus interest, while the state's liability is limited to payment on as much as $348 million of bonds plus interest, according to the residents' petition."

After the suit was filed, Minnesota was forced to postpone a sale scheduled for January 13th. No new date has been set yet for the bond sale, however. Construction on the new $975 million stadium began last month, after years of posturing and pleading by the Vikings to secure a new home for their team. In 2010, the roof of the Hubert H. Humphrey Metrodome collapsed under the weight of snow.

http://about.bloomberglaw.com/legal-news/vikings-stadium-bond-suit-thrown-out-by-minnesota-court/

Kanye, Not Coinye

Kanye West has likely dreamed about having his name or face on a coin, but it is unlikely that the coin was part of a new cryptocurrency called Coinye West. Similar to Bitcoin, Coinye West is billed as a "PROPER and FAIR ... [currency] for the masses." The coders behind the new currency, who operate through the Coinyeco.in website, released their first "coins" on January 7th, saying, "we want to release this to the public before the man can try to crush it." The coins were originally set to debut on January 11th, but after receiving a cease and desist letter from West's attorneys, the coders moved the release date forward, tweeting in the style of Kanye West "WHO GON STOP ME HUH." "Coinye feelin' the heat, gonna spread what we got so far before the bigwigs steal our work!!"

In a cease and desist letter dated January 6th, an attorney for the hip-hop artist accused the coders of attempting to trade on the celebrity of West: "[G]iven Mr. West's wide-ranging entrepreneurial accomplishments, consumers are likely to mistakenly believe that Mr. West is the source of your services." The letter continues to accuse the Coinye creators of trademark infringement, trademark dilution, unfair competition and cyberpiracy, but notes that West "seeks to resolve this matter without resort to litigation." To avoid a lawsuit, Coinye's developers must cease "development, sale, distribution and promotion" of all Coinye West products and services, deactivating their Facebook and Twitter accounts, and transferring the coinyewest.com website into West's hands, West's attorney wrote. Failure to comply will not just result in legal action against Coinye's creators, however -- the rapper's attorneys will also "notify the cryptocurrency community at large of [Coinye's] infringing actions" and pursue legal action against any business that accepts the currency.

Despite this looming juggernaut of legal action, Coinye's creators do not seem to be backing down. In a Skype interview with the Wall Street Journal, one of the coders said, "[t]hey'll still come after us, but that's OK." The creators did, however, change the name of their currency from Coinye West to Coinye, and have also changed their website from a .com URL to a domain name registered in India, http://www.coinyeco.in/.

http://www.theguardian.com/music/2014/jan/08/kanye-west-bitcoin-coinye-west-trademark

http://about.bloomberglaw.com/legal-news/apple-jj-kanye-west-fullscreen-intellectual-property/

http://blogs.wsj.com/digits/2014/01/07/kanyes-lawyer-moves-to-block-coinye/

February 4, 2014

Week in Review

By Martha Nimmer

Cronut®

Cronut, the doughnut-croissant hybrid with a cult-following, is now a registered trademark. The brainchild of New York baker Dominique Ansel, the cronut launched in 2013 and quickly became the stuff of culinary legend, leading countless New Yorkers and tourists to line up outside Ansel's West Village bakery, sometimes before dawn, hoping to snap up the sweet confections before they sold out. The cronut was so popular that a black market for the pastry even sprang up on Craigslist and across the city, with some people paying as much as $40 for a single cronut, or sometimes, for a cronut-knockoff. Those knockoffs eventually led Ansel to apply for the cronut trademark in Spring 2013. As of January 14th, cronut is an official, registered trademark.

This is great news for Ansel, but potentially damaging for countless bakeries across the country that continue to refer to their doughnut-croissant creations as "cronuts." Bakers beware.

Read the trademark registration here: http://eater.com/archives/2014/01/15/cronuts-are-officially-trademarked-now.php

Stephen Glass, non-Esq.

Stephen Glass "failed to carry his heavy burden of establishing his rehabilitation and current fitness," the California Supreme Court ruled last week. Glass was "all but banished from the profession of journalism" in 1998 after it was revealed that he "had partly or wholly fabricated dozens of articles for The New Republic and other magazines." Now, it appears that Glass has failed at attaining another career -- that of attorney.

The unanimous, 33 page ruling called into question the disgraced author's motives for wanting to practice law, raising questions about his sincerity and the efficacy of his personal rehabilitation after leaving The New Republic. Further damning was that Glass had "not been forthright in a previous application to the New York bar and had not acknowledged his shortcomings in that effort (he was informally notified in advance that his New York application would be rejected)." Unpersuaded, the court also noted that the writer's rehabilitation efforts "seem to have been directed primarily at advancing his own well-being rather than returning something to the community."

Glass entered the public consciousness for his "larger-than-life features in The New Republic, George and Rolling Stone." That fame came to an end "when an editor at the website Forbes Digital Tool discovered that one of Mr. Glass's articles, about computer hackers, appeared to be invented." The New Republic fired Glass and severed all ties with him, and then turned to "examining his archive of work for more fabrications." According to The New York Times, an investigation at the magazine revealed that many of Glass's articles "were completely made up," while others were partially, sometimes almost entirely, fabricated.

A 2003 film, "Shattered Glass," was made about Glass's fabrications while an author for The New Republic. In 2004, Glass moved to California and began working as a law clerk at a law firm. He passed the California Bar Exam in 2006, "but was found morally unfit to practice law in 2009." After a trial, Glass won an appeal, but, after being asked to reconsider its decision, the California Supreme Court issued this latest ruling.

http://www.nytimes.com/2014/01/28/business/media/california-denies-scorned-journalist-stephen-glass-right-to-practice-law.html

#Twibel

A California jury has ruled for Courtney Love in a defamation case brought against her by one of her former attorneys. The jury found that a Twitter post made by Love, which suggested that one of Love's attorneys had been "bought off," included false information, but that Love did not know that the information was untrue. Lawyers for the plaintiff, attorney Rhonda Holmes of San Diego, had sought $8 million in damages in the case. Referred to as the "Twibel" case -- a combination of Twitter and libel -- this case is "reportedly the first defamation suit tried in the U.S. over a message posted on Twitter."

Love originally hired Holmes to file a fraud case against the estate of her late husband, Nirvana singer Kurt Cobain. When Holmes failed to pursue the claim, Love took to Twitter and aired her disappointment: "I was f-cking devastated when Rhonda J Holmes Esq of san diego was bought off." Love argued, however, that this statement was never meant to be public; she told the jury that she intended to send the statement as a private, "direct message" (DM), but instead tweeted the statement to her followers, quickly deleting it.

This is not the first time, however, that Love's social media activities have landed her in hot water. According to ABC, in 2011, the singer "agreed to pay $430,000 to fashion designer Dawn Simorangkir over statements [Love] posted on Twitter and Myspace." Simorangkir also sued Love again last year, "alleging the musician libeled her when Love accused Simorangkir of theft on the Howard Stern's radio show and taunted her on the social media site Pinterest." That case is currently pending.

http://abcnews.go.com/m/story?id=21662958

http://www.abajournal.com/mobile/article/defense_verdict_for_courtney_love_in_twibel_trial_brought_by_her_former_law/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

Tarantino Sues Gawker

Famous film director Quentin Tarantino has sued Gawker Media (Gawker) for contributory copyright infringement in California federal court, alleging that Gawker facilitated the "dissemination of copies of his unproduced script, The Hateful Eight." The complaint accuses Gawker of "predatory journalism" and calls out the website for "violating people's rights to make a buck."

The script for The Hateful Eight was leaked by Gawker's Defamer blog after Tarantino, angry that details about the Western flick had leaked to the public, told the media that he would no longer be making the movie as his next project. In response, the Defamer blog published a link to the 146-page script in a post titled, "Here Is the Leaked Quentin Tarantino Hateful Eight Script."

Despite "repeat demands for the removal of the posted URL links" and "submissions of DMCA notices of copyright infringement," Gawker has refused to remove the script from its site. John Cook, editor of Gawker, maintains that Gawker did not leak the script: "[s]omeone unknown to Gawker put [the script] on a web site called AnonFiles, and someone unknown to Gawker put it on a different web site called Scribd. Last Thursday, Gawker received a tip from a reader informing us that the script was on the AnonFiles site, after which Gawker published a story reporting that the script had surfaced online."

This is not the first time that Gawker has found itself on the defense side of a lawsuit. According to The Hollywood Reporter, the website "has sparked lawsuits . . . over sex tapes from Hulk Hogan and Rebecca Gayheart," and also received a cease-and-desist letter from Lena Dunham's attorney after featuring Dunham's book proposal on Gawker.

Tarantino is seeking actual and statutory damages as well as "Gawker's profits in the amount of at least $1 million."

http://www.hollywoodreporter.com/thr-esq/quentin-tarantino-suing-gawker-leaked-674424

http://gawker.com/quentin-tarantino-sues-gawker-over-link-to-script-he-wa-1510095159?utm_campaign=socialflow_gawker_facebook&utm_source=gawker_facebook&utm_medium=socialflow

Gimme an L, Gimme an A, Gimme a W, Gimme an S, Gimme a U...

Known only as Lacy. T, a cheerleader for the Oakland Raiders filed a class action lawsuit last week in Alameda County Superior Court. The cheerleader, known as a "Raiderette," accuses the NFL team of "underpaying wages, withholding wages for months and forcing cheerleaders to pay expenses the team forces them to incur."

According to the complaint, Lacy T. began working for the Raiders in 2013, but did not receive a paycheck from the team for nine months. When her check finally did arrive, the plaintiff realized that the Raiders had failed to pay her even minimum wage or overtime. According to the complaint, Lacy. T. earned $125 per game, which translates into just $1,250 for an entire season. This figure, according to the Raiderette's attorneys, "amounts to less than $5 an hour for all the work they are required to put in." As noted in the complaint, the cheerleaders' contracts require them "to attend practices, rehearsals, fittings, drills, photo sessions, meetings and workouts. They receive no pay for any of those mandatory assignments, including the Raiderettes swimsuit calendar, which costs $15 on the Raiders website." Raiderettes, according to the suit, "make a total of 300 appearances a year at charity, corporate and community events, and each Raiderette is expected to show up at 10 events."

The complaint goes on to allege a litany of additional labor law violations. For instance, the team failed to provide meal or rest breaks during cheerleaders' eight-hour (or longer) shifts. Additionally, the complaint alleges that if a Raiderette failed to arrive at an appearance at least 15 minutes before the start time, she would be required to make an additional, unpaid "charity appearance." Further noted in the complaint is the cheer squad's practice of publishing "a schedule of fines for the Raiderettes," to be deducted from their compensation. Raiderettes, according to The Los Angeles Times, "can be fined if they forget to bring the right pom poms to practice, if they forget to bring a yoga mat or wear the wrong workout clothing in rehearsals. (Raiderettes have rehearsals two to three times a week. They are compulsory, and, as noted, uncompensated.)" The Raiders, according to Lacy T., also failed to compensate the cheerleaders for mandatory hairstyling and hair coloring performed by a salon selected by the team.

Lacy T.'s lawsuit seeks back wages for herself and "about 100 current and former Raiderettes going back four years." Will Kiss, head of Raiders media relations, said that the team "would have no comment" on the lawsuit.

http://www.latimes.com/local/abcarian/la-me-ra-20140124,0,5704811.story#axzz2rdcMUxAD

Read the complaint here: http://www.levyvinick.com/images/SKMBT_60014012209230.pdf

Freedom of Yelping?

Yelp, the popular social media/business reviews website, "must turn over the identities of seven anonymous reviewers of a carpet cleaning business who did not appear to be actual customers," a Virginia appeals court ruled last week. The Virginia Court of Appeals wrote that "[t]he freedom of speech -- and within this, the freedom to speak with anonymity -- is not absolute."

The controversy began in 2012 when the defendant, Hadeed Carpet Cleaning, Inc. (Hadeed), filed suit against the authors of "seven specific critical reviews" of the cleaning business. One reviewer, "Aris P." from Haddonfield, N.J., wrote in his Yelp review that the price of carpet cleaning was "double the quote," and that Hadeed had once filed for bankruptcy. Several other allegedly fake reviews on Yelp claimed "the price was double the quote, or criticized Hadeed's advertising." Hadeed sought to "match the negative reviews with its customer database, but could find no record that the negative reviewers were actually Hadeed customers; consequently, Hadeed "issued a subpoena duces tecum to Yelp, seeking documents revealing information about the authors of each of the challenged reviews." Yelp refused, but was dealt a blow from a Virginia circuit court in November 2012, when the court issued an order enforcing the subpoena duces tecum. Yelp, however, failed to comply, and Hadeed moved to have Yelp held in contempt. The circuit court held Yelp in civil contempt, and levied a fine of $500 against the company, while awarding Hadeed an additional $1,000 in attorney's fees. This appeal eventually found itself before the Virginia Court of Appeals, which ruled in Hadeed's favor.

http://www.abajournal.com/mobile/article/yelp_ordered_to_turn_over_identities_of_seven_authors_who_wrote_alleged_fak?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly

Read the opinion here: http://www.courts.state.va.us/opinions/opncavwp/0116134.pdf

February 7, 2014

Week in Review

By Martha Nimmer

The Gift of Art

After months of negotiations, the Dallas Museum of Art announced earlier this week that it would receive what The New York Times has called "one of the most important collections of Islamic art in private hands." The collection will arrive in Dallas in May, and will be housed at the museum for at least 15 years as part of "an unusual long-term renewable loan that will give the museum the right to lend pieces to other institutions and to make objects widely available to scholars."

Called the Keir Collection, this trove of Islamic art was collected over decades in Britain by Edmund de Unger, a Hungarian real-estate magnate who passed away in 2011. The collection, consisting of around 2,000 objects, boasts many carpets, textiles and manuscripts. The agreement with the Dallas Museum of Art will elevate the museum's collection of Islamic art works to "perhaps the third most important Islamic collection in the country, after the Metropolitan Museum of Art in New York and the Smithsonian's Freer and Sackler Galleries in Washington."

This interest in and demand for Islamic art and artifacts has increased in the last decade, according to The New York Times, "as threats to major collections and historic sites in parts of the Middle East come with ever greater frequency." Just two weeks ago, for instance, the Museum of Islamic Art in Cairo was badly damaged after a truck bomb exploded, destroying more than 70 artifacts.

http://www.nytimes.com/2014/02/04/arts/design/dallas-museum-lands-a-rich-trove-of-islamic-art.html

Tackling Super Bowl Ticket Prices

Claiming that the National Football League's (NFL) ticketing practices for the Super Bowl run afoul of New Jersey consumer protection law, Josh Finkelman sued the NFL in Newark federal court in December. According to The New York Times, this "is the first suit that a football fan aggrieved by the price of tickets has filed against the N.F.L." Finkelman accuses the NFL of "unjust enrichment and violating New Jersey consumer fraud law, which prohibits withholding more than 5 percent of seating from the public for any event to be sold at other than face value." He seeks class action certification. As so many fans buy their tickets from secondary sources that obtain the tickets from the NFL or from the NFL's teams, the putative class could "reach into the tens of thousands."

Although Finkelman's lawsuit will be decided long after the Seahawks' victory over the Broncos fades, the plaintiff hopes that his suit will change the way that the NFL sells tickets to the next Super Bowl. For last week's Super Bowl, Finkelman's attorneys claim that "just 1 percent, or 775 of 77,500 tickets, [were] available to the public at face value for this year's Super Bowl XLVIII at MetLife Stadium in East Rutherford, N.J." According to the stadium website, capacity for the venue is 82,500. This scarcity translates into high ticket prices. A month before Super Bowl XLVIII, the average ticket price was $3,432.90; according to the suit, the plaintiff purchased two tickets at $2,000 each, "far in excess of the face value of the tickets," which is about $500 each.

The significant difference between the face value of Super Bowl tickets and their purchased-for-price can be traced to the NFL's ticket distribution policy. The overwhelming majority of tickets to the Super Bowl is never made available to the public. In fact, 75% of the tickets are shared among the NFL's 32 teams, with roughly 25% of the remaining tickets retained by the NFL and distributed to game officials, media and corporate sponsors. According to the complaint, that means that less than 1% of tickets is made available to the public, via a ticket lottery. Those tickets are then sold at face value. The ticket lottery is held every year by mail; starting in February and concluding in June. If fans cannot purchase Super Bowls tickets through the ticket lottery, they are left with the secondary market, and the accompanying high prices. This leaves many fans unhappy, or left out of the game.

At first blush, Finkelman's suit appears to be a legal long shot, given the fact the NFL has sold Super Bowl tickets in the same manner, year after year. What was different with this Super Bowl was that it was held in New Jersey, which boasts robust consumer protection laws. Specifically, Finkelman's suit alleges that the NFL's ticket distribution policy violates Section 56:8-35.1 of the New Jersey Consumer Fraud Act. That section reads: "[i]t shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets' release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5 percent of all available seating for the event." In other words, attorneys for the plaintiff argue, this section of the state's Consumer Fraud Act "explicitly forbids the N.F.L.'s practice of providing only 1 percent of Super Bowl tickets for sale to the public. In fact, it would seem to dictate that 95 percent of the seats must be sold that way."

The NFL maintains that its ticket distribution system is fair. "We can never fulfill all the requests for tickets. The NFL's Super Bowl ticket distribution process has been in existence for years and is well documented. We are confident it is in compliance with all applicable laws," the NFL said in response to the lawsuit.

http://mobile.nytimes.com/2014/02/02/nyregion/lone-fan-tackles-the-nfl-over-super-bowl-ticket-prices.html?referrer=

http://abcnews.go.com/Business/nfl-sued-withholding-super-bowl-tickets-public/story?id=21463553

Standing Up for Student Athletes

Northwestern University football players have taken the first step to unionization, filing a formal petition with the Chicago office of the National Labor Relations Board (NLRB). If the NLRB certifies the group, the union will be known as the College Athletes Players Association (CAPA). CAPA's initial goals include "medical protection for concussions," guaranteed scholarships -- even if players are injured -- and a trust fund available to players whose NCAA eligibility expires, but who wish to finish college.

The National Collegiate Athletic Association (NCAA) opposes the move for unionization, arguing that providing medical protections and multiyear scholarships would distract from the purpose of college, i.e. education: "[t]his union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize."

http://m.motherjones.com/mojo/2014/01/ncaa-football-players-union-northwestern

I'll Make You an Offer I Can Refuse

After years of legal wrangling, the case of the Dateline $1 million "challenge" has finally concluded.

In 2006, an Orlando attorney appeared on Dateline, saying it was impossible for his client, Nelson Serrano, to have murdered four people. The attorney, James Mason, maintained that his client was innocent of the accused crimes because to commit them in the time-frame alleged by police and prosecutors, his client would have needed to exit a plane in a busy Atlanta airport and arrive at a hotel miles away, all in less than 28 minutes. So convinced was Mason of the impossibility of this feat that he said, "I challenge anybody to show me -- I'll pay them a million dollars if they can do it." Unfortunately for Mason, someone decided to show him.

Enter Dustin Kolodziej, then a law student at South Texas College of Law. In December 2007, Kolodziej retraced Serrano's alleged route from an Atlanta airport to a La Quinta hotel five minutes away, and made a video recording of the trip. Kolodziej completed the journey in under 28 minutes, and then tried unsuccessfully to collect the $1 million. He sued Mason, claiming that Mason had made a unilateral offer to the public, which Kolodziej had accepted by traveling from the airport to the hotel in under 28 minutes. Unfortunately for Kolodziej, Mason had not made an offer to the public -- Dateline had edited Mason's comments for television. What Mason actually said was "I challenge anybody to show me, and guess what? Did they bring in any evidence to say that somebody made that route, did so? State's burden of proof. If they can do it, I'll challenge 'em. I'll pay them a million dollars if they can do it."

Weighing the tone and context of the unedited statement as a whole, U.S. District Judge Charlene Honeywell ruled that "[the interview] can only lead a reasonable person to but one understanding, that the words 'them' and 'they' as used throughout the entire excerpt now refers to the state prosecution." In other words, because the defendant was not communicating an offer to the world, but simply, to the prosecution, Kolodziej cannot claim that "the 'challenge' somehow constituted a valid offer and that he accepted that offer by his performance. Kolodziej cannot proceed with his claim for one million dollars by supposing, believing, imagining or hoping that an offer was made to him that simply was not."

Better luck next time?

http://m.hollywoodreporter.com/entry/view/id/33293

February 15, 2014

Week in Review

By Martha Nimmer

Picasso Stays Put

Picasso's "Le Tricorne" tapestry will remain at the Four Seasons Restaurant, at least for the next month, according to a temporary injunction issued last week by New York State Supreme Court Justice Matthew F. Cooper. The dispute over the future of the Picasso work comes, writes The New York Times, "as the Four Seasons and Aby J. Rosen, the developer who controls the building, are in the midst of rent negotiations that could cause the restaurant to leave the building."

The large painted curtain, valued at $1.6 million, has adorned the restaurant's walls since 1959. The temporary injunction was issued against RFR Holdings, the real estate company that owns the Seagram Building where the Four Seasons Restaurant is located, after RFR had announced in late January that the company would remove the tapestry. This plan upset the New York Landmark Conservancy, which owns the Picasso work. Conservancy officials worried that moving the almost century-old tapestry could severely damage or even destroy it; Peg Breen, president of the conservancy, stressed "that if 'Le Tricorne' had to be moved, the experts recommended a process 'that would take at least eight working days that would move it slowly and carefully.'" In contrast, RFR's plan for moving the Picasso work envisioned a much faster timetable. At a hearing last week, the attorney for RFR stated, "[i]f we break it, we'll buy it." That promise from RFR did little to assuage the fears of the New York Landmark Conservancy. RFR maintained, however, that because "Le Tricorne' was not part of the internal landmark designation of the Seagram Building, the tapestry could be removed; RFR went on to say that "as owner of the building and in reliance on the advice of professionals, RFR has determined that the tapestry should be removed from the wall so that necessary work can be done . . . RFR believes that the tapestry can be removed from the wall safely through a careful process that had been scheduled to take approximately eighteen hours."

Justice Cooper, however, was not convinced, apparently concerned about his place in art history: "I don't want to be the judge who has a Picasso destroyed. If some damage were to occur, no amount of money could make up for the loss of any Picasso." So for now, the Picasso stays put.

http://mobile.nytimes.com/2014/02/09/nyregion/judge-temporarily-bars-removal-of-picasso-tapestry.html?partner=rss&emc=rss&smid=tw-nytimes&_r=0&referrer=

Treasure Trove

Another stash of priceless art has been found in the second home of the son of a deceased Nazi-era art dealer. The 60 pieces, including works by Claude Monet and Pablo Picasso, were found at Cornelius Gurlitt's home in Salzburg, Austria. The Los Angeles Times reports that Austrian "authorities viewed and secured the precious works Monday, according to a statement by Gurlitt's spokesman carried by Austrian and German media." Gurlitt's spokesman added that a preliminary examination produced no matches between the recovered pieces and works of art known to have been taken from Jews during the Nazis' campaign against what they called "degenerate art." In 2012, a search by German authorities of Gurlitt's home in Munich revealed an estimated 1,400 works of art; 380 of these pieces are believed to have been stolen by the Nazis during World War II. Last month, Gurlitt's legal counsel said that his client was "willing to negotiate restitution and compensation for some of the pieces," writes The Los Angeles Times.

Gurlitt was the son of well-known Nazi-era art dealer Hildebrand Gurlitt. Hildebrand Gurlitt helped the Nazi regime acquire famous works of art from museums and from Jews who fled Europe or were sent to concentration camps. Many of those priceless works have vanished -- some destroyed by the Nazis, some destroyed by war, and others lost to history. The new Matt Damon and George Clooney film, "The Monuments Men", depicts "the race in the waning days of World War II to rescue art stolen by the Nazis."

http://touch.latimes.com/#section/-1/article/p2p-79258435/

A New Trend on the Catwalk

There is a new trend on the runways at New York Fashion Week: models over age 18. This change comes on the heels of legislation passed last October in New York that designates models who are younger than 18 years old as child performers. This designation translates into "earlier bedtimes and easier hours" for underage models, and "lots of paperwork" for designers who want to use child models. Given the challenges of using models under age 18, designers have been choosing older models: "[t]his year, I saw over 350 girls, and I only saw 3 that were under 18," said James Scully, a casting director for fashion labels such as Jason Wu, Derek Lam and Tom Ford. In the past, he says, "60%" of the individuals who graced the catwalk were under 18. "Years ago we had girls that used to come with their mother," said the designer Carolina Herrera. "They were 14 or 15. I remember one Russian girl who used to come with her mother and a Polish girl who used to come with their father because they were so young." Herrera added that she supports the new law, and is not using models younger than 18 for her show this season.

http://mobile.nytimes.com/2014/02/10/fashion/New-York-Fashion-Week-Models-Age-law.html?referrer=

Dairy Diplomacy

Unable to convince the Russian government to suspend temporarily its three year old embargo of U.S. dairy products, New York-based Greek yogurt maker Chobani has announced that "the world's most controversial shipment of yogurt is headed to food banks in New York and New Jersey" instead of to American Olympians in Sochi. The 5,000 cups of Chobani yogurt have been stuck for more than a week in an industrial freezer near Newark Liberty International Airport, due to a "diplomatic tiff with Russian authorities." Russian officials refuse to permit the yogurt into the country, blaming U.S. Department of Agriculture officials for not providing the "necessary certifications."

The Russian Federation, with a population of roughly 140 million, is one of the world's top dairy importers. In September 2010, "the country banned the import of all milk, cheese, yogurt and more from the United States by mandating that all dairy products be on a pre-approved list before they're brought into the country." Russia scrapped that requirement in 2012 as part of a deal to join the World Trade Organization, but American dairy companies continue to encounter barriers to market access in Russia.

Unfortunately for Chobani and hungry American Olympians, pleas from U.S. Senators Charles Schumer and Kirsten Gillibrand to Russian diplomats and Olympic officials fell on deaf ears, leading Chobani to abandon its efforts to get the yogurt to U.S. Olympic athletes. "As a proud supporter of the Olympics and Team USA over the past four years, we're disappointed our athletes won't be able to enjoy Chobani while they compete in the games as we all hoped, and are deeply appreciative to everyone who tried to help get it there, especially Sens. Schumer and Gillibrand and various officials here at home," said Hamdi Ulukaya, Chobani's founder and chief executive officer. Luckily, there is a silver-lining in the dairy debacle: hungry New Yorkers and New Jerseyans will be able to enjoy the blueberry-, strawberry- and peach-flavored Greek yogurt.

http://www.politico.com/story/2014/02/olympics-sochi-chobani-yogurt-103286.html

http://www.politico.com/story/2014/02/olympics-sochi-chobani-yogurt-103286.html

Uh-Oh Armour

After poor showings in the men's and women's speedskating competition, the national speedskating federation has announced that it will "drop its controversial Under Armour Inc. suits for the rest of the Olympic Games." Instead, the skaters will use the Under Armour suits worn during the team's more successful World Cup events last year. Despite being heavily favored to win gold medals in at least two events, U.S. speedskaters have so far failed to win a medal at the Sochi games. At the 2010 Vancouver Olympic Games, the U.S. won four medals in speedskating, but as of Thursday night, no American speedskater had finished better than seventh place in any of the six long-track speedskating events. Luckily for the U.S. team, another six long-track events remain.

These new Mach 39 suits, "billed before the Games as a competitive advantage," are rumored to have a design flaw that may be slowing down skaters. Openings on the backs of the suits, designed to allow heat to escape, "are also allowing air to enter and create drag that keeps skaters from staying in the low position they need to achieve maximum speed," writes The Wall Street Journal. One member of the speedskating team even said that members felt they were "fighting the suit" to maintain correct skating form. Bert van der Tuuk, the designer of the Dutch Olympic speedskating team's suits, told The Wall Street Journal that he had used a similar vent on the back of a prototype three years ago, but eliminated the panel because it slowed his skaters: "[t]he suit was blowing itself up."

Under Armour developed the speedskating suit specially for the Sochi Olympics, pretesting the suit for specific conditions, "including the sea-level altitude that athletes would face there." The Baltimore-based athletic apparel company called the Mach 39 outfit "the fastest speedskating suit in the world." Made from five synthetic fabrics, the Mach 39 went through "300 hours of wind-tunnel testing and incorporated the design expertise of Lockheed Martin's aircraft engineers," the company said. Under Armour sent the outfits to the U.S. Olympic team in January for preliminary adjustments for each athlete. The company also sent a team of specialists to Sochi to make alterations. Although the U.S. team wore the suits in the past month for simulated race conditions, "the Games marked the first time in competition."

http://online.wsj.com/news/articles/SB10001424052702304703804579383010048360726?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702304703804579383010048360726.html

http://online.wsj.com/news/articles/SB10001424052702304703804579381002780722432?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702304703804579381002780722432.html

March 7, 2014

Week in Review

By Martha Nimmer

The Sisters Basquiat Take on Christie's

The sisters of deceased artist Jean-Michael Basquiat have sued Christie's in Manhattan federal court, claiming that the auction house lied about the sisters' endorsement of "50 purported Basquiat works 'of questionable authenticity' to increase bids and boost sales." Jeanine Basquiat Heriveaux and Lisane Basquiat's complaint also accuses the defendant of false advertising, violations of New York's General Business Law and unfair competition.

The sisters' claims center on the auction company's 148-page catalog, Jean-Michel Basquiat: Works From The Collection of Alexis Adler, created to publicize the March 2014 sales of approximately 50 items said to have been painted by Basquiat. According to the lawsuit, Adler stated that she lived with the artist from 1979 to 1980, and that Basquiat left the works in their shared apartment when he moved out. The artists' sisters claim, however, that Adler "submitted seven of the catalog items for authentication in 2007, but only six of them checked out as genuine." "The remainder of the catalog items were not only not authenticated by the authentication committee or the estate, but also were never submitted to them for review," the complaint states.

Basquiat entered the art scene in the 1970s, spray-painting sayings and poems around Manhattan under the fictional name SAMO (short for "same old shit"). His work became popular in the early 1980s, leading to collaborations with Andy Warhol and David Bowie. Jeanine Basquiat Heriveaux and Lisane Basquiat demand $2 million in actual damages and $1 million in punitive damages.

http://www.entlawdigest.com/2014/03/05/2987.htm

Blacking Out

For four decades, the Federal Communications Commission (FCC) has had a policy in place that dictated that if a "home professional football team had not sold out tickets at least 72 hours prior to kickoff," the game would be "subject to a broadcast blackout." The rationale behind the policy was to ensure greater attendance at the games. Last year, according to The Hollywood Reporter, the FCC announced its intention to issue new rules that would revamp the blackout policy; as part of agency practice, the FCC asked the public for comments on the proposed rules. Last week, the National Football League (NFL) made its thoughts known, essentially telling the FCC that it is not going to let the blackout rule go without a fight, adding "[i]f ever there was a case of 'if it ain't broke, don't fix it,' that applies here."

The NFL maintains that the blackout rule does not hurt fans, pointing to data from the last season that shows only two of the 256 regular season games were blacked out. In its comments to the FCC, the NFL also referenced the Sports Broadcasting Act of 1961, arguing that when the law was passed in 1961, Congress "adopted the blackout provision not for the sake of protecting the gate in its own right, but instead for the purpose of promoting sports on broadcast television." The NFL also makes the unexpected and somewhat novel argument that the broadcast blackouts "are leading to more football games on television. "Proponents of repeal rely on the entirely unsupported assumption that the commission's sports blackout rule reduces the availability of professional sports on television," the NFL averred. "To the contrary, over the long run the blackout rule actually increases the availability of sports games on television by encouraging broadcasters and professional sports leagues to reach deals for exclusive broadcast rights."

In addition to insisting, somewhat unconvincingly, that the blackout rule ensures the televising of more football games, the NFL hints in its comment that if the blackout rule is lifted, the FCC can expect a lawsuit. "Even if the commission were to determine that repealing the rule is in the public interest, it would not have the statutory authority to repeal the rule for satellite- and telephone-based video distributors, and such action would run counter to congressional recognition of blackouts in the SBA. In the past two decades, Congress has twice expressly required the commission to adopt sports blackout rules; in the absence of a congressional repeal of these statutes, the commission lacks authority to eliminate its sports blackout rules."

Read the NFL's comments here: http://www.scribd.com/doc/210655488/National-Football-League-blackouts

http://www.hollywoodreporter.com/thr-esq/nfl-claims-blackout-policy-ensures-686070

Friends in High Places

Although the U.S. Supreme Court will not hear arguments in American Broadcasting Companies, Inc. v. Aereo, Inc. until April 22nd, heavy hitters across the legal community have begun to weigh in on the case, flooding the high court with amicus briefs. The amicus brief receiving the most attention, unsurprisingly, is from the United States, which has come out behind the broadcasters.

The question before the court is whether Aereo's services infringe the broadcasters' "exclusive right" within the Copyright Act to perform their copyrighted works publicly; as part of that analysis, the Supreme Court will have to determine whether Aereo is making a "public" or "private" performance of the petitioners' content when "capturing over-the-air TV signals via antennas and distributing programming to subscribers' digital devices." For the United States, that question is easily disposed of: "[t]he proper resolution of this dispute is straightforward," declares the government. "Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas, respondent does not simply provide access to equipment or other property that facilitates customers' reception of broadcast signals. Rather, respondent operates an integrated system -- i.e., a 'device or process' -- whose functioning depends on its customers' shared use of common facilities." Aereo maintains, however, that what it does is private because each customer "is assigned a single unique copy and that only that individual subscriber can receive a transmission." That argument prevailed last summer before the Second Circuit Court of Appeals in affirming the denial of an injunction; the broadcasters are appealing.

http://www.hollywoodreporter.com/thr-esq/aereo-fight-at-supreme-court-685656

Tweeter Without a Cause

The estate of James Dean, deceased star of the iconic 1950s film Rebel Without a Cause, has sued Twitter. The star's estate claims that the Twitter user account "@JamesDean" violates the estate's trademarks and the actor's right of publicity.

In its suit, the Dean estate claims that Twitter allowed a user to utilize the @JamesDean name, despite numerous requests to stop the unauthorized use of the actor's name. As of February 14th, the @JamesDean account boasted over 8,000 followers; the user's Twitter "About Me" section also calls itself "The King of Cool (Not associated with James Dean, Inc.)" and posts numerous photos of the movie star, who passed away in 1955.

Last month, San Francisco-based Twitter had the suit moved from an Indiana state court to federal court in Indianapolis, where James Dean, Inc. is based.

http://about.bloomberglaw.com/legal-news/james-dean-google-john-wiley-intellectual-property/

March 28, 2014

Week in Review

By Martha Nimmer

"Girls" and 'Boys'

"Girls to build a spaceship / Girls to code the new app / Girls to grow up knowing / That they can engineer that", sing three young actresses in toy maker GoldieBlox's advertisement promoting its engineering and construction toys aimed at girls. The video, which has received millions of views online since appearing late last year, parodies the Beastie Boys' song "Girls," whose lyrics are decidedly less politically-correct, to say the least: "Girls to do the dishes / Girls to clean up my room / Girls to do the laundry / Girls and in the bathroom." GoldieBlox says that they chose the 1986 hit song to poke fun at it, but also to "break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math."

The Beastie Boys, however, were not so impressed by the toy maker's music choice, and claimed copyright infringement. GoldieBlox, in turn, filed suit in November, seeking a declaratory judgement that the promotional video was a parody and thus fell within fair use. Beastie Boys responded to the suit, voicing their support for the GoldieBlox product, but airing their dismay at the company's handling of the copyright infringement controversy: "[m]ake no mistake, your video is an advertisement that is designed to sell a product and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, you sued us." GoldieBlox ended up removing the viral video, but the Beastie Boys chose to go forward a counter-suit in December, calling out the toy company for not creating its own advertising campaign "to inspire its customers to create and innovate," instead using one that "condones and encourages stealing from others."

Now, according to a spokesperson for Goldieblox, that suit has been settled. That settlement will include an apology by GoldieBlox, to be posted on the toy maker's website, and a payment by the company to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls. So, lawsuits aside, this looks like a "win" for both "Boys" and "Girls."

http://www.rollingstone.com/music/news/beastie-boys-settle-lawsuit-over-girls-toy-commercial-20140318

http://time.com/29983/beastie-boys-copyright-goldieblox/

Of E-Books and Children's Books

A children's book published in 1973 is at the center of a major ruling regarding backlist e-book rights. Earlier this month, a federal judge in New York ruled that e-book publisher Open Road infringed publishing company HarperCollins' copyright in Jean Craighead George's bestselling children's book, Julie of the Wolves, when Open Road released an e-book version of the work.

Much of the legal dispute between the two publishers focuses on contract language from the 1970s. In 1971, HarperCollins signed George's book for a $2,000 advance and standard royalties. In the publishing contract with George, HarperCollins agreed that it "shall grant no license without the prior written consent of the Author... including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented..." This provision, referred to as paragraph 20, formed the basis of HarperCollins' lawsuit 40 years later against Open Road, after George had agreed to publish an e-book edition of her award-winning book with the e-book company. HarperCollins argued that two contract clauses, including the aforementioned provision, gave it "the exclusive right to license an electronic edition--albeit, only to be executed with the permission of George." Open Road, however, maintained that the language in paragraph 20 had "nothing" to do with e-books, arguing that the clause applied "solely to storage and retrieval systems," and was not a publishing grant.

Unable to question George or her agent, both of whom had passed away, Judge Buchwald was left with only the 1971 contract language to consult for guidance in reaching her decision, which relies heavily on paragraph 20. "This language, encompassing as it does the forward-looking reference to technologies 'now known or hereafter invented,' is sufficiently broad to draw within its ambit e-book publication," Buchwald ruled. "Although no commercial market for e-books existed at the time of its drafting, e-book technology comprises a later-invented version of the very computer, computer-stored, mechanical or other electronic means provided by Paragraph 20."

Unhappy with the outcome, Open Road officials said in a written statement that the company was exploring its options.

http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/61471-judge-rules-for-harpercollins-in-open-road-e-book-dispute.html

A "Landmark" Settlement

After seven years of legal wrangling, Google and Viacom have settled what legal observes call a "landmark" lawsuit over Google's online video service, YouTube. Viacom, Inc., which owns Comedy Central, MTV, Nickelodeon and the Paramount movie studio, filed its original lawsuit against the search engine in 2007, accusing Google of posting Viacom's programs on YouTube. The media company sought $1 billion in damages, and would eventually claim that Google illegally posted 79,000 Viacom videos on YouTube between 2005 and 2008. Google acquired YouTube in 2006.

Now, that dispute looks to be over, reflecting "the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together," Google and Viacom said in a joint statement. Terms of the settlement have not been disclosed, however. According to Reuters, "no money changed hands, a person close to the matter said." That individual was not authorized, however, to discuss the settlement's terms.

This settlement comes almost a year after a federal judge in Manhattan ruled against Viacom's damages claims over Viacom-copyrighted material that YouTube users had uploaded without permission. U.S. District Court Jude Louis Stanton ruled that YouTube was not required to search its website repeatedly for infringing content, provided that the online video service remove such videos after receiving take-down notices from copyright owners. Viacom was appealing that decision to the Second U.S. Circuit Court of Appeals in New York, and oral arguments had been scheduled for March 24th.

http://news.yahoo.com/google-viacom-settle-youtube-copyright-lawsuit-130221022--sector.html

Union!

In writing that "[it] cannot be said the employer's scholarship players are 'primarily students,'" the Chicago district of the National Labor Relations Board (NLRB) ruled on Wednesday that Northwestern University football players qualify as employees of the university, and can unionize. As support for that decision, NLRB regional director Peter Sung Ohr touched on the fact that the university's football players regularly work more hours than other full-time employees, and are, as BuzzFeed Politics writes, "subject to control and regulations of their day-to-day activities that the rest of the student population is not." Consequently, Ohr ruled, the members of the Northwestern University football team "fall squarely within the [National Labor Relations] Act's broad definition of 'employee' when one considers the common law definition of 'employee.'"

The NLRB regional director's ruling means that members of the Northwestern football team may now vote on whether they want to be represented by the College Athletes Players Association (CAPA). CAPA brought the case to the NLRB, along with former Northwestern quarterback Kain Colter, and the United Steelworkers union, which has provided the financing for legal counsel. Disappointed by the NLRB ruling, Northwestern has indicated that it will appeal the ruling to the NLRB headquarters in Washington, D.C.; a final decision could take months. "While we respect the NLRB process and the regional director's opinion, we disagree with it," said Alan Cubbage, vice president for university relations, in a written statement. Cubbage added that the university "believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes." The NCAA was similarly displeased with the NLRB ruling, stating, "[w]e strongly disagree with the notion that student-athletes are employees. "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid."

Supporters of CAPA, however, were quick to celebrate the ruling. On Wednesday, Colter tweeted: "This is a HUGE win for ALL college athletes!" During an interview with ESPN that evening, Colter also said he was "pleased with how strong the ruling was. The regional director did not budge one bit, he backed us up on all of our points. I believe it's going to be hard to overrule his decision, given how strong it is." He added that he was "confident" the Northwestern players would vote to unionize.

Read the NLRB decision here: http://www.scribd.com/doc/214711605/NLRB-Regional-Northwestern-Decision

http://espn.go.com/college-football/story/_/id/10677763/northwestern-wildcats-football-players-win-bid-unionize

http://www.buzzfeed.com/jacobfischler/nlrb-northwesterns-football-players-can-unionize

April 5, 2014

Week in Review

By Martha Nimmer

Notorious Sampling

Even though rapper Notorious B.I.G. passed away almost two decades ago, his estate may face a copyright lawsuit for his sampling of a 1974 song by soul singer Leroy Hutson and Michael Hawkins. Now, hoping to get ahead of such a suit, the estate of the Notorious B.I.G.--born Christopher Wallace--has filed its own suit in California federal court, seeking declaratory relief that the song "The What" on the album "Ready to Die" does not infringe Hutson and Hawkins' song, "Can't Say Enough About Mom." The estate's lawsuit also accuses Hutson of copyright misuse for "threatening legal action with alleged knowledge of no real infringement."

What sets this case apart from others is that Wallace admitted sampling the 1974 song. The plaintiff's estate, however, appears untroubled by this past revelation, arguing that the sampling is de minimis and fair use, "as only 'two nonsequential tones' were used, adapted, modified and supplemented." Additionally, any infringement claims would be time-barred, according to the plaintiffs.

The Biggie song at issue, "The What," was written in 1994 by the deceased artist, Osten Harvey Jr. (known as Easy Mo Bee) and Clifford Smith (known as Method Man). Harvey produced the song, and the plaintiff's suit states that he "sampled the final 1.9 seconds of 'fade-out' from the defendant's song -- a faint 'wah-wah' sound which oscillated between high and low frequencies." On "The What," the song excerpt is said to have been "transposed" to match an E-flat minor tone. According to The Hollywood Reporter, the song's "low-end frequencies were removed, and the high-end frequencies were chopped into short and bass tones."

As there is no dispute over whether sampling occurred in "The What," the judge hearing the suit will be left to decide what amount of sampling is permissible.

http://www.hollywoodreporter.com/thr-esq/notorious-big-estate-files-pre-692525

Stolen Snowman?

An animator who claims that Disney copied "original elements" of her snowman character for its movie and trailers for the hit film "Frozen" is not, in the words of "Frozen" soundtrack artist Adina Menzel, going to "let it go." Earlier this week, animator Kelly Wilson sued the Walt Disney Company and its affiliates for copyright infringement in California federal court.

"Frozen", Disney's $1 billion animated hit, tells the story a young girl and her friends who save their kingdom from eternal winter. In contrast, Wilson's 2D animated movie tells the story of "an average Joe snowman" who loses his nose -- made out of a carrot -- and must retrieve the nose before it is eaten by hungry rabbits. The majority of Wilson's complaint focuses on a teaser trailer for "Frozen" and its similarities to her brief film. According to the artist's complaint, the June 2013 teaser for "Frozen" is "substantially similar to 'The Snowman', and it is almost identical to the original element of 'The Snowman', including but not limited to: the plot, themes, dialogue, mood, setting, pace, characters and sequence of events." Specifically, Wilson claims that the Disney trailer uses the same plot -- a snowman who has lost his carrot nose -- but instead of rabbits, the snowman must keep a moose from eating the nose. Wilson claims in her suit that Disney took the idea from her during the 54th San Francisco International Film Festival in 2011 after she won "Youth Work Honorable Mention" for "The Snowman". Notably, her film competed against a short film created by a Pixar Animation Studios employee; Pixar is a subsidiary of Disney.

Wilson seeks a share of profits as well as attorney's fees.

http://www.entlawdigest.com/2014/03/31/3051.htm

Trouble in the Jersey Shore

MTV's controversial reality television show, Jersey Shore, is no stranger to legal trouble. Now, add to that list a class action lawsuit from a former video editor on the series. In his suit, filed on Friday in Los Angeles Superior Court, video editor Philip Pucci accuses 495 Productions, the producer of Jersey Shore and other reality shows, of unfair business practices, failing to pay for overtime work and failing to comply with minimum wage laws. According to the complaint, Pucci worked as an assistant editor for 495 Productions from October 2012 through February 2013. He claims that he was paid "$1,250 per week and was only paid overtime if he worked more than 60 hours in a single week."

The suit goes on to describe what it calls "a pay scheme" that forced "non-exempt employees to accept a flat salary for 60 hours of work a week." Essentially, the suit avers that the pay scheme was "positioned as 40 hours plus overtime," but it turned out to be a fixed salary for every employee in Pucci's situation, regardless of the number of additional or overtime hours worekd. According to the suit, this scheme was set up "in order to make it falsely appear the defendants pay scheme complies with California overtime laws." Pucci goes on to allege that the number of employees in the class are "so numerous" that it was not "feasible" to identify all of them by the time the action was filed. At least 100 other employees of 495 Productions were subject to the unlawful pay scheme, the complaint states.

http://www.hollywoodreporter.com/thr-esq/jersey-shore-producer-hit-class-693883

April 12, 2014

Week in Review

By Martha Nimmer

NHL Head Trauma Developments

Claiming that the National Hockey League (NHL, the league) "intentionally created, fostered and promoted a culture of extreme violence," nine former NHL players have filed a class action lawsuit against the league in Manhattan federal court. This is the second class action lawsuit against the NHL that seeks damages arising from the NHL's treatment of players and player head trauma. Last year in May, the family of New York Rangers player Derek Boogaard brought a wrongful death lawsuit against the league, claiming that the NHL was "responsible for the physical trauma and brain damage Boogaard sustained in six seasons as one of the league's top enforcers." Boogaard died in 2011 of an accidental overdose of prescription painkillers and alcohol.

Although both the NFL and NHL lawsuits raise similar claims of failure to warn players of the dangers of repeated head trauma, this latest NHL lawsuit sheds light on the "role of enforcers in the N.H.L." and the role of extreme, glorified violence in the sport: "through the sophisticated use of extreme violence as a commodity, from which the N.H.L. has generated billions of dollars, the N.H.L. has subjected and continues to subject its players to the imminent risk of head trauma and, as a result, devastating and long-term negative health consequences," the lawsuit states. The plaintiffs in the second suit are the former players Dan LaCouture, Dan Keczmer, Jack Carlson, Richard Brennan, Brad Maxwell, Michael Peluso, Tom Younghans, Allan Rourke, and Scott Bailey. In a 2011 interview, Peluso announced that he was suffering from concussion-related seizures and depression, and criticized the poor pension benefits and health insurance offered by the N.H.L. and the N.H.L. Players' Association. "There is no question in my mind that brain injuries and depression are linked," Peluso said.

The case will be heard by Judge Shira A. Scheindlin. Plaintiffs seek damages, including punitive damages, and equitable relief on behalf of a class of all former and current NHL players.

http://www.nytimes.com/2014/04/11/sports/hockey/nhl-exploited-violence-players-suit-contends.html?_r=0

http://www.cbssports.com/nhl/eye-on-hockey/24521306/second-class-action-lawsuit-filed-against-nhl-over-head-trauma

Katherine Heigl's Least Favorite Drugstore

Duane Reade may say that it is "New York City's favorite drugstore," but it is undeniable that actress Katherine Heigl does not consider herself one of the store's fans. On Wednesday, the former Grey's Anatomy star filed suit in Manhattan federal court against the pharmacy chain, alleging unfair competition and violations of the Lanham Act and New York civil rights law. The controversy stems from a photo tweeted by Duane Reade earlier this year, showing Heigl exiting the store, two Duane Reade shopping bags in tow. The tweet accompanying the photo read "Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore." The tweet has since been deleted.

At the heart of Heigl's lawsuit are claims that Duane Reade sought to "capitalize on [her] image by turning it into an ad for the company." After all, the lawsuit reasons, the primary purpose of the company's Twitter account is to advertise products: "[f]or example, on March 14, 2014, Defendant tweeted 'Crunch, crunch Munch! It's National Potato Chip Day! Enjoy!' followed by a link to an advertisement for Defendant's own 'DeLish' label food product." The lawsuit goes on to state that Heigl's attorney sent a cease-and-desist letter to Duane Reade on March 19, 2014, but that the letter was ignored.

Heigl has asked for a jury trial, and is seeking compensatory, punitive and treble damages, in addition to attorney's fees.

Read the complaint here: http://online.wsj.com/public/resources/documents/0410_heiglsuit.pdf

http://blogs.wsj.com/law/2014/04/10/will-katherine-heigls-tweet-lawsuit-against-duane-reade-hold-up-in-court/?mod=newsreel

The Boy Who Cried Defamation

Martin Scorsese's hit movie, "The Wolf of Wall Street", found itself at the center of a federal defamation lawsuit last month. Andrew Greene, who worked for the corrupt brokerage firm Stratton Oakmont depicted in the film, sued Paramount Pictures, claiming that he was the basis for the film's character Nicky "Rugrat" Koskoff. On Monday, Paramount went on the offensive, asking the judge to dismiss the lawsuit. The studio, writes The Hollywood Reporter, also took the opportunity to draw attention Greene's less than stellar legal career; the plaintiff, the studio says, is an inactive member of the California State Bar and was "intimately involved in the pervasive fraud and corruption that characterized the Stratton Oakmont securities operation in the 1990s."

Despite these shots across the bow, Paramount is not arguing that the suit should be dismissed because "The Wolf of Wall Street" was substantially true; rather, the studio is arguing, "the lawsuit should fail because the film's portrayal of 'Nicky Koskoff' was not 'of and concerning' Greene." Rather, the Nicky Kosoff character was a "composite" of several less-than-upstanding individuals associated with the brokerage house. After all, "[t]he book did not have only one dishonest executive with a notable toupee," states Paramount's motion to dismiss, touching on "self-proclaimed Swiss-banking expert Gary Kaminsky" as one notable example. Additionally, if that argument does not prevail, Paramount believes that Greene's suit should be dismissed because the movie is "artistic and expresses the 'newsworthy' nature of financial fraud."

"The Wolf of Wall Street", starring Leonardo Dicaprio, tells the (wild) story of Jordan Belfort, founder of brokerage firm Stratton Oakmont, which perfected and utilized a "pump-and-dump" securities scam in the 1990s until (spoiler alert!) being prosecuted by federal authorities.

Read the motion to dismiss here: http://www.scribd.com/doc/216889093/Wolf-Response

http://www.hollywoodreporter.com/thr-esq/paramount-demands-wolf-wall-street-694267?mobile_redirect=false

Mega Trouble for Megaupload

The Recording Industry Association of America (RIAA) has now added its name to the growing list of parties suing Megaupload and its eccentric founder, Kim Dotcom. On Thursday, Warner Music, Universal Music, Sony Music and Capitol Records filed a copyright infringement lawsuit against Megaupload, Kim Dotcom, Mathias Ortmann and Bram van der Kolk. This move comes three days after movie studios filed the same claims against the defendants.

The RIAA alleges that from 2005 until 2012, Megaupload "openly encourag[ed] users to upload" popular content files onto its servers, ultimately amassing a trove of millions of files. Until mid-2011, the complaint continues, Megaupload even paid users to engage in this infringement. The lawsuit claims that the defendants ultimately earned over $175 million in illegal profits, while causing more than "a half a billion dollars in harm" to the copyright owners. Included in the record labels' suit is an exhibit listing the infringed works, which include songs from Katy Perry, Beyonce, Britney Spears, Carrie Underwood, Kesha and others. Eighty-seven songs are listed in total, "putting theoretical maximum statutory damages at $13 million." "Alternatively," notes The Hollywood Reporter, "the plaintiffs seek actual damages and defendants' profits."

http://www.hollywoodreporter.com/thr-esq/record-labels-file-copyright-infringement-695202

April 18, 2014

Week in Review

By Martha Nimmer

Out of the Furnace and Now, Possibly Out of Court

Earlier this week, producers of the film "Out of the Furnace" asked a New Jersey judge to throw out a defamation lawsuit brought by members of a northeastern Native American tribe, the Ramapough Lunaape Nation. The 17 plaintiffs are unhappy with the film's portrayal of the Lunaape Nation, which is referred to in the movie as the "Jackson Whites" family, a group of violent "inbreds." The lawsuit says that the term "Jackson Whites" is a historical and racial slur, and that the film's setting in northern New Jersey, along with the use of surnames like "DeGroat" and "Van Dunk," are "too specific to the Ramapough plaintiffs to be chance, coincidence or happenstance," and thus, put the plaintiffs in a false light.

The defendants, which include Relativity Media, Scott Free Productions, Red Granite Pictures and Leonardo DiCaprio's Appian Way Productions, do not agree, arguing that the film does not "rise to libel;" in their brief in support of the motion to dismiss, the defense goes on to say that allowing such a lawsuit to go forward would harm free speech: "[p]laintiffs' lawsuit, if permitted to proceed beyond the pleading state, will chill free speech by subjecting creators and distributors of movies and other works of fiction to liability whenever some members of a distinct ethnic, cultural, social or other definable group dislike how their group is presented." The lawsuit should also fail, according to the defendants, because the plaintiffs have failed to demonstrate that the allegedly defamatory statements are "of and concerning" them. Additionally, the defendants also point to the "group libel doctrine," which "prohibits defamation claims that are based on a plaintiff's membership in a group if there's no reason for anyone concluding the statement's particular reference to one of its members."

"Out of the Furnace", released last year, stars Christian Bale as he searches for his younger brother, played by Casey Affleck, whom Bale's character fears has fallen victim to a crime ring led by Harlan De Groat, played by Woody Harrelson.

Read the defendants' brief here: http://www.scribd.com/doc/218274231/Furnace-Brief

http://www.hollywoodreporter.com/thr-esq/judge-asked-reject-furnace-defamation-696113?mobile_redirect=false

Opening Pandora's Music Box

Pandora, the popular online music streaming service, has just been sued by major record labels in New York state court over the company's use of sound recordings made before February 15, 1972. The record companies, which include divisions of Sony, Warner and Universal, claim that artists and their labels have been deprived of "tens of millions of dollars" every year by streaming services, such as Pandora. "Pandora's refusal to pay Plaintiffs for its use of these recordings is fundamentally unfair," decries the lawsuit. Some of the artists whose songs are said to be infringed include Bob Dylan, The Beatles, David Bowie, Elvis Presley, James Brown and Led Zeppelin.

Last year, a similar action was brought against satellite radio company, Sirius XM. According to The Hollywood Reporter, "[t]he subject of the [Sirius] lawsuit has to do with the fact that sound recordings didn't begin falling under federal copyright protection until the above date. As such, the streaming service might not be able to rely upon SoundExchange, the performance rights organization that collects digital and satellite royalties on the behalf of sound recording copyright owners." The record labels are now testing this belief, arguing that songs recorded prior to February 15, 1972 are not, in fact, covered under federal copyright law, but have instead been protected by state common law.

The consequences of this lawsuit, should the plaintiffs prevail, would be significant, to say the least. Pandora risks losing many popular pre-1972 songs because "Capitol Records, Sony Music, Universal Music, Warner Music and ABKCO Music are demanding an injunction in addition to compensatory damages, punitive damages and all proceeds gained as a result of the exploitation of pre-'72 music." Such a substantial hit to Pandora's music catalogue is likely to upset its 250 million users, who may look elsewhere to get their music fixes.

http://abcnews.go.com/Technology/wireStory/record-labels-sue-pandora-older-songs-23370262

http://www.hollywoodreporter.com/thr-esq/record-labels-sue-pandora-pre-697327

Organized Sports or Organized Crime?

Calling the group a "racketeering enterprise," a Texas attorney has brought a federal lawsuit in the Eastern District of Texas against his son's high school lacrosse team. The 39-page suit filed earlier this month by William Munck claims that the team set up a "pay to play" scheme that limited players' on-field time at Episcopal School of Dallas "because coaches affiliated with that high school team and two other local powerhouses used their influence to reward others who participated in a Dallas Lacrosse Academy, a private for-profit travel team with which the coaches are involved."

The suit goes on to allege that the defendants involved in the operations of the Dallas Lacrosse Academy violated the Racketeer Influenced and Corrupt Organizations (RICO) Act by "tactics that forced others to contribute to the success of the private for-profit DLA team." Munck goes on to state "DLA and the RICO defendants pushed their student athletes to participate in DLA if they wanted to play or succeed in their youth and high school programs." Additionally, the suit continues, "[t]hrough the use of illegal and fraudulent conduct, including threats, intimidation, and even extortion, defendants have tried to ensure that student athletes who want to play lacrosse in North Texas have to pay for play and have to go through defendants' enterprise."

The defendants argue, however, that this is simply the case of an "over-involved" parent unhappy with his child's playing time, not a nefarious racketeering enterprise. According to the defendants' motion to dismiss, Munck "has used his position as a lawyer and owner of the law firm Munck Wilson Mandala ... as a tool directed at various lacrosse coaches in the North Texas community." In reality, the defendants continue, their "only sin is failing to recognize and appreciate the athletic talents of Munck's son."

Munck's wife and son are also plaintiffs in the case. They seek injunctive relief, treble damages and attorney's fees.

http://www.abajournal.com/news/article/lawyer_files_federal_racketeering_suit_over_pay_for_play_on_sons_high_schoo/

Saving Detroit, One Painting At A Time

Plans for the Detroit Institute of Arts to keep its art collection intact have hit another snag. Earlier this month, two groups of creditors served the Detroit Institute of Arts (DIA) with subpoenas for records "covering the past hundred years and documenting the ownership history of every work in its 60,000-piece collection." The first subpoena, issued on March 28th, demands "an exhaustive swathe of documents including the museum's financial, tax and insurance records." Syncora, the bond insurer and the creditor behind the first subpoena, also asked for internal studies performed by the museum "on visitor trends and exhibition performance as well as all documents that address the DIA's complex relationship with the city of Detroit, a history that stretches back to 1919." A committee of retirees served the DIA and auction house Christie's with a second subpoena on April 1st. Last year, Detroit hired Christie's to appraise the museum's city-owned collection, but some creditors chafed at the auction houses' appraisal -- $454 million to $867 million -- calling it too low.

The April 1st subpoena was issued just one day after Detroit's emergency manager, Kevyn Orr, filed an amended plan aimed at lessening some of Detroit's growing debt. The amended plan is said to include "a penalty for retirees if they do not quickly agree to the settlement's terms and wave their rights to the DIA's art collection." The settlement plan also includes a "grand bargain" that would protect the museum's collection, while "shor[ing] up Detroit's ailing pension funds." Michigan governor Rick Snyder, along with the DIA and a group of local and national foundations, have also pledged $816 million to the cause.

http://www.theartnewspaper.com/articles/Detroits-creditors-demand-a-full-reckoning-of-museums-art/32303

May 1, 2014

Week in Review

By Martha Nimmer

Silver's Sterling Problem

Following last week's revelations of racist comments by Los Angeles Clippers' owner, Donald Sterling, National Basketball Association (NBA) Commissioner Adam Silver has decided to ban Sterling from the NBA for life. As part of the ban, the Clippers' owner "may not attend any NBA games or practices, be present at any Clippers office or facility, or participate in any business or player personnel decisions involving the team. He will also be barred from attending NBA Board of Governors meetings and participating in any other league activity." In addition, Sterling must pay a $2.5 million fine to the league. That money will be donated to organizations, chosen by the NBA and Players' Association, that support anti-discrimination efforts. The $2.5 million figure is the maximum amount allowed under the NBA Constitution.

In yesterday's announcement, Silver also stated that he will "urge the league's Board of Governors to exercise its authority to force a sale of the team." The commissioner said that he expected the owners to support his efforts to remove Sterling as the owner of the team. Many NBA teams and owners have come out in support of the ban and Sterling's removal from team ownership. Magic Johnson, who was the subject of some of Sterling's racist remarks, tweeted his approval of the NBA's decision: "Commissioner Silver showed great leadership in banning LA Clippers owner Donald Sterling for life."

The NBA's decision to ban Sterling for life came after a three-day investigation into comments that he made to his former mistress, V. Stiviano. During the leaked recording, Sterling tells Stiviano, among other racist remarks, that he does not want her to "bring black people" to Clippers games. Following the release of the tape, more than 10 corporate team sponsors, including Adidas, Kia and Red Bull, ended or suspended sponsorship deals with the team. Doc Rivers, the Clippers coach, also announced that if Sterling remained team owner, Rivers would not return to coach the team for the 2014-15 season.

http://www.buzzfeed.com/mikehayes/nba-bans-donald-sterling-for-life

Give Me an S, Give Me a P, Give Me an O, Given Me an R...

In an effort to improve cheerleader safety, New York state education officials have voted to recognize competitive cheerleading an as interscholastic sport. According to CBS New York, "the state Board of Regents voted unanimously in favor of the measure a day after it was approved by one of its committees." The Board of Regents came out in strong support of the classification, saying that it will ensure that schools abide by a common set of standards focused on limiting the length of seasons or the number of required practice days. Currently, there are no such state-mandated rules.

The state of New York has been trying to decide since 2009 whether to recognize cheerleading as an interscholastic sport. Critics of the move say that students' practice time will be reduced if state authorities get involved: "[s]ince it's not a sport, we can practice as much as we want," said Mount Sinai cheerleader Amanda Rose, adding that her team practices together about 10 months out of the year. According to state officials, 34 states and the District of Columbia classify the activity as a sport.

The increased fear surrounding juvenile head injuries may account partially for the move to categorize cheerleading as an interscholastic sport, a classification that would bring with it new safety and training standards. The American Academy of Pediatrics, testifying before the Board of Regents, said that although the overall injury rate in the sport is low, "cheerleading injuries are increasing in number and severity nationwide, account[ing] for two-thirds of all catastrophic injuries among high school female athletes." The New York State Public High School Athletic Association has already drafted proposed rules and regulations aimed at curbing the rise in injuries to cheerleaders. These rules and regulations will take effect beginning in the 2014-15 season.

http://newyork.cbslocal.com/2014/04/29/new-york-state-board-of-regents-deems-cheerleading-a-sport/

Battle for Bukowski

Cyril Humphris, the owner of the rights to Charles Bukowski's semi-autobiographical work, Ham on Rye, claims that actor James Franco took elements from the work, without permission, to make a film about the deceased writer. Humphris says that Franco "optioned the rights to the book . . . in 2009 to adapt it into a screenplay," but that those rights ended in November 2010. Later, Humphris maintains, Franco produced and directed a film, titled "Bukowski", an adaptation of the author's 1982 work about his abusive father and troubled childhood in 1930s Los Angeles. Humphris' complaint, filed in Los Angeles federal court, goes on to allege that Franco's film lifted "the novel's themes of childhood loneliness; adolescent self-consciousness; the failures, hypocrisy, and cruelty of adults; and, in an unflinching depiction, the crude interest teenage boys take in sex." According to the complaint, "the mood in both works is dark but humorous, through successive scenes in which the boy is attacked by his father, belittled by other adults, or humiliated in front of his peers."

After learning about the "Bukowski" film, Humphris says that he confronted Franco, who replied, "I'm doing a little project with some of my NYU colleagues based on one of Bukowski's biographies." According to The Hollywood Reporter, Humphris tried to see a copy of the script, but Franco failed to respond to the requests. Franco, who is an admitted fan of the author, maintains, however, that his film is not an adaptation of the Bukowski novel.

The plaintiff is seeking an injunction and monetary damages.

Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/bukowski_.pdf

http://www.hollywoodreporter.com/thr-esq/james-franco-sued-violating-film-699013

http://www.entlawdigest.com/2014/04/28/3098.htm

An "Unconstitutional Prior Restraint"

The Third Department of the New York Appellate Division ruled earlier this month that a trial judge's decision to bar Lifetime Entertainment from releasing a television movie based on the murder of a "beloved" Appellate Division clerk was an "unconstitutional prior restraint on speech." The case, Porco v. Lifetime Entertainment Services, originates in a family tragedy: the action was brought by Christopher Porco, who was convicted of murdering his father and attempting to murder his mother in November 2004. Porco's father, Peter, worked for a Third Department presiding justice and was a popular and respected member of the community.

Before Lifetime's made-for-television movie, "Romeo Killer: The Chris Porco Story" was set to air last year, Porco initiated a pro se action under state civil rights law to stop the broadcast. Supreme Court Justice Robert Muller, in turn, issued a temporary restraining order just days before the movie was scheduled to air. Lifetime then obtained an emergency stay from Third Department Justice Elizabeth Garry, and "Romeo Killer" aired as planned.

Citing First Amendment concerns, Presiding Justice Karen Peters found that while the "general prohibition against prior restraint" is in no way "absolute," the broadcast of the Lifetime program in question would not "create the type of imminent and irreversible injury to the public" to warrant such an "extraordinary remedy."

http://m.newyorklawjournal.com/module/alm/app/ny.do#!/article/1574348404

From Venice Beach to Federal Court

The removal of a public mural in Venice Beach has set off a legal battle in California. The mural, known as the "Brooks Avenue Painting," was allegedly "improperly expunged" last summer, according to a complaint filed last week by the Los Angeles Fine Arts Squad, which created the mural in 1969. The work, which served as the backdrop of an iconic photo of The Doors, was water blasted, according to artist and Los Angeles Fine Arts Squad co-founder, Victor Henderson.

The lawsuit alleges that Ralph Ziman, who owned the building where the mural was located, failed to give Henderson and the Fine Arts Squad a "90-day advance notice" of the work's removal, as required by California law. The lawsuit maintains that, had Henderson and his group been given the opportunity to discuss saving the mural, the work could have been removed from the facade of the building "without substantial physical defacement, mutilation, alteration or destruction." Instead, Henderson laments, "Brooks Avenue Painting" is "gone forever."

The plaintiff is seeking damages and "increased awareness about mural conservation."

http://www.latimes.com/entertainment/arts/culture/la-et-cm-lawsuit-la-fine-arts-squad-mural-venice-20140422,0,3063106.story#ixzz30PXanIsf

Forced Sale for Sterling?

Yes, there is more to say about the Donald Sterling controversy. Reuters has reported that the NBA's 29 team owners are expected to force the embattled Clippers owner to sell his team. Although the owners did not specify a date for the vote, "early indications were that owners would overwhelmingly support the unprecedented move." The NBA's bylaws allow the league's owners to determine whether to force the sale of the Clippers, but at least 75% of the owners would have to approve the measure. Some observers have commented, however, that other team owners may be hesitant to vote in favor of the sale, fearing that the move could adversely affect their ownership rights in the future. Per the NBA bylaws, "[NBA Commissioner] Silver must provide a written copy of any charges within three days to Sterling, who has five days to answer. A special hearing of the Board of Governors then will be held on a date no more than 10 days after Sterling's reply." A spokesman for the NBA said that the Board of Governors' advisory finance committee scheduled a meeting for next week to discuss the steps necessary for removing Sterling as Clippers owner.

Now that it appears that the sale of the Clippers is a fait accompli, possible buyers have been emerging. Media mogul Oprah Winfrey has been discussed as a potential buyer; in fact, she said, "she was in discussions with producer and film studio executive David Geffen and Oracle Corp computer technology Chief Executive Officer Larry Ellison to bid for the team if it becomes available." Other potential buyers for the franchise include Earvin "Magic" Johnson, the former basketball star who is part owner of the Los Angeles Dodgers baseball team and who once owned part of the Los Angeles Lakers basketball team.

Sterling acquired the Clippers franchise 33 years ago for just $12.7 million. According to the Washington Post, the Clippers' estimated value is at least $700 million. Considering that the team plays in the second-biggest media market and has popular players like Blake Griffin and Chris Paul, it is likely that the team may be worth closer to $1 billion.

http://www.newsweek.com/sterling-will-likely-be-forced-sell-clippers-249232

May 9, 2014

Week in Review

By Martha Nimmer

Infringing Ice Cream

The arrival of warm weather signals the return of ice cream trucks, and this spring, the rising temperatures have brought with it a trademark lawsuit between popular ice cream truck company Mister Softee and newcomer Master Softee. The New Jersey-based company Mister Softee claims that Master Softee, based in Long Island City, is attempting to sell a "knock-off version" of the Mister Softee brand, which has been in business since 1956 and operates across 18 states. The suit also states that Master Softee owner Dimitrios Tsirkos used to oversee operations of Mister Softee trucks in Queens, and even owned 16 of the Mister Softee vehicles. Tsirkos ended up founding his own ice cream truck fleet in February, prompting Mister Softee company owner Jim Conway to file the instant trademark action. Employees of Master Softee contend, however, that the name of the company is not important, and that customers are attracted to the new company because of the employees: "Mister Softee does not make this business. It is the people -- and the people work hard," said one Master Softee driver.

The similarities between the two companies extend beyond just their names. Mister Softee's slogan, painted across the hoods of their trucks, is "The Very Best," and Master Softee's slogan, also painted across the truck hoods, is "The World's Best." Both companies' trucks also sport the same white paneling and blue trim, and both display photos of the ice cream treats for sale. It becomes even more confusing when you look at the companies' mascots: Mister Softee's is a scoop of vanilla ice cream served in a grinning cake (or plain) cone, dressed in a blue jacket and red bow tie. Master Softee's mascot is also a smiling vanilla ice cream cone wearing a blue jacket and red bow tie, but this scoop of ice cream has rainbow sprinkles on its head and is served in a waffle cone.

Judge Laura Swain is expected to decide this month whether the Master Softee trucks infringe the Mister Softee trademarks. The plaintiff is also seeking, according to New York Daily News, "a six-figure payout to cover unpaid licensing and marketing fees Tsirkos still owes."

Read more: http://www.nydailynews.com/new-york/queens/mister-softee-master-softee-article-1.1774733#ixzz319RtWv8f

Finding a New CEO for the Clippers

Following the announcement last week that LA Clippers owner Donald Sterling will be banned from the National Basketball Association (NBA) for life, the NBA said last week that it would appoint a new CEO to run the team. Mike Bass, the Executive Vice President of Communications for the NBA, remarked, "[t[he best way to ensure the stability of the team during this difficult situation is to move quickly and install a CEO to oversee the Clippers organization. The process of identifying that individual is underway." Shelly Sterling, co-owner of the team and the estranged wife of Donald Sterling, released a statement on Saturday before Game 7 of the Clippers' first-round playoff series against the Golden State Warriors. In the statement, Shelly Sterling voiced her support for the NBA's decision to appoint a new team CEO. "I spoke with Commissioner Adam Silver this week to tell him that I fully supported his recent swift and decisive action. We also agreed at that time that, as a next step, both the league and the team should work together to find some fresh, accomplished executive leadership for the Clippers. I welcome his active involvement in the search for a person of the utmost character, proven excellence and a commitment to promoting equality and inclusiveness." However, Shelly Sterling's statement did not mention the likely sale of the basketball team.

http://www.msnbc.com/msnbc/nba-appoint-new-clippers-ceo

http://touch.latimes.com/#section/-1/article/p2p-80095540/

Killing the Cliffhanger

Gossip blog Gawker, no stranger to the courtroom, has settled a federal copyright lawsuit alleging that the website "spoiled ratings for Dr. Phil's program on the Manti Te'o hoax by posting unaired footage" of the television show. Last May, producer Peteski Productions sued Gakwer Media for copyright infringement, claiming that the website's unauthorized online postings "spoiled the cliffhanger to its two-part interview with admitted hoaxer Ronaiah Tuiasosopo." In the first episode of the interview, Phil McGraw--"Dr. Phil"--challenged Tuiasosopo to recreate the voice he used during the numerous phone calls to Te'o that convinced Te'o that he had a long-distance girlfriend. Tuiasosopo refused, but viewers were encouraged to "tune in" for the next day's episode because the hoaxer "might do the voice" the following day. The production company alleges, however, that Gawker subsidiary Deadspin posted the video of the second show to the Deadspin blog "not later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil Show aired to over 98 percent of its viewers." Gawker and Deadspin also encouraged readers to "tune in!" to the second episode, which Peteski Productions avers, "apparently meant for viewers interested in the Tuiasosopo interview to 'tune in' to Deadspin instead of Dr. Phil." The plaintiff said that Gawker's "theft of the core of episode 2 caused the ratings to decline substantially because the result of the 'cliffhanger' was no longer in doubt."

Late last month, however, Gawker and Peteski Productions stipulated to dismissal of the case with prejudice. U.S. District Judge Michael Schneider approved the deal on Monday. Terms of the settlement have not been disclosed.

http://www.entlawdigest.com/2014/05/07/3115.htm

Withdrawn

More good news for Gawker. On Wednesday, famed director Quentin Tarantino withdrew his copyright infringement lawsuit against the gossip blog, just one week after refiling the suit against the company for leaking his script for "The Hateful Eight". In a filing in U.S. District Court in Los Angeles, the director's attorneys said that Tarantino "voluntarily dismisses the above-captioned action, in its entirety, without prejudice." Tarantino is free, however, to sue Gawker again: "[t]his dismissal is made without prejudice, whereby Plaintiff may later advance an action and refile a complaint after further investigations to ascertain and plead the identities of additional infringers resulting from Gawker Media's contributory copyright infringement, by its promotion, aiding and abetting and materially contributing to the dissemination to third-parties of unauthorized copies of Plaintiff's copyrighted work," the filing read.

Tarantino's fight with Gawker began in January when the director sued the website over posting a story on its Defamer site, titled "Here Is the Leaked Quentin Tarantino Hateful Eight Script," with a link to a third-party website that displayed the 146-page script. U.S. District Court Judge John F. Walter dismissed Tarantino's suit against Gawker on April 22nd, ruling that attorneys for Tarantino had failed to plead facts "establishing direct infringement by a third party" or facts that showed that Gawker had either "caused, induced or materially contributed" to the alleged direct infringement. Judge Walter said that Tarantino could refile the suit by May 1st, however. Tarantino took up the judge's offer, and sued Gawker Media on May 1st for direct copyright infringement. Now, however, it appears that the "Kill Bill" and "Pulp Fiction" director is taking a break from the courtroom.

http://variety.com/2014/film/news/quentin-tarantino-withdraws-hateful-eight-suit-against-gawker-1201175383/

Snapchat Settles

The Federal Trade Commission (FTC) announced on Thursday that popular photo messaging app Snapchat had agreed to settle charges that the company had deceived users about its service. The commission says that the photo messages were, in the words of The New York Times, "significantly less private than the company had said."

In the age of selfies and disappearing digital privacy, the need for a photo messaging service that quickly deleted photos only seconds after a user received them was evident. Enter Snapchat, an app developed by two Stanford University students and first released in September 2011. With the app, users can take photos, record videos, add text and drawings, and then send their creations to a list of chosen contacts. The users designate a time limit for how long recipients can view the "snaps;" the current limit is 1 to 10 seconds. After that period, the snaps will be hidden from the recipient's device, deleted from Snapchat's servers, and thus "disappear forever," in the words of Snapchat.

The ephemeral nature of the snaps is what made Snapchat popular among users who wanted to share photos and videos freely, but without fear of the content coming back to haunt them later. According to the FTC complaint, however, Snapchat snaps may not, in fact, "disappear forever." The complaint states that snaps can actually be saved in several ways: "[t]he commission said that users can save a message by using a third-party app, for example, or employ simple workarounds that allow users to take a screenshot of messages without detection." The complaint also accused Snapchat of deceiving customers about the app's security measures. Despite Snapchat's earlier insistence that it did not collect user information, the FTC complaint revealed that the company transmitted user location information and saved users' address book contacts.

As part of the settlement, Snapchat may not misrepresent how it protects user information and privacy. The app must also implement a "wide-ranging privacy program that will be independently monitored for 20 years." Noncompliance with the settlement agreement could result in the imposition of fines against the company.

Remember: think before you snap.

Read the FTC press release here: http://www.nytimes.com/interactive/2014/03/14/technology/snapchat-ftc-settlement.html?_r=0

http://www.nytimes.com/2014/05/09/technology/snapchat-reaches-settlement-with-federal-trade-commission.html?hp&_r=0

May 15, 2014

Week in Review

By Martha Nimmer

"Girls" and Boys Settlement

Details have emerged regarding the March 16th settlement between '80s rock group the Beastie Boys and toymaker GoldieBlox. Readers will recall that GoldieBlox used the Beastie Boys' song "Girls" without permission in a YouTube video and then in a Super Bowl commercial that depicted girls building a Rube Goldberg-type machine. The details of the deal between the Beastie Boys and GoldieBlox came to light in an unrelated case between the music group and Monster Energy, which also used a Beastie Boys song without prior authorization.

The particulars of the settlement emerged as the "Beastie Boys' challenge against Monster Energy heads to trial in Manhattan over a video promoting the Ruckus in the Rockies 2012 snowboarding event." Last week, the presiding judge in the Monster Energy case said that the band could not testify about the GoldieBlox settlement. In his decision, U.S. District Judge Paul Engelmayer noted that the settlement "granted GoldieBlox a retroactive license to use the musical composition of 'Girls' between November 18, 2013 and November 28, 2013." Additionally, GolideBlox also agreed to make annual payments of 1% of its gross revenue, until the total payments amount to $1 million, to a charitable organization chosen by the Beastie Boys and approved by GoldieBlox; the settlement stipulated that the charitable organization must support "science, technology, engineering and/or mathematics education for girls." Another facet of the settlement, as noted by Judge Engelmayer, was that the parties "agreed to make certain, specifically worded public statements, and to keep the settlement agreement confidential, with certain exceptions, including its use in litigation."

http://www.entlawdigest.com/2014/05/15/3147.htm

A "Bit" of Good News

The Federal Election Commission (FEC) has just given the go-ahead for political candidates to begin accepting bitcoins as campaign donations. The FEC unanimously approved the measure last Thursday "in response to an advisory opinion request from the Make Your Laws Political Action Committee," a group that encourages voter participation in the lawmaking process. The FEC failed to reach a decision on a similar request made last year. The FEC also approved Make Your Laws' request to purchase bitcoins, on the condition that it "sells the virtual currency and converts it into dollars before depositing and spending it." In reaching its decision, the FEC emphasized the importance of "safeguards to obtain and report the identities of its donors, given the anonymous nature of bitcoin transactions."

Recently, bitcoins have become popular with political action committees and candidates. According to Roll Call, bitcoins have found strong support among Libertarian candidates, "who have forged ahead in collecting them even in the absence of approval or guidance from the FEC." Roll Call reports that Rep. Steve Stockman, a Texas Republican who lost a March primary challenge to current Texas Senator John Cornyn, and the Livingston County Libertarians in Michigan, have been collecting bitcoins.

http://blogs.rollcall.com/beltway-insiders/fec-clears-campaigns-to-solicit-bitcoins/

Battle for the "Ball"

A trademark battle is unfolding between two unlikely foes, the company that manufactures Skee-Ball machines, and a Skee-Ball-themed bar in Brooklyn. In 2011, the maker of the 105 year-old game sued the owners of Full Circle, a bar located in Williamsburg, Brooklyn, claiming trademark infringement. Back in 2005, Full Circle's owners founded a "Brewskee-Ball" league as a way to attract customers and drum up business. Full Circle claims to have "hundreds of regular players in Brooklyn, San Francisco and Austin." The name "Skee-Ball," however, turns out to be a registered trademark, and the manufacturer of Skee-Ball machines maintains that the bar has no right to use the mark. Full Circle, in response, filed a countersuit, claiming that Skee-Ball is a generic term for the game, in which players roll a ball up a tilted lane, trying to make the ball bounce into various holes with different point values.

The manufacturer's lawsuit and the bar's countersuit ended up being consolidated in the Eastern District of New York in 2012. Apparently, the case had not progressed very much, at least not until Full Circle hired the big time IP firm of Fish & Richardson. "They came to us in part to get things moving," said Kristen McCallion, a firm partner. The case definitely appears to be "moving": just last week, McCallion and another Fish & Richardson partner, John Johnson, filed a petition with the Trademark Trial and Appeal Board (TTAB) to cancel Skee-Ball Inc.'s trademark registration. The TTAB review can take over a year, but the board will stay its decision while the case is pending in district court in New York.

The question remains, however, whether the Skee-Ball mark should remain protected or whether it has become generic. The bar's attorney argues that the mark is not protectable because "there's no other word to describe Skee-Ball. Under trademark law, if a noun identifies a common name for something and not a source, then it's not protected." Consequently, if Skee-Ball wants to maintain its trademark, it will need to show why the term has not become generic. Zipper and aspirin are just two examples of trademarks that became "genericized" in the United States, and Skee-Ball may be next.

http://m.corpcounsel.com/module/alm/app/cc.do#!/article/1607278457

Boycotting Basketball

The controversy over LA Clippers owner Donald Sterling continues to grow. In an interview with CNN's Anderson Cooper, Sterling said that he was "baited" into making a series of racist remarks to his now former girlfriend, V. Stiviano. Sterling did not stop there, however; he also inexplicably "doubled down on his criticism" of former NBA star Magic Johnson, calling the former Laker a "bad role model" because he "has AIDS" and has not done enough to help other minorities. (Johnson, it should be noted, has been HIV-positive since 1991, but his disease has not progressed to AIDS. After learning of his diagnosis, Johnson founded the Magic Johnson Foundation to help combat the spread of HIV, and has also started and helped bring businesses to under-served, urban areas).

After Sterling's latest remarks, Roger Mason, vice-president of the National Basketball Players Association (NBAPA), announced that several players were ready to strike next season if Sterling still owned the Clippers. "I was just in the locker room three or four days ago. LeBron and I talked about it," Mason said in an interview scheduled to air this Wednesday night. "He ain't playing if Sterling is still an owner." According to Mason, other NBA stars will also join the boycott if Sterling remains owner: "[w]e have player reps, we've got executive committee members ... Leaders of the teams, they're all saying the same thing, 'If this man is still in place, we ain't playing.'" Mason says that promise holds true even if Sterling's wife, Shelly, is the team owner: "[n]o Sterling deserves to be an owner of that franchise any longer," Mason remarked. "And I've gone down the line from LeBron to the other guys in the league that I've talked to and they all feel the same way. There's no place for that family in the NBA." Shelly Sterling has "vowed," however, to hold on to the team.

Although the ownership of the Clippers remains uncertain, it is clear that the Sterling saga is far from over.

http://mashable.com/2014/05/13/sterling-clippers-lebron/?utm_cid=mash-com-Tw-main-link

With Friends Like These, Who Needs Friends?

An art collector has sued the former assistant and friend of famed American artist Jasper Johns in New York federal court, claiming that the assistant pilfered more than $6.5 million worth of art from Johns and then sold it under false pretenses. Plaintiff Frank Kolodny alleges that he paid Johns' assistant, James A. Meyer, $400,000 for a stolen work. The lawsuit also claims that Meyer took "nearly two dozen artworks by Jasper Johns" from the artist's studio, "and then, together and with the aid and assistance of the Dorfmans," also named as defendants in the suit, "sold to unsuspecting buyers, including plaintiff." According to the complaint, Mayer has already been indicted for these fraudulent sales.

The plaintiff's suit goes on to allege that the conspiracy between the Dorfmans and Mayer went on for over six years, resulting in the sale of over $6.5 million worth of Johns' art. To accomplish such a feat, the defendants allegedly represented to potential buyers that Meyer had received the artwork as a gift from Johns, even providing buyers with an affidavit from Meyer, notarized by Dorfman's wife. "Each affidavit falsely provided, among other things, that: (1) Meyer received the artwork directly from Jasper Johns; (2) Meyer is the rightful owner of the work and he has the right to sell it; (3) the work is recorded in Jasper Johns' archive; and (4) the work is authentic." As of a result of this fraud, Kolodny says that the work for which he paid $400,000 is now "unsaleable." Consequently, he is seeking the return of the purchase price paid for the work as well as damages for RICO fraud, common-law fraud and breach of warranty.

http://www.entlawdigest.com/2014/05/09/3131.htm


May 30, 2014

Week in Review

By Martha Nimmer

Don't Tread On My Trademarks

Claiming trademark infringement, unfair competition, trademark dilution, and breach of contract, footwear maker Keds, LLC (Keds) has sued shoemaker Vans, Inc. (Vans) in U.S. District Court in Massachusetts. The action arises from the defendant's alleged used of blue labels on the back heels of its sneakers.

In its complaint, Keds claims that Vans is selling at "least 21 types shoes bearing labels confusingly similar to Keds' trademarks in an effort to trade on the marks' goodwill." According to Lexology, "Keds owns two trademarks for the blue rectangular labels that it affixes to the heels of its shoes." Keds goes on to accuse Vans of knowingly infringing the Keds' blue label; according to the complaint, Keds has sued Vans for this trademark infringement before. Keds first took legal action against Vans in December 2011, but by August 2012, the two shoe companies had reached a settlement whereby Vans "agreed not to make or sell footwear that had rectangular labels on the heel in certain shades of blue." Specifically, Vans promised not to sell footwear bearing labels in the colors Marazine Blue, Blueprint, or Gentian Violet, or in any color "confusingly similar" to those three shades. Despite this agreement, Keds says, Vans continues to sell shoes with the infringing blue labels -- in fact, the 21 Vans shoes all have blue labels on the back heels, ranging in shades of blue-gray, light blue, neon blue and navy.

Keds has sought a permanent injunction to prevent Vans from using the infringing blue labels; the plaintiff has also asked the court to recall the shoes that sport the infringing labels, and pay Keds all of the profits that Vans made from the sale of these shoes.

http://www.lexology.com/library/detail.aspx?g=d43a10dd-d079-4694-a29e-feec786dd46f

The Show Must Go On

Claiming that a holographic Michael Jackson scheduled to appear at the Billboard Music Awards would violate two hologram patents, hologram technology companies Hologram USA, Musion Das Hologram and Uwe Maass went to federal court in Nevada seeking to enjoin the performance. Despite the companies' efforts, the holographic King of Pop danced and sang a new song, "Slave to the Rhythm" in front of a full audience at the MGM Grand Garden Arena in Las Vegas. The performance was broadcast nationally on ABC.

The plaintiff companies claim that defendant John C. Textor, a former business associate, used their technology to create the popular Michael Jackson hologram. Textor's company, Pulse Entertainment, is the lead defendant in the suit. The plaintiffs allegedly own the technology that was used to create a 3-D Tupac Shakur hologram that appeared during the 2012 Coachella music festival. Without this technology, the plaintiffs argue, the Michael Jackson hologram could not have been created. Unfortunately for the plaintiffs, U.S. District Judge Kent Dawson did not agree, ruling that the plaintiffs did not have sufficient evidence to stop the show. Howard Weitzman, an attorney for the Michael Jackson, said that the technology at issue is in the public domain, and derided the lawsuit as a "publicity stunt." Counsel for Hologram USA intends to continue the legal action. The plaintiffs seek a jury trial and damages for violation of the two patents.

http://www.entlawdigest.com/2014/05/20/3151.htm

Ballmer's $2 Billion Buy

Former Microsoft CEO Steve Ballmer will pay $2 billion for the Los Angeles Clippers basketball team, according to a statement issued by Rochelle Sterling, team co-owner and estranged wife of Donald Sterling. According to The New York Times, Rochelle Sterling has already signed the deal with Ballmer, and the contract will be sent to the NBA for final approval. If the sale of the Clippers goes through, the $2 billion price tag would be the highest paid for a professional basketball team. Ballmer, who is rumored to be worth $20 billion, "was already vetted by the league in 2013 when he was part of an investor group seeking to buy the Sacramento Kings," which means the process of acquiring the Clippers could move quickly.

A few challenges may lie ahead of the sale to the former Microsoft chief executive, however. Firstly, it is unclear how embattled team owner Donald Sterling will react to the sale. Previously, he had vowed to fight the league if it tried to force him to sell the team. It was rumored that he authorized his wife to meet and negotiate with prospective team buyers, but that she needed his power of attorney to finalize a deal. According to Donald Sterling's attorney, however, Rochelle Sterling does not have this authority. Sterling's attorney added that, "as incentive to agree to sell the team, Mr. Sterling wanted the N.B.A. to drop its charges that he had violated the league's constitution."

http://www.nytimes.com/2014/05/31/sports/basketball/steven-ballmer-buys-los-angeles-clippers-from-rochelle-sterling.html?_r=0

Keeping Kids Safe

Earlier this week, the White House announced a new series of initiatives focused on preventing traumatic brain injury and improving its diagnosis and treatment in children. Officials also announced a new commitment of $65 million of private funds to aid clinical and other scientific work.

In late 2013, President Obama remarked on the problem of head injuries in children, adding that if he had a son, he would not let him play pro football. In light of the Obama family's interest in sports and First Lady Michelle Obama's campaign to boost physical fitness among the nation's youth, the president has been eager "to raise awareness and boost research on something that 'really is a topic of conversation across the country.'"

Highlighting the importance of youth safety, President Obama met on Thursday with 200 sports officials, medical experts, parents and young athletes for the first White House summit on sports concussions, called the "Healthy Kids and Safe Sports Concussion Summit." The summit hopes to find "new ways to identify, treat and prevent serious head injuries, particularly in youth sports." Notably, this event comes nearly a century after President Theodore Roosevelt gathered Ivy League coaches and officials to the White House to warn them that they had to make football less deadly.

http://m.washingtonpost.com/politics/obama-to-host-a-white-house-summit-on-growing-conerns-over-sports-head-injuries/2014/05/28/d49e48ae-e5ac-11e3-afc6-a1dd9407abcf_story.html

June 6, 2014

Week in Review

By Martha Nimmer


Time for a Change

After 73 years of use, it appears that the regulatory agreements that cover music licensing and royalty payments for public performances will be getting a (long over-due) review. The Department of Justice (DOJ) announced that it would soon begin its review of the regulations that govern ASCAP and BMI, the two performing rights organizations that license the public performance of music. Under the Copyright Act, public performances can be over the radio, in a bar, online, in a store dressing room or in a doctor's office waiting room, to name a few examples. The Justice Department's review, according to The New York Times, "calls for a 60-day period for public comments about the consent decrees." The DOJ may then recommend changes to the regulation, which would be reviewed by judges in the U.S. District Court for the Southern District of New York.

Under the consent decrees, issued in 1941 following antitrust investigations, ASCAP and BMI "cannot refuse licenses to music outlets that request them, and their agreements are subject to approval by two federal judges." This licensing structure has been in place for decades, but has come under fire recently in light of the dramatic technological advances of the past 10 years. Major music publishers are also unhappy with the licensing process; publishers, such as Sony/ATV and Universal Music Publishing, have even threatened to pull their song catalogs from ASCAP and BMI, a decision that would seriously weaken the two performing rights groups, while complicating the licensing process for everyday consumers.

For their part, ASCAP and BMI are expected to ask the DOJ for greater "flexibility" in licensing, and for the arduous rate-court process to be replaced by arbitration proceedings. In comments to the United States Copyright Office, ASCAP wrote, "the antiquated Ascap and BMI consent decrees must be updated, if not eliminated."

http://www.nytimes.com/2014/06/04/business/media/justice-department-is-said-to-plan-a-review-of-music-licensing-rules.html

It's In The Bag

Fashion designer Balenciaga has sued footwear company Steve Madden for trademark infringement in U.S. District Court in Manhattan, claiming that the shoe company copied major elements from the couture line's popular "motorcycle" handbag. The highly sought-after purse from Balenciaga became available in 2000, and features elements such as gold-colored rivets and long leather tassels. The French fashion house called the Steve Madden bag a "studied copy" of the original Balenciaga design, the mini version of which retails for around $1,300. Unsurprisingly, the Steve Madden purse is priced for much less, while still featuring "identical or nearly identical shapes and design elements," according to Reuters. Such similarities can confuse consumers, "create a false impression that Steven Madden's products are Balenciaga's, and hurt the French company's goodwill, reputation and sales," the lawsuit said. The plaintiff seeks an injunction against the infringing sales, and has asked for a recovery of lost profits.

Steve Madden is no stranger to trademark lawsuits. The Long Island City-based company was sued in 2009 by Alexander McQueen for allegedly copying the British designer's "Faithful" bootie.

http://www.reuters.com/article/2014/05/22/steven-madden-balenciaga-lawsuit-idUSL1N0O81G720140522

Deal or No Deal? Deal!

Last week, attorneys representing college athletes in their class action suit against EA Sports and Collegiate Licensing Company filed a motion to approve a $40 million settlement that "could pay the athletes as much as $951 per season in which their likenesses appeared in one of the games since 2003." According to the terms of the proposed settlement, as many as "100,000 current and former college players would be eligible for a share of the settlement." Since 2003, according to plaintiffs' counsel, "there had been 140,000 to 200,000 roster appearances in the games. Under the deal, the plaintiffs named in the case . . . would get incentive payments ranging from $2,500 to $15,000." In the end, the payouts to the plaintiff athletes may be much smaller, but "the deal helps establish the principle that student-athletes deserve compensation for their labor, and that for-profit enterprises can't exploit them without consequences."

EA Sports had originally suggested back in September that a settlement with the college players was imminent; the company later announced that it would not release its 2014 college football video game. Shortly after that announcement, a court filing indicated that EA Sports had agreed to a settlement. The terms of that settlement were not made public, however, until last week's filing by plaintiffs' attorneys.

If Judge Claudia Wilken approves the settlement, it will the end of the players' legal battle with EA Sports and the Collegiate Licensing Company, a trademark licensing and marketing company. Approval of the settlement would not, however, affect the class action lawsuit, known as the O'Bannon case, filed in 2009 and currently being litigated against the National Collegiate Athletic Association (NCAA). In that case, college athletes sued the NCAA, demanding payment for the use of their likenesses in video games and broadcasts. The O'Bannon suit is scheduled for trial next week in Oakland federal court.

http://www.nytimes.com/2014/06/03/opinion/keeping-track-confidential-sources-wage-war-and-college-athletes.html?_r=0

http://www.nytimes.com/2014/06/01/sports/players-seek-approval-of-40-million-deal-in-video-games-case.html

Sterling Still in the News

Yes, the controversial and widely disliked owner of the LA Clippers is still in the news. Earlier this week, legal counsel for Donald Sterling announced that he would not contest the sale of the Clippers to former Microsoft CEO Steve Balmer. Sterling's attorney also indicated that the Clippers' owner will drop a lawsuit filed last week against the National Basketball Association (NBA). Sterling, who acquired the Clippers franchise in 1981, previously indicated that he would "fight" the sale of the team. His attorney did not disclose the reasons for his client's sudden change of heart. The sale of the team, however, must still be approved by a vote of NBA team owners, who, according to USA Today, are expected to authorize the measure in the next few weeks.

The Clippers team is currently held by the Sterling Family Trust, with Donald Sterling and his estranged wife, Shelly, each owning a 50% share of the team. After NBA Commissioner Adam Silver said that he intended to "force a sale of the Clippers," Donald Sterling gave his wife permission to sell the team. Shortly after, however, Sterling reversed course and "decided to fight a vote scheduled for Tuesday on whether to terminate his ownership." Luckily for the NBA and every television-viewing person in America, this was a short-lived fight. The NBA canceled the hearing after Shelly Sterling made a deal with Ballmer, even though she lacked her husband's approval. According to USA TODAY Sports, "to make the deal happen, [Shelly] acted as the sole trustee of the family trust, relying on a provision in the trust that relates to the mental health of the trustees. If one of the trustees is deemed mentally unfit by experts, the other becomes sole trustee and can make decisions about the trust . . . ." Donald Sterling is said to have undergone a mental health exam last month that ultimately led to the determination that he was mentally unfit, writes USA TODAY. Legal counsel for the embattled billionaire disputed that determination.

Hopefully, this is the last we hear about Donald Sterling, but given his past behavior, it seems highly unlikely.

http://www.usatoday.com/story/sports/nba/clippers/2014/06/04/donald-sterling-sale-shelly-los-angeles-steve-ballmer/9980295/

June 14, 2014

Week in Review

By Martha Nimmer

HathiTrust

For an excellent analysis of the recent Second Circuit decision in Authors Guild, Inc. v HathiTrust, see Barry Werbin and Bryan Meltzer's blog entry here:

http://nysbar.com/blogs/EASL/2014/06/hathitrust_racks_up_fair_use_v.html

Settlement Details Revealed

The NCAA announced on Monday that it had reached two proposed legal settlements, one with video game maker Electronic Arts (EA) and Collegiate Licensing Company -- thereby resolving a lawsuit that the NCAA filed in November 2013 -- and a second with former Arizona State quarterback Sam Keller, who sued the NCAA over "avatars of college athletes appearing in video games." Under the settlement agreements, the NCAA would pay $20 million to college football and basketball players whose likenesses appeared in certain EA video games.

The details of these two settlements were revealed on the first day of trial in the Ed O'Bannon suit against the NCAA, which some commentators have called "the sports trial of the century." The direct effect of the NCAA's two settlements is expected to be limited, however. First, as Sports Illustrated notes, O'Bannon's legal arguments are couched in antitrust law rather than the right of publicity law, which forms the basis of the action brought by Sam Keller. Specifically, O'Bannon argues that the NCAA and its member schools "formed an anti-competitive cartel to deprive players of an opportunity to license themselves in games and other properties." Keller, in contrast, accuses the NCAA and its members of violating the right of publicity law by "misappropriating players' images and likenesses in video games." Keller's settlement with the NCAA would, consequently, resolve any right of publicity claim, but not an antitrust claim. O'Bannon's suit also goes further in scope than Keller's, ultimately advocating for a "fundamental change to NCAA amateurism rules so that current and former Division I football and men's basketball players can negotiate deals for their names, images and likenesses." O'Bannon seeks to obtain this change through an injunction ordered by the presiding judge.

Despite the limited effect of the NCAA settlements on the O'Bannon case, the aftermath of the two settlements should not be ignored: the NCAA, which has long insisted that it can prohibit college athletes from earning money from on-field performance in school, will be giving a group of current and former players $20 million as compensation. However, whether this development signals a greater change in the world of amateur sports remains to be seen.

http://sportsillustrated.cnn.com/college-football/news/20140609/ncaa-keller-lawsuit-settlement/#ixzz34ZqW6Spa

From the Basketball Court to Federal Court

It was only a matter of time: Donald Sterling has decided, once again, to pursue legal action against the National Basketball Association (NBA), thereby withdrawing his support from a deal that would have resulted in the sale of the LA Clippers to former Microsoft CEO Steve Ballmer. Instead, Sterling will be seeking $1 billion in damages from the NBA as he fights the organization for, in his words, attempting "to take away our privacy rights and freedom of speech." According to Sterling's attorney, Maxwell Belcher, his client was ready to approve the sale of the team, but backtracked when he learned that the NBA would not lift his lifetime ban and the $2.5 million fine imposed against him in May. "The Team," Sterling reiterated in a written statement, "is not for Sale."

In the written statement released by his attorney, Sterling summarizes the various reasons behind his decision to fight the NBA in court. The Clippers' owner calls the NBA leadership "incompetent, inexperienced and angry," and goes on to accuse the NBA of turning a blind eye to its "own transgressions." These transgressions, according to Sterling, include gender discrimination, which the NBA is seeking to sweep under the rug by going after Sterling. The embattled billionaire "goes on to say the NBA is run by a 'band of hypocrites and bullies' who are carrying out a 'reign of terror.'" The statement ends on a rousing, perhaps even patriotic, note: "[w]e have to fight for the rights of all Americans. We have to fight these despicable monsters. THIS IS THE REASON I WILL NOT SELL MY TEAM."

Despite the high dudgeon of Sterling's statement and his impending legal action against the NBA, the NBA seems relatively calm. That tranquility may be explained by the fact that, as Sports Illustrated's Michael McCann reports, the sale of the Clippers to Steve Ballmer could still go through; one scenario that would allow for the sale's completion would be for Sterling to be deemed mentally incompetent. Sterling's estranged wife, Shelly, has actually insisted that her husband is mentally incompetent, which gives her the power under the terms of the trust agreement to act as the sole trustee of the trust that owns the Clippers. As the sole trustee, she would be empowered to sell the team without her husband's consent. Shelly Sterling has insisted that she has medical documents that establish her husband's lack of mental competence, but Donald Sterling and his legal team unsurprisingly dispute her assertion. To resolve this question of mental competency, a Los Angeles Superior Court judge ruled on Friday that Sterling was entitled to a hearing to determine his mental competency. The competency hearing is scheduled for July 7th to July 10th. Both Shelly and Donald Sterling will have their own medical experts testify, and neurological results from scans of Donald Sterling's brain will be reviewed.

If Sterling is ruled mentally competent and remains a trustee of the Sterling Family Trust, the NBA is not out of options. Even though Sterling would still be the legal co-owner of the Clippers, the NBA could move to oust him again, assuming its "initial strategy: hold a termination hearing where the Board of Governors would decide whether to oust Donald Sterling." Under Article 14(g) of the NBA's constitution, if at least 22 of the 29 team owners vote to sustain the charges against Donald Sterling, the Clippers' membership in the NBA would be terminated.

Membership termination does not automatically mean that the Clippers would cease to be a team; rather, Article 14(g) would require a second vote whereby 19 of the 29 team owners vote to end only Donald Sterling's ownership of the Clippers. If that vote is cast, the team's NBA membership would not be terminated and instead, Shelly Sterling would become the controlling owner of the Clippers. Team owners are only likely to cast that pivotal second vote, however, if Shelly Sterling remains committed to selling the team; if she were to have a sudden change of heart -- as her husband has been known to do -- and decide to remain in control of the team, the team owners are unlikely to cast the second vote called for under Article 14(g) that would avoid the Clippers' membership termination. If that second and all-important vote failed to occur, per Article 14A(a), the Clippers' membership would be terminated. Article 14A(a) would then compel the office of commissioner Adam Silver to take over the Clippers; the commissioner's office would eventually put the team up for sale. Such a situation would, undoubtedly, be long and difficult, likely protracted further by more disputes and more litigation, which the NBA would prefer to avoid as it seeks to put the Sterling saga far behind it.

http://www.buzzfeed.com/jimdalrympleii/donald-sterling-will-sell-the-clippers-and-drop-his-lawsuit

http://sportsillustrated.cnn.com/nba/news/20140613/donald-sterling-nba-lawsuit-mental-competence-adam-silver/

Revived

The Ninth Circuit has revived an heir's lawsuit aimed at returning two 16th-century paintings taken from the heir's father-in-law by Nazi Reichsmarschall Herman Göring during World War II. The plaintiff, Marei Von Saher, has been trying since 2007 to convince the Norton Simon Museum of Art in Pasadena, California to return two life-size panels of Adam and Eve, which date back to 1530. Von Saher claims that the panels, painted by Lucas Cranach the Elder, were stolen from Jacques Goudstikker, the father of her deceased husband. Goudstikker was a Dutch art dealer who was forced to flee the Netherlands during World War II; tragically, he died a short time after escaping when he fell from a ship en route to South America. According to the complaint, Goudstikker "left behind a black notebook that listed the contents of his art collection, including the Cranach panels."

Before hanging in the country home of Herman Göring, the Cranach panels are said to have decorated the walls of the Church of the Holy Trinity in Kiev, Ukraine, until being relocated by the Soviet Union in 1930 to the Art Museum at the Ukrainian Academy of Science in Kiev. The Soviet Union auctioned the two works in 1931, and they eventually became part of Goudstikker's collection. To complicate the history of the panels even further, the two works may have, at some point, been part of the Stroganoff family collection in Russia before being seized and sold by Soviet officials. The Dutch government believed as such, and gave the panels to a Stroganoff descendant in 1966, all while failing to inform the wife or son of Jacques Goudstikker. The Dutch government also -- inexplicably -- maintained that Desi, the wife of Jacques Goudstikker, had voluntarily sold the art works and other belongings to the Nazis. The Stroganoff descendant, George Stroganoff-Scherbatoff, sold the two panels to the Norton Simon Museum in 1971.

Von Saher, as the only remaining heir of Jacques Goudstikker, sued the museum in 2007 under a California law that "allowed claims to recover confiscated Holocaust-era artwork from museums or galleries until the end of 2010." A federal judge ruled in 2009, however, that the California law in question was unconstitutional, dismissing Von Saher's claim and setting up the case for its first trip to the Ninth Circuit. A three judge panel later affirmed the lower court ruling, but remanded to allow the plaintiff to amend her complaint in light of changes to the California law, which was amended by the state legislature so as to extend the filing deadline from three to six years. As expected, the museum moved to dismiss the complaint, arguing that the claims conflicted with federal law and policy on recovered art. Unfortunately for Von Saher, the presiding U.S. district court judge agreed and dismissed her case, "citing a petition for writ of certiorari by the U.S. Solicitor General that supported a policy of "external restitution" and respect for the decisions of foreign governments." Von Saher's case did not end there, however: last Friday, an appellate panel reversed the U.S. district court's decision, thereby reviving Von Saher's claims, and remanding the case to Los Angeles. The appellate panel, which ruled 2-1, wrote, "Von Saher's claims do not conflict with any federal policy because the Cranachs were never subject to postwar internal restitution proceedings in the Netherlands." Consequently, the appellate panel's decision opens the door for Von Saher's claims to be decided on the merits.

http://www.entlawdigest.com/2014/06/09/3175.htm

June 20, 2014

Week in Review

By Martha Nimmer

The Case of the Missing Degas

The Degas Sculpture Project has claimed in New York federal court that a Tennessee art dealer failed to pay for several pieces of art, including a bronze sculpture, La petite Danseuse de Quatorze Ans ("The Little Dancer, Age Fourteen"), by famed French artist Edgar Degas, and a painting by Dutch abstract expressionist Willem de Kooning. Other pieces included in the sale to the art dealer were 16 "extremely rare and valuable" original oil on paper paintings by de Kooning.

The plaintiff, along with co-plaintiff Modernism Fine Arts, claim that defendant Rose Ramey Long and Rose Long Fine Art planned to sell the pieces in question to a California art collector. Long said that her client intended to display the pieces in a new museum in San Francisco. The defendant, according to the complaint, somehow ended up paying only $110,000 for the pieces, which she resold to a customer other than the one disclosed to the plaintiffs. This customer, the lawsuit states, turned out to be a "recently released from custody, twice-convicted, federal felon with a history of fraudulent conduct and no source of current income or tangible assets." Long also failed to pay the contract price for the pieces that she sold, and neglected to return them to the plaintiffs. The de Koonings were eventually sent to the plaintiffs in early June, but the rare, highly-prized bronze Degas statute remains missing.

The plaintiffs seek damages for negligence and breach of contract.

"True Threats"

The Supreme Court granted cert earlier this week in a case that promises to have long-lasting effects on the free speech rights of Americans. The case, Elonis v. United States, involves the First Amendment rights of individuals who use threatening language in online forums, such as Facebook, but whose intent is not readily apparent. The petitioner, Anthony Elonis, had been "sentenced to nearly four years in federal prison for posting online rants about killing his estranged wife, shooting up a school and slitting the throat of an FBI agent."

At trial, Elonis argued that he had never intended to go through with the threats, adding that he posted them as "rap lyrics" as a way to deal with his anger after his wife had left him. He also argued that his statements were protected by the First Amendment. A federal appeals court rejected Elonis' First Amendment claim. Earlier, at trial, the jury was instructed that Elonis "could be found guilty if an objective person could consider his posts to be threatening." Elonis' attorney argued, however, that the jury should have instead been instructed to use a subjective standard to decide whether Elonis meant the messages to be understood as threats. The reasoning behind the subjective standard, the defense argued, is the "impersonal nature" of online communication, which has the potential for an audience to misinterpret a speaker's message or intent. The federal government, in turn, argued that requiring proof of a subjective threat would, in the words of the Huffington Post, "undermine the purpose of the federal law prohibiting threats."

Under the 54 year old "true threats" doctrine, first touched on in Watts v. United States and later expounded on in Virginia v. Black, true threats of harm to another person are not protected by the First Amendment. Exactly what constitutes a "true threat," however, has grown murkier and more challenging to ascertain as online communication has become more commonplace and has supplanted face-to-face interaction. This change in communication has free speech advocates arguing for a subjective standard when juries are faced with a true threats case. The Supreme Court will hear argument in the case in the fall.

http://www.huffingtonpost.com/2014/06/16/supreme-court-online-threats_n_5499068.html

Read the amicus brief here: https://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-983tsacTJCElonisvUSA.pdf

Cancelled

The U.S. Patent and Trademark Office (USPTO) announced this week that it would cancel the federal trademark of the Washington Redskins on the grounds that the team name is disparaging to Native Americans. Federal trademark law forbids the registration of marks that "may disparage" individuals or groups, or that may "bring them into contempt or disrepute." The USPTO, through the Trademark Trial and Appeal Board, first canceled the mark in 1999, but that decision was overturned in 2003 on appeal to a federal court. Despite this loss, the team is expected to appeal the current cancellation; while the appeal is being decided, the team would retain federal trademark protection over the Redskins name and mark.

The decision by the USPTO will not force the team to change its name, but adds to the growing list of organizations that have come out against the football team's moniker. Senator Maria Cantwell, a Democrat from Washington State, persuaded 49 members of Congress "to send a letter last month to the National Football League on the issue," and even interrupted a debate on the Senate floor to announce the USPTO decision. Despite mounting anger over the team's name, owner Dan Snyder has remained steadfast in his opposition to changing it, saying the name "Redskins" was chosen as a way to honor Native Americans.

Another effect of trademark cancellation, if the Redskins lose or do not pursue an appeal, is that the team will no longer be able to use federal trademark law to pursue trademark infringers who use the team name or logo without permission. Cancellation also "hinders the team's ability to block counterfeit merchandise" from being made, imported or sold in the country. This lack of federal protection could mean a loss of millions of dollars of merchandise revenue for the team and for the NFL.

All is not lost for Washington, D.C.'s football team, however. Although unlikely, Dan Snyder could come to his senses, change the team name and perhaps get back in the good graces of millions of Americans, all while avoiding a costly, protracted legal fight. As an alternative to federal trademark protection, Snyder could choose to protect the team name and logo under state law, even though this form of protection is less robust and wide-reaching than federal law. As it turns out, the team is headquartered in Virginia, not Washington, D.C.; the team may therefore be able to rely on Virginia law, and on state laws in other localities where the team does business, for protection.

One thing is certain, however: this is not the last of the Washington Redskins controversy.

http://m.si.com/4297130/understanding-the-cancellation-of-the-redskins-federal-trademark/

http://www.washingtonpost.com/local/us-patent-office-cancels-redskins-trademark-registration-says-name-is-disparaging/2014/06/18/e7737bb8-f6ee-11e3-8aa9-dad2ec039789_story.html

Sanctioned

The Association of Art Museum Directors has sanctioned the Delaware Museum of Art following its sale of various works of art. The museum held the sale as a way to raise money to pay off its debts following costly renovations undertaken in 2005. The Association of Art Museum Directors said that the museum's art sale "violated one of the most basic and important" tenets of a collecting institution. The American Alliance of Museums, another professional organization, also came out against the sale, and voted to withdraw the museum's accreditation.

Museums often sell works in their collections as a way to acquire other pieces. The practice of selling art as a way to pay for operations or property improvements is considered, writes The New York Times, "an ethical violation, a betrayal of a museum's role of holding art in public trust." "With this sale, the museum is treating works from its collection as disposable assets, rather than an irreplaceable cultural heritage that it holds in trust for people now and in the future," the Association of Art Museum Directors said in a statement.

In March, the museum announced that it planned to sell four works, with the goal of raising roughly $30 million, "enough to repay the balance of its $19.8 million bond debt and replenish its endowment." The works sold included "Isabella and the Pot of Basil," by William Holman Hunt. That piece brought in only $4.89 million at a Christie's auction in London on Tuesday; that figure was, sadly, markedly "below the auction house's low estimate of $8.4 million and substantially below its high estimate of $13.5 million," according to The New York Times. The museum has not indicated what other works it plans to sell.

http://artsbeat.blogs.nytimes.com/2014/06/18/delaware-museum-faces-sanctions-from-directors-group/?_php=true&_type=blogs&_r=0


June 27, 2014

Week in Review

By Martha Nimmer

No to Aereo

The U.S. Supreme Court has ruled that streaming service Aereo violated U.S. copyright law by capturing television broadcasts via miniature antennas and "performing the works publicly within the meaning of the Transmit Clause" of the Copyright Act. The 6-3 decision is a decisive victory for television broadcasters, and a major blow to Aereo, whose future as a business remains decidedly uncertain just two years after being founded.

During oral arguments in April, broadcasters argued that Aereo's services were harming highly valuable revenue sources, and threatened to remove their signals from the airwaves if the court ruled for Aereo. Aereo countered that its service was akin to what subscribers could do with rabbit ear antennas: watch broadcast TV over public airwaves, for free. Justice Stephen G. Breyer, writing for the majority, said that Aereo was "not simply an equipment provider," but was instead acting like a cable system.

Unsurprisingly, television broadcasters celebrated the high court's decision. Leslie Moonves, CEO of CBS, stated, "for two years they have been in existence, trying to hurt our business. They fought the good fight. They lost. Time to move on." Understandably, Aereo founder and chief executive, Chet Kanojia, was less pleased with the ruling, calling it a "massive setback" for consumers. Previously, Kanojia had remarked that Aereo "had no Plan B" if the company lost in court. Following the Court's ruling, Kanojia was slightly more upbeat, saying that Aereo would keep working "to create innovative technologies;" he did not indicate, however, how the company would move on following the ruling. Commentators and legal experts have said that Aereo would be "left with few options" in light of a decision that rejected all of the company's major arguments.

Read the decision here: http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

Getting Ahead of Head Injuries

FIFPro, the union for world soccer players, has asked FIFA to investigate the head injury suffered last week by Uruguay left back/midfielder Alvaro Pereira. The team member was knocked unconscious after colliding with English player Raheem Sterling's knee during Uruguay's victory over England. Pereira was out cold for a minute or two before walking to his team bench; he eventually returned to the game in the 63rd minute. "After the hit, I only recall that I was unconscious for an instant," Pereira said. "It was like the lights went out a little bit."

Although doctors from the Uruguayan team and FIFA examined the player after the match concluded, a concussion has "yet to be diagnosed." In addition to an investigation of the Uruguayan team member's head injury, FIFPro "is seeking urgent talks and immediate assurances that FIFA can guarantee the safety of the players . . . ." The players' union has stated that if those assurances are not made, the group will call for independent medical practitioners to be used at future matches.

FIFA's policy towards player concussions uses a "recognize & remove" approach to head injuries, which, FIFPro says, fails to protect players adequately, at least as currently applied. Under the concussion protocol, any athlete who is suspected of suffering a concussion should be evaluated for "visible clues or signs and symptoms, such as loss of consciousness, lying motionless on the ground or being unsteady on one's feet," among other symptoms. If a player exhibits these symptoms, he "should be IMMEDIATELY REMOVED FROM PLAY, and should not be returned to activity until they are assessed medically," FIFA's concussion guide says. Unfortunately for Pereira and other soccer players, it does not appear that those safeguards were enforced last week.

Clearly, the topic of head injuries remains an issue of utmost concern in professional sports, with greater attention being focused on soccer in light of the World Cup tournament this summer.

http://m.washingtonpost.com/blogs/soccer-insider/wp/2014/06/20/world-soccer-players-union-calls-on-fifa-to-conduct-concussion-investigation-after-alvaro-pereiras-injury/

Uncapped

Head injuries in sports continue to make news in the United States. Just yesterday, the National Football League (NFL) and attorneys for plaintiffs announced that a revised settlement had been reached in the NFL concussion lawsuit pending before the U.S. District Court for the Eastern District of Pennsylvania. Under the revised agreement, the NFL will remove the $675 million cap on damages from the concussion-related claims of former NFL players. As a result of this revision, any retired player who develops a "qualifying neurocognitive condition" will be able to receive funds from a compensation program for former players. This change comes, in part, after presiding U.S. District Judge Anita Brody questioned whether $675 million amount would be sufficient to pay for the plaintiffs' damages.

Another major facet of the revised settlement is that former players will no longer be barred from suing the NFL. The original agreement, writes Forbes, "included a provision that eliminated those players from ever suing the NCAA or other amateur sports entities for concussion-related injury." Now, under the altered settlement, that ban has been lifted. One reason behind this change was the NFL's fear that Judge Brody would refuse to accept any settlement that included a ban on future litigation, writes Forbes.

Other aspects of the settlement remain unchanged, however. Consistent with last year's accord, the revised agreement provides a "wide range of benefits to retired NFL players and their families, including a separate fund to offer all eligible retirees a comprehensive medical exam and follow-up benefits, and an injury compensation fund for retirees who have suffered cognitive impairment, including dementia, Alzheimer's, Parkinson's or ALS." Additionally, the agreement also stipulates that the NFL set aside $10 million for concussion education, "as well as pay the costs of providing notice to the class and for administration of the settlement."

http://www.nfl.com/news/story/0ap2000000361552/article/revised-settlement-in-concussion-suit-reached-funds-uncapped

http://www.forbes.com/sites/rogergroves/2014/06/25/new-nfl-concessions-in-concussion-settlement-also-mean-nfl-v-ncaa/

Bills, Bills, Bills

After failing to pay nearly $2 million in legal fees, singer and songwriter George Clinton may soon find that his copyrights are up for sale in an effort to satisfy his staggering legal bill. Earlier this week, the Ninth Circuit ruled that a receiver may sell the copyrights to several songs by the funk artist to satisfy his debt to a Seattle law firm.

Law firm Hendricks & Lewis represented Clinton in copyright disputes from 2005-2008, and had been trying for several years to collect the $1.7 million owed to them by their former client. Clinton claimed that the firm's fee collection practices had made it "impossible for him to earn a living." The recording artist also brought a malpractice claim as part of a countersuit against the firm. While that legal drama was playing out, "a court-appointed receiver took possession of the master sound recording copyrights to four of Clinton's songs from the 1970s: 'Hardcore Jollies,' 'One Nation Under a Groove,' 'Uncle Jam Wants You,' and 'The Electric Spanking of War Babies.'"

Clinton had argued before the Ninth Circuit that Section 201(e) of the Copyright Act protected him from such an "involuntary transfer" of his copyrights to a court-appointed receiver, but the three-judge appellate panel disagreed. First, Clinton was not, for purposes of the Copyright Act, the author of the songs; even assuming he was, the involuntary transfer provision would offer no help. "There is no question that Clinton transferred any interest that he had in the Masters to Warner Bros., and, as part of a settlement arising from unrelated litigation, Warner Bros. subsequently agreed to transfer ownership back to Clinton," Judge Morgan Christen wrote for the panel. For the protections of Section 201(e) to apply, the original author could not have "previously been transferred voluntarily by that individual author . . . ." As the singer had previously transferred his interests in the copyright, Section 201(e) would not apply.

http://www.entlawdigest.com/2014/06/24/3208.htm

July 26, 2014

Week in Review

By Martha Nimmer

From Panamanian Dictator to Lawsuit Plaintiff

Manuel Noriega, former Panamanian dictator and federal inmate, has sued the publisher of "Call of Duty: Black Ops II", over its unauthorized of his name and likeness. The lawsuit, filed last week in Los Angeles County Superior Court, accuses publisher Activision Blizzard Inc. of portraying Noriega as "a kidnapper, murderer and enemy of the state" in the latest "Call of Duty" game.

The Santa Monica-based company released the "Black Ops II" title back in November 2012. In just two weeks, the game had managed to bring in more than $1 billion in sales. While Activision Blizzard oversees a number of video game titles, "Call of Duty" is arguably the most well known. According to a fan website, Noriega helps the CIA capture the game's antagonist before turning on the U.S.

Noriega became dictator of Panama in 1983. American military action in the Central American nation in 1989 ended his dictatorship, leading to his imprisonment on drug-trafficking charges. For a time, he had been an ally of the U.S. government. Noriega returned to Panama in 2011 after two decades in American and French custody.

http://touch.latimes.com/#section/-1/article/p2p-80816671/

Tackling the Vikings

Following the Minnesota Vikings' release last week of a summary of the investigation into homophobic remarks made by special teams coordinator Mike Priefer, former Vikings punter Chris Kluwe announced that he planned to file suit against the team in Minnesota state court. Now, Kluwe appears to be backing off from that initial threat, opting instead to continue talks with the Vikings. Clayton Halunen, counsel for the former Vikings player, said in an email to ESPN that he had spoken with the Vikings' attorney, and that both lawyers "agreed to recommend continued discussions to their clients." Kluwe intended to file suit against the team to compel it to release the full report from a six-month independent investigation into his claims against Priefer.

Law firm Littler Mendelson was tasked by the Vikings with reviewing the investigation report and creating a summary of the investigation findings. The 29-page summary did support Kluwe's claim that Priefer had made a homophobic remark, but the summary did not confirm Kluwe's accusations that "Priefer had made multiple homophobic statements, or that the Vikings had released the punter because of his activism." Unsurprisingly, Kluwe and his attorney were critical of the report, saying it was rife with inaccuracies and "designed to make [Kluwe] look bad." Kluwe's attorney also called the summary a "'scrubbed version' of the report designed to position the team for possible litigation."

Before the report was released last week, Kluwe's legal counsel "offered the Vikings a set of non-negotiable settlement terms . . . asking the team to suspend Priefer for four to eight games, donate $1 million to LGBT-friendly charities and release the full report." The Vikings, however, did not agree to the terms, instead deciding to release the investigation summary and donate $100,000 to charity; the team also suspended Priefer for two to three games. Despite the initial failure to come to a settlement, it appears that an agreement may, according to ESPN, be back on the table.

Read the summary here: http://espn.go.com/pdf/2014/0718/DSP-MEMO-Re-Kluwe-Investigation.pdf

http://espn.go.com/nfl/story/_/id/11253469/chris-kluwe-file-suit-yet-continue-discussions-minnesota-vikings

Back to Business as Usual?

Retail powerhouse Amazon has started to accept DVD pre-orders of Warner Brothers DVDs, a sign that the companies appear to be moving closer to resolving a pricing dispute. As part of its hardball strategy with Warner Brothers, Amazon had stopped accepting pre-orders for Warner Brothers movies, including The Lego Movie, 300>: Rise of an Empire and Winter's Tale. Now, however, Amazon customers may begin placing pre-orders for Warner Brothers titles.

Amazon has been mired in disputes with various companies as it seeks to use its position as the world's largest online retailer to extract better deals from its suppliers and vendors. Amazon is currently involved in a dispute with Hachette Book Group over e-book pricing.

http://www.bloomberg.com/news/2014-06-24/amazon-resumes-warner-bros-dvd-preorders.html

The Mask

The Eighth Circuit has ruled that the Mask of Ka-Nefer-Nefer, a 3,200-year-old Egyptian mummy, will stay in the St. Louis Art Museum, because the federal government failed to prove that the antiquity was stolen from Egypt when it went missing in 1973. The mask later turned up in 1998, when the St. Louis Art Museum acquired the item from Phoenix Ancient Art of New York and Geneva, an antiquities seller. Once the Egyptian government learned of the mask's reemergence, Egyptian officials asked for its return. Despite these numerous requests, the museum has refused to return the mask.

The federal government eventually became involved in the dispute between the Egyptian government and the Missouri museum, filing a forfeiture action against the mask. In the forfeiture claim, the United States stated that "because the mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States." A federal judge was unconvinced, however, and ruled for the museum, reasoning that just because the mask went missing in 1973 did not mean the item was illegally imported into the United States.

On appeal, "the government argued that the lower court erred by dismissing its complaint without giving it leave to first amend its pleading." The Eighth Circuit did not agree. Judge James Loken, writing for the three-judge panel, said that the government had sufficient time to amend its pleading before dismissal, but chose not to: "[t]he government knew many months prior to the order of dismissal of the possible need to amend its pleading and elected to 'stand or fall' on its untested legal theory. The government then spent another three months after the order of dismissal was entered urging the court to reconsider its interpretation of the statute before finally deciding it would attempt to plead around the interpretive problem, rather than appeal this legal issue."

So, at least for now, it appears that the mask will remain in the "Show Me" state.

http://www.entlawdigest.com/2014/06/18/3194.htm

Release Removed

The NCAA has removed the controversial name-and-likeness release from the forms that Division I athletes regularly sign before a playing season. The name-and-likeness provision of the "Student-Athlete Statement" gave the NCAA or an associated third party the power to use a player's name or likeness to promote NCAA championships or other events, all without having to compensate the athlete. The decision to eliminate this release comes as the NCAA awaits a decision in the O'Bannon v. NCAA case, which concerns the use of college athletes' names and likenesses. The NCAA had previously stated publically that players were not required to sign the releases, but some plaintiffs in the O'Bannon case submitted evidence showing that college presidents and members of the Atlantic Coast Conference believed that athletes would be ineligible to play if they did not sign the releases.

The elimination of the name-and-likeness release led to the delayed publication of the 2014-15 version of the Student-Athlete Statement. Kris Richardson, NCAA director of academic and membership affairs, wrote that the delay was "necessary to enable appropriate review, including legal review, of the change to this year's form." Despite this change to NCAA rules, "some conferences and schools, including the Big Ten Conference schools, have been requiring athletes to sign more specific name-and-likeness release forms." The form employed by the Big Ten Conference states that by signing the release, an athlete gives the college and conference "'the right to publish, duplicate, print, broadcast or otherwise use in any manner or media, my name, photograph, likeness or other image of myself for any purpose' the school or conference determines is in its interest." According to the form, permissible uses can include "promotional and marketing materials and uses by the Big Ten Network, CBS, ABC and ESPN. ... I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, photograph, likeness or other image of myself." Therefore, despite the changes to NCAA rules, colleges and conferences seem determined to continue using the name-and-likeness releases in their own Student-Athlete Statements.

http://www.usatoday.com/story/sports/college/2014/07/18/ncaa-name-and-likeness-release-student-athlete-statement-form/12840997/


September 2, 2014

Month in Review (August), Part 1

By Martha Nimmer

Just Say No?

Early last month, the National Football League (NFL) handed Cleveland Browns receiver Josh Gordon a season-long suspension after he failed another drug test, this time for marijuana. A day later, star player Joe Thomas went before a group of reporters to decry Gordon's punishment, adding that the NFL's drug policy was out of date. "Obviously there were some oversights when they wrote the program and some cultural changes that have happened, so that the program doesn't accurately reflect the morals of society today," Thomas said.

Not wanting to miss an entire season, Gordon attempted to appealed his suspension, arguing through his attorneys that the positive drug test result was due to his inhalation of second-hand smoke; his appeal, however, was denied. Gordon served a two-game suspension last season for failing a drug test, so as a "repeat offender," he was "immediately barred from the team's practice facility," writes USA Today. After the 2014-2015 football season concludes, the NFL will decide if, and when, Gordon will be permitted to apply for reinstatement.

Joe Thomas' comments about the NFL's drug policy represent the changing attitude among many Americans about the League's--and even the federal government's--policy toward marijuana. The NFL's collective bargaining agreement still bans the illicit use of marijuana, even though medical marijuana is permitted in 23 states and the District of Columbia. Ohio, where the Browns are based, does not allow for medical marijuana usage, but does currently provide for "reduced penalties" for possession of the substance. In regard to the NFL's narcotics policy, Thomas also said, "they haven't touched it in a lot of years because it's kind of been the one thing where, when you're collective bargaining, it kind of gets put 'til the end and then when you're close on a deal you say, 'Oh, let's just leave it how it's always been,' rather than actually work on some issues that is there. The problem is, now you're sitting in a situation with a collective bargaining agreement that lasts 10 years, and in the middle of it, no one is going to want to go back and try to hash out things that may be an issue -- as they clearly are on some levels."

Given the NFL's concerns over other controversial matters, such as player head injuries, and the criticism the League received regarding player suspension for domestic violence charges, revising drug policy with regard to marijuana use is unlikely to make the NFL's to-do list for this season.

http://www.usatoday.com/story/sports/nfl/browns/2014/08/29/joe-thomas-nfl-drug-policy-out-of-date-josh-gordon-suspension/14784755/

http://hosted.ap.org/interactives/2014/nfl-marijuana/

Athletic Autonomy

The National Collegiate Athletic Association (NCAA) voted last month to give the five wealthiest conferences and their universities the power to "make their own rules on several issues affecting athletes and competition." If this decision "passes" a 60-day comment period, the Big 5, which include the Southeastern Conference, the Atlantic Coast Conference, the Pacific-12, the Big Ten and the Big 12, will be allowed to raise the amounts of their player scholarships, improve team health insurance and allow players to consult with agents, among other changes.

Supporters of this move towards greater autonomy say it acknowledges the "markedly different" situations faced by Division I schools and the pressures faced by their players, while critics of the change say that smaller schools will have a harder time recruiting talent. "I worry these changes will further escalate the arms race in college sports, which, in my opinion, is not in the best interest of intercollegiate athletics, or higher education more generally," Dartmouth University president Philip J. Hanlon said. The biggest champions of autonomy dismiss their critics, saying that autonomy is really just about giving more benefits to deserving student athletes: "[w]hat [autonomy] means is the ability to provide student-athletes with things that meet the 21st-century model of how we think about intercollegiate athletics," Mike Slive, the commissioner of the SEC, said last month.

Despite the harsh criticism of autonomy, the NCAA remains in support of the measure. As The New York Times writes, "[a]lthough only five of the board's 18 members are presidents of Big 5 universities, the steering committee that refined previous proposals last month into the current model included eight presidents, half of whom run Big 5 universities." All is not lost when it comes to defeating the autonomy measure, however. If 75 universities formally voice their disapproval of the autonomy measure during the 60-day comment period, the board will reconsider its vote. If 125 universities object to the measure, its implementation will be halted "pending that reconsideration," writes The New York Times. If the board later moves to reaffirm the decision, all Division I universities will vote, "with a five-eighths majority required to overturn."

http://www.nytimes.com/2014/08/08/sports/ncaafootball/ncaa-votes-to-give-greater-autonomy-to-richest-conferences.html?_r=0

The Art of Fraud

James Meyer, a former studio assistant to American contemporary artist Jasper Johns, plead guilty late last month to stealing 22 works from the artist's Connecticut studio. Meyer worked for Johns for over two decades and kept a studio file drawer of unfinished pieces that the artist had not authorized for sale.

Over the course of six years, from 2006 to 2012, Meyer took over 20 of these unfinished works and "had them sold by a Manhattan gallery and other purchasers." Prosecutors said that the defendant-assistant claimed that the works were gifts from Johns. According to a 2013 indictment, Meyer made $3.4 million on the transactions and "covered his tracks with fictitious inventory numbers and faked ledger book pages."

Meyer is scheduled to be sentenced on December 10th, and faces nearly four years in prison. As part of his guilty plea agreement, he forfeited almost $4 million. Meyer is also facing a civil lawsuit stemming from his illegal activity: The Francis M. Naumann Gallery of Midtown Manhattan, which sold some of the pilfered Johns artwork, sued Meyer for fraud in May.

http://www.entlawdigest.com/2014/08/27/3295.htm

Appealed, and Bracing for a Fight

The Washington Redskins have filed their appeal of the U.S. Patent and Trademark Office's (USPTO) June decision that canceled six team trademarks. The appeal, filed in the U.S. District Court for the Eastern District of Virginia, claims that the "Trademark Trial and Appeal Board ignored both federal case law and the weight of the evidence." Specifically, the team's appeal argues that Native Americans did not consider the name "Redskins" disparaging when the trademarks were put in place from 1967 and 1990.

Although the U.S. Patent and Trademark Office did decide that the Redskins trademarks should be canceled, the ruling left the trademarks' protections in place until the court hears the team's appeal; this appeals process could end up taking years, however. The USPTO issued a similar decision in a nearly identical case back in 1999, but the Redskins prevailed after the U.S. District Court for the District of Columbia reversed the board's decision four years later, following contentious litigation.

Anger over the name has grown in recent years, with critics calling on team owner Dan Snyder to change the team's name. Snyder, however, along with the NFL, have refused to change the name.

http://thehill.com/blogs/blog-briefing-room/215190-redskins-file-appeal-to-trademark-ruling

September 3, 2014

Month in Review (August), Part 2

By Martha Nimmer

Monkeying Around

If a monkey takes a selfie, who owns it? That is the question hounding British photographer David Slater, who is currently embroiled in a legal dispute with Wikimedia Commons over the ownership of a selfie taken back in 2011 by a crested black macaque (Macaca nigra) in an Indonesian forest. Slater spent three days in 2011 following the crested black macaques, when one day, after setting up his tripod and leaving it, the monkeys took his camera and started taking photos. When he returned, he realized that the monkeys had been snapping photos of themselves: a star--and a monkey selfie--were born. The selfies taken by the macaques quickly spread through the media. Eventually, one of the selfies appeared on Wikipedia, and then on Wikimedia Commons, which hosts images that are in the public domain. According to the Washington Post, Slater asked Wikimedia to remove the photo in 2012; the image was taken down, but it later appeared again, uploaded by another user. This time, the photo remained on Wikimedia.

Slater maintains that he owns the copyright to the monkey selfies, and "[t]he fact that they have been, essentially, distributed for free on the Internet through the Wikimedia Commons Web site has cost him untold amounts of money," explains the Washington Post. "This is ruining my business," Slater lamented. "If it was a normal photograph and I had claimed I had taken it, I would potentially be a lot richer than I am." Last month, Wikimedia revealed in its first ever transparency report just why it had denied Slater's removal request: essentially, Wikimedia stated, Slater was arguing that the person who took the photo should own the copyright in the photo. We know, however, that he did not take the photo; in fact, no human did. "Monkeys don't own copyrights," Wikimedia Foundation's Chief Communications Officer Katherine Maher said. "What we found is that U.S. copyright law says that works that originate from a non-human source can't claim copyright." For Slater to make a successful copyright claim, Maher explained, he would have to make "substantial changes" to the image in question--not just mere "cropping, color correcting and other cosmetic adjustments." Absent those alterations, Slater would have no basis for claiming a copyright in the selfie. Consequently, Wikimedia concluded, "if the photographer doesn't have copyright and the monkey doesn't have copyright then there's no one to bestow the copyright upon," Maher stated, and therefore it has remained on the website.

Slater remains determined, however, to find a way to assert his rights in the now famous monkey selfie. The photographer says that he is currently seeking legal counsel in the United States, where the Wikimedia Foundation is based, and in Britain.

http://www.washingtonpost.com/news/the-intersect/wp/2014/08/06/if-a-monkey-takes-a-selfie-in-the-forest-who-owns-the-copyright-no-one-says-wikimedia/

http://www.abajournal.com/mobile/article/who_owns_the_copyright_to_macaques_selfie_wikimedia_denies_photogs_take_dow/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Another Legal Headache for Lindsay Lohan?

Take-Two Interactive Software, Inc., the makers of wildly popular video game series Grand Theft Auto (GTA), says that Lindsay Lohan sued the company earlier this summer as a way to "get attention." The former "Mean Girls" star claimed that Take-Two Interactive and subsidiary Rockstar Games used her voice and likeness when creating blonde, bikini-clad GTA character Lacey Jonas.

In response to Lohan's suit, Take-Two and Rockstar Games filed papers in Manhattan federal court, calling the actress' case "frivolous" and a ploy "for publicity purposes." The defendants are seeking a dismissal of the suit, and asking the court to make Lohan pay the company's legal fees.

http://bigstory.ap.org/article/video-game-makers-lohan-sued-us-attention

Fighting Fakes

Fashion powerhouses Gucci, Balenciaga, Yves Saint Laurent and others have Alibaba and its founder, Jack Ma, in their crosshairs. In July, the companies went to federal court in Manhattan and accused the Chinese e-commerce giant of making billions of dollars "by helping 'an army of counterfeiters' sell fake products." The lawsuit, filed on July 10th, was unsealed on July 24th, and names Alibaba Group Holding and nine Alibaba affiliates as the lead defendants. Nineteen other online merchants, all based in either China or Hong Kong, are also included as defendants.

In the 147-page lawsuit, the plaintiffs claim that Alibaba and its subsidiaries "facilitate and encourage the sale of an enormous number of counterfeit products." "The Internet has opened the door for unauthorized merchants to reach a wide range of consumers in their efforts to sell counterfeit versions of the plaintiffs' products, which bear the plaintiffs' marks even though they are not manufactured, licensed, or approved by plaintiffs ('counterfeit products')," the complaint details. It continues on to say that "the sellers of such products not only copy the designs, patterns, and color schemes associated with plaintiffs' products, but also expressly use plaintiffs' marks in their advertising and marketing and on the counterfeit products themselves." The plaintiffs also accuse Alibaba and its affiliated companies of actively "encouraging" online merchants' infringement, by providing support services and a marketplace for the knock-off goods. Additionally, the e-retailer also offers credit card processing and shipping services, and helps merchants come up with and buy keywords that attract customers who are looking for authentic couture items.

Despite numerous investigations into and complaints about the advertising and sale of knock-off goods on its e-commerce platforms, Alibaba has done "little" to stop counterfeiters from selling fake merchandise, the lawsuit claims. Additionally, although Alibaba has said that it monitors and prevents sellers of counterfeit products from accessing and using the site, Alibaba has refused "to ban such merchants permanently or prevent them from offering counterfeit goods for sale," the plaintiffs state. Gucci, along with its co-plaintiffs, seek an injunction and punitive damages for trademark infringement, unfair competition and RICO violations.

Founded in 1999, Alibaba is an online-based retailer, like Amazon, which "provides online platforms for the sale and purchase of products." Alibaba's initial public offering (IPO) in the United States is expected to launch sometime this month, and could be worth as much as $200 billion, according to some analysts.

http://www.entlawdigest.com/2014/08/20/3277.htm

September 5, 2014

Week in Review

By Martha Nimmer

Domestic Violence & the NFL

After receiving harsh criticism for suspending Baltimore Ravens running back Ray Rice for just two games following revelations that Rice dragged his wife out of an Atlantic City casino elevator after knocking her unconscious, the National Football League (NFL, League) announced stricter penalties for domestic violence violations. The new personal conduct policy, unveiled last month by NFL Commissioner Roger Goodell, requires a six game suspension for domestic violence-related offenses. Additionally, the new policy stipulates that "second-time offenders" be banned from the League, but allows for a banned NFL member to apply for reinstatement after one year. Goodell stated that this policy and its accompanying punishments apply to members of the League, even if they are not convicted of domestic violence charges.

Speaking to a group of reporters on Wednesday, however, Goodell seemed somewhat hesitant to apply the new League personal conduct policy to the latest case of NFL domestic violence: on Sunday morning, San Jose, CA police arrested San Francisco 49ers defensive tackle Ray McDonald on felony domestic violence charges related to "an alleged incident at his 30th birthday party that police say left the victim with 'visible injuries.'" McDonald was released from jail after posting $25,000 bail. In response to questions about this latest incident, Goodell urged the media to allow the legal "process to play, [to] wait to get the facts, and make sure you understand all the circumstances." He added, "[w]e don't (know the facts) right now and we're obviously following it very closely. But the policy will be applied uniformly across players, coaches, executives, commissioners."

http://www.slate.com/blogs/the_slatest/2014/08/28/nfl_domestic_violence_suspensions_new_rules_announced_by_roger_goodell.html?wpsrc=fol_tw

http://www.usatoday.com/story/sports/nfl/2014/09/03/roger-goodell-domestic-violence-policy-ray-mcdonald/15049501/


Google Refunds Un-"app"-roved Purchases

The Federal Trade Commission (FTC) announced yesterday that Google would refund $19 million of in-app purchases as part of a settlement with the agency regarding unauthorized purchases made by children. As part of the settlement agreement, Google must also change its billing practices and obtain "express, informed consent" before charging a user's account.

The FTC's complaint against Google accuses the company of violating "the FTC Act's prohibition on 'unfair' commercial practices by billing consumers for charges by children made within kids' apps downloaded from the Google Play store." In-app charges are part of many apps available on the Google Play app store, and range in price from 99 cents to as much as $200. According to the FTC, in many apps geared towards children, "users are invited to accumulate virtual items that help them advance in the game, [but] the lines between virtual money purchases and real money purchases can be blurred." To make matters worse for unsuspecting consumers, when Google first introduced in-app charges in 2011, Google would charge users for those purchases "without any password requirement or other method to obtain account holder authorization." In other words, children could "incur in-app charges simply by clicking on pop-up boxes within the app as they used it." Unsurprisingly, numerous consumers reported "hundreds of dollars" of such unauthorized charges.

To address the problem of unauthorized in-app purchases, in 2012 Google introduced a pop-up box that asked for the user's password before applying in-app charges. Unfortunately for these users, however, the new pop-up failed to include any information about the pending purchase, and Google failed to inform "consumers that entering the password opened up a 30-minute window in which a password was no longer required, allowing children to rack up unlimited charges during that time." According to the FTC, thousands of customers contacted Google for refunds, but were often told by Google customer service to seek refunds from the individual app developer. Happily for consumers, however, the FTC settlement will require Google to provide "full refunds of unauthorized in-app charges incurred by children." Additionally, the company must inform all consumers who made in-app purchases of the refund process for unauthorized in-app charges by children.

http://www.ftc.gov/news-events/press-releases/2014/09/google-refund-consumers-least-19-million-settle-ftc-complaint-it


Fashion Faux Pas

A federal judge in Manhattan has ruled that Dwayne Walker Jr., a Bronx-based fashion designer, may go forward with a lawsuit against rapper Jay Z for royalty payments stemming from Jay Z's alleged us of a logo that Walker says he designed for Jay Z's Roc-a-Fella Records and its product lines. Walker initiated this action two years ago against the famed singer, his former manager Damon Dash, Jay Z's music label Roc-a-Fella Records, its co-founder Kareem Burke, Universal Music Group and Island Def Jam Music Group. Walker seeks $2 million in damages.

Walker originally paired up with Roc-A-Fella in 1995, agreeing to design and license a logo for the defendants in exchange for $3,500 cash and "2 percent of all revenues made from the sale of items ... bearing the logo for ten years after the first year of use, payable at the end of that period," according to the complaint. After putting the agreement in writing, Walker says that his relationship with Jay Z's former manager Damon Dash soured; eventually, in 2010, Walker applied for and received copyright registration for the logo he created. He filed the lawsuit two years later, which Jay Z and his co-defendants attempted to dismiss. After that strategy failed, the defense tried to strike what it called "redundant, immaterial and impertinent" aspects of the complaint. U.S. District Judge Andrew L. Carter Jr. denied the defense's motions, however, noting that there nothing in the complaint that was "redundant, immaterial, impertinent, or scandalous matter," the standard for striking a portion of a complaint.

No word yet from Jay Z on whether he still has 99 problems, or if this lawsuit bumped the count up to 100...

http://www.entlawdigest.com/2014/09/04/3322.htm

A New 'Czar' in Town

Late last month, the Obama administration announced that it would nominate Daniel H. Marti to be the intellectual property enforcement coordinator in the Executive Office of the President. Created by the Senate in 2008, the intellectual property enforcement coordinator -- colloquially referred to as "IP czar" -- is charged with coordinating IP enforcement issues across government branches and their various agencies. The position has been vacant since August 2013 following the resignation of Victoria A. Espinel.

Marti is currently an attorney with the Washington, D.C. office of Kilpatrick Townsend & Stockton. His practice, according to Bloomberg News, deals with intellectual property protection, management and enforcement in the U.S. and abroad. Marti served as co-chairman of his firm's intellectual asset acquisitions and transactions team from 2010 to 2013, and is currently a member of the International Trademark Association (INTA) Internet Committee.

http://www.bna.com/obama-administration-announces-n17179894385/

September 16, 2014

Week in Review

By Martha Nimmer

Goodell Under Fire

National Football League (NFL, league) Commissioner Roger Goodell has come under increased pressure in the last two weeks for his handling of the Ray Rice domestic violence scandal. Goodell first found himself at the center of the controversy after he decided to suspend the Baltimore Ravens player for just two games after it was revealed that Rice had hit his then-fiance, Janay Palmer, in an Atlantic City casino in February. Goodell later upped Rice's punishment to a lifetime suspension from the NFL after the commissioner reportedly viewed a surveillance video, released last week by TMZ, that showed Rice hitting Janay Palmer.

Now, Goodell finds himself on the defense again: last week, the Associated Press (AP) reported that law enforcement officials had sent the surveillance video to NFL officials back in April. This revelation has taken on a line of questioning harkening back to the days of the Watergate break-in during the Nixon Administration, with many observers asking "what did Roger Goodell know, and when did he know it?" The AP report stated that "a source played a voicemail from April 9 that came from a phone number at the NFL offices, in which a female voice says the tape was received, expresses thanks and says: 'You're right. It's terrible.'" According to the AP, the source could not verify if anyone at the NFL offices had viewed the video.

This disclosure by the AP has raised many more questions than it has answered, with football fans demanding to know who at the NFL received and watched the video, and whether it was shown to Commissioner Goodell. The NFL responded to the AP story by continuing to insist that no one at the league had seen the video before its release by TMZ last Monday: "[w]e have no knowledge of this. We are not aware of anyone who possessed or saw the video before it was made public on Monday. We will look into it." Unsatisfied with the league's response and Goodell's lack of transparency, some observers have called on the commissioner to step down.

To complicate matters further, Ray Rice announced yesterday that he intends to appeal his indefinite suspension. He will be represented by the NFL Players Association and his attorney. Commissioner Goodell will preside over the appeal, but Rice "could ask that a third-party hearing officer be designated to the case due to potential bias," writes SB Nation.

http://sports.yahoo.com/blogs/nfl-shutdown-corner/ap-report--police-sent-nfl-the-ray-rice-tape-in-april-211230052.html

http://www.sbnation.com/nfl/2014/9/14/6149553/ray-rice-suspension-appeal-roger-goodell-ravens

Settled

Search engine powerhouse Google announced earlier this month that it had reached a settlement with a group of photographers and visual artists over the unauthorized use of their intellectual property in Google Books. The photographers and artists filed suit against the company in April 2010 for copyright infringement.

Although the exact terms of the settlement are confidential, Google's statement makes clear that the agreement "includes funding for the PLUS Coalition, a non-profit organization dedicated to helping rightsholders communicate clearly and efficiently about rights in their works." Additionally, the agreement does not include any admission of liability by Google. Finally, because "the settlement is between the parties to the litigation, the court is not required to approve" the agreement's terms.

http://thenextweb.com/google/2014/09/05/google-settles-photographers-book-scanning-lawsuit/

Read the Google press release here: http://googlepress.blogspot.ca/2014/09/google-photographers-settle-litigation.html

Dungeons & Dragons and Lawsuits, Oh, My

The quest to make a documentary film about the fantasy role-playing game "Dungeons & Dragons" has ended with a lawsuit. Anthony Savini, the director of Dungeons & Dragons: A Documentary , has sued his former partners for launching another documentary on the same topic.

Like so many great dramas, this one begins in New York City. While working together on the acclaimed crime show Law & Order, Savini and Andrew Pascal, one of the producers of the "upstart" Dungeons & Dragons documentary, The Great Kingdom, began playing the game. According to the New York Times, "a Dungeons & Dragons game involves user-created characters who interact in combat, diplomacy and other adventures, in encounters that can last several hours or even days." During one of these gaming sessions, Savini claims that he and two friends came up with the idea of making a documentary about the game. Pascal, however, disputes Savini's recollection, claiming instead in an affidavit submitted in State Supreme Court in Brooklyn that he (Pascal) had learned in late 2010 about the game's history, and posed the idea for a documentary to his friend James Sprattley, a cameraman based in Los Angeles. The two men, Pascal claims, later approached Savini a few months later and asked him to direct the film.

As the men worked together to raise funds through Kickstarter for the documentary, "tensions simmered." According to Pascal's affidavit, Savini accused Pascal and Sprattley in June 2012 of "trying to steal his [Savini's] movie after we, as part of our job, merely offered suggestions for a possible narrative for the film." Unfortunately for the three partners, even a welcomed capital injection from Kickstarter could not salvage the relationship: "The Dungeons & Dragons faithful had pledged more than $195,000 in exchange for rewards like an autographed copy of 'Beyond the Wall: Exploring George R. R. Martin's 'A Song of Ice and Fire' for $65 or more, and associate-producer credits for $1,000 or more. But by April 2013, Mr. Savini was asking for mediation, which failed."

Eventually, attorneys for the two embattled sides reached an agreement that gave Savini creative control of the film, while allowing Pascal and Sprattley to retain half of the ownership rights. Earlier this year, however, Savini and his new partner, Cecily Tyler, discovered that his former partners were making their own film, called The Great Kingdom, which also happened to be about Dungeons & Dragons. Pascal and Sprattley also began reaching out to the same people who were interviewed for the original documentary. Pascal even began a new Kickstarter campaign, referring to "creative differences" with Savini and promising a "new direction" for the new documentary.

Last month, however, Savini received some good news, when Justice Carolyn E. Demarest granted his request for an injunction and ordered The Great Kingdom creators to cease work indefinitely on their project, "ruling that, as former partners in the original film, they had a fiduciary responsibility not to damage it." The Great Kingdom filmmakers filed an appeal last month, and the two sides have started settlement negotiations.

http://www.nytimes.com/2014/09/13/nyregion/a-quest-to-make-a-dungeons-dragons-film-turns-into-a-legal-battle.html?_r=0

NFL Releases New Concussion Data

Playing professional football is a dangerous business, a fact made even more apparent by concussion data released last week by the NFL. Specifically, information released on Friday "suggests that nearly 30% of former NFL players will end up developing Alzheimer's disease or dementia across their lifetime, placing them at a significantly higher risk than the general population."

This startling research was compiled as part of the former NFL players' ongoing concussion lawsuit against the league. According to the report by the Analysis Research and Planning Corporation, an actuarial firm commissioned by the players, "about 14% of all former players will be diagnosed with Alzheimer's disease; and another 14% will develop moderate dementia." In response to these disturbing figures, lead counsel for the retired players said, "[t]his report paints a startling picture of how prevalent neurocognitive diseases are among retired NFL players, and underscores why class members should immediately register for this settlement's benefits." As part of its concussion lawsuit settlement, the NFL had originally allocated $675 million for an estimated pool of 21,000 eligible former players. After presiding Judge Anita Brody expressed concern that the funds set aside would be insufficient, the NFL "relaxed the cap on that fund this summer, saying it would pay an unlimited amount to settle player claims," according to Forbes. Under the terms of the NFL's settlement, players are eligible to receive compensation based on a "sliding scale linked to how many years they played in the NFL," and how old they were at time of diagnosis.

http://www.forbes.com/sites/dandiamond/2014/09/12/nfl-players-have-30-chance-of-alzheimers-or-dementia-new-nfl-concussion-data-suggests/


October 7, 2014

Week in Review

By Martha Nimmer

Belcher's Brain Showed Signs of CTE

The brain of deceased Kansas City Chiefs linebacker Jovan Belcher displayed signs of chronic traumatic encephalopathy (CTE), according to a report obtained by ESPN. The report, prepared earlier this year by Dr. Piotr Kozlowski, says, "neurofibrillary tangles of tau protein," which is associated with CTE, were found in Belcher's brain. The tau protein appeared to be located in Belcher's hippocampus, "an area of the brain involved with memory, learning and emotion." Belcher shot and killed his girlfriend in December 2012 before he committed suicide in front of the team's practice facility.

Cheryl Shepherd, the mother of the former linebacker, initiated the process last year of exhuming her son's remains in order to have his brain studied. Attorneys for Belcher's young daughter, Zoe, then hired Dr. Kozlowski to examine and diagnose Belcher's brain. Lawyers for Zoe Belcher declined to explain why they released the diagnosis and doctor's findings almost a year after they were made; ESPN asked the legal term for copies of images of Belcher's brain "to send to another neuropathologist for independent analysis, but that request was denied."

If Belcher did, in fact, have CTE, Belcher's daughter and mother "would be eligible for up to $4 million under the proposed concussion settlement between the National Football League (NFL) and former players." Lawyers for Belcher's daughter have also filed a wrongful-death lawsuit against the Chiefs on her behalf, and Belcher's mother--through her own attorneys--has initiated an almost identical suit.

http://espn.go.com/espn/otl/story/_/id/11612386/jovan-belcher-brain-showed-signs-cte-doctor-says-report

Updates in the Ray Rice Suspension

Ray Rice and wife Janay will meet with investigators from the NFL and the NFL Players Association (NFLPA), although dates for the meetings have yet to be determined. According to The Baltimore Sun, Rice and his wife will be interviewed separately by the investigators, including former FBI Director Robert Mueller.

Earlier this week, NFL Commissioner Roger Goodell appointed former District Judge Barbara S. Jones "as the hearing officer for Rice's appeal, with the NFL commissioner consulting with NFLPA executive director DeMaurice Smith on the choice." No hearing date, however, has yet been scheduled. As part of the appeal, the NFLPA attorneys for Rice are expected to argue that the former Ravens player was "punished twice" when he was initially suspended for two games for violating the NFL's personal conduct policy, and then later banned from the League. Rice's two punishments would thus run afoul of Article 46 of the Collective Bargaining Agreement, "which governs 'One Punishment' and states that a player cannot be punished more than once for a single offense." Observers also expect that Rice will argue that the "elevator video," which was released by celebrity gossip website TMZ, was edited.

http://www.baltimoresun.com/sports/ravens/ravens-insider/bal-sources-ray-rice-janay-rice-and-lawyer-to-meet-with-both-nfl-nflpa-investigators-20141005,0,5835054.story

Battle of the Books

Unhappy with Amazon's ongoing contract negotiations with Hachette Book Group (Hachette), an authors' group has asked the U.S. Department of Justice (DOJ) to investigate Amazon's business practices. According to the Wall Street Journal, Authors United plans to send a letter to William Baer, the head of the DOJ's antitrust division, making the investigation request. Douglas Preston, who organized the group, says he has the support of about 1,000 published authors, including Stephen King.

During the eretailer's talks with Hachette over book prices, Amazon is said to have "limited preorders of some Hachette titles, reduced discounts and delayed shipping times as a negotiating tactic." Authors United has called for an end to this practice, even taking an ad out in The New York Times in August. Amazon hopes to be able to sell most books for $9.99, a price that the company says brings in the most sales; Hachette, however, argues that it should able to price its books as it chooses.

In its letter, the authors group plans to argue that Amazon has "amassed too much power" in the book sales sector, and was using this power at the expense of Hachette's published authors. Barry Lynn, who is drafting the letter for the group, said in an interview that he is also planning to allege that "[t]here is a case that Amazon is in violation of the law. Their actions to manipulate behavior [by Hachette] are exactly the reason these laws were created."

http://blogs.wsj.com/digits/2014/09/24/authors-group-will-ask-justice-department-to-probe-amazon/?mod=WSJBlog

SoCal Art Gallery Owner Gets the Slammer

The owner of a California art gallery who stalked and tried to extort $300,000 from art world professionals has been sentenced to five years in federal prison. Jason White pleaded guilty in March to two federal counts of stalking, according to the U.S. Attorney's Office.

White was arrested in February of this year following a six-month month stalking and extortion scheme against former customers and business associates. According to prosecutors, "White posted derogatory information about his former associates on websites he had created, and then used threatening emails to demand hundreds of thousands of dollars in exchange for taking the websites down." White is also said to have repeatedly sent harassing text messages and emails to his victims, and when his extortion demands were not met, he threatened the victims' families, including their children.

http://www.entlawdigest.com/2014/09/30/3382.htm

They're Kind of a Big Deal

The National Basketball Association (NBA) has renewed network deals with TNT and ESPN through the 2024-2025 season. In exchange, it will receive $24 billion over those nine years. The NBA plans to announce this agreement today, according to The New York Times. This new network deal is the first for NBA commissioner Adam Silver.

The deals with TNT and ESPN mean even bigger money for the NBA: in fact, they "represent a near-tripling of the annual average rights fees that ESPN and TNT have been paying in contracts," writes The New York Times. Under this new contract, average yearly payments to the NBA will increase to $2.66 billion per year, up from the current yearly rate of around $930 million.

The NFL also inked a highly lucrative deal just last week. Under that agreement, DirecTV will pay the league $1.5 billion a year for eight years "to retain its [DirecTV's] rights to carry NFL Sunday Ticket, a satellite package of out-of-market games," until 2022. With the DirecTV contract in place, the NFL will take now take in a total $6.5 billion to $7 billion a year in rights fees from its TV partners.

http://www.nytimes.com/2014/10/06/sports/basketball/nba-said-to-be-near-new-tv-deal-for-24-billion.html?action=click&contentCollection=Media®ion=Footer&module=MoreInSection&pgtype=article

October 9, 2014

Week in Review

By Martha Nimmer

NFL Tackles HGH

Three weeks after the National Football League (NFL, League) and its players agreed to a new drug testing policy, the League announced on its website that player testing for human growth hormone (HGH) would begin on Monday. In a letter to players that explained the new examination practice, the NFL Players Association president Eric Winston wrote, "[e]ach week of the season, five players on eight teams will be tested. No testing will occur on game days." Winston emphasized that players would have the right to challenge "any aspect of the science behind the H.G.H./isoforms test in an appeal of a positive test." This provision of the new testing policy comes after three years of negotiations between the NFL and the Players Association. Player appeals of positive HGH test results will be heard by third-party arbitrators selected by the players' union and the League.

http://www.nytimes.com/2014/10/05/sports/football/nfl-to-begin-hgh-testing-on-monday.html?smprod=nytcore-iphone&smid=nytcore-iphone-share

#FirstAmendment

Twitter has filed a lawsuit against the U.S. Department of Justice (DOJ), claiming violations of the First Amendment. Twitter says that DOJ restrictions on what Twitter may reveal regarding federal search requests impinge on free speech rights. According to The Hill, companies subject to a Foreign Intelligence Surveillance Act (FISA) order or national security letter may not "disclose the exact number of government demands about user information they receive as either Foreign Intelligence Surveillance Act (FISA) orders or national security letters." Currently, companies may only disclose the "broad number" of information requests they receive, in ranges of 1,000.

The popular social network emphasized in its complaint that it believes it has a right to tell the public what kind information the company releases to federal officials. "It's our belief that we are entitled under the First Amendment to respond to our users' concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance -- including what types of legal process have not been received," wrote Ben Lee, the head of Twitter's legal department. "We should be free to do this in a meaningful way, rather than in broad, inexact ranges." An agreement reached in January between the DOJ and five major tech companies relaxed somewhat the restrictions on what those companies could say to the public. Twitter, however, is not satisfied: the company is "going even further in its call to detail exactly how many orders it receives -- including zero, if that is the case."

Civil liberties advocates have come out in support of Twitter's pushback against the federal government. "If these laws prohibit Twitter from disclosing basic information about government surveillance, then these laws violate the First Amendment," said American Civil Liberties Union deputy legal director Jameel Jaffer. "We hope that other technology companies will now follow Twitter's lead." As is to be expected, however, government officials caution that these secretive data collection programs are vital to the nation's fight against terrorism.

Given Twitter's deep pockets and Americans' growing uneasiness with the federal government's data dragnet, this battle over free speech and Internet privacy is far from over.

http://thehill.com/policy/technology/220024-twitter-sues-feds-over-surveillance-demands

When How is a Four-Letter Word

Dov Seidman, author of How: Why How We Do Anything Means Everything, is "in the business of helping companies create more ethical cultures." Greek yogurt maker Chobani is also in the business of creating cultures, albeit of a different, dairy-based kind. Both Seidman and Chobani also have an interest in a simple, three-letter word: How.

Chobani, founded in 2005 by a Turkish immigrant, recently revised its marketing campaign and launched an ambitious new effort earlier this year that focuses on the quality of Chobani yogurt and the way it is produced. To highlight this process, the company uses the phrase "How Matters" in its marketing materials and packaging. Seidman also uses "How Matters" in some of the promotional materials for his book and management company. Chobani, Seidman claims, has stolen his "How."

Now, Seidman says he is fighting back and working to reclaim "How," suing the yogurt manufacturer and its advertising agency, Droga5. Seidman has even asked a federal court to order Chobani to halt its "How Matters" campaign, because it "represents an infringement on his trademark for the word how," writes The New York Times. In response to Seidman's lawsuit, Chobani and Droga5 have launched their own legal battle, denying that they had ever heard of Seidman or his company, and even petitioned the court for cancellation of Seidman's trademark for "How," calling it too broad. Chobani has also filed its own trademark application for the phrase "How Matters." Seidman, however, does not appear intimidated, commenting "this is not principally a legal fight. It's a moral fight -- it's a 'How' fight."

Let the trademark battle begin.

http://www.nytimes.com/2014/10/06/business/chobani-and-dov-seidman-wrestle-over-use-of-how-trademark.html

Tax Triumph for Artists

The U.S. Tax Court ruled last week that individuals who classify themselves on their tax returns as artists, but who make little or no money from the pursuit, can still identify themselves as artists for tax purposes. At first blush, this decision may not sound particularly significant, but in reality, "the heart of the case touches on a situation familiar to many thousands of artists . . . who earn a living as teachers or studio assistants or stagehands while pursuing creative careers that they hope will flourish and someday be able to pay the bills."

The case decided last week involved New York painter and printmaker Susan Crile, whom the IRS accused of underpaying taxes from 2004 to 2009. Some of Crile's works hang in the Met and the Guggenheim, and have focused on topics such as prisoner abuse at Abu Ghraib. According to court papers, Crile earned less than $700,000 from 1971 through 2013 from the sale of her works; "like many artists, she wrote off expenses from her work, like supplies, travel and meals, on her taxes." To supplement the income made from the sale of her art, she worked as a professor at Hunter College, where she began working part time in 1983 and became a tenured professor in 1994.

The IRS based its accusation against Crile on a number of factors. The agency argued that Crile could not rightly be classified as an artist because her work as a painter and printmaker was "an activity not engaged in for profit;" the IRS also argued that she "could not claim tax deductions in excess of the income she made from her art." Additionally, in a claim that The New York Times saw "alarmed many in the art world," the IRS stated that Crile's claim that she was both an artist and a college professor was "artificial," and that she "made art primarily to keep her job as a teacher." Essentially, attorneys for the IRS were arguing that, at least for tax purposes, Crile should be classified as a teacher, and that any "art-related expenses should have been filed not as business expenses but as unreimbursed employee expenses." Judge Albert G. Lauber was not convinced, however, writing that the artist had "met her burden of proving that in carrying on her activity as an artist, she had an actual and honest objective of making a profit" and thus should be considered a professional artist for purposes of the tax code.

http://www.nytimes.com/2014/10/07/arts/design/tax-court-ruling-is-seen-as-a-victory-for-artists.html?_r=0

November 10, 2014

Week in Review

By Martha Nimmer

Cutting it Close on Constitutionality

The Ninth Circuit Court of Appeals will rehear a case disputing the constitutionality of the 1976 California Resale Royalties Act (CRRA). The suit, brought by artists Chuck Close, Laddie John Dill, and the estate of the sculptor Robert Graham, challenges "the rejection of their class action lawsuit against Sotheby's, Christie's and online auction giant eBay for violating the California law that entitles artists to claim five percent of resale royalties on any work sold for more than $1,000, so long as the seller resides or the transaction happens in California."

The law has received little attention since it went into effect over 40 years ago, but that changed in 2012 when U.S. District Judge Jacqueline Nguyen dismissed Close, Dill and the Graham Estate's claims, saying they ran "afoul" of the Commerce Clause of the U.S. Constitution. In that vein, Judge Nguyen wrote, "the following example illustrates the CRRA's problematic reach. Assume a California resident places a painting by a New York artist up for auction at Sotheby's in New York, and at the auction a New York resident purchases the painting for $1,000,000." Accordingly, even though the sale took place in New York and the artist is a New York resident, the mere fact that the seller is a California citizen could end up "spark[ing] a lawsuit over royalties." As a result, the judge determined "that the 'practical effect' of the law was controlling interstate commerce even though it may have some 'effects within the State.'"

Undeterred, the artists appealed the case to the Ninth Circuit, which heard oral arguments last April. In the newest development for the case, it was announced late last month that a fuller panel of appellate judges on the Ninth Circuit would rehear arguments in December. What makes that move unusual, according to The Hollywood Reporter, is that "no opinion from the Ninth Circuit ever came after that April hearing." Instead, it appears that the appellate circuit has chosen to proceed directly to the en banc hearing.

http://www.hollywoodreporter.com/thr-esq/why-chuck-closes-legal-fight-745406

He Belongs to the Ages

The U.S. Supreme Court declined earlier this month to hear a case brought by the estate of Sir Arthur Conan Doyle. The suit alleged that authors who sought to publish stories about the famous detective Sherlock Holmes were required to pay the estate a licensing fee. The Supreme Court's refusal to hear the appeal will leave in place a June decision by Seventh Circuit Court of Appeals Judge Richard Posner; in his opinion, Judge Posner held that most of Doyle's Sherlock Holmes stories are no longer protected by copyright, and are, in fact, in the public domain.

The legal drama over whether Sherlock Holmes was in the public domain began sometime last year, when Doyle's estate "demanded a licensing fee from the publisher Pegasus, which had planned to release an anthology called In the Company of Sherlock Holmes, edited by Laurie R. King and Leslie S. Klinger." After being met with the licensing fee demand, Klinger sued the Doyle estate and later won.

Now that the Supreme Court has refused to take up the case, Doyle's estate is "out of options," at least in the U.S. Although the lower court's decision does preserve copyright on 10 later Sherlock Holmes stories by Doyle, the decision "leaves most of the author's work and characters in the public domain." This development means that viewers of the BBC hit television series Sherlock can also breathe a sigh of relief: according to the Los Angeles Times, "Holmes fans can occupy themselves by writing their own stories while they're waiting for the fourth season of the BBC hit "Sherlock," which likely won't debut for more than a year."

http://touch.latimes.com/#section/-1/article/p2p-81863326/

Dismissing the Dictator

Citing concerns over free speech, Judge William Fahey of Los Angeles Superior Court has dismissed former Panamanian dictator Manuel Noriega's lawsuit against Activision Blizzard, Inc. over his depiction in its video game "Call of Duty: Black Ops II." Judge Fahey granted the defendant's special motion to strike the case under a California statute that "seeks to prevent lawsuits stifling free speech," writes Reuters.

The former Panamanian dictator and ex-federal prisoner initiated the suit in July, accusing the video game developer of portraying him as "the culprit of numerous fictional heinous crimes," such as kidnapping and murder. Noriega claimed that Activision had "infringed his right to his own publicity, and sought unspecified damages." Activision countered, saying the depiction of the former Central American strongman was protected by the First Amendment. Jude Fahey agreed, adding that the plaintiff's right of publicity was "outweighed by the defendants' First Amendment right to free expression, and that there was no evidence of harm to Noriega's reputation."

http://www.reuters.com/article/2014/10/28/usa-videogames-noriega-idUSL1N0SN2NK20141028

Making the Merger Work

Earlier this month, the U.S. Department of Justice (DOJ) announced that Richmond, Virginia-based Media General, Inc. would divest of "several" television stations located across the country as the company seeks to complete its proposed $1.5 billion acquisition of LIN Media. Media General, which currently owns 31 television stations located in 29 metropolitan areas, announced its plan in March to purchase Austin, Texas-based LIN Media. LIN owns, operates or provides programming or sales services to over 50 television stations across 23 metropolitan areas.
Citing concern over advertising competition, the DOJ intervened earlier this year in the proposed merger. Specifically, the DOJ was concerned that the deal would "substantially lessen competition for spot advertising certain markets." Spot advertising, according to Entertainment Law Digest, "consists of those ads that are sold in the local market served by an individual television station;" those ads are typically purchased by advertisers who want to target potential customers in a specific geographic area.

In a complaint filed earlier this year in the District of Columbia's federal court, the Justice Department voiced concern over whether the merger would "combine stations that are either close substitutes or vigorous competitors in markets with limited alternatives." Representatives for the two media companies were able, however, to reach an agreement with the DOJ: Under the terms of its agreement with the DOJ, Media General will sell stations in Alabama, Georgia, Florida, Rhode Island, Massachusetts and Wisconsin. According to Bill Baer, assistant attorney general for the department's Antitrust Division, this sale "will ensure that these stations remain vigorous competitors in their designated market areas."

http://www.entlawdigest.com/2014/11/03/3462.htm

About Martha Nimmer

This page contains an archive of all entries posted to The Entertainment, Arts and Sports Law Blog in the Martha Nimmer category. They are listed from oldest to newest.

Barry Werbin is the previous category.

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