NYC Litigation Blog

Monday, August 17, 2015

Surprising Aspects of Copyright Laws

How is it possible that the song "Happy Birthday to You" is Still Under Copyright?

The complexities of copyright law can be confusing and even, at times, absurd. At it turns out, the song "Happy Birthday to You," a universal tune used to commemorate birthdays from early childhood through old age, is still considered private property. A recent federal lawsuit has been filed on behalf of  group of independent artists stating that they have proof that the copyright to the song is no longer applicable. The suit alleges that a songbook that is almost a century old proves that the song's copyright, first issued in 1935, is no longer valid.

Some of the difficulties about "Happy Birthday" derive from its odd publishing history; it was first published in 1893 under the title "Good Morning to All" written my Mildred and Patty Hill, two sisters in Kentucky. By the early 1900s, variations of the song appeared with birthday themes, until eventually the song became as well known as any folk tune.

It is expected that the judge involved may rule on the case in less than a month. If the judge rules that the copyright on the song is no longer valid, Warner Music Group, holder of the rights to the song, will lose millions of dollars in licensing fees.

The case illustrates the difficulties inherent in copyright laws which may extend ownership well beyond the lifetime of the composer and, as in this case, well into a time period in which it appears to be in the public domain. As a general rule, copyright protection for works created after January 1, 1978 extends for the lifetime of the author plus 70 years. For works published before 1978, there are a number bewildering exceptions. Variables for copyrights depend on several factors, including:

  • Whether and when publication has actually taken place
  • Date of first publication
  • Whether copyright has been renewed (if the work was published prior to 1978)

Strange as it seems, until the judge rules on the copyright questions surrounding "Happy Birthday," just about all of us have infringed on copyright laws and could, theoretically, be held accountable.

Because of the complicated nature of copyright laws, if you intend to copyright original material of any kind, you would be wise to consult with a well-informed attorney experienced in copyright law. Please don't hesitate to contact Thomas M. Lancia, providing clients in New York and New Jersey with excellent service. We can be reached at 212.964.3157.

Wednesday, July 29, 2015

New York City to Raise Fast Food Minimum Wage

How will the increase in minimum wage for fast food employees in New York City work?

After almost three years of protest, on July 22, 2015, New York City passed a law that will gradually increase the wages of employees of fast-food chain establishments to $15 an hour over the next few years. Recommended by a panel appointed by Governor Andrew Cuomo, this wage increase will move forward at an accelerated pace for workers in New York City, an area where the cost of living is higher than in the rest of the state. 

For supporters of increasing the minimum wage to lessen income disparity, these latest recommendations by the appointed panel are a welcomed step in the right direction. The law, expected to be made effective by the state's acting commissioner of labor, Mario J. Musolino, is designed to ensure that employees of chains like McDonald's will soon earn enough to meet the basic needs of themselves and their families. As the minimum wage existed prior to the implementation of this law, fast food workers had been earning $8.75 per hour, in many cases subsisting only with the assistance of welfare benefits like food stamps.

Keeping up with newly enacted laws, such as the increased minimum wage in New York State, ensures that companies remain on the cutting edge of impactful information. Whether or not firms are located in New York, remaining in touch with current changes and trends is important for growth and prosperity. 

Lancia is a firm well-versed in the complexities of the employment laws of New York City, adept at assisting our clients in navigating Division of Labor Standards and avoiding dangerous pitfalls. Whether you are a start-up company or a well-established firm, knowing the ins and outs of employment law is crucial to running your company effectively and avoiding possible snags. Situations invariably arise that require informed judgment calls. For assistance in all aspects of employment law, please contact the New York City employment attorneys of Thomas M. Lancia  by calling (212) 964-3157.


Friday, July 24, 2015

Copyright Suit Against Nike Dismissed

How similar do two works have to be in order for a court to find copyright infringement?

Popular shoe and apparel manufacturer Nike was recently the target of a copyright suit involving it’s famous Jordan brand.  Jumpman, as the logo is referred to, is a silhouette image of basketball star Michael Jordan, jumping to dunk the ball with his left hand.  A photographer recently claimed that this image was taken from a photograph he shot in 1984 and that Nike had been using it for years without permission.

Jacobus Rentmeester filed suit for copyright infringement in federal court in Oregon claiming that the Jumpman logo was derived from the photo he took for LIFE Magazine in the 1980’s.  In 1985, Nike contracted with Rentmeester to use the image for marketing purposes for a 2 year time period.  The Jumpman logo was subsequently created in 1987 and Rentmeester alleged that Nike had been benefitting from the logo derived from his work for almost 30 years.  He claimed that he “guided” Jordan into this pose and that he was therefore entitled to copyright protection.

Nike argued that they took a photo of Jordan in the same pose and used that photo to create the logo.  They also argued that Rentmeester does not have a claim to all images of Jordan in that position and should only be afforded copyright protection in relation to the specific photo he took.  

While the court did find that the images were similar to one another, they eventually sided with Nike.  The court explained that copyright protections vary on a case-to-case basis, and that depending upon the specific facts they can range from broad to narrow.  When there is a wide range of expression, works are entitled to broad protections.  When there is a narrow range of expression, the copyright protections are thin and images must be extremely similar in order to find copyright infringement.  In this case, there was a narrow range of expression and therefore thin protections existed.  The images were not similar enough for them to find copyright infringement.

Thomas M. Lancia handles all types of cases relating to copyright infringement. If you are involved in a copyright infringement issue in the New York City area, contact his office by calling (212) 964-3157 for a consultation today.

Monday, July 13, 2015

New Law Allows New York City Human Rights Commission to Conduct Investigations of Hiring Practices

How does the City of New York deal with employment discrimination?

Even in this day and age, employment discrimination is a serious problem.   So much so that new laws are going into effect all over the country relating to discriminatory hiring practices.  New York City is one of the local governments that has recently passed this type of law.

Mayor Bill de Blasio passed five new pieces of legislation that relate to the New York City Human Rights Commission’s powers in uncovering employment discrimination.  Essentially, the Human Rights Commission will now be able to investigate and test employers in the search for discriminatory hiring practices.  These investigations will be conducted using “matched pair testing”.  This is where two parties who possess all of the same characteristics, except one relating to race, age, religion, sexual orientation or another protected attribute, apply for the same job with the same employer.  When one of the pair is hired, the Human Rights Commission will investigate as to whether one was chosen over the other based on one of the protected characteristics.  If this was the case, the employer could be prosecuted.

These investigations will start in October of this year and all employers are urged to review their hiring practices at this point, as well as to reinforce with those that do the hiring that these decisions should be made based on qualifications for the job as opposed to the protected personal characteristics of the applicants.

If you have been accused of employment discrimination and are facing consequences, Thomas M. Lancia can help.  He handles all types of cases relating to employment discrimination in the New York City area.  Contact him by calling (212)964-3157 today for a consultation.

Monday, June 29, 2015

I've won! Can we please continue to litigate this case?

Uh . . . probably not.  Today's case is a recent trial court decision in Suffolk County. 

Tamai was employed by SAA as an anesthesiologist in Suffolk County.  Her contract with SAA had a restrictive covenant prohibiting her from holding medical staff privileges at four hospitals, including St. Charles and Mather Hospitals, for three years after leaving SAA.  She decided to leave SAA and accept a position at LIAP, which provided anesthesiology services at St. Charles and Mather.

SAA sent a letter to Tamai and LIAP, threatening legal action if she violated the restrictive covenant.  Tamai sued for declaratory, injunctive and other relief on February 25, 2015, after LIAP withdrew its offer of employment. She also moved for a temporary restraining order, which was granted in part, and a preliminary injunction, which was set down for a hearing on June 8, 2015. SAA cross moved for summary judgment dismissing the complaint. In a letter dated April 14, 2015, Tamai informed the Court that she had found other employment that did not require her to maintain medical staff privileges at any of the four hospitals named in the restrictive covenant. She also advised the court that she was seeking leave to discontinue this case against SAA without prejudice. SAA objected to discontinuing the case and argued that any discontinuance should be with prejudice. Tamai then moved to discontinue the action without prejudice.

The Court held that the case would be discontinued without prejudice because: (1) the case was mooted after Tamai obtained a job that didn't violate the restrictive covenant; 2) the action had not progressed far enough to prejudice defendant in any way.  The Court reasoned that even though this controversy was capable of repetition in the next three years or so, there was no novel legal question presented because it is well-settled that such restrictive covenants for anesthesiologists are subject to the same analysis of reasonableness in duration, location and so on as those for other professionals. 

In dictum, the Court discussed SAA's motive for seeking to continue the case.  It speculated that the motive was to seek a ruling affirming the viability of the restrictive covenant and then using that as a sword against Tamai and other employees in the future should the need arise.  Going slightly further, I suspect that a favorable decision would also be used as a "moat" to prevent or discourage valuable anesthesiologists from leaving the employer's "castle" for higher pay, better benefits, etc.  In any event, the Court declined to gild SAA's victory by bestowing the gift of an advisory opinion it did not need to write.


Monday, June 22, 2015

Transgender Plaintiff's Case Revived by Second Circuit Court of Appeals

Cole Fowlkes, who self‐identifies as male but was born biologically female, alleged in his complaint that his labor union and two of its business agents discriminated against him on the basis of sex and retaliated against him for filing an earlier action against them.   The District Court held that Fowlkes’ failure to exhaust administrative remedies deprived the District Court of subject matter jurisdiction over his Title VII claims. The District Court thus also dismissed Fowlkes’ state‐ and city‐law claims for lack of jurisdiction.


The Second Circuit held that the administrative exhaustion requirement of Title VII is not jurisdictional but rather a precondition to suit and is subject to equitable defenses. In this case, at least two equitable defenses were raised on appeal: (1) whether the EEOC filing would be “futile” and (2) whether the claim was “reasonably related” to a prior EEOC claim Fowlkes had made on similar grounds. 


The Court vacated the District Court’s judgment dismissing Fowlkes’ federal claims for lack of jurisdiction and remanded the case to the District Court to determine whether any equitable defenses excuse Fowlkes’ failure to exhaust his administrative remedies. The District Court was also directed to entertain Fowlkes’ claim under the National Labor Relations Act, 29 U.S.C § 151, et seq., for breach of the duty of fair representation.  The decision can be found at


In fairness to the District Court, because the plaintiff appeared pro se, the District Court was deprived of the assistance of counsel where the equitable defenses and the fair representation claim may have been raised, forcing the District Court into the difficult role of divining that on its own.


As the Second Circuit pointed out, whether an EEOC filing was a “precondition” rather than a jurisdictional requirement has not always been clearly articulated.  Whether this ruling now excuses such filings in a broader context remains to be seen.


Tuesday, June 16, 2015

Former Store Detectives Sue CVS for Employment Discrimination And Racial Profiling

Can former employees sue an employer for discriminatory behavior against them and customers?

Four store detectives formerly employed by the CVS drugstore chain have commenced a class action lawsuit, alleging that the chain of drugstores engaged in racial profiling of customers and discrimination against workers.

According to the suit, brought in a New York Federal District Court, the detectives were told by supervisors to focus their attention on non-white customers. Store supervisors described African Americans and Hispanics in disparaging and crude terms and also directed racially offensive comments at the detectives.  

One plaintiff was once told to "get his black ass" back to the store to apologize to a manager he had offended. Another was ordered to “hide like a monkey” to spot shoplifters.

When the detectives complained, the lawsuit says, they were subjected to increased scrutiny, excessive supervision of their work, and unfair criticism of their job performance. They were ultimately terminated.

There are many employment discrimination cases brought in New York every year, as well as a number of "shop-and-frisk" cases in which customers have complained of racial profiling.  According to the plaintiffs’ attorney, however, this is the first case in which a group of ex-employees has joined forces to provide an insider's view of systematic racial profiling at a large chain store.

In other cases against such stores as Barney's and Macy's, private discrimination lawsuits have been accompanied by state enforcement actions, fines, and agreements by stores to reform their policies. It is not yet clear whether the lawsuit against CVS will prompt action by the New York State Attorney General.

A spokesperson for CVS said that the company does not tolerate discriminatory practices and that it rigorously enforces nondiscrimination policies. It said it was shocked by the charges and would defend against them forcefully.

If you are an employee who has been subjected to racially insensitive comments or other discriminatory behavior in the workplace, you may be entitled to damages from your employer. Experienced trial lawyer Thomas M. Lancia has helped employees assert their rights and receive compensation in all types of labor and employment discrimination lawsuits. To discuss whether you have a strong claim, contact the law firm of Thomas M. Lancia PLLC today at 212-964-3157 or request a consultation online

Friday, June 12, 2015

Employers Beware: New "Ban the Box" Legislation Passes New York City Council

On June 11th, the New York City Council passed legislation prohibiting, among other things, criminal background checks prior to making an offer to prospective employees.  The Mayor is expected to sign the legislation in the coming days and the legislation then takes effect 120 days after he signs the bill.  

In a nutshell, the law prohibits criminal background checks before an offer of employment.  That includes any advertising that discourages or denies any person with a criminal record the right to apply for the job.  It also applies to any application a prospective employee must fill out as well as the interview or other pre-offer meetings or documents required for submission by the applicant.  

After a conditional offer of employment is made a criminal background check can be conducted upon notice to the applicant.  After the results of that criminal background check are received, several statutory factors codified under Section 23-a of the New York State Correction Law must be taken into account when determining the impact of any criminal history the offeree may have on his or her impending employment.  

You should note that any criminal background check required by federal, state of local law or by any “self-regulatory organization” (i.e., FINRA) is exempt from this law.

This is a basic summary of the key components of the law for informational purposes only and should not be considered a comprehensive review of its component parts or any potential obligations you or your company may have under the new law.  Please feel free to contact  if you require a more comprehensive analysis of this new law or if you have any questions or comments.

Thursday, June 4, 2015

Instagram-Based Exhibit Raises Copyright Questions

Can someone be guilty of copyright infringement for using your images?

It seems like everyone in New York is talking about artist Richard Prince’s latest exhibit, “New Portraits” - a collection of screenshots of other people’s Instagram photos that Prince added his own comments to before printing them out on large canvasses. Gothamist is reporting that works in the collection are fetching upwards of $100,000; which has a lot of people questioning if it is fair that Prince is making so much money off of something that is in a large part the work of others.  

Prince is famous for appropriating other people’s work, making slight changes, and then exhibiting and selling it as his own, but this time people are really questioning whether he has gone too.  Copyright law protects artists, which the photo-takers arguably are, from infringement, in other words, outright copying. But Prince isn’t just printing out the work of others and selling it as his own, he’s adding commentary to the work.

Whether the minor changes Prince makes are enough to transform the art into something new allowing it to become protected under the doctrine of “fair use,” is unclear.  According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.”

In past lawsuits over Prince’s work, the artist has defended his work (and won) by arguing that his style of art is commentary and/or criticism, and is thus fair use. Whether that would apply to these new pieces is debatable (despite the fact that Prince literally commented on the original work).  So, unless one of the original Instagram picture-takers takes Prince to court, and the case makes its way all the way up to the United States Supreme Court, this is likely to remain a grey area of law that varies on a case by case basis. 

The lesson that can be learned from all of this is to think carefully about the content you are posting on the internet. Would you be comfortable with someone else taking what you post, adding to it, and then sharing it with others as their own work? If not, you should probably not be posting it. Or you should be prepared to litigate in order to protect it.

Thomas Lancia regularly represents clients in copyright disputes, and has done so for over twenty years. If you think you are the victim of or if you have been accused of infringement, contact New York City copyright attorney Thomas Lancia at (212) 964-3157 for a consultation today. 

Wednesday, May 20, 2015

Considering Copyright Laws This Election Season

Can Political Campaigns Violate Copyright Law?

In some respects, political advertising is given much more leeway than ads for products and services, but not when it comes to copyrights. If you own a copyright to something and it is used as part of political advertising without your permission, it may be a violation of the law.

Because of various state and federal consumer protection and anti-fraud laws, a private business cannot make false claims in advertising, but that is not a problem for political ads, according to Time magazine. If you sell junk food but claim it can be part of a weight loss program, the Federal Trade Commission can order the ad pulled and that the agency review your future ads. If you are a diet pill manufacturer making false claims about your products, you can be fined millions of dollars. 

When it comes to political ads, however, because of first amendment free speech protections, truth is optional. If a broadcaster runs political ads (and they’re a major revenue source come election time) it cannot refuse to air an ad even if it knows the contents are untrue. 

While being untruthful is not a problem for political ads, violating copyright laws is. The most recent example is a video produced by Rand Paul's presidential campaign which ran for a short time on YouTube, according to the Washington Post. The video was blocked due to a copyright claim from Warner Music Group (WMG) thanks in part to an automated system allowing copyright owners to block material on the popular video sharing website. With this system, YouTube matches submissions against a database of copyrighted material when a video is submitted. If they wish, a copyright owner can block a video from being viewed if permission for use of the copyrighted material was not granted.

Paul’s stumbling block was the use of Shuttin’ Detroit Down, a WMG song by John Rich, which was incorporated into the video without permission. It’s a 2009 song about the poor state of the economy. The Post sought comment from WMG but they did not respond.

If you are a copyright owner in the New York City area and see or hear that your material is being used without your permission, the copyright attorneys at Thomas M. Lancia PLLC can help you enforce your rights and protect your interests. If you have any questions or concerns about copyright laws, contact us today at (212) 964-3157.

Wednesday, May 20, 2015

Issues Involving Employer Wellness Programs

What are the Limits on My Employer’s Wellness Program?

Over the past few years, the use of wellness programs by employers has increased steadily across many sectors. Employers promote these programs, and justify them, by claiming a commitment and focus on the health and happiness of their employees, but many argue that the real driving force behind these programs is money. These programs aim to reduce smoking, obesity rates and chronic illnesses by encouraging employees to have their health monitored, quit smoking and lose weight. The hope of employers is that this will pay off in lower health insurance costs, less absenteeism and increased productivity.

These programs have come under criticism because of privacy concerns (these programs obtain personal health information), the fact that disabled employees simply may be unable to reach some health goals and the fact that their expense may not justify the benefits the employer receives. Those who do not participate, or do not reach certain goals, may be penalized with higher health insurance costs.

The federal Equal Employment Opportunity Commission (EEOC) initially criticized these programs as being discriminatory, if they result in higher costs for disabled employees. They recently reversed course and announced that reducing health insurance premiums to encourage workers to get health screening tests or improve health scores doesn't violate the federal Americans with Disabilities Act (ADA) if the programs do not violate the Affordable Care Act (Obamacare) and federal privacy rules, according to USA Today.

Large employers lobbied hard for the change (last year EEOC sued Honeywell due to its wellness program incentives) and apparently won. An estimated 60% of Americans have health coverage through work and a 2013 Rand Corporation study estimated more than half of companies with at least fifty employees had wellness programs.

Wellness programs may be used as an excuse to raise health insurance premiums on less healthy employees because the evidence showing actual health benefits to employees overall and financial benefits to employers is scarce. Another Rand study suggested that it is mostly the healthiest employees who participate and the health benefits from these programs frequently decrease after a few years.

If you live in the New York City area and have questions about disability discrimination or wellness programs, employment discrimination lawyer Thomas M. Lancia can help.  Call him at (212) 964-3157 today so you can discuss your situation and the applicable laws.

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