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The NCAA Now Battles with EA and CLC


The NCAA has now sued Electronic Arts, Inc. and Collegiate Licensing, Co., reportedly alleging both EA and CLC breached their contractual obligations to the association and can’t use a $40 million settlement to exit an antitrust class action brought by student-athletes alleging unauthorized use of their likenesses.

The class action brought by student-athletes was against both EA and the NCAA.  EA is attempting to settle with the athletes, and the NCAA’s attempt to get the suit dismissed was not successful.  

On November 4, the NCAA asked a Georgia court in its complaint to prevent EA from moving forward with its proposed $40 million settlement with the student-athletes because, according to USA Today, EA failed to maintain liability insurance to cover “pending third-party claims”.

CLC’s role claimed by the NCAA, is that it reportedly failed to ensure EA had adequate insurance and refused to give NCAA access to documents and records that the association requested.

CLC claims it has no reason to be involved in the NCAA’s suit.  Andrew Giangola, vice president of strategic communications for CLC’s licensing affiliate IMG College said, “CLC is caught in the middle of a dispute between NCAA and EA which should not involve us. CLC has valued relationships with both the NCAA and EA and while we hope they can soon resolve their dispute, we see no reason for CLC to be involved.”

It appears that this is the NCAA’s response to the decision by a California federal judge earlier this month to certify the athletes as a class to pursue a challenge to the NCAA’s ban on compensation itself. But the judge denied certification to a class that sought potentially billions in past damages allegedly caused by not being able to reap the benefits of collectively licensing their images. 

The case is National Collegiate Athletic Association v. Collegiate Licensing Co. et al., case number 2013CV238557, in the Superior Court of Fulton County.


Blurred Copyright for Marvin Gaye’s “Got to Give it Up”

Marvin Gaye and Robin Thicke

Wednesday, Marvin Gaye’s family formally accused Robin Thicke of borrowing key elements of his hit song, “Blurred Lines”, from Marvin Gaye’s 1977 song “Got to Give it Up”.  The accusations don’t stop there, Gaye’s family also accuses Thicke of borrowing from some of Gaye’s other songs including “After the Dance” for Thicke’s Love and War. The Gaye family is also suing additional parties including song collaborators Pharrell Williams and T.I., Universal Music group and EMI.

“To write and record the song ‘Blurred Lines,’ the … writers intentionally and unlawfully copied and assembled a constellation of distinctive and important elements from [Gaye’s song],” the filing said. “’Blurred Lines is so substantially similar … that ordinary observers all over the world have remarked that the two songs sound the same, which they do.”

Robin Thicke has filed his own declaratory judgment on grounds that Gaye’s family threatened to file suit for “Blurred Lines”.  It is no secret that Thicke has patterned himself after his beloved inspiration Marvin Gaye.  He has openly mentioned that “Blurred Lines” was created with “Got to Give it Up” in mind.  In an interview with GQ and Billboard before litigation Thicke is quoted as saying:

“Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.”

Counsel for Thicke said the songs share the same genre, but the notes are different, therefore, the fact that Thicke and his collaborators are fans of Gaye makes no difference because there is no infringement.

Thicke and his collaborators assert in their own claim that the Gaye family is attempting to claim “ownership of an entire genre, rather than a specific work.”  “There are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements,” Thicke’s complaint said. “Plaintiffs created a hit and did it without copying anyone else’s composition.”

Nona and Frankie Gaye also filed claims against EMI, The label has connections to both parties.  EMI is the co-publisher of producing superstar Williams and is said to co-own and control “Blurred Lines.” However, the label also controls the recording right to Gaye’s song through assignment, and as a result Gaye’s family claims EMI violated its fiduciary duty to the Gaye family by not pursuing the infringement and by “attempting to interfere with and thwart the Gaye family’s pursuit of these claims”.  The Gaye family feels the punishment for EMI should be for it to lose all profits on “Blurred Lines” as well as rights to administer the song catalog of Gaye, known as the “Prince of Soul.”

Links for “Blurred Lines” and “Got to Give it Up” are posted below.

Crisis Fixer: Judy Smith, The Real Olivia Pope


ABC’s smash hit show isn’t completely fictional, Shonda Rhimes based her drama on the crisis management world through the life of Judy Smith. Smith is the founder and President of Smith & Co, a leading strategic and crisis communications firm with offices in Washington D.C. and Los Angeles.  Just as Olivia Pope, Smith has worked with high profile clients including Monica Lewinsky during her scandal with former President Bill Clinton, Senator Craig from Idaho, actor Wesley Snipes, NFL quarterback Michael Vick, Clarence Thomas during his Supreme Court Confirmation hearings, Kobe Bryant and his legal issues, and the family of Chandra Levy. She also worked with the congressional inquiry of Enron, and the United Nations Foundation and World Health Organization response to the SARS epidemic. Recently Paula Deen hired Smith to help her battle her racism allegations.

Smith’s “fixer” skills aren’t the only thing she has going for her, she also works as a corporate consultant for BellSouth, Union Pacific, Nextel, United Healthcare, Americhoice, Wal-Mart, Radio-One Inc., Waste Management Corporation, and American International Group, Inc. (AIG) assisting them with corporate communications issues such as mergers and acquisitions, product recalls, intellectual property litigation, corporate positioning, and diversity.

Smith’s role in the White House coincides with Pope’s role because both women held the position as Press Secretary for the White House.  Smith however, was an Assistant United States Attorney and was Special Counsel to the U.S. Attorney of the District of Columbia, where she oversaw legal and communications work on a number of high profile criminal and civil cases prior to joining the White House staff.

Before the show, Smith floated well below the radar.  In 2012, it was reported that Smith’s crisis management and communications firm, Smith & Co., was not listed in phone directories and had no Web site. Smith also said she did not have business cards.  When asked to meet, she insisted on coming to you. Her caller id only showed “Verizon”.  Olivia Pope portrays this same life, and demonstrates the importance of confidentiality and concealment that is beneficial to both Pope’s and Smith’s clients.

Crisis Management is a field that Smith dominates. Attempting a Google search for “Crisis Fixer” yields the top 20 results all referencing Ms. Smith.  Contrary to a quick Google search, Smith is not the only crisis manager out there. Crisis management is a field that lawyers sometimes find themselves in, working as solo practitioners or  with firms.  Companies also use internal legal personnel to serve this purpose.  Legal professionals are equipped with the communication skills, legal expertise, and strategic thinking to attack crisis and create a solution.  However, it is evident that Ms. Smith has created a monopoly in this area by being the most sought after “fixer” to solve high profile problems.

Judy Smith serves as Co- Executive Producer of Scandal and provides insight and technical expertise on crisis management issues, but continues to maintain confidentiality for her clients by not sharing information regarding their specific situations.

Scandal airs on ABC on Thursday nights at 10/9c.

What AEG’s Sigh of Relief Means to the Industry


On Wednesday, October 2, 2013, a unanimous jury rejected the suit brought by Michael Jackson’s mother to hold AEG, the promotion company for her son’s “This Is It” tour, financially responsible for negligently hiring Dr. Conrad Murray as her son’s physician while on tour. Murray ‘s conviction of manslaughter in the death of Michael Jackson occurred on November 7, 2011.

The defense argued against Murray being an employee of AEG because the agreement between the two was “never fully executed”.  Money never changed hands between the two, and the defense pointed out that even if it had, Jackson chose Murray himself, and had it not been for Jackson, AEG would likely have never been acquainted with Murray.

In the music industry promotion companies typically hire multiple personnel on behalf of the artists, and large promoters such as LiveNation and AEG pay all the expenses, employ everyone, and split the profits with the artists.  Had the jury decided in the other direction, this would have prompted a huge change in the industry.  The fact that the suit alone happened still could produce some alterations in the way business occurs.

The line between who is employed by whom on tours has been blurry throughout history, but the question of liability of a promoter for a tour employee’s actions being raised in court undoubtedly will affect this line moving forward.  Promoters and Producers will be more cautious about hiring personnel for tours.  However, it is worth noting that most artists would not require around the clock care from a doctor, so Michael Jackson’s situation is an outlier, but nevertheless will still effect the industry in the future.

iTunes Radio Enters the Streaming Radio Scene


“iTunes Radio is free streaming radio with the best selection of music.  It builds and brings together stations you’ll love from day one. And the more you listen, the more personalized your stations become. It’s radio re-imagined.” boasts Apple in its description of iTunes Radio.

iTunes Radio gives you the ability to use the radio on iPod, iPhone, iPad, Mac, PC,  and Apple TV.  The more you use iTunes and iTunes Radio, the more the radio adapts to your personal preferences. Obviously, the unique tailoring is in place with hopes that users will be more apt and loyal to iTunes radio rather than other streaming sites.

The hurdle iTunes Radio will have to conquer is that it presently does not have all the preferences of the users, while Pandora already has this. Will users be willing to start a brand new bond with a new streaming radio site?  Read More…

Nicki Minaj’s Song ‘Starships’ Lands her in a Lawsuit


‘Starships’, Nicki Minaj’s 2012 summer hit, landed the singer in a copyright infringement lawsuit Tuesday by Clive Tanaka, a Chicago musician.  ‘Starships’ set a record for its 21 week stint in Billboard’s Top 10.   Read More…

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