Nintendo Has “No Choice” But to Stop Fans Playing Their Games? #FreeMelee and Fair Use in Online Gaming
We are all trying to make do and figure out ways to socialize in this age of pandemic. From Fortnite to Among Us, everyone from your teen cousin to members of Congress appears to be online gaming. Yet, one company that should be loving this attention has gone the other way and asked its users to stop: Nintendo. Nintendo recently sent a cease-and-desist demand to the organizers of an online tournament centered around one of their properties, Super Smash Bros. Melee (“SSBM”).
“Only real music’s gonna last. All that other bullsh** is here today and gone tomorrow…”
Earlier this year, the Second Circuit Court of Appeals affirmed a major decision holding recording artist Aubrey “Drake” Graham’s sampling of Jimmy Smith as fair use.
When it comes to sampling in music, artists and producers must go through a structural process of obtaining licenses to incorporate other works into their own. There are normally two licenses that are required for a sample clearance: the license for the original musical composition (i.e. sheet music) and the license for the original sound recording.
The NBA and the player’s union agreed to an amended collective bargaining agreement (“CBA”) early last week, following the conclusion of the 2019-2020 season in October. Both parties were forced to barter over and arrive at an amended agreement well before the expiration of the current agreement because the 2019-2020 season had been unexpectedly prolonged due to Covid-19. While the 2019 NBA season started on October 16th and ended on June 13th, this year’s season ended on October 20th, nearly a week after the 2020 season should have started. Instead of simply moving next season back nearly a full calendar year to align with the usual schedule, the 2020-2021 season will begin December 22nd, a little before this post goes live on the JLA Beat. In an effort to return to a more typical timeline next season (i.e. the 2021-2022 season) and reduce travel, both parties agreed to reduce the number of games in the season from 82 to 72. Yet although this agreement seems to favor the players by reducing the number of games played (and retaining the same salary cap and luxury tax as last year), this amended CBA creates stark imbalances in terms of team preparation and gives the worst teams from last year the best chance to succeed.
Songwriters across the country likely breathed a sigh of relief in response to Led Zeppelin’s recent victory in the Supreme Court. The Court’s decision to deny certiorari and curtail an infringement suit—in a case holding that the band’s legendary 1971 song “Stairway to Heaven” did not infringe Spirit’s song “Taurus”—comes after a tidal wave of copyright infringement litigation that has led some songwriters to seek insurance for fear of facing crippling liability. But while courts may have begun putting the brakes on excessive music infringement claims, copyright law itself may continue standing in the way of musical progress.
Ever since Colin Kaepernick famously sat during the national anthem in 2016, athlete activism has been taken to new heights. From the National Basketball Association (“NBA”) and Women’s National Basketball Association (“WNBA”) putting the Black Lives Matter movement at the forefront of their respective summer seasons, to the National Football League (“NFL”) launching their voting initiative, “NFL Votes”, to Naomi Osaka donning seven masks with the names of Black people whose lives have been tragically taken away, in 2020 athletes and leagues more than ever are using their platform to advocate for a better, more equitable society for all. Therefore, at a time when it seemed like the sports world was embracing athlete activism, it came as an unwelcome surprise when the International Olympic Committee (“IOC”) issued guidelines earlier this year that prohibit certain acts of protests and demonstrations at the Olympic Games.
Graffiti art plays a meaningful part in the art world. The graffiti art movement has relatively recently become widely accepted for its vibrant, stylistic, and creative nature. Nonetheless, graffiti artists continue to stand on uncertain grounds in the legal world, and tensions between graffiti and street art and property owners have become commonplace. These legal tensions have been somewhat eased by the Supreme Court’s recent rejection to hear the 5Pointz case.
Earlier this year, 23 prints created by the iconic street artist Banksy, sold at Sotheby’s for a collective amount of 2 million GBP. Professional artists are increasingly wandering out of their studios and turning to brick walls, blank billboards, and even the backs of delivery trucks as canvases for their work. As the line between fine art and street art becomes increasingly blurred, an important question arises: should the legal treatment of graffiti be reevaluated?
The billion-dollar fast fashion industry, which churns out on-trend items at low price points, takes ample creative influence from established designers in order to keep up with ever-changing tastes. Indeed, it has “democratized luxury trends for everyday shoppers (who now have the option to dress like their favorite influencers.)” As a result, the industry is often criticized on intellectual property grounds.
The stakes of the upcoming 2020 election are undoubtedly high, and have many on edge for a variety of reasons. A foreseeable result has been that politicians, celebrities, influencers, and other public figures have amplified their voices on a variety of platforms to encourage people, and especially young people, to vote. The precarious combination of COVID lockdowns, social media, and the rise of the promoting of OnlyFans led one YouTube influencer, Tana Mongeau, to offer nudes to those OnlyFans subscribers who were able to prove that they voted for Joe Biden. In her now deleted tweet, Mongeau tweeted “if u send me proof u voted for Biden I’ll send you a nude for free #bootyforbiden,”and linked her OnlyFans account to her 2.4 million Twitter followers.
In June 2020, four of publishing’s “Big Five” filed suit against the Internet Archive (“IA”) for copyright infringement. The suit was indirectly in response to IA’s National Emergency Library (“NEL”), a digital library that Brewster Kahle, IA’s eccentric billionaire founder, had established several months earlier to help students, educators, and researchers access digital versions of the print materials made inaccessible by the COVID-19 pandemic. The NEL was an expansion of IA’s Open Library, which had been loaning out digital scans of books for years. The NEL, however, did away with the Open Library’s waitlists in order to make any book available to any reader whenever they wanted. Kahle promised the library would be open until the crisis was over or until June 30, 2020, whichever came first.
When Jamal Knox was 19, he was sentenced to 2 to 6 years in prison for witness intimidation and making terroristic threats. The only source of these threats? His rap lyrics, which included lines such as “let’s kill these cops ‘cause they don’t do us no good,” were not meant to be read literally and were written as part of his stage persona. This case serves as an example of the myriad ways in which legal treatment of rap music has infringed on First Amendment rights of artists.
With the leaves turning, the days shortening, and park days remaining the go-to for COVID-conscious socializing, there has been no better time for my green corduroys. They are a deep moss green — venturing into hunter or even artichoke depending on the lighting — and really the only item of clothing I want to wear when I check the morning forecast. Green, I am happy to announce, is the color of the season, and it would seem that I am not the only one who has come to this conclusion. The latest spate of digital and analogue runway shows has incorporated green to a varying degree but two major fashion houses have aligned with my personal declarations in the most exciting and evocative part of the fashion world: corporate finance.
James Charles is no stranger to online criticism. The 21-year-old media sensation first rose to fame as a YouTube beauty vlogger, and today, he is a makeup mogul with his own makeup line for Morphe Cosmetics. None of this came without controversy, especially last year when James accused Wet N’ Wild of ripping off his Morphe eyeshadow palette. Recently, the brand Teddy Fresh has raised accusations against James of ripping off the sweatshirt designs of Hila Klein, one half of the husband-wife Youtube duo H3H3. Both James and Hila designed color-blocked sweatshirts and released them this year, leading to the following accusations against James.
Fluffy dough covered in a sweet glaze, it is difficult to dislike even the description of a good doughnut. Surely, the same thing can also be said of Chef Dominique Ansel’s ingenious Cronut®. Although the Cronut is much less ubiquitous than its doughnut relative, the pastry has been wildly popular ever since its debut. From the omnipresent Dunkin Donuts to specialty doughnut shops, New York City has a high concentration of doughnut outlets. However, the NYC location of Ansel’s bakery is the only place that offers the Cronut®.
Tattoos are commonplace among Americans, and especially millennials. According to a 2017 research by the Pew Research Center, 38 percent of 18- to 29-year-old Americans have at least one. While many people get tattoos of simple designs, a significant amount of people, particularly celebrities and athletes, have incredibly complex tattoos that can be considered original works of visual art, protected under copyright law. However, unlike most forms of visual arts, tattoos are placed on human skin. The question then arises – who owns the copyright to that artwork, the tattoo-er or the tattto-ee? And if tattoos can be copyrighted, do tattoo artists also get moral rights to their work? What would be the consequences of granting full copyright protection of tattoos?
The NFL Off-season in the Age of Coronavirus: How “The Shield” Has Dealt with Two COVID-19 Related Legal Issues
When historians look back on April of 2020, the NFL Draft will not likely be top of mind. But, is there a better microcosm of the strange times we live in than the following statistic? On April 23rd, 2020, over 15.6 million people (a 37%+ increase over 2019) watched a glorified version of kids picking teams on the playground. Other than some nervous pacing (from both fans and team officials), there was no active or sporting movement of any kind. Viewers simply watched NFL General Managers and Coaches evaluate and prioritize talent from their couches. During a time in which many Americans are missing sports and its role in entertaining the masses and fostering human connection, the NFL temporarily provided respite and gave fans something to obsess over.
12(B-flat)(6): Pre-trial Assessment of Scene a Faire in Musical Composition Copyright Infringement Cases
Music copyright cases are strange beasts. With slight variations by circuit, the general inquiry is whether an ordinary listener would think the two songs sound similar. This seems simple enough: play two songs for a jury of laypeople and ask them if they think they sound similar. However, since pop music typically deserves a thin copyright and therefore contains many unprotectable elements, these trials can easily turn into battles over the credibility of dueling experts rather than, as the Second Circuit’s test articulates, whether the “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.”
On March 11, 2020, the Utah Jazz were scheduled to play the Oklahoma City Thunder in what was supposed to be a routine regular season NBA game. But with literal seconds before the opening tip-off, the Thunder’s director of medical services sprinted onto the court in dramatic fashion to inform the referees of a bit of news that would send the sports world into purgatory: Utah Jazz center Rudy Gobert tested positive for COVID-19.
COVID-19 has certainly done a lot to change the world that we live in. But how has it affected copyright law? In light of the global pandemic, an organization called the Internet Archive has made 1.4 million books free to download off of their website through a service they call the National Emergency Archive. Despite the name, anyone in the world with Internet may access it. This resource will be open until at least June 20, 2020, or whenever the national emergency in the United States is declared over. Patrons have the ability to check out a book for a 14 day period, but they may continue to check out the book as many times as they like. Under normal circumstances, the Internet Archive only loans out a limited number of books at a time, and people are put on a waitlist to use books that are already checked out, much like a normal library. However, people may now access any of these books for as long as they like until the crisis is over.
At the end of last month, Major League Baseball and the Major League Players Association (MLBPA) reached an agreement to avoid any potential litigation around the suspension of the season due to the COVID-19 pandemic. This agreement helped to avoid a major conflict between the league and the players union in the midst of a public health crisis, but it also could signify a positive shift towards a more pragmatic perspective by both sides in advance of negotiations for a new baseball collective bargaining agreement (CBA) next year. The current CBA is set to expire on December 1, 2021, and while they were expected to be contentious, the current situation may allow baseball to pivot away from its ongoing problems.
Can Museums Prevent their Visitors From Taking Photos and Posting them? – Between Open Policies and Recent Case Law
Guest Author: Fabienne Graf (LL.M. candidate at Duke University School of Law)
Recently, while reminiscing of past in-person strolls through art exhibitions and museum experiences, many of us may scroll through snaps or stumble upon posts online. Against this backdrop, the question whether or not museums can legally prevent their visitors from taking photos and posting them on the Internet remains as topical as ever. This question cannot be answered with a bright-line rule. Albeit a global phenomena, the evaluation of whether or not to uphold photography bans is set against differing cultural and legal norms.
MoMA reopened in fall 2019 with an onslaught of new exhibits and programming. Visitors leapt at the opportunity to see more art in new places, crowding many of the new galleries and admiring the accompanying curatorial choices. However, one exhibit was consistently left unvisited. Over the handful of visits I paid to the museum since its reopening, I was always guaranteed solace in the subterranean “Private Lives, Public Spaces” exhibit.
Yet another season of the Bachelor has come to a close, and this one really may have been the most dramatic season yet. As a quick recap (spoiler alert), Madi, one of the bachelor’s final two girls, broke up with Peter, the Bachelor, on their final date in Australia. Peter proposed to the other finalist, Hannah Ann. Peter and Hannah Ann were engaged for a whole month before Peter ended their engagement in front of dozens of cameras due to his unresolved feelings for Madi. Peter and Madi maybe got back together on After the Final Rose. Peter’s mom, Barb, made her negative opinions about Madi made known very publicly on live national TV. Then two days later, Peter and Madi officially broke up. All of this within four hours of beautifully crafted reality television. Not the happiest ending for our Bachelor Peter, who will go down as one of the most indecisive bachelors in Bachelor History.
Last summer, a California jury found that Katy Perry’s 2013 hit “Dark Horse” infringed “Joyful Noise,” a 2008 song by rapper Flame, despite the defendant’s claim to never have heard “Joyful Noise” before and the relative simplicity of the disputed element of the song. The suit was part of a current wave of claims against pop stars by lesser-known artists, such as rapper DOT’s suit against Ariana Grande, claiming her song “Seven Rings” copies the chorus of his song “You Need It I Got It.” These suits have caused widespread fear in the music industry, even forcing some well-intended songwriters to purchase insurance or even not release songs they worry are too similar to others that they discover after the fact.
Online visual artists tired of having their artwork reproduced and distributed on online T-shirt websites without their authorization have resorted to a new tactic to prevent infringement of their work: gaming the algorithm to induce these sites to commit copyright infringement.
Copyright law was designed to protect artists and their creations; one was able to utilize the law in order to ensure that their valuable intellectual property was not stolen or used without attribution. These days, popular artists have begun to see copyright infringement as a weapon waiting to be used against them. From the 1976 case against George Harrison to the 2013 suit against Robin Thicke and Pharrell Williams for Blurred Lines, artists have found themselves increasingly on the defense against lawsuits for infringement. For some in the industry, whether these songs are even similar enough to constitute infringement remains an open question, but the cases continue to be decided by juries of average listeners befuddled by copyright tests for infringement.
Even those who weren’t regular viewers of the 1990s sitcom The Fresh Prince of Bel Air would be likely to easily recognize the exuberant dance of one of its main characters, Carlton Banks – and probably few could see the familiar swinging of the arms and swaying of the hips without Tom Jones’s “It’s Not Unusual” invading the mind. Yet last year, the Copyright Office deemed “The Carlton” not worthy of copyright protection
Cultured Kimchi: Protections for Foodstuffs through UNESCO’s Representative List of Intangible Cultural Heritage
It’s a good time to be a kimchi-eater. Over the last decade, kimchi has been touted as a Korean superfood and generous bestower of longevity. In 2013, the spicy and deliciously pungent fermented cabbage also attained international recognition when South Korea’s tradition of kimchi-making—gimjang (김장)—made UNESCO’s Representative List of Intangible Cultural Heritage. In doing so, kimchi was elevated from stinky peasant food to a cultural asset deserving of celebration and protection by the international community—the same honors and protections that were given to the French gastronomic meal when it made the list three years prior. What honors and protections you ask? For one, List recognition means that the element in question is deemed a vital cultural asset of a community, and worth preserving and celebrating on a national, if not international, scale.
For those of us who may not know or care to understand, TikTok is a social media app that functions somewhere along the spectrum between Instagram stories and Vine. It is a video-sharing platform comprised of dance trends, challenge videos, short form comedy, “life hacks” and DIY instructional videos. TikTok also trades on shared audio. Users record videos of themselves and sometimes others lip syncing to popular sound clips, which are fair use for any user under TikTok’s Terms of Service. Users are even encouraged to use audio in this manner – at the bottom of every video, there is a link to the original source of the audio in the clip (even if the source is the immediate video). While this sharing of common video elements makes for a fun and collaborative social media experience, it also opens the door for widespread propagation of intellectual property infringement in a way that’s almost novel in the social media space.
Intellectual property is entertaining.
The evidence? Television—where references to IP are not only included as plot points (e.g., a patent dispute in The Good Wife allows the show to include Christian mediation, which then presents an opportunity for Alicia to connect with her daughter), but are also included to address IP law directly. We actually see this pretty frequently in animated shows for adults, which, now that it has been mentioned, you will definitely start noticing. I present some examples below, not only to show that IP is entertaining, but also because, in general, the representation of IP on television is significant: (1) It shows us how these creators feel about the relative strength of IP rights, and what they believe the law currently is; and (2) viewers who don’t otherwise encounter IP law will absorb any “facts” that are regularly presented, whether those facts are correct or are common misconceptions.
Envisioning a New Cultural Landscape: Slow and Not-So-Steady Progress in the Bronx and Upper Manhattan
In early February, reports emerged that developers partnering with New York City’s major league soccer team, New York City Football Club ("NYCFC"), had reached a non-binding agreement with the city and the New York Yankees, which are part owners of NYCFC, to build a new home stadium for the club in the South Bronx. Devised with significant input from the community, the proposed $1 billion-dollar project, anchored by the stadium, would also entail affordable housing (one of the developers, Maddd Equities, has built and owns about 3,000 affordable housing units in the Bronx), a hotel and retail stores, and a school. A permanent home for NYCFC would be a relief to the club and its supporters. Since its inception as a joint venture between the Yankees and City Football Group, a holding company led by a member of the royal family of Abu Dhabi, NYCFC has played its home games at Yankee Stadium, but scheduling issues have frequently displaced games to other nearby locations. On February 26th, as Yankee Stadium underwent its winter preparations, NYCFC defeated a Costa Rican side in a “home” contest played in New Jersey, at the stadium of the club’s rival. Despite it being a major tournament game, a large number of fans protested the alternative venue by boycotting. If approval and construction move forward without delay, a new home stadium could see its first games in 2024.
What about copyright protection for people’s nudes photos? In other words, would one be able to copyright their own bodies? The easiest answer is probably no. One can reach this result by viewing the subject matters protected under copyright such as “literary works,” “motion pictures,” and “sound records.” This relates back to the legislative intent of the statute rooted in the Constitution granting Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.” Thus, on its face, it would go against legislative intent to start allowing people to copyright their own bodies. However, there is a growing trend of people, mostly women, who are now registering their breasts and genitals with the U.S. Copyright Office as a way to combat revenge porn.
For nearly 80 years, songwriters and composers have monetized their exclusive right to the public performance of their works through licenses administered by Performance Rights Organizations (“PROs”). In 1941, the Department of Justice entered into consent decrees with ASCAP and BMI, the two largest PROs, after the DOJ brought litigation alleging antitrust violations. In 2019, the Department of Justice (“DOJ”) opened a review of the continued viability of the consent decrees, which have been modified only minorly since their creation. The rise of digital streaming and shifts in the power of various industry players has transformed music performance and consumption and sparked calls from the PROs and music publishers that the consent decrees are no longer necessary to maintain the strength of the market.
There are several (legal) challenges during NYFW. First, many designers skip NYFW due to the evolution of the fashion industry and the targeted customers. Second, the use of the name “NYFW” is subject to litigation when third parties use it without the permission of the owners of the name. Third, the theft of ideas and the sale of counterfeit goods at Canal Street and Midtown during NYFW threaten economic opportunities and financial stability of the fashion industry. Indeed, the live nature of NYFW can pose an increased risk to brands to be quickly copied by cheapest brands and sold at a lower price. This explains why designers tend to display and sell “a ready-to-wear” version of their lines directly to customers during NYFW. It becomes too costly for fashion companies to track infringers between the creation of the item for the runway at NYFW and the sale of the item six months later in a retail store. As a consequence, creativity and sophistication of the fashion items during NYFW decrease significantly.
Director Dave Meyers’ name is attached to some of the most popular and iconic music videos of the past few decades. One of those most recent music videos includes Billie Eilish’s “bad guy,” which grabbed the public’s attention this past summer with its bright color and bizarre energy and was instantly recognizable, popular, and parodied. But soon a reddit thread formed that questioned the artistic integrity of the video’s striking visuals. The allegations in the reddit thread (including that the video is a “clear recreation” of Toilet Paper magazine’s photos) raise interesting questions about the relationship between music video visuals and other art media, particularly in an era where artwork circulates through social media. Particularly questions regarding high-profile and repeat offenders—Dave Meyers has faced these kinds of allegations before.
On February 14, 2020, the FBI’s Art Crime Team announced the repatriation of over 450 cultural and historical artifacts to the Republic of Haiti. The repatriated artifacts represent the continued efforts of the FBI to return some of the 42,000 items that agents discovered on an Indiana farm in 2014. After receiving a tip alleging possession of human remains, the FBI Art Crime Team stormed the home and amateur museum of then 90-year-old Donald Miller. The agents were astounded by what they found.
On Tuesday, the United States Senate Commerce Committee’s Subcommittee on Manufacturing, Trade, and Consumer Protection held a hearing about whether college athletes should be allowed to gain compensation from the use of their names, images, and likenesses (“NIL”). The senators present were broadly receptive to allowing college athletes to gain compensation from NIL rights, but many expressed reservations and uncertainty about how to move forward.
Georgia v. Public.Resource.Org: When are a state government’s official annotations truly “official”?
Two lawyers on opposite sides of the recently-argued Supreme Court copyright case Georgia v. Public.Resource.Org visited Columbia earlier this month to talk about their positions. The discussion gave librarians, faculty, and students a window into the thinking of both sides as they await the Court’s decision in a matter with implications for both advocates of open access to government information and the legal publishing industry.
In television, intellectual property is periodically the subject of an episode or even a show (e.g., the patents in Orphan Black). Sometimes it is referred to off-handedly, but often incorrectly (e.g., “a ‘Tur-turkey-key’—copyright pending”). Westworld is a rare case where intellectual property is a subtle underlying theme and where, whether intentionally or not, each passing reference holds real meaning.
In 2018, the famous street artist Banksy shocked the art world by partially shredding his own painting, Girl with Balloon. The painting was put up for auction at Sotheby’s London and sold for over $1.3 million. However, unbeknownst to Sotheby’s, the buyer, and onlookers, the frame of the painting was rigged with a paper shredder. Seconds after the drop of the gavel to announce the winning bid, the painting began to slide downwards, out of the frame, as part of the painting was sliced into vertical strips. Nevertheless, the buyer confirmed the sale, and the new, partially-destroyed work became known as Love is in the Bin. Since the incident, there has been some speculation about the legal effect of the shredding if the buyer had decided not to purchase the work. However, perhaps an even more interesting (and slightly less hypothetical) legal question arises if a future owner of the work attempts to restore it to its original condition.
Back in the wee days of my undergraduate education, before I sold my soul to the devil and went to law school, I studied music composition. Unfortunately, it is incredibly difficult for an undergraduate composition student to get one of their pieces performed by human musicians. In lieu of a real orchestra, I used an artificial intelligence-based note playback software called NotePerformer to perform my pieces for me. Then I posted some of them on Youtube. Now I wonder if that was legal.
Sell the House, Sell the Car, Sell the Art? Thinking About Art Collections in Divorce after Macklowe
Andrew B Toporoff
It is said that the art market is driven by three D’s: death, debt, and divorce. A recent example of this principle also illustrates the extraordinary discretionary power of judges to award property in divorce. The acrimonious divorce between billionaire developer Harry Macklowe – whose properties include the GM Building and 432 Park Avenue – and his ex-wife of fifty-seven years, Linda, had provided steady tabloid fodder owing to Harry’s courtroom spouse jokes and public displays of love for his new wife (see here), and to Linda’s obstructive actions with respect to her interest in 432 Park (see here) and her alleged rejection of a rumored 1 billion dollar settlement offer. Yet the parties’ spiteful shenanigans were dwarfed in the headlines the moment Justice Laura Drager, who has recently retired but presided over the case, issued an opinion ordering Mrs. and Mr. Macklowe to sell and split the proceeds of an estimated 700 million dollars of art which they had amassed together. The Macklowe collection consisted of 165 pieces of modern and contemporary art by the likes of Picasso, Warhol, Alberto Giacometti, Willem De Kooning, Roy Lichtenstein, Mark Rothko, Cy Twombly, Gerhard Richter, and numerous others. Now, pending the appointment of a “receiver” to handle the sale, the works will be disposed of in the near future either by private sale or auction.
In recent months, sports-related trademark applications on both sides of the Atlantic have produced a flood of sardonic criticism. In England, an effort by the soccer club Liverpool FC to trademark the word “Liverpool” was shot down by the government’s Intellectual Property Office due to the obvious “geographical significance” of the word, following criticism of the application by the city’s mayor and the team’s own fans. In an even more absurd application, The Ohio State University attempted, and failed, to trademark the word “THE” (i.e. the article in its official name). In response, the rival University of Michigan jokingly suggested trademarking “of” and Ohio University pointed out their own position as “THE first university in the state of Ohio.”
In 1717, the infamous pirate Blackbeard was entering Beaufort Inlet, on the coast of North Carolina, in his flagship, Queen Anne’s Revenge, when the ship ran aground and sank. Ironically, 300 years later, the pirate vessel would itself become the subject of piracy. In the 1990s, the wreck was discovered, and Frederick Allen documented the salvage efforts, registering his photos and videos with the U.S. Copyright Office. In 2013, North Carolina’s Department of Natural and Cultural Resources began using this media—without permission—on its website. When Allen complained, the state legislature passed a law that attempted to retroactively place his work in the public record.
Privacy law governing video service providers’ disclosure of viewers’ video consumption has long operated under a regime focused on consent: so long as the consumer checks a box, video service providers may freely disclose information about that consumer’s viewing habits to any entity whatsoever. This consent-based regime is the result of the Video Privacy Protection Act (“VPPA”), a relatively obscure 1988 statute passed after a video rental store clerk leaked Supreme Court nominee Robert Bork’s video rental history to an enterprising reporter. Aghast at this privacy violation, Congress quickly passed the VPPA, which prohibits video providers from disclosing consumers’ video-watching records, subject to certain exceptions.
Picking out a Halloween costume can be difficult. Will other partygoers end up wearing the same thing? Is this pop culture reference too played out? Will anyone even get my homage to my favorite 19th century Scandinavian philosopher? These days, we can add a new question to the list: Is my costume a copyright infringement?
People may often ignore that Atlanta is one of the top three busiest film and television production centers in the United States. Atlanta is even called the “Hollywood of the South or Y’allywood.” Every year, Georgia generates billions of dollars thanks to hundreds of film and television productions. Georgia is home to many prominent studios such as Pinewood Atlanta Studios, Eagle Rock Studios, EUE/Screen Gems and Tyler Perry Studios. Moreover, many major films and television series have been shot in Georgia, namely the “Hunger Games: Catching Fire,” “Anchorman 2: The Legend Continues,” “The Walking Dead,” “Sleepy Hollow” and “Ant-Man.” In addition, more than 30 film festivals are organized in Georgia every year. The most important film festival is the Atlanta Film Festival with more than 1,800 submissions from all over the world and an audience of 25,000 people.
Dario Henri Haux
The broad variety of music that exists today has been shaped by different sound artists, musicians, and composers over the past centuries. These artists have influenced their peers and inspired each other. In the digital age, it is not only musicians but a plethora of "Produsers" who use, share, study and modify different forms of digital content. This results in legal issues, especially in the field of copyright law. Although some musicians have shown a great willingness to promote the advancement of music for free, many take free use for granted. This leads to an increased number of lawsuits in this field and challenges various basic assumptions of copyright law.
Everybody loves a good heist movie, but few know about the real-life art heists that serve as their inspiration. The ten thefts below are examples of some of the most notorious and movie-worthy heists of all time.
New York’s famed Museum of Modern Art (MoMA) officially reopened on Monday, October 22nd after a $450 million renovation that added 47,000 square feet to the heavily trafficked museum. The expansion, masterminded by architecture firms Diller Scofidio + Renfro and Gensler, puts the museum among the seven largest museums in the U.S. Some of our Journal of Law & the Arts (JLA) staffers attended the press preview for a sneak peek at the sprawling new space, fresh rehang, and bold philosophical makeover.
The recording artist Lizzo has had a busy year. She released a best-selling album, launched an international tour, and is hotly tipped as a contender for multiple Grammy nominations later this month, including Best New Artist. On top of all that—and perhaps this is the true sign of a musician on the rise—Lizzo has found herself embroiled in several IP disputes, each of which showcases nuanced questions about musical creativity and credit.
The now infamous feud between Taylor Swift and Scooter Braun thrust the legal concepts of ownership and copyright into popular culture. The conflict boils down to a fight between recording labels and musicians over ownership of the musician’s master recording. In line with the recording industry’s customary practices, Swift contracted away the rights to her masters to the record label, the record label was then sold to Braun, and, as a result, Braun assumed the rights to Swift’s master recordings. Although prior to the sale of the record label Swift had attempt to regain possession of the rights to her masters, she rejected the contractual offers from the recording company that would permit her to buy or earn back the rights and walked away from her rights to the master recordings.
On Tuesday, October 22nd, the House of Representatives voted overwhelmingly in favor of a measure that would effectively create a small claims court within the Copyright Office. This bipartisan legislation has seen broad support from various artists’ guilds and non-profit organizations, including The Authors Guild, the International Authors Forum, The Copyright Alliance, and the Songwriters Guild of America. These groups and many others have long called for similar reform, and would argue that the CASE Act is long overdue. However, The CASE Act has received opposition, perhaps most notably, from the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU), who argue that the average individual Internet user maybe exposed to risk of incurring hefty costs for merely sharing an article or photo.
I always tell my friends that I never want to be famous. If, by a strange stroke of luck, I achieve overnight fame I would either pull a Daft Punk and cover my face with a helmet or a Gorillaz and animate myself. Though some may find this histrionic, there are some real legal implications as to why one should be cautious with their identity. In particular, the issue of paparazzi exploiting celebrities’ right of publicity by using their own images against them. This is becoming increasingly apparent with the rise of social media platforms such as Facebook, Instagram, Tik Tok, etc. where the more celebrities post about their private lives, the more opportunities there are for fans (and foes) to use their images.
On September 30th 2019, next to Lebron James, Diana Taurasi, and other sports stars on James’ multimedia platform, The Uninterrupted, California Governor Gavin Newsom signed into law SB-206: The Fair Pay to Play Act. The bill, the first of its kind to be passed on the state level, allows student athletes to be compensated for the use of their name, image, or likeness rights (NILs) beginning in the year 2023. The bill implements this by prohibiting any organization with authority over intercollegiate athletics (such as the NCAA) from disqualifying a student-athlete or university from competition on the basis of a student-athlete’s NIL compensation. In addition, the bill bars any university from revoking a student-athlete’s scholarship because the student makes money off of their NILs or hires a state-certified agent to represent them in negotiations for those rights. While the bill represents a significant step in the liberalization of economic opportunity for college athletes, it still explicitly bars a school from paying a student-athlete for their services beyond the value of a scholarship, limits the student-athletes’ NIL opportunities to those not in conflict with any of their teams’ contracts (i.e. Adidas vs. Nike sponsored gear), and requires athlete’s agents to be licensed in the state of California.
So, now that this potentially momentous realignment of economic interests and legal rights in collegiate athletics is upon us, what’s next? Below are five responses to the bill’s passage I will be keeping an eye on to help predict how the rest of this saga will continue to unfold.
If you needed any more proof that we are living in the Twilight Zone, try this on for size: Nickelback, the Canadian rock band, has entered the mainstream Trump Impeachment debate against President Donald Trump. The President has engaged in several social media campaigns to mount his defense. One of them employs Nickelback’s 2005 hit “Photograph”. In the original music video, frontman Chad Kroeger holds a framed photograph of himself and his music producer as the song plays in the background. In the version of the video tweeted by President Trump, Kroeger holds a photograph of Joe Biden, Hunter Biden, and a man labeled “Ukrainian gas exec”. However, the video was removed and replaced with a notice that reads, “This media has been disabled in response to a report by the copyright owner.''
Comedian Nathan Fielder is known for pushing buttons and boundaries. His Comedy Central show, Nathan For You, is a cult classic beloved by many for its wacky and often cringeworthy humor. The show’s premise is simple. Fielder, a graduate of “one of Canada’s top business schools with really good grades,” endeavors to help struggling small businesses in LA by offering them one gamechanging idea. These ideas are without exception patently ridiculous, and often legally ambiguous. Fielder’s understanding of the law seems to extend solely to the protections it provides against getting sued, and will at times go to great lengths to indemnify himself and the business he is helping. In the show’s most watched episode - Dumb Starbucks - Fielder uses “parody law” as this shield.
The NFL is the only major American sports league that doesn’t fully guarantee their contracts. As a result, the amount of guaranteed money in a contract is everything. After all, the risk of injury is higher, players’ careers are generally shorter, so every player wants to maximize exactly how much they will be guaranteed to receive. Is there a way to make a distinction in contracts for voiding guarantees when someone commits a horrendous felony versus when someone is suspended for getting into an argument with a coach? It seems obvious that there should be, but organizations are content to keep it as vague as possible to continue to maintain the already incomparably high level of power they have over their athletes’ contracts.
It turns out that most recipes are not eligible for copyright protections under Publications Int'l, Ltd. v. Meredith Corp, nor are most dishes eligible as “food sculptures” under Kim Seng Co. v. J & A Importers, Inc. From Eric Ripert’s signature White Tuna-Japanese Wagyu (of Le Benardin fame) to your mother’s homemade kimchi-jjigae, suffused with salinity and peppery maternal affection, case law has ruled these undeserving of copyright protections. Poor mom—I know—but don’t let all that noise distract you from focusing on the real victims here: teppanyaki and sushi chefs. Their craft of producing food and performances is surely most worthy of creative protection, yet copyright law has no remedy for them. However, lucky for all the IP protection-deprived sushi chefs and teppanyaki grillers of this great nation, I might have discovered a workaround for finding the protections they never knew they needed: choreography copyright.
The Marvel Cinematic Universe. A universe that we have all come to love and enjoy. A universe currently made up of 23 captivating movies, each adding more and more to the storyline of beloved superheroes like Iron Man, Captain America, Black Panther, and more. However, the creation of this wonderfully coherent superhero story has not been without complications. I am sure that many who have seen these movies would agree with me in saying that one of the most impressive facets of these films is their cohesion and how every action or detail in one of the many movies seems to have some kind of consequence or significance in another one of the 23 movies. Each plot line and detail feels so intentional. Yet, one unintentional conflict that the Marvel Cinematic Universe (MCU) did encounter was the rights for Spider-Man.
Of recent note to fans of sports, art, and video games is the saga of controversy regarding the increasingly realistic depictions of players’ tattoos in video games such as the NBA 2K and Madden franchises. Several suits have been filed and settled regarding NFL players in the Madden franchise and UFC fighters depicted in the UFC franchise, to the point where for several years Electronic Arts intentionally avoided inclusion of player tattoos, even as graphical capabilities were increasing. Ironically, the one NFL player whose tattoos were depicted in Madden 15 (released in 2014) was Collin Kaepernick, who obtained permission from his artists. 2K Entertainment, on the other hand, has been going to painstaking lengths to ensure the tattoos they depict on certain players are as realistic as possible since 2013. So, what’s the law and what should it be?
On September 30, 2019, California Governor Gavin Newson officially signed the Fair Pay to Play Act, which prohibits California colleges from preventing student-athletes from profiting from their “name, image or likeness.”This is a landmark moment in collegiate athletics. Current NCAA regulations prohibit student-athletes from receiving such compensation. While the Act does not come into effect until 2023, this historic event occurs in the middle of a national debate—is the NCAA’s current policy against student-athlete compensation unfair to the student-athletes who contribute so much value to their respective schools and the NCAA?
Facebook and YouTube announced last week that they would not take down politicians’ posts that violate their community standards, in anticipation of the upcoming 2020 elections. Facebook stated, and YouTube echoed, it will only remove candidate’s posts when the company determines the content has the potential to incite violence or poses a safety risk outweighing its public interest value. Twitter, however, has announced its intention to flag and de-emphasize tweets from politicians that break its content rules. What should we make of this self-regulation?
As professional photographers and influencers flocked to the Vessel in Hudson yards this March, they realized something strange written on the Vessel’s website: the Vessel would own all their carefully planned-out Instagrams. The Vessel is New York’s latest soon-to-be-landmark, featuring 154 intricately interconnecting flights of stairs, comprised of almost 2,500 individual steps.
Implementing the Music Modernization Act: Special Considerations for Promulgating Rules on Pre-1972 Ethnographic Sound Recordings
The purpose of the blog post is to summarize the recent administrative actions involving the U.S. Copyright’s implementation of the 2018 Music Modernization Act’s provisions for pre-1972 sound recordings. In addition, it is the goal of this post to facilitate understanding of the Act’s implications for Native Americans.
On January 17, 2019, France announced that it was creating a task force for the restitution of Nazi looted artworks in compliance with the EU Parliament Resolution to Identify and Recover Looted Art. The country’s president, Emmanuel Macron, has also commissioned a study aimed to repatriate artworks stolen years ago from France’s former colonies. Neither of these recent developments is particularly surprising; today, the principle of restitution of stolen, illegally traded, imported or exported art has been codified in many international law treaties to the point of becoming a principle of customary international law (Barakat case).
Perhaps too often in sports we focus on best of the best. Viewership skyrockets during playoffs and finals as consumers want to see someone win something tangible. But what about the worst teams? What about the 0-16 Cleveland Browns (2017), the 119-loss Detroit Tigers (2003), or the 2014-2015 Philadelphia 76ers squad that was being compared to the college basketball Kentucky Wildcats? At best, after a certain point in the season where their historically dreadful fate was sealed, these terrible teams simply provided something for fans to laugh at, and public attention shifts towards the teams competing for a championship. To quote Reese Bobby, father of the great Ricky Bobby, “if you ain’t first, you’re last”, and that is certainly the sentiment that best encapsulates American sports culture.
Anyone familiar with Harper Lee’s To Kill a Mockingbird knows the plot is centered on legal drama. Currently, there is a stage adaptation of the novel telling the same legal story of the trial of Tom Robinson. While the play is centered on the trial, the play is also surrounded by its own legal issues. Before production began, the Harper Lee estate sued the screenwriter of the play, Aaron Sorkin. More recently, the producer of the Broadway production has shut down a UK and Ireland tour of To Kill a Mockingbird and threatened suit to small community theater productions.
Brandon A. Zamudio
In some respects, imitation can be the sincerest form of flattery. But among songwriters, imitation can also be the surest route to a lawsuit. One of the most prominent music copyright cases today has ensnared pop star Miley Cyrus.
“You have been warned,” an International Foundation for Art Research (IFAR) article exposing a recently-identified Jackson Pollock forgery concludes. But haven’t we already?
Watching the TV show The Good Wife is actually a pretty effective way to learn some criminal law. Although it definitely presents a simplified version, a compelling drama making concepts manifest as “real world” situations can help people understand on a deeper level than any classroom could.
“Andy Warhol—From A to B And Back Again” opened at The Whitney Museum of American Art on November 12, 2018. The retrospective exhibit includes 350 works that span three floors of the museum. The exhibition, which is considerably larger than the typical feature at The Whitney, has been a rousing success. It’s gotten rave reviews in The New York Times and The New Yorker and has become one of The Whitney’s most well-attended exhibits of all time.
As the rumor mill continues to buzz around Major League Baseball’s off-season deals, one name persistently comes up: Bryce Harper. Even before the Washington Nationals’ 2018 season ended, Harper’s name splashed headlines that speculated on where he would be playing next and for how much. But now it is February and Harper remains unsigned. Whether the absence of a deal so far is due to clubs’ desire to appear uninterested, complications with a potential salary bubble, informal collusion among the clubs, or Harper’s indecision is any outsider’s guess. Harper’s cryptic tweet on February 3, 2019 that simply said “Loading…” restarted the sports media speculation that a deal is imminent. With spring training just around the corner, exasperated baseball fans will likely have a Harper decision soon.
Taken together, the documentary RBG that came out last summer and the biopic On the Basis of Sex which was released this winter further cemented Supreme Court Justice Ruth Bader Ginsburg’s status as a pop culture icon. In an interview on the podcast Amicus with Dahlia Lithwick, Daniel Stiepleman, the screenwriter of the latter and Ginsburg’s nephew, commented on the odd phenomenon of strangers wanting to take pictures with his 85-year-old “bubby.”
The 3D reconstruction of the city of Palmyra, a digitized copy of the Brazil national museum, new media art products, Google Cultural Institute’s collection and Object IDs have something in common: they are all “cultural data.” More than 2 billion people in the world create “digital culture” by simply sharing photos, videos, and links or writing posts, articles, and comments. At the same time, analog culture is taking to the cybersphere, from the Gutenberg Project, the first project to digitize books and archives, to the latest EU online cultural platform, Europeana, which counts 2,165,191 digitized works. The digitization of cultural heritage of the last 20 years has opened the doors to innovative conservation processes allowing the study of the past through the use of computational methods already used for big data.
Indulge me, for a moment, in a thought experiment based on a famous thought experiment:
You may, through your various literary or philosophical exploits (or perhaps, a dalliance with the work of Douglas Adams), have come across something known as the Infinite Monkey Theorem. There are all sorts of mathematical proofs and statistics and theories of probability accompanying the Theorem, but the core of the idea is really quite simple: an infinite number of monkeys randomly hitting keys on typewriters over an infinite amount of time will eventually produce the complete works of William Shakespeare.
The context may differ, but the joke is always the same: there are too many lawyers, and what are they good for, anyway? After all, lawyers are nothing more than ambulance chasers and sharks and defenders of multi-billion-dollar corporations…right?
David A. Fischer
On November 7, the day after the midterm elections, the President held a press conference. In an average administration, that statement could evince a real snoozer. The press conference could yield a few interesting tidbits, but it would more likely be filled with carefully-calibrated, spin-doctored gobbledygook that would attract the considered attention of self-described “politics junkies.” As anyone who has passed the proverbial electronics store window filled with blaring televisions (a ubiquitous experience centered around momentous occasions, if you believe most action films) could tell you, this is not a normal time.
It almost doesn’t bear repeating that Fall 2018 has been an exciting yet stressful time for many of us. We’re law students, so this will partly be related to school, as clubs, journals, clinics, and classes fill out much of our schedules. But there’s also that other Thing. The Thing that may not take up as much time as a hundred pages of casebook reading, but that’s a source of continual, intangible stress about the direction of the country. Sure, much about the 2018 midterms excited me, but the aftershock of the last election and the sheer relentlessness of the last two years had dovetailed together. My fall was hectic enough, and Nate Silver’s projections weren’t enough to soothe moments of politically induced anxiety.
Halloween is here, and it’s one of our favorite holidays at JLA. So, in order to celebrate we thought we’d take you back to where it all began, and tell the fascinating story of…The Legal History of Halloween.
In the current digital age, the way we create and consume content is quickly changing, so much so that the law at times has a hard time keeping up. Recent developments have helped to bring some more balance between the service providers and the artists, but there is still much work to be done. The Music Modernization Act (the “MMA”) is a big step in the right direction, but even within this Act there is room to provide more protection and fair compensation to the artist.
Stravinsky is perhaps classical music’s most celebrated stylistic chameleon. Whether it be revolutionary modernism in The Rite of Spring, sweeping romanticism in The Firebird, or sparkling neo-classicism in The Rake’s Progress, every genre Stravinsky touched, he mastered. It is in his smaller works, however, where Stravinsky demonstrates a subtler, but equally virtuosic, ability to exploit the beauty in the interstices between styles. In no piece is this more on display than in The Soldier’s Tale, a part-play, part-ballet, part-instrumental suite celebrating its centennial this year.
“Capturing the Flag” is an enlightening and inspiring new documentary from Emmy Award-winning filmmaker Anne de Mare that illustrates some of the ways in which voter suppression occurs in America and how the efforts of ordinary citizens can make a difference in ensuring that people are able to vote.
“Bonjour! I’m x66x. All you need to know about me is I hate macaroni casserole with a passion. I’m on a new diet that consists of salad and sausage links,” reads my kitten’s profile. Fortunately for “x66x”, it inherited its likeness from one of its androgynous parents “10”, from whom it inherited its love for sausage links. I refer to my adorable kitten as “it” to avoid being gender normative, because just like its parents, “x66x” is neither male nor female; it is simply a Gen 2 kitten with sleek, beautiful “sphynx” fur.
It occurred to me earlier this semester, when a professor put on “Cabinet Battle #1” to school us on the beginnings of the federal tax system, that Hamilton must have been the best thing ever to happen to legal scholars. As an unabashed fan of the musical, I get it — but alongside the seemingly ageless Schoolhouse Rock, Hamilton’s had to do a lot of heavy lifting as our go-to device for zazzing up American legal history with a song.
At age 85, Justice Ruth Bader Ginsburg is ready for her closeup. It’s probably safe to say that never in history has a sitting member of the Supreme Court become so ingrained in the popular zeitgeist.
[Note: This review contains heavy spoilers for the Netflix original film Candy Jar.]
I’ve often mused that Columbia Law School feels more like high school than college. We have lockers; there’s an annual basketball game in a gym with a pep band; we go to Law Prom each March; there are few enough people that there are no secrets; and, at least during 1L year, the pressure to succeed can wreak havoc on even the most resilient psyche.
On April 5, a New York State Supreme Court judge dismissed an art dealer’s lawsuit against authenticators of the works of the abstract painter Agnes Martin, rejecting claims that the defendants’ authentication decisions intentionally sought to cause the dealer harm.
It’s fair to say that Steven Spielberg’s The Post, starring Meryl Streep as Katharine Graham alongside an all-star cast, was well-received this awards season. The movie received a string of nominations for various awards including the Academy Awards and the Golden Globe Awards. Set in the early 1970s, the film tells the true story of the journalistic struggle between The New York Times and The Washington Post to publish the Pentagon Papers, a lengthy series of classified documents detailing the United States government’s involvement in the Vietnam War.
On April 3, United States District Judge Alvin K. Hellerstein of the Southern District of New York denied summary judgment moved for by the creators of the Broadway musical Anastasia. This is the most recent step toward trial in this copyright dispute over the musical, which is based on the rumored life of Anastasia, daughter of Russian Tsar Nicholas II.
Fireworks, barbecue, red, white, blue, stars, stripes – many things have long been emblematic of the Fourth of July; for basketball fans everywhere, however, Kevin Durant’s decision to join the Golden State Warriors in free agency, penned in a now infamous article for The Players’ Tribune entitled My Next Chapter on July 4, 2016, is perhaps equally characteristic of the date. His decision shocked the conscious of the sports world, sending ripples across every form of media one could think of for months, years even, to come.
In the immensely successful 2018 documentary film, Black Panther, the world received a surprisingly candid and close look at the country of Wakanda. The film follows the newly-crowned king, T’Challa, as he rises to power and struggles to solidify his hold on the throne. Soon after T’Challa’s coronation, a U.S. citizen named Erik Stevens arrives in Wakanda, reveals that he is actually the son of N’Jobu, brother of the late King T’Chaka, and challenges T’Challa to ritual combat for the throne. After Mr. Stevens appeared to win the challenge and was crowned king, T’Challa eventually returns to continue the challenge and seemingly secures the crown upon Mr. Stevens’s death. Because we possess such little knowledge of the laws of Wakanda,it is unclear how much of the final challenge is legal process and how much of it is simply a military coup. Scenes from the movie provide clues as to the overall process of succession, how one could accede the throne, and how such ascension may be threatened.
On my first night home for spring break I was hanging out with my siblings and one of them brought out a game I hadn’t played before called, “What Do You Meme?” Seeking to combine the gameplay of the popular party game “Card’s Against Humanity,” with the Internet sensation of memes, “What Do You Meme?” is a game created by Elliot Tebele, better known by his Instagram handle @FuckJerry. The game is very simple. There are two kinds of cards: picture cards, which include pictures associated with a popular meme, and caption cards, which include actual captions that Tebele has posted on his famous Instagram account. For each round, one of the players serves as the judge and chooses a picture card. The rest of the players then submit whichever of the caption cards in their hands that they think the judge will find the funniest in relation to the picture.
In the aftermath of at least 80 sexual harassment claims against its co-founder and former co-Chairman, the Weinstein Co. (“TWC”) filed for Chapter 11 bankruptcy on March 19 and intends to sell the assets of its production studio.
On March 21, a split panel for the U.S. Court of Appeals for the Ninth Circuit upheld a jury verdict finding that 2013 chart-topper “Blurred Lines” infringed the copyright in Marvin Gaye’s 1977 classic song “Got to Give It Up.” The panel decided the case, Williams v. Gaye, on relatively narrow procedural grounds, but Judge Jacqueline H. Nguyen warned in her dissent that the decision “establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”
Much to the disappointment of many in the sports and wagering industries, the Supreme Court failed to issue a decision regarding New Jersey’s appeal of the Professional and Amateur Sports Protection Act (PASPA) this month. Passed in 1992, PASPA bans sports gambling in the United States by prohibiting state governmental entities from sponsoring, advertising, operating, promoting, licensing or authorizing any betting, gambling, or wagering scheme based on amateur or professional athletic events. However, the Act includes exceptions for Nevada, Delaware, Montana and Oregon, which already had legal sports wagering at the time the Act was passed and are therefore grandfathered in. A ruling in the case at issue, Murphy, et al. v. NCAA, could effectively open the doors to legalized sports gambling in the United States.
Through seven seasons of flirting with and often crossing the line when it comes to office antics, Michael Scott is remembered by many as one of the most complex, flawed and in the end lovable characters in television history. His 152 episodes as Regional Manager of Dunder Mifflin Scranton brought us not only some of the best sitcom television of all time, but also a series of potential liabilities long enough to keep a team of in-house counsel occupied for years.
The Oscar nominated film that has critics buzzing, The Shape of Water, made headlines last month for another reason. On February 21, the estate of Pulitzer Prize-winning playwright Paul Zindel filed a copyright infringement lawsuit in the United States District Court for the Central District against Fox Searchlight, Guillermo del Toro, and others associated with the film. The Zindel estate argues that The Shape of Water, a fantasy/science fiction love story that was nominated for 13 Oscars, is a “rip-off” of a 1969 play by Zindel called Let Me Hear You Whisper.
On February 15, 2018, the Southern District of New York handed down a ruling in Goldman v. Breitbart finding that a webpage publisher who embeds a tweet containing a copyrighted photo is “displaying” the photo within the meaning of the Copyright Act and, in the absence of authorization, is violating the owner’s exclusive display rights. If allowed to stand, this ruling could dramatically increase publishers’ liability for the widespread practice of embedding tweets.
In The Square, winner of 2017’s Palme D’or at Cannes, director Ruben Östlund skewers the contemporary art world in a sprawling satire that assaults the conscience (or lack thereof) of the cultural elite. This elite naturally includes much of the film’s audience, from those who cheered the film on at the Cannes Film Festival where it first made its mark, to US audiences who watch the Swedish-language film as a result of its notoriety and, more recently, its nomination for best foreign film in the 2018 Academy Awards.
On January 16, 2018, members of the Berkshire Museum appealed the Berkshire Superior Court’s dismissal of their request to enjoin the museum’s proposed sale (deaccession) of 40 works of art. The museum’s members liken their position to shareholders of a for-profit corporation and argue that they have standing to sue the museum for an action violates the museum’s governing charter.
On January 10, 2018, Netflix and Amazon joined with several major Hollywood studios, including Columbia Pictures, Disney, Paramount, 20th Century, Universal Pictures, and Warner Bros, to file suit against Dragon Media for allegedly inducing and facilitating copyright infringement through their streaming device, the Dragon Box.
Long before I knew anything about personal jurisdiction or mens rea, I played video games. It has always been, as they say, “my thing.” We did not have much in the trailer I grew up in, but the Sega Genesis that sat on our entertainment center the day I was brought home from the hospital ensured I would at least be exposed to the world of gaming.
Investigators seized looted antiquities from the home of hedge fund manager and philanthropist Michael Steinhardt in early January. Having collected antiquities for three decades, Steinhardt is considered “one of the most prolific American buyers of ancient art.” He is a dedicated supporter of the Metropolitan Museum of Art, which named one of its Greek art galleries the Judy and Michael H. Steinhardt Gallery. In this seizure, at least nine items were taken from his private collection, including a terra-cotta flask from the fourth century B.C. and Proto-Corinthian figures from the seventh century B.C. According to the search warrants, these pieces were purchased within the last 12 years for a total cost of $1.1 million and there is a possible charge of possession of stolen property.
Spotify, a digital music streaming and downloading service, faces another copyright infringement allegation in a series of lawsuits brought by music publishers and songwriters. On December 29th, 2017, Wixen Music Publishing, Inc., an independent music publisher formed in 1978, filed a complaint in California federal court, alleging that Spotify willfully infringed the copyrights of a list of musical compositions. Wixen identified approximately 10,784 musical compositions and seeks a total statutory award of at least $1.6 billion.
In late November this past year, the Supreme Court heard oral argument in Oil States Energy Services v. Greene’s Energy Group, a case whose outcome may affect both the core of the patent system and the administrative state, writ large. The Court granted certiorari to answer the following question: “May the Patent Trial and Appeal Board (the “Board”), an administrative law body, extinguish patent rights in an inter parties review proceeding, or is the patent owner entitled to a jury trial before an Article III court?” The petitioner-patent owner, Oil States, argues that the system of inter parties review by the Board violates Article III of the Constitution by vesting the authority to adjudicate claims involving private rights in a non-Article III court. On the other hand, Greene’s Energy argues that administrative scheme is perfectly constitutional, as the adjudication of patent rights in front the Board is an example of a “paradigmatic public right.”
On November 30, the Walt Disney Company filed a lawsuit against Redbox, alleging that Redbox has been illegally selling digital download codes for Disney, Lucasfilm, and Marvel films. Disney’s complaint lists claims of copyright infringement, breach of contract, tortious interference with contract, false advertising, and unfair competition. It is seeking an injunction to prevent Redbox from selling the codes, profits from sales, and damages of up to $150,000 per title.
The New Zealand High Court rendered a decision in favor of Eminem’s publishing company, Eight Mile Style, LLC, on October 25, 2017, holding that New Zealand’s National Party committed copyright infringement when they used a tune similar to Eminem’s “Lose Yourself” in a campaign advertisement. Finding substantial similarities between the music in the ad and the original song, the High Court awarded $415,000 in damages to Eight Mile Style.
In a bid to jump on the recent popularity of the true crime genre and to revive the now-languishing Law & Order franchise, NBC launched Law & Order True Crime: The Menendez Murders this September. Following in the footsteps of last year’s The People v. O.J. Simpson: American Crime Story, Law & Order True Crime chose an infamous 90’s murder story for its debut season. While its premise and branding scheme are similar to The People v. O.J. Simpson (whose title is also a callback to another successful franchise: creator Ryan Murphy’s other FX series American Horror Story), Law & Order True Crime stumbles more than its contemporary to tell a compelling story and fails to stand out in the already-crowded prestige drama genre.
Is graffiti protected by law? Earlier this November, a Brooklyn jury in the Eastern District of New York answered in the affirmative, and found that real estate developer Jerry Wolkoff violated the Visual Artists Rights Act of 1990 (VARA) when he demolished the well-known New York City “graffiti mecca,” 5Pointz.
On October 12, 2017, the Computer and Communications Industry Association (CCIA) filed a brief as amicus curiae in a trademark and copyright infringement case, American Chemical Society v. Sci-Hub. Sci-Hub is a website that hosts research papers and make them available for free, and ACS holds the copyright to some of the research papers available on Sci-Hub. ACS filed the case on June 23, 2017, seeking damages to the effect of $4.8 million and relief against the Defendant “and all those in active concert or participation with them.” According to Magistrate Anderson, “those in active concert and participation” include search engines, domain name registries and Internet Service Providers (ISPs). ACS also moved for default judgment against Sci-Hub because despite service through various publications and social media, Sci-Hub has chosen not to appear in Court.
Kyle Tuckman, Warren Loegering
Marshall, starring Chadwick Boseman as Thurgood Marshall, is an incredible film about one of the first cases taken on by Thurgood Marshall in 1941. The movie captures the early years of Marshall’s career as one of the first attorneys for the National Association for the Advancement of Colored People (NAACP). Writers Michael and Jacob Koskoff and Director Reginald Hudlin highlight how Thurgood Marshall’s illustrious legal career is even more impressive than one might realize due to the severe racist and anti-Semitic climate that impeded his ability to litigate effectively.
Lawyers from the Department of Justice have moved for summary judgment in a lawsuit brought by critics who were blocked by President Trump on Twitter. In its motion filed October 13th, the DOJ claims that the President’s personal account is not a public forum for First Amendment purposes. The lawsuit, brought last July by the Knight First Amendment Institute at Columbia and seven individual Twitter users, claims that blocking the users from following President Trump’s account constitutes a viewpoint-based restriction on their participation in a public forum.
Fashion retail giant Forever 21 is being accused again of copying, this time by Word, a woman-owned branding agency based in Los Angeles. Word claims that Forever 21 copied their “Creator Shirt,” which features the word “woman” written in nine different languages.
Since Word posted about the similar design on Instagram, Forever 21 has taken down the shirt and released a statement that the product, bought from a third party source, did not have trademark or IP protections at the time of purchase. While no legal action by Word seems to be impending this time, Forever 21 has been facing other legal turmoil involving intellectual property rights.
In an opinion filed on September 15, 2017, Judge Alvin K. Hellerstein of the Southern District of New York held that a comedic play parodying Dr. Seuss’ “How the Grinch Stole Christmas!” qualifies as fair use.
New Bill Might Politicize US Copyright Office: Register Of Copyrights to be a Presidential Appointee
With a search for the next Register of Copyrights currently underway, a bill introduced in Congress on March 23, 2017, would let President Donald Trump make that appointment, rather than Librarian of Congress Carla Hayden.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.) introduced the “Register of Copyrights Selection and Accountability Act of 2017” (H.R. 1695), which would give the President the power to appoint the Register of Copyrights for a 10-year, renewable term, subject to Senate confirmation. The President would also have the power to fire the Register at any time. Currently the Register of Copyrights is appointed by, and serves at the sole discretion of, the Librarian of Congress, who oversees the Copyright Office.
The Ninth Circuit is allowing a lawsuit over trademarks on the jewelry color term “red gold” to continue after rejecting the lower court’s grant of summary judgment.
China has greenlit 38 Trump trademarks that contain English and Chinese variations on the name “Donald Trump.” Although China stated that it followed the law in processing the applications, some experts in the United States and beyond view the pace as “unusually quick,” and raised fears of political leveraging.
On Monday, March 6, attorney John Steele pled guilty to multiple conspiracy charges for his role in a massive scheme in which he and his partners used fraudulent copyright infringement settlements to extort money from pornography viewers.
The presence of “immigration clauses” in artist performance contracts for the Austin, Texas festival South by South West (SXSW) has prompted criticism and protests by the musicians scheduled to perform.
A decision last month by the European Court of Human Rights found that Spanish journalists infringed upon Mexican Singer Paulina Rubio’s privacy rights by publishing information about her private sex life, reversing a nearly decade-old decision by the Spain Supreme Court.
A New York judge has ruled that Anthony Defries, David Bowe’s former manager, is still responsible for paying the $9.5 million judgment against him from 2012.
Ex-ESPN tennis analyst Doug Adler is suing ESPN for wrongful termination after being fired for on-air comments about Venus Williams during the 2017 Australian Open.
The analyst sparked controversy when he described Williams as having a “gorilla” style of play. Adler, however, contends that he used the term “guerilla,” in reference to Williams’ aggressive playstyle.
Appropriation artist Richard Prince is involved in yet another dispute over his New Portrait series. As the JLA Beat previously reported, this series of paintings based on Instagram screenshots with Prince’s own comments has been subject to scrutiny for potential copyright infringement. The most recent controversy, however, involves moral rights.
ZeniMax Media LLC was recently awarded $500 million in its trade secret and copyright infringement case against Facebook Inc. stemming from Facebook’s purchase of Oculus.
ZeniMax had requested $2 billion in damages and $4 billion in additional punitive damages from its claims that Oculus improperly appropriated key pieces of software, before Facebook purchased the virtual reality company in 2014.
Recent large-scale transactions involving Big Data, like AT&T’s $85.4 billion merger deal with Time Warner – approved by Time Warner shareholders February 15 – and Microsoft’s roughly $26 billion acquisition of LinkedIn last year, have prompted worldwide concern amongst antitrust professionals. among some academics and policymakers.
Following years of bitter controversy and a string of lawsuits, a Florida judge recently allowed the reclusive Marvel CEO Isaac ‘Ike’ Perlmutter and his wife to move forward with a claim of conversion of their DNA. By allowing the case to move forward, the judge ostensibly allowed the question of whether DNA is to be considered ‘property’ for purposes of the lawsuit to proceed.
The controversial January 27 executive order from President Donald Trump banning travel from seven Muslim-Majority countries will likely intensify screening the social media accounts of foreign visitors traveling between those countries and the United States.
The Ninth Circuit, in an issue of first impression, last month dismissed a trademark infringement claim on the grounds that “media-shifting,” or ripping, in the karaoke industry does not concern a “relevant” material good protected by the Lanham Act.
A New York judge has denied a motion to dismiss a copyright infringement suit against a new Broadway musical adapted from the 1997 animated film “Anastasia.”
The heirs of playwright Marcelle Maurette sued playwright Terrence McNally in December over the planned musical, alleging that the show is plagiarized from Laurette’s 1952 play titled “Anastasia.” Maurette’s play, the 1997 film, and the Broadway show are each based upon the same historical story of Anastasia Romanov, daughter of Tsar Nicholas II.
On January 11, former pro wrestler Lenwood Hamilton brought suit in a Pennsylvania federal court against video game developer Epic Games, publisher Microsoft Studios, and former wrestler Lester Speight, for allegedly using his voice and likeness in the “Gears of War” video game series. Hamilton’s suit is the most recent in a series of long-running controversies regarding the use of celebrity likenesses in video games.
“Appropriation” artist Richard Prince, known for his controversial Instagram photo series, has been sued again on claims that he unlawfully reproduced a photographer’s copyrighted work.
The Second Circuit has reinstituted a jury verdict for nearly $50 million in the long-running litigation between MP3Tunes, the discontinued online music service, and a group of record companies. In a landmark ruling on October 25, the Circuit reversed the trial court’s determination that MP3Tunes was largely protected by a provision in the Digital Millennium Copyright Act (DMCA).
The artist who created the iconic logo for Los Pollos Hermanos, the fictional chicken restaurant on the popular AMC TV show “Breaking Bad,” is suing Sony Pictures for using the logo to sell merchandise without permission.
On October 27, 2016, the Federal Communications Commission (FCC) passed rules regarding increased data privacy for customers of broadband Internet Service Providers (ISPs). The FCC says that these rules intend to provide ISP consumers with more meaningful choices on how their data is used, while also improving their data security and pushing ISPs to be more transparent about how they use consumers’ data.
A July 2015 survey shows that 19 percent of Internet-using households reported that they had been affected by an online security breach, identity theft, or other malicious activity during the 12 months prior to the survey.
A federal case filed in September pits The Beatles’ Apple Corps LTD against The Beatles’ late promoter over the copyright ownership of concert footage from the band’s famous performance at Shea Stadium in 1965.
McArtist? Dash Snow Estate Defends Artist’s Legacy in Copyright Infringement Suit Against McDonald’s
Ongoing questions about the application of intellectual property protections to graffiti tags are set to be discussed by the Central District of California, after a graffiti artist’s estate sued McDonald’s for copyright infringement.
The lawsuit, filed October 3, 2016, centers around the alleged use of a tag by Dash Snow. Snow, who died in 2009 at the age of twenty-seven, was a controversial New York-based artist known for his graffiti, explicit photography, and adamant anti-commercialism. Among his known works was his tag, “SACE,” which Snow was known to spray-paint in bubble letters around New York City.
A British photographer has filed a copyright infringement suit against Donald Trump’s campaign in the Northern District of Illinois, after a controversial tweet from the son of the presidential candidate utilized his photograph.
David Kittos alleged that Trump’s campaign used his copyrighted photograph of a bowl of Skittles, without authorization, as part of a meme targeting Syrian refugees.
On September 29, following two years of litigation, a Manhattan federal jury handed down a $5.5 million verdict in damages against Costco Wholesale Corp., along with an additional $8.25 million in punitive damages, for infringing jeweler Tiffany & Co.’s registered trademark “Tiffany.”
Supreme Court to Hear Lanham Act Constitutionality Challenge, Granting Cert for THE SLANTS, but Denying for the Redskins
The Supreme Court will decide this term upon the constitutionality of the disparagement provision of the Lanham Trademark Act, after it granted certiorari last week in the case of Lee v. Tam.
The disparagement provision of the Lanham Act, 15 U.S.C.S. §1052(a), prevents the registration of “scandalous, immoral or disparaging” marks, specifically those that “a substantial composite of the referenced group” perceive as disparaging. Under §1052(a), the Patent and Trademark Office rejected musician Simon Shiao Tam’s application for trademark of his band’s name, THE SLANTS, on the ground that the name was racially pejorative. Tam argues that the denial of his trademark is a violation of his first amendment rights. The Court of Appeals for the Federal Circuit agreed, vacating the Trademark Trial and Appeal Board’s decision that “THE SLANTS” was unrecognizable under the Lanham Act. The Federal Circuit found that the law denies legal rights to trademark owners and the denial view is viewpoint-based, dependent on the opinions of the referenced group.
The Navajo Nation settled with Urban Outfitters on September 29, 2016, reaching an agreement resolving issues of trademark and false sponsorship caused by the retailer’s use of the name “Navajo” and “Navaho” in its goods. The case was heard in New Mexico federal court and had been for trial on January 3rd before the parties ultimately reached an agreement during a settlement conference. Financial details of the deal are not currently available, although both parties will issue a joint press release when the specifics have been resolved.
Scottish artist, Peter Doig, was recently accused of tortious interference for claiming that a work attributed to him was not in fact painted by him. Doig’s denial of ever having painted the work is the subject of a suit brought against him by Plaintiffs Robert Fletcher and Bartlow Gallery Ltd. Fletcher, the present owner of the work, claimed that Doig sold him the painting for $100 and that he watched Doig paint the piece when he was in jail. Fletcher filed the suit in 2013 after he attempted to auction off the painting as a work of Doig’s. For Fletcher, this is a serious matter—although Doig’s work usually sells for $10 million a piece, the painting in Fletcher’s hands is worthless without any authentication that it was painted by Doig.
The Associated Press, Vice Media LLC, and Gannett Co., the parent company of USA Today, sued the FBI on Friday to seek records of the FBI’s contract and transaction with a vendor who unlocked an iPhone in last year’s investigation of the San Bernardino shooting.
In their complaint, the plaintiff media organizations argue that the amount of public funds the FBI considered appropriate to allocate for the tool, and the identity and reputation of the vendor, are necessary for proper public oversight of the government. Furthermore, the plaintiffs assert that there is no legal basis for the FBI to withhold the information.
Texas Congressman Pulls Rabbit out of a Hat: Introduces Legislation to Recognize Magic as a National Treasure
On March 14th, Texas congressman Rep. Pete Sessions introduced a House resolution that, if passed, would officially recognize magic as “a rare and valuable art form and national treasure.” The proposed bill cites the impact of magic on both technology and broader arts & culture, and references famous American magicians Harry Houdini and David Copperfield.
On March 7, 2016, the United States Supreme Court declined to hear an appeal of the Ninth’s Circuit’s decision declaring replicas of the Batmobile an infringement of DC Comics’ intellectual property.
On February 12, the U.S. District Court for the District of Oregon enjoined Skechers from selling three styles of shoes until the court deals with Adidas’ trademark and trade dress infringement claims. Although Adidas has not registered their designs for trademark, the court found that their trade dress was sufficiently distinctive to be protectable. Skechers announced their intent to appeal the ruling “in order to ensure that our footwear designers retain the freedom to use common design elements that have long been in the public domain,” but the court was concerned with more than common design elements. Skechers appeared to intentionally be creating as association between their shoes and an iconic Adidas’ design.
As has been long expected, a California federal judge dismissed a copyright infringement suit brought on behalf of a monkey. Naruto the macaque swung into the spotlight in 2014 when he took a photo of himself using a camera that had been set up by British nature photographer David Slater. People for the Ethical Treatment of Animals (PETA) brought suit against Slater for publishing the photo in a book, claiming that Naruto was the rightful author of the photo, and copyright ownership belonged to the macaque.
Shortly after Twentieth Century Fox Television (“Fox”) debuted its hip-hop drama called Empire, a record label named Empire Distribution sent them letters claiming a trademark violation for the use of their name. Initially, Empire Distribution asked for one of two payment options to make the lawsuit go away- $8 million or $5 million compensation plus guest spots on the show. Further, Empire Distribution alleged that its reputation was being ruined by its association with the show, due to the show’s “portrayal of a label run by a homophobic drug dealer prone to murdering his friends.” In March 2015, the real legal battled began when Fox sued Empire Distribution in hopes of safeguarding its intellectual property rights related to Empire.
The question of the legality of Google Books, which has been in dispute for over a decade, may make its first appearance in the Supreme Court after plaintiffs petitioned for cert in December.
The Authors Guild, a national professional and advocacy organization for writers, challenges Google’s book-scanning project. With Google Books, the internet conglomerate scanned millions of books, making “snippets” available for researchers to search through volumes. The Authors Guild argues that Google Books violates fair use.
On October 9, Judge Gardephe in the Southern District of New York ruled on motions for summary judgment in an action stemming from the infamous Knoedler forgery case. From 1994 until 2009, an independent dealer Glafira Rosales provided Knoedler Gallery – through Knoedler’s director of contemporary art Ann Freedman – with 32 forgeries of prominent modern artists. Among the fake works sold to now-disgruntled collectors were alleged “masterworks” by Pollock, Rothko, and Motherwell. The case has involved multiple lawsuits, three of which have settled to date.
Bikram Choudhury, a Hollywood yoga instructor, claimed that another yoga studio, Evolation Yoga, had infringed on his copyright to a sequence of yoga moves. Choudhury’s “hot yoga” classes were conducted in a room heated up to 105 degrees, and he had been charging a licensing fee and making specific requirements to those wishing to use his set of moves. In a decision on October 8th, the Unites States Court of Appeals for the Ninth Circuit affirmed the district court’s decision to grant Evolation’s motion for summary judgment, holding that Evolation had not infringed on Choudhury’s copyright because Choudhury had no valid copyright. Specifically, the Court categorized the yoga moves as an idea promoting health, not an expression. Thus, the Court held, the sequence of yoga moves was not entitled to copyright protection as a compilation or a choreographic work.
Google Books is an online service that allows users to search for specific words in over 20 million books and view short excerpts from those books without the author’s permission. The U.S. Court of Appeals for the Second Circuit held on October 16 that this search function is protected under the doctrine of fair use, affirming the 2013 district court decision in Authors Guild v. Google, Inc.
On November 5, the Obama Administration released the full text of the Trans-Pacific Partnership agreement to the public. This twelve-nation trade agreement has been under negotiation for years, with most of the specific provisions kept from the public eye. The completed deal now faces an uphill battle obtaining Congressional approval in the United States.
FS Drama: The Ongoing Assault on Daily Fantasy Sports by New York State Attorney General Eric Schneiderman
Daily Fantasy Sports (DFS) operators have been increasingly embroiled in challenges to the legality of their services over the past few months. Perhaps none of these challenges is more significant than the one levied by New York state Attorney General Eric Schneiderman, whose office has deemed DFS to be “plainly illegal”–“nothing more than a rebranding of sports betting.”
In a new app, users will be able to rate people, much like one would rate a restaurant, car, spa or hair salon. Peeple co-founder and CEO Julia Cordray described the original vision for the app as a safe place for people to manage their online reputation and easily investigate other people’s characters. The app was critically received upon its announcement in September 2015. Objections were made to the proposed five-star rating system, user inability to delete reviews, potential for bullying, and generally to the assignment of value in such a way to a person.
Register of Copyrights Maria Pallante has publicly sided with Pandora Media Inc. in an opinion stating that the Copyright Royalty Board (CRB) should hear Pandora’s argument regarding its lower royalty rate payments. Pallante stated that she agreed with the company that the CRB could set Pandora’s rates based on the company’s direct licensing deal with Merlin, a digital rights agency representing over 20,000 independent music labels and distributors.
After 80 years, Chief Judge George H. King of the Central District of California has effectively released the lyrics to the song “Happy Birthday to You” into the public domain. The case was brought by Rupa Marya, a leader of an alternative band who recorded their arrangement of “Happy Birthday to You” at an April 2013 live performance in San Francisco, CA. After its performance, the band was subsequently slapped with a $455 mechanical license fee for using the song. Defendant, Warner/Chappell Music, is a multinational music publisher that administers copyrights on behalf of major artists like Beyoncé and Eric Clapton.
On August 25th, 2015, New Jersey’s legislative attempt to permitsports betting failed in the 3rd Circuit. In a 2-1 decision, the 3rd Circuit found that the state law allowing sports betting at casinos and racetracks violated the federal Professional and Amateur Sports Protection Act of 1992 (PAPSA).
Earlier this year, the Federal Communications Commission (FCC) released its ruling for an Open Internet, which reclassified broadband providers as telecommunication services, as opposed to informational services. As a result, the FCC has broad authority to regulate and prevent broadband providers from blocking or degrading Internet traffic in order to prioritize other traffic. Following the ruling, the United States Telecom Association (USTelecom), an industry trade group representing telecommunications and broadband providers, responded by filing a lawsuit in the D.C. Circuit, in which it claims such rules are arbitrary and capricious.
In 2013, Fox News Network (“Fox News”) filed suit against TVEyes, Inc (“TVEyes”). TVEyes is a “media monitoring service” that records the content of more than 1,400 television and radio stations. For $500 a month, TVEyes subscribers have access to a searchable database containing such content. Subscribers can view transcripts, create keyword alerts, view and download high-definition video clips, and “live stream” television content.