1.26.2015

Now Sony, Google & Apple Face Lawsuits Over Pre-1972 Music

Now that lawsuits have been filed against Apple's Beat Electronics, Sony Entertainment, Google, Rdio, Songza, Slacker and Escape Media Group (operator of Grooveshark), along with the ones filed against SiriusXM and Pandora, the future streaming of pre-1972 music is in jeopardy.
The proposed class actions are being led in California federal court by Zenbu Magazines, which says it owns older sound recordings created by The Flying Burrito Brothers, Hot Tuna and New Riders of  the Purple Sage. 
The lawsuits on behalf of these rights-holders and others seek the disgorgement of profits, punitive damages and a restraining order that would prevent the companies offering digital radio services from further exploiting pre-'72 sound recordings without license. In bringing the claims of misappropriation and conversion, Zenbu is following in the path of The Turtles and the RIAA, which upset long-standing assumptions about the distribution and performance of older music in lawsuits filed against SiriusXM and Pandora. 
The legal opening happened because when Congress amended the copyright laws in the 1970s to cover sound recordings, it protected only those authored after Feb. 15, 1972, under federal law. Since then, a wide variety of music users — including TV broadcasters, terrestrial radio and bars and restaurants throughout the nation — have performed pre-'72 sound recordings without much legal trouble. As for digital radio, most operators assumed they were covered by compulsory fees established by the Digital Performance Right in Sound Recordings Act of 1995 and collected through SoundExchange, even if the money wasn't flowing to the owners of pre-'72 music
But in August 2013, The Turtles filed a $100 million class action against SiriusXM alleging that its sound recordings were protected by state laws, and last September, the plaintiff prevailed on summary judgment. The RIAA also scored an early success in its own battle against SiriusXM, leaving the door wide open for more lawsuits against others. 
Thursday's parade of proposed class action lawsuits, filed by attorney Jack Fitzgerald, is more evidence that this issue isn't going away anytime soon and has the potential of wiping out older music from the Internet without new royalty agreements or intervention by Congress or maybe the U.S. Supreme Court. 
If you wish to read the Complaints:

1.22.2015

Business Planning Resources for a Non-Profit Organization

It's common KNOWLEDGE that people starting a for-profit or non-profit business should write a business plan. And it's common PRACTICE that most people don't. The reasons why people don't write them are as varied as the reasons why they should but the excuses of "I don't know where to start" or "what goes in it" or "I don't have the time" or "I just want to start" are simply NOT acceptable. Granted, no one is saying that you should spend months writing a business plan (although, maybe you should) or that the business plan is an inflexible bible to be adhered to no matter what. However, once you realize your business plan is a flexible document to guide you, not command you, then you will see why spending a few hours or days working on it matters. Plus, it will  really test your commitment and help you face the reality and seriousness of what you plan to start. If poring over your business on paper agonizes you then maybe doing it for real will haunt you. Finally see your business plan as an opportunity to discover not only how much money you need and expect to earn but also what other key areas need to be addressed from legal to logistics to marketing.

Some general tips: Try to be as specific as possible about the kind of business you're starting and don't be afraid of researching your industry and surveying your potential market. To help guide you as you build your business plan, I have compiled a list of business planning resources with a main focus on non-profits.

Here's a brief step by step overview on writing a non-profit business plan.

"While most of SCORE’s work has focused on small businesses, over the years it has assisted some startup and emerging non-profit organizations, particularly on business issues. As a result of these experiences, SCORE strongly believes that to be effective, competitive and sustainable, non-profits must not only be caring and creative, they must run their operations as businesses. This guide is about a great American institution and a powerful agent for change: the non-profit charitable organization."

1.20.2015

More Potential Problems for Christie (the Cowboys edition)

I am convinced that Christie is not really trying to be president anymore, he just wants to set himself up to make as much money as possible with the connections he's made in office. 
And be a FOX pundit.
Here's the latest scandal that reeks of Christie involvement...
Political Group Asks Ethics Panel to Investigate NJ Governor's Relationship with Dallas Cowboys Owner Jerry Jones
During both of the Dallas Cowboys' National Football League (NFL) playoff games this season, New Jersey Governor Chris Christie was prominently shown on national television celebrating in the owner's box alongside Cowboys' owner Jerry Jones. Governor Christie's office has acknowledged that the governor's tickets and travel to the games were paid for by Mr. Jones, but insists that the trips did not run afoul of any ethical obligations.
New Jersey ethics rules subject public officials to "a zero tolerance policy for acceptance of gifts ... that are in any way related to [an officeholder's] official duties." Mr. Christie himself has cited these same ethics rules in barring other state officials from getting special access to tickets to events at state-owned arenas.
In this case, Mr. Christie argues that the gifts were legal, under an executive order signed by a previous governor that allows governors to "accept gifts, favors, services, gratuities, meals, lodging or travel expenses from ... personal friends that are paid for with personal funds." Mr. Christie contends that Mr. Jones is his personal friend, and extended the offer knowing that Mr. Christie is a lifelong fan of the Cowboys.
However, as many news reports have pointed out in recent days, the Christie administration has given millions of dollars worth of tax subsidies to the NFL, and the NFL does significant business in the state of New Jersey. The Dallas Cowboys are, clearly, an NFL club, and therefore profit from the subsidies granted by the state.
Further, according to 2013 Port Authority of New York and New Jersey press release, Mr. Christie encouraged the Port Authority to award a concessions contract for 1 World Trade Center (the Freedom Tower) to a company co-owned by Mr. Jones. The press release specifically indicated that the Port Authority did in fact grant the contract to the company, Legends, following a call from Mr. Christie and New York Governor Andrew Cuomo.
Mr. Christie has since denied that he knew Mr. Jones at the time the contract was awarded. "When he got the contract, I knew nothing about it. I didn't know him," said the governor. However, in a television interview last month, Mr. Christie said that he became friends with Mr. Jones "over the last five years."
In the wake of these allegations, the American Democracy Fund, which supports Democratic political candidates and conducts opposition research on Republicans, has asked two state ethics panels and U.S. Attorney for New Jersey Paul Fishman to investigate whether the governor's relationship with Mr. Jones violated state ethics rules. Mr. Christie, a Republican, says any concern over their relationship is "just craziness."

San Francisco 49ers Sued for Age Discrimination

San Francisco 49ers Sued for Age Discrimination
by Chris Helsel
Two former employees of the San Francisco 49ers (49ers, Club, Team) have brought suit in the Northern District of California against the club and its CEO, Jed York, alleging age discrimination. The plaintiffs, Anthony Lozano and Keith Yanugi, claim that they were two of many senior managers let go in 2011 and 2012 as Mr. York attempted to brand his Club as the technology startup of the NFL.
The complaint alleges that when asked why the Team wanted to bring in young tech workers from Silicon Valley, Mr. York replied "Because they made a lot of money, they did a lot of cool things before they turned 40 years old, and they didn't want to play golf six days a week." The two plaintiffs both worked for the Club for over 20 years and achieved stellar performance reviews throughout their careers, according to the complaint. Further, Mr. Lozano claims that he was awarded employee of the month in 2010, one year prior to his dismissal.
Mr. Lozano, who served as the Club's Facilities Manager, was told he was let go because the Team was "going in a different direction." Mr. Yanagi, who served as Director of Video Operations, was allegedly fired for undisclosed "performance" reasons.
The plaintiffs allege that the Club violated several federal regulations regarding firing workers over age 40, including the termination of a group of older employees without proper notification and the gathering of statistical data that, they say, would demonstrate "a pattern and practice of age discrimination." Mr. Lozano and Mr. Yanugi seek punitive damages for age discrimination, wrongful termination, fraud and concealment and intentional infliction of emotional distress.

Anonymous Sources are Vital for Reporting the News

New York Times Reporter Wins Seven Year Fight Not to Reveal Sources
by Chris Helsel
Two-time Pulitzer Prize winner James Risen has emerged victorious in his quest to avoid testifying at the trial of former C.I.A. officer Jeffrey Sterling. Mr. Sterling is charged with providing Mr. Risen details of a botched operation intended to disrupt Iran's nuclear program - details which Mr. Risen allegedly used in describing the operation in his 2006 book, State of War.
The Justice Department first subpoenaed Mr. Risen to testify in 2008, during the Bush Administration. Mr. Risen, who faced imprisonment, steadfastly refused to reveal his confidential sources, and ultimately took his fight to the U.S. Supreme Court. The Court declined to hear his appeal in June 2014, but Attorney General Eric Holder ultimately decided prosecutors would not force the New York Times reporter to reveal his sources.
The ongoing saga has provoked significant backlash in the journalism community, and recently Mr. Holder announced that he would not seek to jail reporters for protecting their sources. He also rewrote the guidelines under which reporters could be subpoenaed.
Last week, Mr. Risen took the stand in the Eastern District of Virginia and proclaimed once again that he would not reveal his sources. Under orders from Mr. Holder, prosecutors did not press him on the issue or demand answers, as that could have exposed Mr. Risen to contempt charges. From the stand, Mr. Risen posed questions to both the prosecutor and Mr. Sterling's attorney. "It doesn't work that way. You can't ask questions," said Judge Leonie M. Brinkema. "That's the reporter in you."
According to attorney Joel Kurtzberg, who represents Mr. Risen, "The significance of this goes beyond Jim Risen. It affects journalists everywhere. Journalists need to be able to uphold that confidentiality in order to do their jobs."

How To Keep Art by Giving It Away and Why the IRS Needs to Correct This

With Private Museums, Collectors Can Have Their Art and Eat it Too
by Chris Helsel
A recent surge in the value of art, and the resulting trend toward art as an investment, have given rise to a vast increase in the amount of private museums in the United States. Observers worry, however, that these museums and foundations serve primarily as tax shields, and provide little to no public benefit.
According to Bard University curatorial studies executive director Tom Eccles, in the past 10 to 15 years, art has become "an equal asset class to stocks, boats, houses and jewelry, and people don't want to give their assets away." As a result, collectors have increasingly begun to establish their own tax-exempt foundations or museums. Traditionally, a philanthropic collector might donate a piece to an established museum or foundation. This would fully relinquish the collector's power over the piece and reward the collector with a tax deduction.
However, the prospect of establishing a private museum, and then "donating" art to it, allows a collector to enjoy the accompanying tax benefits while still maintaining control over the art. While the art ceases to be the collector's private property, he or she can control it through a foundation and be eligible for annual tax write-offs. Further, the nonprofit foundation can write off the cost of conserving, caring for and insuring the art, and nonprofits' art purchases are exempt from state and local tax laws.
What's more, many of these private museums are housed in buildings adjacent to the homes of the collectors and are only open to the public on a very limited basis. This has raised suspicion among some in the art and tax-collecting communities that some collectors are more interested in tax-avoidance than in sharing their art with the public.
While private museums are certainly legal, the I.R.S. requires that a tax-exempt nonprofit be both educational and accessible to the public. Some private museums, such as the Brant Foundation Art Study Center in Greenwich, CT, toe the line on this issue. The Brant Center, for instance, is completely unmarked, with no street signs, and allows visits by appointment only. It is located down the street from its creator's estate.
Robert Storr, dean of the Yale School of Art, echoes the sentiments of many: "If there's to be public forgiveness for taxes there should be a clear public benefit, and it should not be entirely at the discretion of the person running the museum or foundation."
I.R.S. guidelines about what private museums must do to qualify for tax-exempt status are unfortunately vague, though experts agree that public access and educational benefit are crucial. I.R.S. memoranda indicate that public access alone is not sufficient, and that the foundations must have adequate signage and/or advertise. Marcus Owens, an attorney and former director of the I.R.S.'s Exempt Organizations Division, said the agency also considers the physical location of a museum in order to determine whether the art is still primarily for the benefit of the owner, rather than the public. In the 1980s, one bold collector claimed tax-exempt status for sculptures near his backyard pool and said they were open for public viewing. His charitable designation was revoked in 1987.
However, critics contend that the I.R.S. rules are not strong enough. Tax experts note that private foundations can qualify for tax-exempt status without letting in a single visitor, if they lend out works, give grants or make their collections available to researchers.

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)