Archives for June 2016

In a recent article on artsy.net, Isaac Kaplan explores How Much Do Artists have over a Work after It Sold. As Kaplan explains, under VARA the answer is, yes.

The Visual Artists Rights Acts (VARA) provides visual artists control over the attribution and integrity of their work, provides that the artist shall have the right to prevent the use of his or her name as the author of the work of the visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.

In other words, if the piece that is being sold is not up to the standard of the original artist, under VARA, the artist may be able to disavow the piece.

To get to Kaplan’s full article, click here.

New York employees will be eligible for paid leave to care for family
members under the new Paid Family Leave Law, effective January 1, 2018.
Phased in over a four-year period with eight weeks of leave in 2018, ten in
2019, and ultimately twelve in 2021, the paid leave benefits will be funded
through employee and employer contributions to the state disability
insurance programs.

The law parallels the federal FMLA, but it does not cover leave for an
employee’s own disabling condition (which is covered by the existing
Disability Benefits Law) and it is broader in:

Covering family members (who include domestic partners, grandparents, grandchildren);
Defining qualifying serious health condition (an illness, injury, impairment or physical or mental condition that involves inpatient care, continuing treatment or continuing supervision by a health care provider);
Eligibility (beginning after 26 weeks of continuous employment); and
Coverage (extending to all New York employers).

In its first year, employees will be paid the lesser of 50 percent of their
average weekly wage or 50 percent of the statewide average weekly wage. The rates then increase by 5 percent intervals each year thereafter until they top out at 67 percent of average weekly wages in 2021. The Superintendent of Financial Services is empowered to delay the increases in wage subsidies for any given year based on the economic impact.

Paid Family Leave is presumed to run concurrently with FMLA unless an
employer’s policy states otherwise. Notably, paid leave benefits are not
available if the employee is collecting sick pay or paid time off from the
employer. This seems to preclude employers from offsetting part of the cost of paid time off by using the state paid leave benefit, and thereby differs from the law on short-term disability payments. Employers should watch if future regulations modify this restriction

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Parties to legal proceedings pending outside of the United States should be aware of a helpful U.S. statute, 28 U.S.C. § 1782, which provides a vehicle to obtain evidence from U.S. persons for use in a proceeding in a foreign or international tribunal. There are limitations on the scope and applicability of the statute, as discussed in our white paper on § 1782, “United States Discovery for Foreign Litigants,” but in many cases this statute can be a powerful tool to help foreign litigants obtain U.S. evidence that might not otherwise be accessible to them.

Some of the key points to keep in mind are:

The three basic prerequisites to obtain a discovery assistance order from a U.S. District Court are: (1) the person from whom discovery is sought must be located within the court’s jurisdiction; (2) the applicant must be an “interested person,” e., a party in the foreign proceeding or someone whose complaint triggered the proceeding; and (3) the discovery sought must be “for use in a proceeding in a foreign or international tribunal” – the prong that engenders the most debate in the U.S. courts.

There is a lively debate over whether the statutory language extends to foreign private arbitration proceedings, with courts reaching different conclusions based on whether they follow U.S. Supreme Court dicta suggesting that arbitrations are covered or older Court of Appeals decisions finding arbitrations not covered by § 1782, as discussed in our white paper .

The Supreme Court has instructed that the foreign proceeding need not already be pending but need only be “in reasonable contemplation” at the time of the request – but courts vary in their interpretation of that standard.

Once the statutory requirements are met, the court has a fair amount of discretion, exercised in accordance with guidelines set by the U.S. Supreme Court, to determine whether to grant, deny, or tailor the request for discovery assistance.

The statute provides that the discovery ordered will proceed “in accordance with the Federal Rules of Civil Procedure” – which means it will be governed by the ordinary U.S. discovery rules concerning relevance, proportionality, cost-shifting, custody and control, privilege assertions, and other aspects of U.S. discovery practice.

These and other variables can affect the viability of a request for discovery assistance under § 1782. Castaybert PLLC can assist foreign litigants who wish to request U.S. discovery for a foreign proceeding as well as U.S. persons who need to determine how to respond to a foreign discovery request.

Category: Business and Commercial Litigation | Discovery Practice

The Clarion List recently published an article regarding the five questions to ask before buying art, available here. To summarize:

Is it a good fit? Consider how the piece fits into your existing collection and where you would display it. Many galleries will allow you to take artwork home for a few weeks, which gives you a chance to experience the work and determine if it’s really true love.

Is the price right? Check with an art consultant to learn more about the prices of works by the same artist, same school, or similar style before you buy.

Is it authentic? A conservation scientist can typically determine if a work is consistent with the materials available at that time through scientific testing of the paint and the material upon which it is painted. Once this is done, an expert in the stylistics of the artist is consulted to give an opinion regarding the authorship of the painting. Collectors should also get certificates of authenticity and provenance at purchase, which will help collectors seeking appraisals, buying insurance, or reselling.

Is it in good condition? If you have any doubts about the condition of the work, consult with an experienced conservator before buying.

Are you buying from someone who has the right to sell it? Although there are fewer risks with provenance and title issues when you buy an artwork directly from the artist, you should make sure that the work is an original, that it does not infringe on any other party’s rights, and that the artist has clear title to the work. You should also know whether the artist retains any moral rights to the artwork, which could limit a buyer’s rights.

To learn more about the Art Law Practice at CASTAYBERT PLLC, click here.

Lexology recently highlighted some issues regarding surnames as trademarks under the new European Union Trade Mark regulation, available here. In short:

Under U.S. trademark law, a mark that is primarily a surname cannot be registered without proof that the mark has acquired distinctiveness, meaning that consumers associate the mark with the applicant because of the applicant’s extensive use and promotion of the mark. In the E.U., surnames are generally considered distinctive, even if the surname is relatively common.

Although a surname can be registered relatively easily as an EUTM by the EUIPO, the proprietor may face some difficulty later on when trying to enforce its trademark rights. Article 12 of the new EUTM regulation specifies that companies can no longer rely on the use of their company or business name as a defense to infringement of an EUTM. Before this regulation was implemented on March 23, 2016, this “own name defense” for EUTMs applied to company or business names as well as personal names. In Céline SARL v Céline SA (C-17/06) The CJEU previously determined that since use of a company name also relates to the goods or services offered by the company, trade name use of a protected trade mark may be treated as an infringing act, if the requirements of use for goods or services are met. The “own name defense” is now only available to for natural persons, if the use is honest.

IFB recently published their 5 Essential Elements for a Successful Brand Partnership, available here. To recap, whether you are a brand or a blogger, you should:

1) Be clear on who you are, what you stand for, and what value you are adding to your audience. This can be accomplished through engaging, entertaining, and useful content.
2) Connect face-to-face and collaborate. Research your potential partner, share initial ideas, and confirm that there is a genuine connection.
3) Do not limit yourself to one industry or category. Diversifying opens you to an audience that you may never have been exposed to previously.
4) Be clear on what you’re looking for, especially when it comes to compensation, gifted products, and exposure.
5) Make sure you have a contract. Specify dates, the number of blog and social media posts, who is creating the content, the type of content being shared and where, etc.

To find out how CASTAYBERT PLLC can help you with IP and Fashion Law questions, click here.