Archives for March 2019

March 20th, 2019 – Last week New York’s newest tourist attraction opened at Hudson Yards. The Vessel, designed by Heatherwick Studio, is a honeycombed shaped structure with 154 staircases latticed throughout and is quite picturesque. However upon further inspection into Hudson Yards Terms and Conditions – it appears that ERY Vessel LLC, the company responsible for running the structure, claims ownership to any and all photographs taken onsite prompting outcry from the public, writers, and critics.

For more details on this story – check out this article posted dezeen this week.

For information on Castaybert PLLC’s experience with intellectual property, please click here.

March 20th, 2019 – Enacted by Congress in 1925, the Federal Arbitration Act (“FAA”) was intended to ensure the validity and enforcement of arbitration provisions in contracts. Since its enactment the FAA has been shown deference by State and Federal Courts alike reflecting Congress’s goal of encouraging disputes to be resolved outside of the Court system.

In case there was any doubt, both the Supreme Court and the New York Appellate Division – First Department have recently issued rulings reaffirming this deference to the arbitration process. The rulings demonstrate the courts’ willingness to strictly enforce arbitration agreements at the front-end of the process as well as showing deference to an arbitrators award at the back-end.

For details on these cases, please visit this article posted this month in the New York Law Journal.

For information on how Castaybert PLLC can assist you with your arbitration needs, please click here.

On January 25th, 2019 Governor Andrew Cuomo signed the Gender Expression Non-Discrimination Act (GENDA) which bans discrimination based on gender identity or expression. The statute defines “gender identity or expression” as a “person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

GENDA requires that gender identity and expression be treated as a protected class similar to race or sex. This means that employers in New York cannot hire, terminate, or discriminate against any employee on basis of their gender identity or expression. This measure will also extend to landlords and other places of public accommodation across New York.

The work place discrimination provisions already took effect on February 24th, 2019. Thus, employers should take extra care to ensure all of their policies and procedures comply with GENDA and any necessary changes should be implemented swiftly.

For information on how Castaybert’s experience in employment law matters can help you, please click here.

Commercial practitioners do not have to wait any longer to see who will take over the Commercial Division’s international arbitration matters. Last month, Honorable Deborah Kaplan, the Administrative Judge for the New York County Supreme Court, announced that Justice Saliann Scarpulla would replace Justice Charles Ramos following his retirement from the bench last year.

Since 2013, all international arbitration cases filed in the Commercial Division had been assigned to Justice Ramos in an effort to establish a dedicated part specializing in the international arbitration field. Justice Scarpulla is a wise choice with her many years of experience in complex commercial litigation, including a number of years at Proskauer Rose LLP. (Full disclosure: Justice Scarpulla and Andre Castaybert were colleagues at Proskauer.)

Click here for information on how Castaybert PLLC can assist you in international arbitration matters.

Generally copyrights are only issued to the author of the original work. The Work Made for Hire doctrine is an exception to this rule where an employer is the owner of the work and the copyright, but this is contingent on whether the creator is an independent contractor or employee.

When an employer hires an independent contractor to produce an artistic work, the copyright remains with the independent contractor unless he or she agrees to license or transfer those rights. The Work Made for Hire exception as applied to independent contractors, on the other hand, specifically requires (1) for both parties to sign a written agreement; (2) the agreement must specifically state that the work is a Work Made for Hire; and (3) the artistic work must fall under one or more 9 specific types of work.

These types are:

• Contribution to a collective work,

• Part of a motion picture or other audiovisual work,

• A translation,

• A supplementary work,

• A compilation,

• An instructional text,

• A test,

• Answer material for a test, or

• An atlas.

Thus if an employer, instead of the independent contractor, provides an agreement that includes appropriate Work Made for Hire language, then it is imperative that the work itself still fits into one of the nine enumerated categories.

The Work Made for Hire exception as applied to employees requires that the work is created within the scope of their employment; either created on the job or at the direction of their employer. While this seems to be more straightforward, there are of course gray areas – specifically, what is an employee? The Supreme Court has ruled that employment status is determined by weighing a number of factors examining how much control the employer has over a person’s work. In the case of freelancers, especially those with long-term contracts, it is best to clarify these things at the outset to avoid hiccups down the line.

For more information on how Castaybert PLLC can help you in securing, defending, or enforcing Works Made Hire Agreements with freelancers, please click here.

The basic tenet of copyright law is that protection is available for “original works of authorship fixed in any tangible medium of expression.” The most common example of a work that is eligible for copyright protection is a painting or sculpture. Once the work is fixed it is afforded protection and others cannot reproduce, make derivatives, publicly display, or distribute the work. But, copyright does not last forever. Once the copyright on a work has expired, it enters the public domain. While Congress has amended the time for copyright protection over the years, it is generally understood that any work created before 1924 has entered the public domain. As such, there is no doubt that the works of the Old Masters displayed in museums are part of the public domain.

Despite this understanding museums, like the Metropolitan Museum of Art, sell reproductions of these works as posters in their gift store and these posters include a copyright notice. So how is it possible that the museum can own the copyright in the poster when the original work is in the public domain?

It is commonly understood that merely reproducing artwork that is in the public domain cannot extend copyright protect or else the expiration of copyright would cease to exist. Therefore, the poster cannot be seen as merely a reproduction of the original work, but rather a completely new work eligible for its own copyright protection. For a work that incorporates material from the public domain or other copyrighted works to garner copyright protection, the creator must disclaim the preexisting material and the material remaining that has not been disclaimed must have some creativity.

Using this framework, the posters produced by museums of their masterworks can only be copyrightable based on the design and creative choices in the poster itself and the underlying work would be disclaimed. Note this does not give museum goers free reign to commercially exploit the photographs they take of the master works displayed. Most museums have a terms of service that patrons agree to when they purchase a ticket to enter which stipulates they are not allowed to use their photos for commercial gain.

Please click here for more information on how Castaybert PLLC can help register, enforce, or protect your copyright.

The ADA mandates that public accommodations must be accessible to everyone, including websites. With internet commerce on the rise, advocates for the blind and hearing impaired argue that websites must be just as accessible as their brick-and-mortar counterparts. There is no formal government standard for private businesses to ensure their websites are ADA compliant. A group of web innovators have created the Web Content Accessibility Guidelines for businesses to implement to make their websites more accessible to the disabled. Further, the Trump Administration decided to stop drafting rules for website ADA compliance and it is widely cited as the reason for an increase in compliance suits.

For example, in just the first 6 months of 2018, there were nearly 5,000 ADA website lawsuits filed in federal court in the United States – a near 30% increase from the previous year. While advocates for the disabled find this uptick in lawsuits to be vital in achieving the necessary compliance with the ADA, critics have found these suits to be a ploy by lawyers and plaintiffs to pocket damages or hefty settlement agreements.

The suits have targeted businesses in nearly every sector from supermarkets to restaurants to fitness boutiques to universities. The most recent target of these suits is Art Galleries. In January, artnet reported more than 75 New York galleries have been sued claiming their websites are in violation of the ADA. As New York is a hub for the origination of these suits, it is likely this will continue throughout the art world and beyond and thus even more important to safeguard your website against such claims.

For information on how Castaybert PLLC can help make your website more compliant or defend against an ADA compliance suit, please click here.

Last month, the United States District Court of the Southern District of New York granted the same deference to an appellate arbitration panel that is given to an arbitral award under the Federal Arbitration Act.

The case, Hamilton v. Navient Solutions, LLC, was a suit brought by student loan borrower against loan servicer, Navient Solutions for harassment in violation of the Telephone Consumer Protection Act (“TCPA”). Hamilton had given consent to receive calls from collection companies in her student loan application. After her loan payments were declared in default as of November 2016, she started receiving phone calls from Navient. In April of 2016, Hamilton had affirmatively asked Navient to add her to the Do Not Call List and Navient confirmed that she was added to the list. She was subsequently called 237 times over a 6 month period.

Hamilton’s student loan agreement contained an arbitration clause, including a reference to the application of the AAA’s Optional Appellate Arbitration Rules which provides:

Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s award will be final and binding, except for: (1) any appeal right under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”); and (2) Claims involving more than $50,000. For Claims involving more than $50,000, any party may appeal the award to a three-arbitrator panel appointed by the Administrator, which will reconsider de novo any aspect of the initial award that is appealed. The panel’s decision will be final and binding, except for any appeal right under the FAA…

In 2017 prior to the issuance of the award but after the close of the arbitration the Second Circuit in Reyes v. Lincoln Automotive Financial Services held that the TCPA does not permit parties to unilaterally revoke bargained-for consent to use an ATDS to contact them. Navient requested the arbitration record be reconsidered in light of this decision. The arbitrator denied and issued an award in favor of Hamilton. Navient appealed the decision to a three-judge arbitration panel which issued a final award in favor of Navient. Hamilton sought to vacate the decision of the appellate arbitration panel on the grounds of excess power in violation of the FAA because it was not allowed to make factual determinations.

S.D.N.Y. found in favor of Navient, finding that the appellate arbitration panel did not exceed its powers, show manifest disregard, or otherwise violate FAA demonstrating that judicial review of a decision of the appellate arbitration panel’s decision is afforded the same deference as reviewing an arbitral provided for in the FAA.

Click here for more information about how Castaybert PLLC can assist you with all of your arbitration needs.