Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

The ART Act: New Legislation Proposes Royalties for Visual Artists Based on Secondary Sales

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Posted in Copyright

On March 6, 2014

When music is sold, or a poem or novel is purchased, the composer or writer receives a portion of the initial sale or royalties on future sales of copies of the work. The more copies of a song, composition or book that are sold, the greater the royalties the composer or writer may receive. However, this is not true for all copyrightable material, particularly certain works of visual art such as contemporary paintings or sculptures. Unlike music and written works, that are mass produced and distributed, visual art, as noted by United States Copyright Office, “are produced singularly and valued for their scarcity.” The artist may receive a one-time fee or commission for their original work, but such works are often resold at auction with the artist rarely receiving any additional payment.

Arbitration Agreement Nullified by Employee Handbook Disclaimer According to NJ District Court

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Posted in Policies and Handbooks

On March 5, 2014

Employers often use arbitration programs with employees to elect a forum that eliminates jury trials and class actions. A New Jersey District Court recently found that the employer’s handbook containing a provision which, gives the employer the exclusive ability to change the provisions of the handbook without notice to employees, invalidated an employee’s arbitration agreement.

Potential For Harm: Indemnity Agreements and Willfulness Determinations

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Posted in Licensing / Patent

On March 4, 2014

Patent indemnification agreements, common in asset purchases, mergers and acquisitions, manufacturing, and patent licensing agreements, reduce the possibility of liability should a third party later assert its patent against the asset purchaser or licensee. However, entering into such agreements to mitigate risk can actually increase exposure. During the damages stage of patent infringement lawsuits plaintiffs often seek, with varying success, to bring in evidence of the existence of a defendant’s indemnification agreement to show that defendant knew of the patent and committed willful infringement. Thus, the very vehicle used to shift the risk of monetary liability can sometimes itself be used as a mechanism to enhance damage awards.

Track B – EDTX Continues to Spearhead Efficient Patent Litigation Procedures

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Posted in Patent

On February 28, 2014

The Eastern District of Texas continues to lead the way with practical and efficient procedures for patent litigations. On February 25, Chief Judge Leonard Davis implemented General Order 14-3 “Regarding Track B Initial Patent Case Management Order.” This Order provides “additional efficiencies and cost savings” for appropriate patent cases, and is designed to complement the existing and now familiar case management procedures and local rules, or so-called “Track A,” case management schemes.

Tweets Contradict Court Filings, Leading to Judgment of Conviction and Appeal

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2014

We have been covering a case pending in the Criminal Court of the State of New York in which the State sought discovery and use of a criminal defendant’s tweets for use in his trial. Malcolm Harris was accused of disorderly conduct when he and others allegedly marched on to the Brooklyn Bridge during an Occupy Wall Street protest. For nearly a year, Harris argued in court papers that he was not guilty because the N.Y.P.D. had allegedly led the protestors onto the roadway of the Brooklyn Bridge as the protest swelled.

David J. Freeman to Speak at Brownfield Coalition of the Northeast Conference

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 25, 2014

David J. Freeman, a Director in the Gibbons Real Property & Environmental Law Department, will be a speaker at the upcoming Brownfield Coalition of the Northeast Conference on March 5, at the Liberty Science Center in Jersey City, New Jersey. Mr. Freeman will be discussing proposed changes to the New York State Brownfield Cleanup Act as a member of a panel entitled “Where Are The Incentives And How Could Proposed Legislation Affect Them?” As noted in our recent blog, legislation proposed by Governor Andrew Cuomo as part of his 2014 budget would have a major impact on the types of projects that are accepted into the New York State Brownfield Cleanup Program (BCP), and the extent to which those projects are eligible for state tax credits.

Court Threatens to Compel Hiring of Vendor if Document Production Problems Persist

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 25, 2014

Litigants who fail to meet e-discovery obligations run the risk not only of being sanctioned, but also of being subject to a court order compelling them to retain an e-discovery vendor. While the use of e-discovery vendors is becoming a common practice, it may add considerable expense to the already costly discovery phase of litigation. Additionally, compelled retention of a vendor may reduce litigants’ control over their own document production.

Supreme Court Says Unnamed Interested Parties Insufficient for Mass Action Removal Under Class Action Fairness Act

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Posted in Class Action Defense

On February 24, 2014

In Mississippi v. AU Optronics, the United States Supreme Court recently held that consumer actions filed in state court by an attorney general on behalf of the state’s citizens cannot be removed to federal court as “mass actions” under the Class Action Fairness Act (“CAFA”). In the unanimous opinion, authored by Justice Sotomayor, the Supreme Court held that even though the State of Mississippi was suing in a representative capacity, the Mississippi attorney general was only one person and therefore did not satisfy the 100-person requirement for removal to federal court under CAFA. While AU Optronics involved an action by the state attorney general, the Supreme Court’s ruling is instructive on the standards for removal of a mass action under CAFA and is applicable to public and private actions alike.

Final Cybersecurity Framework Released in Furtherance of President Obama’s Executive Order

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Posted in Corporate Information and Records Management Policies / Privacy and Data Security

On February 19, 2014

On Wednesday, February 12, the White House released the National Institute of Standards and Technology’s (NIST) Final Cybersecurity Framework: a set of industry best practices and standards to help owners and operators of critical infrastructure develop better cybersecurity programs. It is accompanied by a Roadmap which discusses NIST’s next steps with the Framework and identifies key areas of development, alignment, and collaboration. The Framework stems from President Obama’s February 2013 Executive Order on cybersecurity, previously covered on October 1, 2013. The overall core of the Framework is essentially unchanged from earlier drafts, also previously discussed on October 28, 2013.

Negligent Spoliation May Result in Sanctions Under New York Law

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2014

Recently, the New York Supreme Court, Appellate Division, First Department considered whether to adopt and apply the Zubulake standard for the spoliation of electronically-stored information (“ESI”) to a claim for spoliation of an audiotape recording or whether existing New York spoliation doctrine was sufficient. Strong v. City of New York involved a June 30, 2009, accident in which an NYPD vehicle collided with another vehicle, jumped the sidewalk curb and struck five pedestrians, including plaintiff, Kevin Strong. Within 30 days of the accident, three plaintiffs commenced personal injury actions and these were consolidated for trial. On September 21, 2009, less than 90 days after the accident, the City joined issue and interposed the “emergency operation” defense, claiming the police officer’s vehicle was an authorized emergency vehicle engaged in an emergency operation at the time of the accident and, therefore, the City could only be held liable if the officer had acted with reckless disregard for the safety of others.

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