Archives for April 2021

April 08, 2021- Another copyright case has been decided in favor of fair use. In Lawrence Marano v. The Metropolitan Museum of Art, the Second Circuit sided with the Metropolitan Museum of Art (the Met), holding that the museum’s use of Marano’s 1982 photograph of Eddie Van Halen playing his “Frankenstein” guitar on its website as part of an exhibit of rock n’ roll instruments was fair use. The fair use copyright exception is a context specific inquiry; in this instance, the Court focused on the “transformative” nature of the Met’s use of the photo. The transformation included: “foregrounding the instrument rather than the performer” and including other photos and accompanying text.

ArtNet’s Taylor Dafoe shared a statement from a Met Attorney, Linda Steinman, who said “The Second Circuit’s decision in the Marano case is an important one recognizing that museums, as cultural institutions, have the freedom to use photographs that are historical artifacts to enrich their presentation of art objects to the public,” further that “The mission of the Met and all museums… is to provide the public with access to art—and this important decision protects, indeed strengthens, this important societal role.”

 

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April 07, 2021- Newly signed post-mortem rights of publicity legislation in New York will begin to apply to those who are deceased after May 29, 2021.  Dentons explains what this law means for New Yorkers, specifically in regard to Digital Replicas and Deepfakes. The law will protect a person’s rights of publicity (a right inherent in the commercial value of a person’s identity) that have commercial value at the time of their death or resulting from their death.

The new rights will extend 40 years after the death if the decedent was living in New York at the time of their death. The right is transferable and descendible thus it can be transferred by legal instrument. The right however, is not absolute and has exceptions for certain expressive rights plus for satire, comment, parody or criticism.   In order to bring an action for the use of a decedent’s rights, the decedent’s successors in interest must  register the claimed right with New York’s Secretary of State.

The law also tackles new issues that have proliferated through technological advancement. With respect to digital replicas, purposefully realistic duplicates of an individual such as holograms, the legislation prohibits their use without consent. For Deepfakes—an artificial intelligence technique that realistically superimposes an individually into video, text, or audio material—the legislation protects against acts that the individual did not perform or that were altered.

 

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April 06, 2021 -A recent decision by the Southern District of New York (SDNY) ruled that the non-disclosure and non-disparagement clauses in an employment contract for the Trump Campaign were unenforceable under New York law as they were too vague and too broad. In Jessica Denson v. Donald J. Trump for President, Inc., Judge Gardephe ruled that the categories of confidential information in the non-disclosure agreement were so broad that they encompassed any matter related to the campaign, and that the non-disparagement clause covered too many people and entities.

Saiber LLC’s Jennine DiSomma and Alexander C. Banzhaf break down the decision and its practical considerations. Specifically, they note that SDNY is showing less patience for broad restrictive covenants. They say “[t]his opinion signals to employers that restrictive covenants in employment contracts should be as definite as possible to increase the likelihood that they will be enforced by courts. It further signals to employers that they should be judicious when trying to enforce restrictive covenants because courts will evaluate whether employers are protecting legitimate interests or acting coercively.”

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April 06, 2021-In a victory for business owners, the State of New York Court of Appeals decided that individual owners are not “employers” so are exempt from the New York City Human Rights Law’s (NYCHRL) vicarious liability provisions. An employee of Bloomberg L.P. brought claims of illegal discrimination, sexual harassment, and sexual abuse against her boss, who she claimed did the harassment, the company, and Michael Bloomberg as an individual owner and officer of the company.

The Court noted “the term ‘employer’ is undefined” when discussing NYCHRL vicarious liability provisions. In the end, the Court held that “where a plaintiff’s employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL”. Rather, the liability is only for individual conduct. Even though the City Human Rights Law is expansive, the Court will only let plaintiffs go so far.

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