7.31.2014

Who Will be the Next Great Baseball Player from the Dominican Republic?

If you catch me reading or watching sports, it's probably baseball or boxing.

Now that the chapter of the Yankees' Core 4 closes with Derek Jeter's departure after this year, it's time for a new one to begin.  So I was pleasantly surprised to come across this NY Magazine article by Joe DeLessio with photographs by Pieter Hugo that gives us a preview of the top Dominican beisbol prospects this year. These are talented 16 year-old athletes who grew up mostly in poverty and now have signed million dollar contracts.
[P]rospects turn pro much younger abroad—­especially in the Dominican Republic, which has become the major pipeline of Latin American béisbol talent.American players aren’t eligible to be drafted until they are 18 and out of high school, and young stars often wait until they’ve ­completed their junior year of college. In the Dominican Republic, top prospects sign with major-league clubs their first summer as 16-year-olds, at which point many of them have already been playing ball full time for years. 
We photographed and interviewed a group of this year’s top Dominican prospects just before signing day—an annual event in early July that marks the end of something for them as much as it does the beginning. Dominican preteens are scouted in local Little Leagues by men called buscones,who take the best of them under their wing when they’re around 12 years old. A buscón serves as both a trainer and a sort of street agent, not only offering baseball instruction but often taking care of food and housing—in exchange for 30 to 40 percent of the player’s eventual signing bonus. (Sometimes the trainer who discovered the player will sell him to a more prominent buscón when he’s around 14 years old.) It’s a system that can lead to exploitation, but it also offers an opportunity for players with big-league potential who otherwise have little access to facilities or instruction to develop their skills. The buscones operate their own training academies, which range from small ones with a few players to more-elaborate complexes, funded by U.S. backers, that can accommodate dozens. Some players also hire an American agent to negotiate their contracts in the months leading up to signing day. Major-league scouts observe players in those private academies as well as in showcase games run by organizations that get a small cut of players’ signing bonuses in exchange for making them more visible.
Below the break are the ones signed by my favorite team, The New York Yankees.  If you want to see who was signed by the rest... especially the hated BoSox, you'll have to read the article.

7.30.2014

Did You Know "Navajo" is Not Only a Tribe but also a Trademark?

In addressing the issue of cultural appropriation/misappropriation, Nicole Rowlands shares her thoughts triggered by a recent Fordham Law School's Fashion Institute panel.

the event advertisement asked the following: “When it comes to culture, the world’s closets are filled with borrowed and reimagined finery – but when does inspiration shade into cultural appropriation?  And at what point should counsel comment?”
Although it seems like designers and artists mean no harm when they are inspired by or take motifs, elements and even actual cultural/historical artifacts from indigenous people, they are harming them to an extent.

Take for example, the as-yet unresolved case of Urban Outfitters and the Navajo panties and Navajo liquor flask:

In 2011, Sasha Houston Brown, a Native American woman from Minneapolis published a harshpublic letter to the CEO of Urban Outfitters, expressing anguish over Urban Outfitters’ “mass marketed collection of distasteful and racially demeaning apparel and décor.” Ms. Brown felt that the company was legitimizing racism under the guise of cultural “appreciation.”
There is nothing honorable in selling items like the Navajo Print Fabric Wrapped Flask and Navajo Hipster Panty, said Ms. Brown. “Navajo” isn’t an aesthetic movement like punk rock or gothic revival – it is a legal entity, a tribe of people, and an actual nation.
It’s also a trademark.
Shortly after the hype surrounding Ms. Brown’s letter, the Attorney General of the Navajo Nation wrote to Urban Outfitters asking the corporation to cease and desist using the Navajo trademarks to sell clothing and accessories.
When Urban Outfitters refused to take down its Navajo-inspired products, the Navajo Nation sued alleging trademark violations, unfair competition, and violations of the Federal Indian Arts and Crafts Act (which prohibits falsely claiming, or even implying, that a product is Native American-made when it is not).
The Navajo Nation claimed the “Navajo panty” and a “Navajo liquor flask” were “derogatory and scandalous,” And that the product line was a profound cultural offense, especially considering the sale and consumption of alcohol is banned on the reservation. Urban Outfitters responded that, in fact, there was no likelihood of consumer confusion between an authorized Navajo clothing item and the panty or liquor flask and further, that the contested product wasn’t a “handicraft” thus, prohibiting the items under the Federal Indian Arts and Crafts Act.
And when it comes to indigenous people and US Copyright law, who are the authors?
Indigenous cultures’ art has no one author to claim “authorship.” Additionally, the contemporary works are usually based on designs created centuries ago and U.S. law limit the terms of authorship protected by copyright (usually life of author plus 70 years). 
 Even how can "fair use" be harmful to indigenous people's interests?  A case between two photographers is illustrative: 
In 2009, one professional photographer, Patrick Cariou, sued another photographer, Richard Prince, for copyright infringement when he became aware that Mr. Prince had used approximately 35 of Mr. Cariou’s photographs in his art series “Canal Zone.” Mr. Prince took the photographs from Mr. Cariou’s publication, “Yes, Rasta,” a series of landscapes and portraits of Rastafarians in Jamaica, for publication in a book, but transformed them by enlarging, cropping, tinting, painting over, and collaging the photos with those of other artists. 
...The federal district court granted Mr. Cariou’s motion for summary judgment and found that Mr. Prince had acted in bad faith by failing to seek a license from the photographer. This took the licensing element of copyright protection a step further than ever before and put an affirmative duty on the defendant to seek a license first, or else risk being found to have acted in bad faith by a court. But on appeal, the Second Circuit reversed the district court’s decision and emphasized the broadness of the fair use doctrine. Mr. Prince appropriated, but he altered the photographs enough so that they became his original work. 
The district court ruling in Cariou would have moved the law closer to compulsory licensing and would have potentially made a great impact in the protection of indigenous communities and their works. However, there was no such luck for indigenous communities.
I am unsure as to why the Second Circuit reversed the lower court's decision (the link to that decision is a dead link, so I couldn't read it) but one big strike against Mr. Prince is the highly commercial nature of his work which undercuts his fair use defense.  In any event, the question remains, how should we strike the balance between protecting the work of indigenous communities and protecting the work of artists?  And how will this be resolved in the future, via policy or court decisions?

Don't Let the Founder Make the Nonprofit Flounder: Practice Good Governance

Based on the controversy over anti-trafficking nonprofit founder, Somaly Mam, Jeannie Rose Barksdale, has a great article on what nonprofits should do to avoid similar problems by relying on and practicing good governance.
Newsweek’s recent cover story discrediting a bright light in the anti-human trafficking movement is a prime example of how good governance can help an organization avoid the vortex of damage control.  As a long-time anti-trafficking advocate and volunteer, I was saddened to read about the alleged deceit and mismanagement of Somaly Mam Foundation by its founder Somaly Mam.  Mam has long been celebrated for shedding light on the issue of human trafficking and protecting those at risk. According to Newsweek, much of what she told to donors, fans, and the media was largely fabricated.
Mam’s ability to raise large amounts of money and create awareness of the terrible tragedy of human trafficking is legendary. But according to Newsweek Mam wielded an excess of power. The article recounts how former employees describe Mam as “unstoppable.” Though they were aware of Mam’s questionable practices, they were too intimated to come forward. 
The consequence of the exposé of Somaly Man is that other anti-trafficking organizations have been left scrambling to remind the public that trafficking is still a major global issue that must be addressed. The incident also raises significant organizational issues, including those of fundraising ethics and the ills created by “founder’s syndrome”. In reflecting on this, we are reminded of the necessity for establishing a solid foundation of good governance. Who held Mam accountable? Where was the vehicle for employees to vocalize their concerns?
So what are her recommendations for good board governance?
Some governance policies are required under state law. New York non-profits are required to incorporate governance and accountability measures under the New York Non-Profit Revitalization Act (“NPRA”), which went into effect recently (see Perlman & Perlman Revitalization-Act-Client-Alert). 
Yet the law isn’t a substitute for good practice. What policies does your organization have in place? Layers of accountability are necessary to protect your organization from any individual’s bad decisions.  Below is a reminder of basic good governance practices that will ensure your organization’s health and help you avoid the untenable position of having to implement damage control. 
  • Checks and Balances – Unlimited or excess power should not be vested in an individual The board of directors must contain independent directors who will hold the management accountable. Spending authority should be limited. These practices should be embedded in the organizational by-laws.
  • Conflicts of Interest – Adopting and abiding by a conflict of interest policy helps your organization make decisions in its best interest – not in the interest of staff, directors, or other individuals.
  • Whistleblower Policy – If an employee in your organization suspects a leader of wrong-doing, they need a means to share their suspicions. A whistleblower policy provides a mechanism for people to speak up without fear of retaliation.

7.29.2014

"Conjuring" Producer Sues WB and New Line Cinema

While some wait for the release of the sequel to the Conjuring, I'm waiting for the release of a decision on 'Conjuring' producer Tony DeRosa-Grund's lawsuit against Warner Bros. and New Line Cinema.  Aside from my interests in the case from a legal perspective, I find it indicative of what can happen when business discussions in initial negotiations don't end up in the final deal.
The litigation covers more than just a settling of rights, but also compensation, credits and participation on the sequels. According to DeRosa-Grund, he was told during the initial negotiations that he'd be a producer on all films based on the case files and that he'd get profit participation on the sequels too. That latter point appears to have not made its way into the rights agreements. New Line allegedly insisted it never included profit participation in deals, but Harvey Weinstein's dispute over the Hobbit films is coming up as evidence to the contrary. (THR, ESQ)
I also wonder what effect negotiating during a bankruptcy proceeding could have had on DeRosa-Grund's decision-making leverage and process.
The story of how The Conjuring spooked up a great amount of legal arm-twisting starts with real-life paranormal investigators Ed and Lorraine Warren, who in the mid-20th century worked on some 8,000 cases and kept detailed files about their work on such investigations as those involving a demonic Raggedy Ann doll that terrorized a family and a single mother whose children kept witnessing strange things at home. 
Imagining that these case files would be ripe for big-screen adaptation, DeRosa-Grund acquired rights from the Warrens, whom he had known for nearly a quarter-century. According to new court filings, DeRosa-Grund almost set up a film project with Summit Entertainment in 2009 before it backed out over concerns about "chain of title," legal speak for whether all rights were properly cleared. At the time, DeRosa-Grund was in the midst of Chapter 7 bankruptcy, and the U.S. Trustee was suggesting that perhaps the bankruptcy estate owned the files, along with the Warren life rights and a proposed story treatment based on one of the case files. 
New Line then stepped in to the bankruptcy process to save the day. Or did it? According to Evergreen's lawsuit, the film studio wasn't exactly the savior that provided relief when DeRosa-Grund's assets were on the chopping block. New Line's willingness to get a deal done was "chameleonic," says the plaintiff, but after getting the trustee and bankruptcy court to approve, New Line began to "show its true colors" by failing to turn a deal memo into a long-form agreement. Faced with the proverbial "take it or leave it," DeRosa-Grund felt he had to execute the deal memo. 
The decision paved the way for the top-grossing Conjuring film, but then set off an intense fight over the scope of rights. Lately, the litigation has morphed into cries that New Line has made numerous misrepresentations along the way. (THR, ESQ)
In the end, the loser is either "a company who took advantage of a situation to extract maximum benefit for itself at minimal cost" or "a person who failed to read the fine print and look out for his long-term interests."  

That's the scary story, I hope to know the end of by October 3rd.

Matters of Importance on Where and Who You Sell Art To in The Art Fair

Piazza d'Italia by Giorgio de Chirico
Plentiful advice on selling art through art fairs and the various legal, financial, and ethical issues that can arise as a result from Nicholas O'Donnell writing at the Art Law Report:
I took part in a panel discussion at the Sotheby’s Institute on May 27, 2014 entitled “Art Fairs: An Irresistible Force In The Art World?”  
The audio file of the evening can now be heard here, along with a transcription of the first half of the presentation.  Moderated by Judith Prowda, the panel was comprised of Edward Winkleman, Elizabeth Dee, Richard Lehun, and me.  We reviewed the financial, practical, ethical, and legal effects that the expansion of art fairs has had on the trade.  
Reactions and reviews came in quickly as we noted previously.  Co-panelist Ed Winkleman posted his take on the evening at his blog, which you can read here.  He gave a terrific data-packed overview of art fairs, and his reflections follow up on some of the questions that were asked after the prepared remarks.  I’ve since found this write up by John Haber as well
Eileen Kinsella wrote a cogent summary of the evening at ArtNet.  As she begins her article, “The art world can’t live with art fairs. The art world can’t live without art fairs.  That was the resounding takeaway. . . .”  The piece summarizes nicely the high points of the talk. 
Kristina Nazarevskaia also penned an article about the event at galleryIntell entitled “The rise of the art fair: who wins and who loses.”  She focused on the disruptive aspects financially and developmentally, and the ethical and legal issues that those things raise.
My comments are reprinted below:
*                  *                  *
Art Fairs and the LawThe interaction between a client and a dealer, whether at a brick and mortar gallery, or an art fair, is the commencement of a legal relationship.  It might be a successful relationship, it might be strained, but that’s what it is.  So what I want to talk about tonight are some of the ways that the formation of that relationship, and its rights and duties, might be affected by the fact that it is happening at an art fair.  My focus is going to be on US and NY law given my practice, but hopefully we can issue spot on things that can arise around the world.  
It seems obvious, but the starting point is to remember where you are.  In the absence of an agreement, in most instances for the sale of art the place of the transaction will supply the law that governs that transaction.  So New York law will govern Frieze, Dutch law will govern TEFAF, and Hong Long law will govern Art Basel Hong Kong.   
The nature of an art fair also creates practical differences in the formation of that relationship.  Consider: every art sale involves some sort of diligence, whether cursory on the spot or in depth, a negotiation of the essential terms of the transaction, and an actual exchange.  A contract, after all, is an exchange of promises: I will do this if you do that.  But every contract has explicit terms and implied terms, and the practical aspects of an art fair, and the law of the place where it is, will all go into what constitutes the resulting agreement.   
Diligence and preparation.  What does the buyer have time to investigate, and what are the consequences of proceeding with the transaction?This is as much a matter of risk management as it is a legal question.  But whether you are a dealer at a show or a buyer, your starting point has to be the rules of the show.  Is there anything in the materials in which a buyer agrees to a set of terms incorporated by reference?  That is, when you attend or pay for something, do you end up signing a form that says something like “buyers agree to abide by the rules of the X show”?  If so, those rules will be a part of your deal.  
If you are a dealer, the same will hold true most likely at the application stage.  Even without a single buyer, the dealer is probably setting foot more firmly in the location of the fair.  Art Basel, for example has a choice of law provision in its application form in favor of the location of the particular show (Canton Basel, Florida, Hong Kong).  
What is it?  What representations and warranties are inherent to a sale, and how does the dynamic of an art fair complicate how you can rely on what you have been told? If you’re in a Uniform Commercial Code (UCC) jurisdiction, like New York, the mere exchange of information will give rise to enforceable obligations related to that exchange if there is ultimately an agreement. 
UCC 2-313 provides that
(1) Express warranties by the sellerare created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goodsand becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goodsor a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty. 
We can well imagine how this will play at an art fair rather than a gallery.  Hundreds of people are passing a booth each hour.  Routinized conversations ensue.  The sellers give a standard litany of descriptions-they think, if they can remember.  Buyers have spoken to dozens of people that day.  Was it this dealer, or another, that talked about the condition of the paining or the location of origin.  Which conversation becomes “part of the bargain”?  So where advance homework is wise in a storefront, some system for noting what you heard from whom—or what you told whom—may matter if and when a deal is struck.  
To illustrate the point, imagine a buyer who attends a fair of rare cars on Long Island.  He talks to several sellers at the fair, but he is taken with one conversation in particular.  This Chrysler LeBaron, he is told, belonged to a certain specific individual.  Because of that, he buys the car in a handshake deal.  The handshake representation about who owned it?  “John Voigt.”  You may well laugh at the idea of being as senseless as George Costanza, but the larger point is that once you shake hands, exchange promises, make a deposit, or otherwise commit yourself, what happened in that one conversation among many could turn out to matter a great deal.  
Consider a less ridiculous scenario.  In a conversation at a booth, the buyer observes a signature at the lower portion of an etching that looks to her, a sophisticated buyer, to be Picasso’s.  She asks the dealer, what is that?  “That’s signed Picasso” he says.  Or did he say “that’s signed BY Picasso?”  or did he say “that SAYS Picasso”?  Do either remember accurately.  The buyer purchases it.  In a way that is so much less likely with an auction catalogue, there is now an issue with WHAT 2-313 warranty was made.  This scenario happened to a client of mine in a more old fashioned context, and the particulars were more easily sorted out, but the dynamic of the show makes it one to look out for.
Here too geography will matter of course, and whether a civil law or other jurisdiction implies warranties into a contract like this. Many don’t.  
Before we leave this topic, remember that an expression of VALUE is considered an opinion, and not a statement of fact within 2-313 or other law.  But a claim of comparable sales is an expression of fact.  
Did you make an agreement?Let’s take a step back and talk a little about the basics of contract formation in this context.  With apologies to the lawyers in the room who have done their best to forget about first year of law school, it is worth repeating that an agreement does not consist of what you think it meant, it consists ordinarily of the objective manifestation of the parties’ respective intent to be bound.  
The New York Statute of Frauds, Gen. Obligations Law § 5-701, like most, requires that any agreement must be in writing to be enforceable if “By its terms is not to be performed within one year from the making thereof  or  the  performance of which is not to be completed before the end of a lifetime.”  
The key thing to remember here is not whether it IS performed within a year, but whether it can be. 
So contrast: a visitor from a civil law jurisdiction sees a contemporary work at Frieze.  She has a structured payment coming to her own business, so she needs some time to make the full payment, but she is willing to commit.  So she says I’ll give you 50% now, 30% in six months, and the rest a year from today, after which I’ll pick it up.  The dealer, happy to obtain 80% within six months, agrees.  She’s never heard of the Statute of Frauds.  But six months later he’s heard nothing, and he sues.  Strictly applying the statute of frauds, he should win, right?  Strictly, no.  a year from today is not within a year.  Cases have gone to court over this issue, and the party seeking to enforce the agreement has not always prevailed.  Good news for them recently, although addressing a different aspect of the Statute of Frauds concerning auctions (this is the Jenack case), the New York Court of Appeals reserved some choice words for relying on the SOL disingenuously: 
It bears repeating in such a case as this that: The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made. 
But here, seller in particular, beware.  
I started by teasing out some of the geographical implications on the choice of law that might apply to an art fair transaction.  But, as I like to phrase the foundation of all legal questions: so what?  Who cares where the fair is? 
With regard to the most important aspect of any sale, title to the object, you will care a great deal.  Consider again a pair of scenarios, different only in geography. 
First, in New York at an art fair views a striking Max Beckmannn domestic scene on consignment from an identified and reputable seller.  He views its condition, and notes its presence in the catalogue raisonné with approval.  The provenance provided is orderly and has no gaps or suspicious activity.  He buys the painting for $25 million, which is noted in the local and international press. 
Two weeks later, he receives a letter from a lawyer.  The painting, the lawyer argues, was sold at the auction at Galerie Fischer in Lucerne in 1939 after being looted from a Jewish family in Frankfurt.  The provenance he was given was fictional; the catalogue raisonne confused this work with another version.  The lawyer’s client wants the painting back.  
Oh, and the reputable and known seller has gone bankrupt and fled to Zimbabwe with our buyer’s money.   
Now imagine the same scenario, but at Art Cologne.  What happens, and why does it matter? 
Assuming that the buyer really did not know of the painting’s history, the location will not only be important, it will probably be dispositive.  In New York and elsewhere in the United States, a thief cannot pass good title.  So purely as a matter of title, the buyer will lose the painting.  He may have some defenses like laches if the true owners knew of the painting’s intermediate location and failed to act, but that is necessarily an uphill battle, and his burden to prove AFTER a trial. 
In Cologne, or Maastricht?  More than likely, as a good faith subsequent purchaser, he will keep it.  Even within the western art market, an increasingly seamless one, different places make different judgments about who should bear the risk of loss in that situation.
World War II looting isn’t all that matters by location.  Assume fairs in the same two locations, New York and Cologne, but for a Giorgio di Chirico.  The same facts apply, but assume that in 1955, the true owner had located the painting in a Geneva gallery, sued for its restitution—and lost to a “good faith purchaser.”  Now, even in New York, the seller is not passing a thief’s title, he is passing adjudicated good title.  So the buyer may get the painting after all. 
Lastly, assume the di Chirico hypothetical:  but fair number two is in Rome, where just last week, a new government passed a law declaring all Italian metaphysical art to be the national patrimony of Italy. 
The buyer in New York may now be better off.  Unless it was imported to the US AFTER the patrimony designation (in which case there could be customs problems, and a visit from the Asset Forfeiture Unit of their friendly local U.S. Attorney office), it’s here and it’s probably not going back.  But within the EU?  That jurisdiction that favored good faith title may be out of luck.  
So, to foster the discussion, remember: where you are will affect whether there is a relationship, and how it plays out in the short term, and if people ever disagree.

Judge Rules Against Donald Sterling, Paves Way for Record $2B Sale of Clippers

Brian Melley (AP) reports on Judge Levanas ruling against Donald Sterling that paves the way for a record-setting sale of the Clippers:
LOS ANGELES (AP) — Embattled Los Angeles Clippers owner Donald Sterling lost his attempt to block the $2 billion sale of the team to former Microsoft CEO Steve Ballmer.
In allowing the deal to go forward, Superior Court Judge Michael Levanas sided Monday with Sterling's estranged wife, Shelly Sterling, who negotiated the record sale after the NBA banned the 80-year-old billionaire for making offensive remarks about blacks. 
Shelly Sterling sought the probate judge's approval to ink the deal after taking over the family trust that owns the team because doctors found Donald Sterling had signs of Alzheimer's disease and couldn't manage his affairs. 
The judge said Shelly Sterling had negotiated a good deal and the removal of her husband as a co-trustee was in good faith and not part of a secret plan to seize the team. 
...An unusual provision of the ruling bars Donald Sterling from seeking a court-ordered delay of the sale as he appeals. His lawyers plan to seek permission from an appellate court to file an appeal.  The nonjury trial held over several weeks focused mainly on whether Shelly Sterling properly removed her husband as a trustee and whether her actions carried any weight after he revoked the trust. 
...Donald Sterling claimed his wife had deceived him about the medical exams. His lawyers argued Monday that Shelly Sterling's lawyers were in cahoots with the doctors who examined him and that his wife conspired with NBA Commissioner Adam Silver to remove him from the trust. 
"There's no evidence, I'll repeat that as loudly as you allow," attorney Maxwell Blecher said during closing argument, his voice rising. "There's no evidence that Mr. Sterling was incapable of carrying out his duties as a co-trustee." 
...Levanas said there was no credible evidence that Sterling was defrauded. 
Blecher said he was deeply disappointed in the judge's legal analysis. 
The ruling Monday was tentative until the judge files it in writing. 
...At the conclusion of his lengthy ruling, Levanas envisioned what might happen if Donald Sterling remained the owner. 
Citing testimony of Clippers interim CEO Richard Parsons, he said the team would go into a "death spiral." Sponsors would withdraw, players would quit and coach Doc Rivers would leave. 
"The Clippers would suffer a massive loss of value if the team survived at all," Levanas said. 
The judge was adamant that a team owned by Donald Sterling would not draw a price anywhere near the "stunning" $2 billion pledged by Ballmer. Sterling, a lawyer who made a fortune as a landlord, bought the team in 1981 for $12 million. 
"Ballmer paid an amazing price that can't be explained by the market," he said. 
...On the witness stand, Shelly Sterling was more credible than her husband, who was more evasive, gave inconsistent answers and presented wild fluctuations of damage estimates, Levanas said. 
He noted that the couple presented genuine professions of love for each other despite Donald Sterling's outburst calling his wife a "pig" after she testified. 
...Bruce Givner, a Los Angeles tax attorney who handles celebrity cases, said he thinks Sterling's lawsuits will fail and an appeals court won't care about the probate case. 
"I think the sale is going to go through," Givner said. "I suspect the NBA is ready to move very quickly. They want to get rid of Sterling like a canker sore. Nobody wants him around except the people that are charging legal fees to continue this charade."

7.28.2014

Musicans: Treat 'Em Right... And Build a Career

Making it in the music business today is extremely hard and the only to make it is by having fans. Here's some good advice to make and maintain fans from the people at Music Clout:
Recognize and Reward LoyaltyLike we talked about in the last post, superfans give more to your project but expect more in return. These fans want to be recognized as an invaluable member of your community. 
Give your most passionate supporters the attention they deserve. Their loyalty has helped you create a sustainable career so hail their level of support as the benchmark. Recognizing the value of the individual fan reinforces the bond with your top-fans and encourages “fringe-fans” to increase their support and join the party. 
Recognition can be as simple as interacting with fans in your on-going dialogue and as sophisticated as:
  • Featuring the most engaged fans from your audience in your blog or social media
  • Empowering your top-fans to be ambassadors in your band’s marketing campaign
  • Rewarding superfans with exclusive access, content and experiences via loyalty apps
Freebies don’t hurt – after all superfans are prepared to spend up to $422 every year on their favorite musicians, so show those fans your love with some free schwag. 
Encourage Co-Creation Incentives are the tangible manifestation of a fan’s support. Superfans take pride in supporting your band and the rewards you offer are tokens that represent their love for your band. 
Some musicians are going a step further and including their top fans in the creative process. Artists like the Kaiser Chiefs gave their fans the opportunity to create and sell their own album using the band’s recorded material. 
Other artists, like Umphrey’s McGee have invited fans to take an active role in the development of their band, encouraging them to do everything from promoting albums to curating setlists for live shows. 
Focus on building lifelong relationships with existing fans.Superfans love your music. This passion is active, enduring and focused. In this content series we have explored how to capture that passion and nurture it into a lifelong relationship, one that sustains your career as a musician.It is better to have earned the support of 300 undeniably passionate fans who will buy everything you put out than 10,000 fringe fans who have a fleeting interest in you.
If all else fails, remember Chubb Rock's advice:

7.23.2014

B-Ball Coach Agent Brian Stanchak Interview Highlights

Sports Agent Blog interviewed Brian Stanchak, president of BDS Search, a basketball coach management agency.  During the interview, Brian is asked about an agent's purpose, the role of social media, mentorship, and managing a one-person company. Here are some highlights:

If you could describe a sports agent’s role , what would that be?A sport agent’s role is to serve their client’s best interests and assist clients in their off-the-court/field responsibilities so they can be as successful as possible in their given sport and career.  A sport agent’s role is to bring value to each client that they represent.  A sport agent must possess the necessary skills to build relationships, market clients, and be knowledgable about the unique intricacies of coaching contracts.  A sport agent’s role is to be a good listener and be an available sounding board and counsel to clients.  A sport agent’s role is to build and establish a mutual trust and loyalty with their clients to to truly be successful. 
If there was one thing about the sports industry that you could change, what would that be and why?I would increase the endorsement and sponsorship opportunities provided to women’s basketball coaches. I think there are tremendous women’s basketball coaches who would be excellent spokesmen and spokeswomen for products and services, but don’t get provided the opportunities. 
Since you’re a one-person operation with your agency, what is a ‘day in the life of Brian Stanchak’ look like?As a one-person operation, my day is full of various responsibilities, and each day is never the same. Currently representing only basketball coaches, from July through February/March is very different than the “movement months” of March through June. Regardless of the time of year, I spend a lot of time on the phone, texting and emailing clients, other coaches and administrators.  I am constantly either communicating with my clients or networking.  From July through February/March, I’ll spend a lot of time traveling to visit clients, watching their games on tv and online and marketing them via social media and our website.  While I still maintain those responsibilities from March through June, I am also gathering information on and promoting clients for prospective employment opportunities, preparing clients for job interviews and advising on and negotiating contracts. 
In 100 words or less, what type of advice would you give an aspiring sports business professional looking to work with an agency?I would tell them to begin networking with current agents in the focus area that they desire to work.  Reach out to those agents to ask questions and inquire about internship positions.  As an intern, you’ll truly learn if this is the profession for you and be provided with an opportunity to prove that you have the work ethic and motivation to succeed in the industry.  Once hired, be willing to do even the smallest tasks, within reason, to show that you possess a drive, desire to learn and willingness to do whatever it takes to help your agency succeed.


For the full interview.

Wattpad is Officially Down With Creative Commons Now


For many writers, obscurity is a greater threat than piracy which is probably why Wattpad is officially down with Creative Commons 4.0.  Wattpad just announced that its community of 30 million writers and readers are now under licensing their work on Creative Commons.  This will allow "fans to remix work, write fanfiction, translate Wattpad stories into other languages, and make anything from story trailers to story covers for their favorite writers.

“The biggest question facing new writers today isn’t how to protect their work; it’s how to find a readership for it, said Cory Doctorow, science fiction author, activist, journalist and blogger. “It makes complete sense that so many Wattpad writers are gravitating toward Creative Commons licenses: by giving others permission to share your writing, you can open doors to new audiences and new creative opportunities.” Cory Doctorow has shared five stories on Wattpad under CC licenses, including New York Times best-selling novels Homeland and Little Brother. Today, to coincide with the roll out of CC 4.0, he will share his first novel Down and Out in the Magic Kingdom on Wattpad. 
“All knowledge and culture owes something to what came before it – it’s this public commons of ideas that forms the foundation of our society,” said Creative Commons CEO Ryan Merkley. “I’m excited that the Wattpad community will have Creative Commons’ simple, free tools to share their work, to re-use the works of others, and to contribute to the global creative community.”

While it's true that most writers are more concerned with growing their audience, that doesn't mean you should disregard protecting your work.  Creative Commons uses the law of copyrights to do what it does.  You, as a writer, are still the copyright holder except that through Creative Commons, you are offering the public different degrees of licenses to allow others to reuse your work.  Depending on your ultimate goals with your work, the Creative Commons has a variety of licenses that you should look into so that while you grow your audience you are also considering the future of your work.

Attribution
CC BYThis license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.
View License Deed | View Legal Code 
Attribution-ShareAlike
CC BY-SAThis license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to “copyleft” free and open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia, and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.
View License Deed | View Legal Code 
Attribution-NoDerivs
CC BY-NDThis license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
View License Deed | View Legal Code 
Attribution-NonCommercial
CC BY-NCThis license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
View License Deed | View Legal Code 
Attribution-NonCommercial-ShareAlike
CC BY-NC-SAThis license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.
View License Deed | View Legal Code 
Attribution-NonCommercial-NoDerivs
CC BY-NC-NDThis license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.
View License Deed | View Legal Code 
Creative Commons also provides tools that work in the “all rights granted” space of the public domain. Our CC0 tool allows licensors to waive all rights and place a work in the public domain, and our Public Domain Mark allows any web user to “mark” a work as being in the public domain.
If you want more hands-on help, use the Creative Commons License Chooser.

Wanna Be a Small Non-profit? Perfect, Here's The New 3-Page Form 1023-EZ Application

Recently, the IRS announced a new Form 1023-EZ application to reduce processing delays and allow for small charities to apply for 501(c)(3) tax-exempt status with more ease.

The reasons for the changes stem from the IRS’s attempt to speed up the approval process for smaller groups in response from public criticism.  Speeding up the process will also allow them to reduce application backlogs and focus more resources in reviewing applications from larger, more complex organizations.  In addition they have taken into account the concerns of small nonprofits by reducing the filing threshold from $200,000 in gross receipts to $50,000 in gross receipts. 

The new version is only 3 pages long compared with the standard 26-page Form 1023. As a result, most small organizations, defined as those with gross receipts of $50,000 or less and assets of $250,000 or less, will qualify to use this new shorter form.

Note: 
  • The new EZ form must be filed online. 
  • The instructions include an eligibility checklist that organizations must complete before filing the form.
  • The Form 1023-EZ must be filed using www.pay.gov.
  • A $400 user fee is due at the time the form is submitted. 
  • Further details on the new Form 1023-EZ application process can be found in Revenue Procedure 2014-40.







7.18.2014

The EEOC Looks Out For Pregnant Workers (and Expectant Dads, too)


Although I have always been supportive of family leave and pregnant worker issues, now that I am about to become a dad, the new EEOC guidance on the interplay between pregnancy and the Americans with Disabilities Act resonates even more:

So headsup, business owners, startups and employers:
Earlier this week, the EEOC issued new enforcement guidance on pregnancy discrimination, warning employers of their obligation to provide pregnant employees reasonable accommodations in the workplace and giving employers insight into how the EEOC will enforce pregnancy-related issues under Pregnancy Discrimination Act (PDA) in the future. 
As expected, the guidance confirms that the EEOC will broadly interpret when pregnancy-related conditions will be considered disabilities under the Americans with Disabilities Act (ADA). Also, for the first time, the EEOC takes the position that the PDA requires employers to offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodation to non-pregnant employees who have similar work restrictions. 
The Guidance seems to boil down to this critical provision: 
"By enacting the PDA, Congress sought to make clear that ‘pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.’ The PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work."
Overall, Jeff Nowak makes a comprehensive analysis of the EEOC's guidance regarding pregnant employees (and expectant dads) that is well-worth the read. 

He also offers these insights to employers:
The EEOC’s guidance is groundbreaking, and its impact will affect the manner in which employers provide accommodations to their employees. Clearly, the impact of the Guidance is felt most by employers in its requirement that they now are required to provide reasonable accommodations (including light duty and leaves of absence) for all pregnant employees, regardless of whether they are defined as “disabled” under the the ADA. 
Due to the EEOC’s continued scrutiny and enforcement focus on pregnancy discrimination, and the agency’s broad interpretation of employers’ obligations under federal law, employers are well-advised to review their accommodation policies and practices as soon as possible to minimize exposure to pregnancy discrimination claims. ...This is serious stuff, and employers should heed the EEOC’s Guidance, unless the Supreme Court tells us otherwise — a proclamation which may come by June 2015.  
In addition, Eric Meyer offers the following 5 tips to Employers
As you all should know, the Pregnancy Discrimination Act, which is part of Title VII, makes it unlawful to discriminate in the workplace based on pregnancy, childbirth, or related medical conditions. The new EEOC Guidance, however, highlights a few issues of which employers should take particular note. Here are five of 'em:
  1. Not only is it unlawful to discriminate against an employee who is currently pregnant, butdiscrimination based on past pregnancy and a woman's potential to become pregnant also violates the law.
  2. You can't require a pregnant employee who is able to do her job to take leave -- even out of genuine care for the employee or the fetus. More on that here and here.
  3. Lactation is a pregnancy-related medical condition. Duh!
  4. Employers who provide health insurance benefits must also provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions.
  5. Employers must offer light duty to pregnant employees if a light duty position is available.
The guidance also includes, well, guidance, on the interplay between pregnancy and the Americans with Disabilities Act and offers a list of employer best practices. 

Labels

11th Circuit (1) 1st Amendment (2) 2015 (2) 2016 (20) 2017 (2) 2nd Circuit (8) 4th Circuit (1) 501(c)(3) (2) 7th Circuit (1) 9th Circuit (2) A-rod (1) accident (1) accounting (11) ACLU (1) acting (5) actor (2) advertising (3) advice (59) Aereo (1) age discrimination (1) agent (6) album release (3) alert (1) AlleyWatch (1) An Actor Inquires (3) analysis (6) Ancillary territories (3) angel pad (1) angels (1) anti-discrimination (1) AP (1) Apple (1) application (1) apps (2) architecture (1) art (5) art fair (1) art law (4) artist (3) asset (2) AT&T (1) athlete (1) athletes (4) Athletic Commission (1) audience metrics (1) avatar (1) bankruptcy (1) baseball (1) basketball (4) Beastie Boys (1) blog (17) Bob Marley (1) bonds (1) bone-head move (6) box office (2) boxing (1) branding (6) breach of fiduciary duty (1) brief bits (1) broadcast radio (2) broadcast TV (6) broker (1) budget (1) business (66) Business Insider (2) business manager (2) C&C Music Factory (1) CA (5) cable television (3) calendar (1) California (2) California law (5) campaign (2) cannabis (1) cases (10) casting (1) celebrities (6) Celebrity Endorsements (1) Center for Art Law (1) CFP (1) charts (1) China (1) China Law Blog (1) Chobani (1) Chubb Rock (1) class action (4) Coca Cola (1) Comcast (1) comedy (8) comic books (2) Commerce (1) Common Law Claims (1) company (14) compliance (1) contract (33) contracts (3) copyright (51) corporations (9) Creative Commons (2) crowdfunding (5) crowdsourcing (1) Cuba (2) cybersecurity (1) damages (1) Darth Vader (1) David Bowie (1) deals (11) Debmar model (1) defamation (4) demonstrations (1) development (6) DGA (2) digital (3) director (1) directors (10) DirecTV (1) disaster (2) discrimination (1) Disney (1) distribution (15) diversity (1) Division I (1) djimlaw.com (3) DMCA (3) DNA (1) DOJ (1) DOL (1) Dominican Republic (1) donor (1) Dov Seidman (1) DPRA (1) drone (1) Drumpf (1) DTSA (1) Duke Ellington (1) DVD (4) EA (1) economic espionage (1) economics (3) EEOC (2) EFF (2) EMI (1) Empire (1) employees (13) employer (13) entertainment industry (10) entrepreneur (9) ESL (1) esports (2) EST (1) ethics (3) events (1) Exclusive Use (1) executives (5) exhibitors (3) exploitation window (2) FAA (1) facebook (4) Fair Labor Standards Act (2) fair use (6) family & friends (1) fantasy sports (2) fashion (5) FBI (1) FCC (3) feature (4) FIFA (1) film (30) filmmaker (9) filmmaking (22) finance (6) finder (1) First Amendment (1) first-look deal (1) FL (2) FLSA (1) football (2) Forbes (2) forms (2) formula (3) foundation (1) FOX (2) FOX News (1) franchise (1) Free Speech (3) free trade agreements (1) funding (7) fundraising (3) gain (1) gambling (1) genetic larceny (1) Ghostface Killah (1) Google (3) Gordon Rees (1) government (28) grants (3) graphic novels (1) gross (3) guides (1) H-1B visa (1) HBR (1) hip hop (3) HOLA (3) Hollywood (9) Huffington Post (1) Hullabaloo (1) IATSE (1) IMDB (1) immigration (1) Inc magazine (1) incentives (5) Indiegogo (1) Indiewire (2) indigenous people (1) infographic (1) Information is Beautiful (3) infringement (20) Instagram (1) insurance (1) intellectual property (39) Intellirights (1) intent to use (1) International (7) internet (2) investment (10) investors (1) IP Watchdog (1) IPO (1) IPRHFF (1) Iron Man (1) IRS (10) ItsArtLaw blog (1) iTunes (1) jdsupra (5) Jersey Shore (1) John Cones (1) journalism (1) jumpstart foundry (1) Justice Dept. (2) Kickstarter (3) Kristin Thompson (1) LA Times (1) labor (10) Lanham Act (3) Las Vegas (1) latino (3) launch (1) law (8) Law 360 (1) Law360 (1) lawsuit (21) lawyer (3) lawyers (16) legal (2) legislation (8) liability (6) libel (2) licensing (6) Likelihood of Confusion (1) litigation (42) LLC (3) madrid protocol (1) maker (1) management (2) manager (3) marketing (8) Marvel (1) media (8) mediation (1) merchandising (2) merger & acquisition (1) MLB (2) MMA (1) mobile devices (4) money (5) moral rights (1) MPAA (1) Mr. Jaar (1) MTV (1) Murdoch (1) music (25) music publishers (1) musician (6) musicians (12) NAB (1) NALIP-NY (2) Name and Likeness (1) NBA (1) NC (1) NCAA (3) negotiation (10) Netflix (3) network (4) New Line Cinema (1) New Media (2) New York (6) New York law (9) news (6) newspaper (1) NFL (3) Nikki Finke (1) NJ (1) NJ Motion Picture and TV Commission (1) NLRA (1) NLRB (1) no budget (3) non-compete (2) Nonprofit Risk Management Center (1) nonprofits (15) NY (8) NY Court of Appeals (1) NY Mag (1) NY Press (1) NY Production Alliance (1) NY Times (4) NY Yankees (1) NYC Focus (1) NYC Mayor's Office (1) NYMag (3) O visa (1) Olympics (1) online rights (2) open-source (1) OSHA (1) P visa (1) partnership (2) patent (7) patents (3) PEDs (1) photography (5) PIPA (1) piracy (2) pitching (4) plan (1) policy (3) politics (3) Power Play (2) pre-1972 (5) privacy (5) producer (2) producers (20) producing (1) production company (12) production journal (1) production resources (2) production tips (1) profit (11) progress (1) projects (8) Promaxbda (1) promotion (5) PTAB (1) public domain (3) publicity (9) publishing (4) radio (2) Rakim (1) record labels (3) recording artist (1) registration (2) regulation (2) rent (1) Reporters Committee for Freedom of the Press (1) residuals (1) revenues (5) Richard Prince (1) Richard Pryor (1) royalties (1) ruling (3) safety (1) SAG-AFTRA (3) sales (4) satellite (2) SBA (1) SBA loan (2) scandal (2) science (1) SCOTUS (5) Script Reader Pro (1) SDNY (3) SEC (6) securitisation (1) seed capital (2) seed money (1) settlement (1) Sirius (6) small business (15) soccer (2) social media (5) software (3) Sony (3) SOPA (1) SoundCloud (1) Spiderman (1) sports (24) sports agent (3) Sports Agent Blog (1) sports law (2) Star Wars (1) startup (13) Starz (1) statistics (1) stock (1) strategy (28) streaming (10) student-athlete (1) studios (7) Sub Pop (1) successul film (5) summary judgment (2) Supreme Court (11) Supreme Court of NY (1) susan sarandon (1) Tax credit (6) tax foundation (1) tax inversion (1) taxes (10) technology (16) ted hope (2) television (11) The Art Law Report (1) The Atlantic (1) The Baffler (1) The Business of Sports (1) The Guardian (1) The Upshot (1) Theater (1) theatre (3) theatrical exhibition (4) theatrical window (2) THR (9) Time Warner (2) TPM (1) TPP (1) trade secret (11) trademark (31) transmedia (1) Triple Crown (1) Trump (1) TTAB (2) TV (3) Twitter (1) UFC (1) unions (3) US International Trade Commission (1) USPTO (7) Variety (2) VC (2) vendor (2) venture capital (1) video (1) video game (2) Vimeo (1) visualizations (1) VOD (2) Vox (1) Walmart (1) Warner Bros. (2) Washington Post (1) Wattpad (1) web series (2) webcast (1) webinar (1) website (5) WGA (1) What Every Producer Should Know (8) wikipedia (1) WME (1) work for hire (1) workshop (1) write-offs (1) writer (2) writers (4) WSJ (2) YFS magazine (1) youtube (3)