I have never really understood the purpose of the entertainment venue pat down and search.  I am all for safety, but if searches are going to be conducted, they should be done right.  Not using metal detectors and searching every purse and bag only holds up lines to get into venues and the majority of searches, especially at sporting events is a waste of time.  If a person really wants to sneak in a weapon it’s not hard, simply stick the weapon down ones pants.  Last I checked full body cavity searches aren’t part of the entertainment experience, well not yet anyways.

In San Francisco a couple of 49er fans have had enough and sued the 49ers.  The fans claim that the pat down searches violate their right to privacy.  The California Supreme Court ruled last week that such a search may violate a person’s right to privacy.     http://www.law.com/jsp/article.jsp?id=1202428738944&rss=newswire.  The case was remanded back to the California Superior Court due to an insufficient record.  The lower court must determine whether the search measures put in place have a specific purpose and whether that purpose in narrowly tailored, meaning the searches must be less intrusive than alternatives.

The NFL instituted a pat down search policy in 2005 which could be in jeopardy.  I am somebody who on rare occasions carried out similar search policies while working for the NBA’s Seattle Sonics and I can tell you that these policies are unjustified, carried out half assed, and cause fans to get restless if they are subjected to waiting in long lines due to searches after a game has started.  In some cases while I was working, the policies were completely abandoned right before tipoff due to the long lines and complaints.  A professional franchise doesn’t want to risk losing season ticket holders due to the searches so they may cave in or often times most of the searches are being conducted by temp event staff workers who don’t feel like getting yelled at by fans.

If the NFL or any other entertainment venues wants to conduct searches, they should use metal detectors.  Metal detectors are more effective in identifying weapons, less intrusive, and won’t hold up lines during events.  In the 49er case the team will argue that the NFL policies are necessary in order to assure safety, but they may have trouble in arguing that the policies are being carried out in the least intrusive manner.  The issue will be whether a less intrusive manner such as metal detectors would cause a substantial burden on the team.  A substantial burden may come in the form of finances and if it a less intrusive policy costs a lot more money, then it may not be viable.  The ruling in this case will affect all entertainment venues nationwide.  You better believe that all major sports and entertainment organizations will be paying very close attention as to the result of this case.

Eminem

A trial that will help define what percentage of digital royalties an artist is entitled to has finally arrived after a two year journey through the judicial process.   Rap artist Eminem and his publishing company FBT Productions have sued Universal Music Group for $1.6 Million in alleged unpaid royalties.  Digital royalties are earned by an artist whenever music by that artist is downloaded online or through a ring tone for example.  The percentage of royalty payments that an artist and label will receive are usually included in an artists contract.  However for artists and labels that have been around long before the digital revolution arrived, determining who gets what percentage of the digital royalties becomes a concern.  Before ipods and ringtones became mainstream there were no contract clauses in an artists contract discussing digital royalties.  The dispute between Eminem and Universal seeks to define whether the digital music will be considered a license or a further distribution of the music.

“Eminem’s lawyers argue that downloads should fall under the “licensing” agreements that cover physical releases such as CDs and vinyl records, but Universal Music Group says they are governed by “distribution” arrangements, which have lower royalty rates.  Whereas an artist might split licensing royalties 50-50 with their label, under distribution rates they often earn less than 30%.” http://www.guardian.co.uk/music/2009/feb/25/eminem-universal-digital-royalties-lawsuit

“If you give the music to a third party without cost to you, like manufacturing or packaging, that’s the same as a licensing agreement,” a member of Eminem’s legal team explained to The Wrap magazine. “[Universal] are characterising it as something else.” http://www.guardian.co.uk/music/2009/feb/25/eminem-universal-digital-royalties-lawsuit

I have to side with Eminem on this one.  Universal is not actually distributing any of the music, they are just allowing a third party such as iTunes to put the music on their servers.  There is no difference from releasing an actual CD and releasing a CD to the Internet.  If however Universal played a major role in getting the music into a third party’s hands and actually “distributed” and marketed the music, then Universal could come out victorious.  The affect on other artists may turn out to be a case by case issue, hinging on whether a label significantly distributed and marketed the music.  In the end I think this will be a major win for all artists worldwide who have never been able to take advantage of all of their digital royalty rights.

UPDATE:  Eminem loses case to UMG http://www.thewrap.com/article/1750.  This is a big blow to musicians worldwide.  I am sure this issue will come up again and if anything the public is more aware of the issue.  As a consolation Eminem did receive $159,000 in accounting errors from the payment of royalties.

It happens all too often in the NFL, players playing injured, stepping it up for their team against the better judgment of outside medical consults that the players were never told they should have.  Players are told to rely on their team doctors because they think the team doctors and staff know what is best for them.  This is false.  Teams and coaches are always looking to bend the rules and do whatever it takes to get ahead, which doesn’t include the best interest of the players.  Players are reluctant to challenge team managements wishes for fear that they will be labeled as a malcontent and become expendable, foregoing millions in salary.

Last week there was disturbing news coming out of Houston Texas in which Stevenson accused the Houston Texans of requiring lineman to participate in an illegal contact practice last May in violation of the NFL Collective Bargaining Agreement (CBA).  According to the NFL CBA spring drills must not involve contact or pads.  One player, former Houston Texan player Dan Stevenson has decided that labels and lost salary are a moot point once a player suffers a career ending injury.  Stevenson suffered a right shoulder labrum tear after participating in the allegedly illegal drills last May.  Stevenson has stood up for other players who still are playing in the NFL or are looking for new teams.  The CBA rules are meant to protect players from becoming injured in the offseason.  Stevenson became expendable when he was injured last May during the illegal contact drills which possibly caused him a career ending injury and a loss of millions of dollars in future earnings.  Stevenson with help from a personal injury lawyer is not afraid to stand up to the Texans now that he is no longer with the team and his NFL career is in jeopardy.  However other players on the team choose not to fight the team for fear of becoming blacklisted in the NFL.

An average NFL players career is just under 4 years and most players may only spend a few years in the NFL.  This means that NFL players need to make the most of their NFL chance and earn as much money as they can in a short period of time.  It is an NFL players’ agent’s duty to recognize the gravity of a situation such as having his player participate in illegal contact drills which could lead to career ending injuries.  An agent who is familiar with the NFL CBA should recognize the gravity of the situation and be able to file an NFL grievance on the players behalf.  Most players have no idea of what their rights are and need an advocate to represent their rights and the rights of all NFL players.

The NFL needs to hand down severe penalties against teams like the Texans who break NFL CBA rules which are put in place to protect players.  If swift action is not taken, teams will continue to take advantage of players, causing the average players career to be even shorter than it already is.

ESPN’s Outside the Lines took an in depth look at what happened in Houston, Texas last May.  Click here for the full story:  http://sports.espn.go.com/espn/otl/news/story?id=3885900

David Jason Stinson

A first year High School football coach, David Jason Stinson, pleaded not guilty to reckless homicide and negligence for the death of Max Gilpin.  Gilpin was a 15 year old offensive lineman who died of heat stroke last summer in Louisville, Kentucky.   Gilpin was forced to run sprints in a helmet and pads while allegedly being refused a water break.  Gilpin, who was 6-foot-2 and 220 pounds, was one of six people to die because of the heat in high school and college athletics in 2008.   http://seattletimes.nwsource.com/html/nationworld/2008659576_applayerdeathcharges.html

In order for the Gilpin family to win their case for reckless homicide case they must prove that Coach Stinson knew or should have known the consequences of his actions, which in this case was that Gilpin would die.  This is a very difficult standard to prove.  The defense will argue that there is no possible way that coach Stinson knew or should have known that Gilpin would die of heat stroke from going through drills that his team probably went through daily.  Stinson was a former player who most likely had to go through the same type of drills and had been an offensive line coach with the team the last four years, never having any incident.  He therefore will argue that there is no way he could have known Gilpin would die.

The Gilpin family will counter with Gilpin’s medical records that were on file with the school which listed Aderall as a drug Gilpin was taking for ADD.  He was also known to be taking Creatine, a muscle building supplement which is known to have heat related side effects.  The Gilpin family will say coach Stinson should have been aware of the risk of death as he had access to the players medical records and he should have noticed that the player was laboring through practice before he collapsed.  However Stinson is not a doctor, he is a coach which is why the defense will prevail in saying that there is know way that coach Stinson could have known the consequences of his actions.  Many players get tired when working out and going through  drills, it would be tough for anybody who is not a medical professional to spot somebody who is about to suffer from heat stroke.  This claim will probably be dismissed.

To win a claim for negligence the Gilpin family will have to prove, but for coach Stinson’s actions Gilpin would still be alive and that the death was foreseeable. A thorough private investigator background check might explore whether Coach Stinson had a history of negligence or if there were any red flags in his coaching career that could have predicted such a tragic outcome. This again is very difficult to prove unless the coach was a doctor or Gilpin showed signs of heat stroke before he collapsed and was taken to the hospital.  I don’t have all the facts but based on what is in the papers, a claim for negligence should be dismissed. In addition, it’s essential to consider the possibility of wrongful death lawsuits in this case.

This case is said to be the first time a coach has been charged for a heat related death of a player.  In a related case, former Minnesota Vikings player Corey Stringer’s widow settled a heat stroke related case against the Vikings this week.  The settlement called for an NFL supported heat stroke educational program for coaches and youth.    http://sports.espn.go.com/nfl/news/story?id=3861331&campaign=rss&source=ESPNHeadlines

Darius Miles

In what is one of the most bizarre stories I have heard coming out the NBA or all of professional sports in a long time is how the Portland Trailblazers threatened to sue all of the other NBA teams if they sign Darius Miles to a contract.  Portland team president Larry Miller sent an e-mail to the 29 other NBA teams telling them not to sign Miles because it would hurt Portland financially.  The Blazers will be responsible for paying Miles’ remaining $18 Million left on his contract if he plays in two more games this season.  That money paid would count against the salary cap for Portland and force them to have to pay luxury tax.   http://sports.espn.go.com/nba/news/story?id=3822392

Miles while a member of the Portland Trailblazers suffered what was thought to be a career ending knee injury, prompting him to seek the expertise of a personal injury lawyer.  He underwent microfracture surgery in 2006 and was released by the Blazers in April 2008 after not playing in any games the previous two years.  Miles was signed by the Boston Celtics this season and played in six pre-season games and was released.  He then signed with the Memphis Grizzlies where he played in two regular season games and then was released before his contract became guaranteed.  According to the NBA Collective Bargaining Agreement Miles will be due $18 million if he plays in 10 games this season.  Therefore he is only two games away from having Portland fork over the money.

Portland claims it will sue if they find out that other teams signed Miles for the sole purpose of hurting Portland financially.  However I have no idea of how they will be able to prove other teams motivations unless it is clearly shown that Miles can no longer play at the NBA level.  The fact that he has played with two NBA teams already this season shows that he has what it takes and I predict somebody will give him a shot.  After all injuries always happen and if he is the best available option, somebody is going to pull the trigger.

Additionally the NBA players association has filed a grievance against the Blazers in response to Millers threatening e-mail.  Miles should be allowed to continue his NBA career and earn NBA money while he can.  The fact that somebody is out there trying to sabotage his chances is unfortunate and not fair to Miles.  There is no collusion in the NBA and if a team wishes to sign Miles they have that right.  If I am the Lakers,  Nuggets, Jazz, or Thunder (division rivals of the Blazers) why not sign Miles to a 10 day contract and see what happens.  Worst case scenario they get to hurt a division rival financially, cut Miles after a few days., and Miles gets paid.  Good luck to the Blazers in trying to prove the other teams intentions for signing Miles.

UPDATE – The Memphis Grizzlies have signed Miles to a 10 day contract on 1/10/09, therefore if he plays in two games the Blazers will be on the hook for the $18 million.  If he is waived after a few days, the Blazers just might have a case.  It will be interesting to see what happens.

Warner Bros. is set to release the film “Watchmen” on March 6, 2009 despite a recent district court decision that ruled in favor of Twentieth Century Fox (Fox) having intellectual property rights in the film.  Fox acquired the rights to the popular but dark-themed graphic novel “Watchmen” in 1986.  Fox then conveyed those rights to a company controlled by Lawrence Gordon, the films producer, but maintained the right to distribute the first film based on the novel.  http://www.reuters.com/article/industryNews/idUSTRE4BT1P720081230

Fox has sought an injunction against Warner to prevent the release of the film, however a judge is set to issue a decision on the matter on January 20th where he will also consider whether Warner has to pay any damages to Fox if they release the film.

Under 17 U.S.C 103 of U.S. copyright law, the owner of a copyright has the right to reproduce and make derivative works of an original work.  In this case Fox owned a copyright to make the first film based off of the Watchmen graphic novel.  The film is a derivative work and therefore Fox should be entitled to damages.  An injunction is unlikely as Warner Bros. already has invested $120 Million in creating the film.  A delay in release would provide no benefits to either party as no money would be earned from the project.  I would expect the parties to reach a settlement decision before the January 20th ruling.  If no settlement is reached Fox will most likely be entitled to share in the profits from the film as a damages award.

Here is a link to the Watchman movie trailer:   http://www.youtube.com/watch?v=E4blSrZvPhU

UPDATE – Warner Bros. and Fox have settled their dispute – http://www.law.com/jsp/article.jsp?id=1202427549210&rss=newswire

Andy Kennedy

Many basketball coaches have fiery personalities so that they can get the most out of their players but last week in Cincinnati, Mississippi men’s basketball coach Andy Kennedy took his coaching style to the back seat of a cab where he was arrested after he allegedly struck a cab driver with a closed fist and berated the cab driver with racial slurs.  Kennedy was charged with misdemeanor assault.  http://sports.espn.go.com/ncb/news/story?id=3783491; http://sports.espn.go.com/ncb/news/story?id=3777703

My question is why was Kennedy charged with a misdemeanor assault claim instead of a battery claim?  In order to prove criminal battery a plaintiff must prove application of force to another person resulting in bodily injury or offensive touching; whereas assault requires an (1) attempt to commit battery and intentional creation of reasonable apprehension in another person of imminent bodily harm. If your injury was caused by someone else’s negligence, a personal injury attorney may help you seek compensation that can be used for your medical treatment.

Since Jiddou was struck in the face by Kennedy’s fist it would seem that a battery claim would fit best since Jiddou suffered a swollen face.  Kennedy may try to argue that he was intoxicated and therefore could not form intent.  However this defense would fail since assault and battery are general intent crimes and don’t require intent.  The racial slurs, whether uttered or not will have no effect on the outcome of this case unless they caused intentional infliction of emotional distress which is not likely here.   

Kennedy will also argue that Jiddou is not telling the truth about his allegations.  In fact Kennedy has filed a defamation claim against Jiddou and a witness, Michael Strother. Kennedy argues that the accusations of Jiddou and Strother have ruined his reputation and therefore he is entitled to $25,000.  In order for Kennedy to win on the defamation suit he will have to prove that a (1) defamatory statement (2) of or concerning Kennedy was (3) publicized to a 3^rd party and (4) damage to the reputation of Kennedy occurred.  Additionally since Kennedy is a public figure he must also prove that the statements were false and that the defendants had actual malice or intended to make false statements.  In this case Kennedy cannot prove what the defendants are saying is false.  Therefore he will lose on any defamation claim unless he can come up with convincing evidence of the false statements. 

Kennedy should take responsibility for his actions and drop his suit if the allegations are true.  As a role model to his players and his university he should not have been out late at night, possibly intoxicated in the first place.  Kennedy is lucky to keep his job and he needs to move on and not drag out a bad situation.  Hopefully Kennedy and other coaches will learn a lesson from this and not let it happen again in the future.  However if one thing is certain it’s that scandals and allegations will never go away in high profile sports.         

Update 4/20/08 – Kennedy pleaded guilty to a reduced for of disorderly conduct and received 6 months probation and 40 hours of community service.   http://sports.espn.go.com/ncb/news/story?id=4083219

Joe Barton

Last week Texas Congressman Joe Barton introduced a bill that would pave the way for a college football playoff it were to be approved.   http://sports.espn.go.com/ncf/news/story?id=3760232

In order for the bill to become law it must be approved by the house and senate and then be approved by the President.  Here is a detailed description of the entire process.    http://clerkkids.house.gov/laws/.  Currently the bill does not include details about the playoff system.  These details will be left up to law makers on committees if the house determines that the bill should move forward.  The big question will be whether lawmakers feel that it is their duty to impose rules on the NCAA and College Football or whether they should allow College Football to set their own rules as they see fit.

At this point in the process the bill is a long ways away from becoming law as both the supporters and opposition to the bill have valid arguments.  Supporters of the BCS bowl system, the opposition of the new bill,  have cited that the current bowl system generates significant revenues and that a playoff system would put the historic bowl games in jeopardy.  The supporters of the bill argue that a college football playoff  system could incorporate the current bowl games, would end up generating even more revenues than the current system and would allow for teams from smaller non BCS conferences to have a legitimate chance at winning the national championship.

There is reason to believe that some sort of bill will be passed within the next 4 years as President-elect Barack Obama has been quoted as saying that he supports a college football playoff system.  Therefore it is likely that if a bill gets approved by the house and congress that the President would sign such a bill into law.

Coldplay

Joe Satriani

Guitarist Joe Satriani brought a plagiarism suit last week in Los Angeles against the band Coldplay for allegedly plagiarizing his song “If I Could Fly.”   Satriani claims that Coldplay used the same melody progression in their song “Viva La Vida.”‘  http://www.mtv.com/news/articles/1600890/20081208/coldplay.jhtml

The songs can be heard together here:  http://www.youtube.com/watch?v=1ofFw9DKu_I  So do you think the songs are the same?

Proving a plagiarism claim in music is extremely difficult, therefore Satriani will face an uphill battle.  Satriani as the plaintiff has the burden of proof to show that copyright infringement occurred.  In order to prove copyright infringement a plaintiff must show (1) that he owned a valid copyright to the song and that (2) copying of the song occured.

Under the first element Satriani will be able to show that he owned a valid copyright in his song “If I could Fly.”  A copyright is established the moment the work has been completed and I am assuming that he also registered the copyright with the federal government, gaining more protection and the ability to sue in Federal Court.  Therefore Satriani owns the reproduction rights as well as the rights to prepare derivative works.

The second element, copying, will be harder to prove.  In order to prove copying Satriani must show (1) access as well as (2) substantial similarity.  In order to prove access the plaintiff can show either that there is a particular chain of events between plaintiffs work and defendants access to that work or that the plaintiffs work has been widely disseminated.  In this case Satriani’s song has been widely disseminated through mass distribution and radio play.  Therefore this element would be met.

Next Satriani would have to prove that there is a substantial similarity between the two songs.  This is done through extrinsic and intrinsic tests.  An extrinsic test would prove concrete elements such as similar notes and lyrics which is done through expert testimony.  An intrinsic test looks at whether an average person would find the total concepts of the works to be substantially similar.  This can be done through surveys and polls of average people.  If there is a high degree of access shown then there is a lower standard for substantial similarity.  In this case it is very likely that Coldplay had access to the Satriani song. The outcome  will come down to expert testimony and the views of the general public to determine if copying occurred.   So I ask again, do you think, there is copying involved?    If yes then it is likely that Satriani will win his case as the courts ruled in Newton v. Diamond (2002) that a musical note sequence of 6 or more notes was copyrightable.

Coldplay will counter these allegations and state that their song was an independent creation, wherebye the group independently came up with the song on their own.  This would be hard to prove because they would have to show that they had never heard the Satriani song, which has been widely distributed.  If Coldplay tries to argue fair use, that would fail because they are using the song for profit and allegedly copied significant amounts of the Satriani song.

It will be interesting how this case turns out.  I would venture to guess that the parties will settle their dispute due to the fact that an average person would probably find that there is a similarity, the same melody and notes were most likely used, and it would be easy to prove that Coldplay had access to the Satriani song.

Kevin Williams

Earlier this week Minnesota Vikings defensive linemen Kevin and Pat Williams along with three members of the New Orleans Saints were suspended for four games each for testing positive for bumetinide, a diuretic banned by the NFL, contained in the supplement Starcaps.  Starcaps did not list the diuretic in it’s ingredients and the players claim they did not know they were ingesting bumetinide, which can be used to mask steroids.  The players with the help of the NFL Players Association challenged the suspensions in court and argued that the NFL did not properly inform players about the banned substance.  The NFL argues that the NFL collective bargaining agreement prevents any action by the players suspended and the NFL had no duty to warn players not to ingest a particular supplement, only that the particular diuretic should not be ingested.

Today a federal judge in Minnesota prevented the NFL from suspending  the players so that he could analyze the legality of the suspensions.  The judge granted temporary restraining orders that will allow the players to participate in this weeks upcoming NFL games.    The judge is expected to give a final ruling as to whether the suspensions are legal sometime next week after analyzing the arguments of both sides.   The full article can be found here:  http://sports.espn.go.com/nfl/news/story?id=3747957

It is always a good thing to be an advocate for players rights, however delaying the suspensions could cause the players to miss valuable playoff games that could cost their teams their seasons and a chance at the Super Bowl if the court ruling drags on much longer.  If the judge rules that the suspensions should be enforced, the four game suspension will be served immediately and the players would miss the next week of play after the rulings.  If the players had a good argument then it would make sense to challenge the ruling, however in this case the NFL collective bargaining agreement clearly states that players are responsible for what they put in their body, and here, they ingested a banned substance contained in a weight loss supplement.   The moral of the story is, an NFL athlete must always know all the ingredients of everything that they are ingesting, whether the ingredients are listed on the label or not.   Lets just hope that no playoff games are missed because of this challenge.