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NYC Litigation Blog

Wednesday, January 7, 2015

Sandwich Shop Causing Stir With Non-Compete Agreement

How do courts determine the validity of a non-compete agreement?

Most businesses need employees to operate efficiently.  But, most employees do not stay with the same employer for their entire careers. Therefore, some employers worry that these former insiders will use the information they obtained to create unfair competition when they begin working for someone else.

In order to avoid this for a specified period of time, some employers utilize non-compete agreements also known as restrictive covenants, in order to limit a former employees work opportunities after separating from the business.  While these agreements are legal in most states, in order to be considered valid they must not be overly restrictive.  One company is currently being scrutinized for its use of these agreements.

Jimmy John’s is a sandwich franchise with locations all over the United States.  The company employs all types of workers and apparently requests that even low-level workers sign a non-compete agreement.  The terms of the agreement include that if the worker leaves that they cannot be employed by a competitor for two years.  A competitor is defined as any entity that makes 10% or more from the sale of sandwiches and operates within a two mile radius of any Jimmy John’s.  These terms essentially prevent workers from finding employment with any other business that sells sandwiches and some think that these terms are too limiting.

The New York Attorney General has become involved and has initiated an investigation into Jimmy John’s business practices in relation to this matter.  It seems that the Attorney General thinks that these agreements might violate the law.  Usually, non-compete agreements are used to stop higher level employees who might have access to sensitive, valuable or confidential information, from using it to unfairly compete.  As low level workers at Jimmy John’s do not have access to this type of information, it seems that the use of these agreements might be stifling the free market unnecessarily.  Therefore, the terms of the non-compete agreements used by the sandwich shop might be overly restrictive making the agreements invalid.

Thomas M. Lancia works with employers and employees relating to non-compete agreements, trade secrets and employment discrimination in the New York City area.  Contact him by calling (212)964-3157 today for a consultation.

Friday, December 12, 2014

Grooveshark Loses Copyright Infringement Suit

Can online music services use copyrighted works without permission of the copyright holder?


The online music industry is always ripe with disputes.  Internet music downloading and streaming services have been involved in copyright infringement litigation going back to the days of Napster.  Not surprisingly, another online music streaming service has been involved in a copyright issue and found to have violated Federal laws.

Grooveshark, based in Gainesville, Florida, allows users to stream music from it’s website.  The company had a huge following entering 2011 and was signing advertising deals with major businesses.  In some instances, Grooveshark was streaming music without the permission of the works copyright holder and claiming that they were protected under the Digital Millennium Copyright Act.  This act allows websites to use material owned by others as long as they take down the material once notified by the copyright holder.   Unfortunately, the three major record companies were not persuaded by this argument and filed suit against the company in a United States District Court in Manhattan in 2011.

The District Court recently found against Grooveshark on a motion for summary judgment.    They held that the Digital Millennium Copyright Act did not protect the company because its own employees (including corporate officers) uploaded music to the site themselves without the authorization of copyright holders.  The company not only knew they were committing copyright infringement and uploaded the music anyway, but, also requested that employees upload infringing material or face consequences.  The court also found that the company destroyed evidence that would have been relevant to the case.

The amount of damages has yet to be decided, but a large verdict could bankrupt the company. While it claims to be exploring its options to appeal this case, Grooveshark is also facing copyright lawsuits by various other parties.  

Copyright laws are complicated and therefore copyright litigation can be complex.  It is important to contact an experienced copyright litigation attorney should you be accused of infringement or looking to assert your rights under a copyright you hold.  Thomas M. Lancia handles all types of copyright litigation in the New York City area.  Contact him by calling (212)964-3157 today.

Friday, November 21, 2014

Two Circuit Courts Disagree Regarding Copyright, Fair Use and Transformative Use Law

In a significant rebuff, the U.S. Court of Appeals for the Seventh Circuit recently questioned and disregarded the U.S. Court of Appeals for the Second Circuit’s analysis regarding the fair use and transformative use legal defenses to copyright infringement. 

In 2013, the Second Circuit had determined that, in Cariou v. Prince, an artist who transforms another’s work generally does not legally infringe on the original author's work or intellectual property rights. In September of this year, the Seventh Circuit, in Kienitz v. Sconnie Nation reached different conclusions, while drawing attention to errors in the Second Circuit’s legal analysis. The Seventh Circuit questioned the following points regarding the Second Circuits analysis of the fair use and transformative use defenses:

• The Second Circuit based its analysis almost solely on whether or not the original work had been “transformed”.
• The Second Circuit did not take into consideration the differing motives of the original and transforming artists regarding the creation of the works in question, i.e. how and why something was being expressed.
• The Second Circuit did not require the transforming artist to comment on, reflect on, parody, satirize or otherwise offer new insights to the original work.
• The Second Circuit disregarded the central precepts of the Copyright Act pertaining to a copyright owner’s exclusive right to reproduce, distribute, perform, display, transmit or prepare derivative works based on his or her original work.

Kienitz v. Sconnie Nation involved the defendant using a photograph copyrighted by the plaintiff on a T-shirt. Despite the fact that the Seventh Circuit rejected findings of the Second Circuit in Cariou v. Prince, it decided for the defendant. It based its opinion on several concepts of the Copyright Act as well as the marketing effect of the artwork in question. The court described the Second Circuit’s laser focus on transformative use issues as “dangerous” to the future existence of derivative works. 

If you have questions regarding copyright infringement, contact Thomas M. Lancia.  Attorney Lancia has more than 25 years of legal experience and can provide sound advice. Call (212)964-3157 for a consultation today.

Thursday, November 20, 2014

Can Text That Predates Copyright Protection Be Used Without Permission If It Has Been Recently Altered?

Copyright laws regarding old and even ancient texts are clear. The novel The Three Musketeers by Alexandre Dumas is not protected by copyright laws. Neither is Macbeth by Shakespeare or Emma by Jane Austen. So could Exemplary Tales of Love and Tales of Disillusion, written by María de Zayas y Sotomayor in approximately 1647, enjoy copyright protection?

The answer to this question is “possibly,” if the text has been significantly altered, and the altered text was copyrighted. This is the key question in a lawsuit filed by author and translator Julian Olivares against Elizabeth Rhodes, a professor at Duke University and Margaret Greer, a professor at Boston College. 

The facts of the case are as follows. In 2009, Rhodes and Greer published an English-language version of the Spanish-language Exemplary Tales of Love and Tales of Disillusion. In the book’s introduction, Rhodes and Greer state that the Spanish-language version of Exemplary Tales, on which they based their English translation, was Olivares’, that Olivares served as an editor of their book and that Olivares was one of many people who provided “assistance and support” for their work.

Olivares has sued, claiming that he published his work with a copyright  and that Rhodes and Greer did not request or receive permission to use his work in any way.  He also alleged that his edition was a “new and different version” of Exemplary Tales that contained “a large amount” of original material and is therefore eligible for protection.  As well as that he did not serve as editor for the work or provide assistance and support and that he was not in contact with Rhodes and Greer at all.

Though the outcome of the case will not be known for months or years, it already illustrates an important point: Even seemingly clear-cut cases of copyright protection can quickly become complex. It therefore makes sense to work with a qualified copyright attorney when publishing and using material, as well as when litigating in a copyright dispute case. 

New York City attorney Thomas M. Lancia has successfully tried and arbitrated copyright infringement and trademark legal cases since 1998 and can provide the answers and assistance you need regarding intellectual property law questions. Call (212)964-3157 for a consultation today.

Friday, November 14, 2014

NYPD Officer Fired For Alleged Connections to Criminals Now Suing Department

It is usually considered discriminatory for your employer to ask about your sex life or associates outside of work. But, what if the agency you work for has a policy that prohibits you from associating with certain parties.  A former New York City Police Department officer has recently brought a lawsuit that addresses this very question.

Erica Rivera, 27, of Orange County, New York, was a NYPD officer working at the 52nd Precinct in the Bronx.  In 2012, when she was a new officer, a woman came into the station house and informed other officers that there was a photograph of Rivera and a gentleman named Danny Perez posted on social media.  The woman was Perez’s new girlfriend.  Rivera and Perez dated years before and the picture was from 2007.  Unfortunately for Rivera, Perez has also been incarcerated for a stabbing since they were an item.  This raised some concern among Rivera’s superiors and she was questioned about the circumstances and even about current sexual relations with Perez, which she denied.  Afterward, the incident seemed to blow over.

But, in 2013, a detective from Rivera’s town informed the NYPD that she was currently involved with another individual with criminal ties, George Mann.  Mann had been arrested in relation to child support payments.  Rivera was again questioned about her personal relationships and even about her sex life.  When she objected, her superior threatened to fire her unless she agreed to talk.  She then admitted that she had been dating Mann sporadically and had a sexual relationship with him but maintained that she did not know about his criminal history. 

In August, she was fired from the job after a two year investigation by the NYPD Bureau of Internal Affairs.  Her termination was based on NYPD policy that officers are prohibited from being involved with criminals.  If officers break any policy while in their initial probationary period, they can face termination.  As such, Rivera was fired.  When she applied for unemployment benefits, the NYPD disclosed the circumstances of her firing to the Department of Labor. Rivera has now brought a lawsuit against the NYPD claiming that their questioning about her sex life was illegal and asking the court for $5 million in damages.  

Whether you work for a small company or large agency, New York City Thomas M. Lancia can help if you have an issue with your employer.  He is experienced in all areas of employment litigation, including discrimination and wrongful termination.  Contact his office today by calling (212)964-3157 for a consultation.


Wednesday, October 29, 2014

The Turtles Are Not Happy About Unauthorized Use of Their Music

Popular 1960’s music group The Turtles are at the center of multiple copyright disputes relating to the unauthorized use of their work by digital media companies.  While most artists must give permission for their songs to be played by sources such as Pandora and Sirius XM, these parties have been playing multiple tracks by The Turtles without this authorization.  The lawsuits brought by the band have highlighted an ambiguity that currently exists in copyright law and that will hopefully be remedied in the near future.

Last year, The Turtles filed multiple lawsuits against Sirius XM in New York, Florida and California, for allegedly playing their music without authorization.  It seems that Sirius was playing these tracks in reliance on an obscure provision of the federal copyright law.  This provision allows recordings made on or before February 5, 1972 ineligible for federal copyright protection.   This means that these recordings can be played without authorization and without paying royalties.  While some state laws do apply to these recordings, it is unclear what they protect.  The Turtle’s demanded over $100 million dollars in damages in the lawsuits brought under the applicable, but haphazard, state laws.  

Recently, a judge in the California case granted the group summary judgment and decided that it was clear that their performance rights have been infringed upon.  This decision is contrary to another recent California decision made in a similar case brought by several major record labels.  

Now, The Turtles have brought a similar suit against the increasingly popular Pandora Media on the same basis.  They are seeking $25 million dollars in the new California lawsuit.  Although Pandora claims that it pays other types of royalties in these situations, the copyright law is unclear and at times conflicting in this area.  The decisions in these cases have the potential to make a major impact on how older music is handled by digital media and other companies in the future and could entitle the owners of these works to large amounts of compensation.  

If you have a copyright issue that seems unclear, an experienced attorney can help to demystify it for you.  Call New York, New York copyright infringement attorney Thomas M. Lancia (212)964-3157 for a consultation today.

Wednesday, October 15, 2014

Top Model Sues New York City Modeling Agency for Wage Violations

According to model Eva Agerbrink, a New York modeling agency has gone too far in its attempt to wring money from its talent.  In her class action lawsuit against MSA Models, the 48-year old plaintiff claims that the agency, like many others, illegally evaded state and federal wage and hour laws by claiming that its models were "independent contractors."  The agency also penalized models when clients they modeled for failed to pay the agency.  Its practice was to deduct 20 percent from models' commissions and also to charge the clients who hired them 20 percent.  If a client didn't pay, they deducted funds from the model.

Agerbrink says that, relying on such practices, MSA deducted 35 percent of Agerbrink’s earnings for work she did modeling for the QVC shopping network.  

Her complaint against MSA Models and its owner accuses them of minimum wage and overtime violations.

She also says that when, without the agency's help, she found and accepted an in-house position as an administrative assistant and model with Cache, a nationwide specialty retailer, MSA demanded a percentage.  The agency served her with papers claiming the right to $17,946 in wages from her new job.  

Agerbrink claims she has lost tens of thousands of dollars in the course of her three-year contract with MSA and is seeking unpaid wages and other damages.  Models generally are not paid all the wages they have earned, she says, because of their weak bargaining position.  

Agerbrink has a colorful past as a model and actress.  She played the part of a stripper in a movie and was involved in a love-triangle that made gossip pages when one of her lovers allegedly threatened another with a baseball bat. Even so, her plight is no different from that of workers who rely on staffing agencies in less glamorous industries.  

If you have been classified as an independent contractor when you are actually an employee, or if you feel a staffing company is unfairly deducting too much from your earnings, you may have a claim under federal and state wage and overtime laws.  Thomas M. Lancia can help you recover the back pay and damages to which you are entitled.  Call (212)964-3157 for a consultation today.

Friday, September 26, 2014

New All Female Car Service Causing Discrimination Concerns

In the city that never sleeps it is a reality that you might need a ride at 3A.M. Many New York women feel uncomfortable being picked up by a male driver in the late hours of the night or anytime they are alone.  One entrepreneur has the solution:  An all female car service.  But, what are the legal implications of running this type of business?

A new car service called She Rides has been created by Stella Mateo, wife of the leader of the New York State Federation of Taxi Drivers, Fernando Mateo. She Rides is a women only service.  The cars will only pick up women and will be driven by only women.  The service has its own App which women can download.  When they need a ride, they can open the App and request one.  At that point, a female driver in the area will come and pick them up. She Rides will use female drivers from other companies as well as hire their own.  But, hiring only female drivers could cause some legal trouble for Mateo.

According to Title VII and New York State law, employers cannot use gender as a factor in employment decisions. Employers are not permitted to hire or fire based on the gender of the employee.  Experts say that even if the customers want service that revolves around gender, providing the service in this way is still qualifies as employment discrimination.  She Rides therefore creates an interesting situation.  If Mateo is to hire only female drivers she would, in essence, be participating in gender discrimination.  Any man that was not hired for a position with She Rides would have an employment discrimination claim. Mateo points to women using female doctors and going to exclusively female gyms as a basis to deny any discrimination she might become involved in. Unfortunately, the law does not work this way and she will most likely face a claim in the near future.

While gender discrimination has been outlawed for many years, it and many other forms of employment discrimination still exist.  If you think you have been a victim, call New York City attorney Thomas M. Lancia at (212)964-3157 to schedule an appointment to discuss your case.  


Tuesday, September 16, 2014

Agreement Reached in NYC School Safety Agent Gender Discrimination Case

During Mayor Michael Bloomberg’s reign, the Teamsters Local 237 labor union brought suit against the City of New York for gender discrimination.  The case was filed on behalf of school safety agents that were members of the union. The majority of agents are women and the basis of their discrimination claim is that special officers that work for other city agencies, more of which are men, are paid a higher salary.  They allege that under these circumstances, the difference in pay qualifies as gender discrimination.

After feminist protests and media campaigns urging the City and the Mayor to do something about the gender discrimination, a settlement agreement has been reached.  The agreement is contingent on court approval but includes retroactive pay for workers that were discriminated against.  More than 5,000 workers that have been employed for three or more years will be entitled to a $7,000 payment to make up for the lower salary.  The City will be responsible for paying out around $38 million in retro-pay to injured workers. Accompanying the settlement is a new employment contract for Local 237 members that will cost the City approximately $192 million.  Under the new contract, workers will start at a slightly lower salary than they did previously, but their pay will increase significantly by their seventh year of service.  

Local 237 president, Greg Floyd, has said that although it did not happen as quickly as he would have liked, he is happy with the settlement.  All in all, things are looking up for NYC workers under the new mayor.  De Blasio has continuously claimed to be committed to doing the right thing for workers and has negotiated new contracts for a number of unions in recent months.

Employment discrimination is a serious matter that can have an effect on your livelihood.  If you believe that you have been the victim of employment discrimination you should consult with a qualified employment law attorney today.  Call New York City attorney Thomas M. Lancia at (212)964-3157 to schedule an appointment to discuss your case.  


Thursday, August 28, 2014

American Eagle Outfitters Sued for Copyright Infringement

What used to be considered graffiti and vandalism has now come to be known as street art.  Street art is now commonplace, accepted and admired in cities all over the world.  Street art, once thought to lower the quality of life in the areas it was visible, is now thought to be an enhancement, turning once low key areas into up and coming neighborhoods.  Unfortunately, the artists that create this art do not have a lot of options when it comes to protecting their works.  What protections they do have is at the heart of a recent copyright infringement case.

Popular Miami street artist, David Anasagasti a.k.a. AholSniffsGlue, whose work adorns the Wynwood Art District, is well known for his anti-corporate beliefs.  Recently, he discovered that clothier American Eagle Outfitters was using some of his work in their spring campaign.  His work appears in the company’s marketing tools digitally, in print on billboards and advertisements and in stores in a number of countries.  One unauthorized use of his work by American Eagle Outfitters depicts a young model with a can of spray paint which implies that the model created the work himself.

Anasagasti promptly brought a copyright infringement suit in New York against the company for the use of his work without his authorization.  He claims that American Eagle Outfitters failed to attribute the work to him and compensate him for his work.  Anasagasti also alleges that the company knew how to get in touch with him but failed to do so.

Some think that the company did not attempt to attain authorization to use the work because it did not believe it had to.  It is thought that in order for original work to be protected it has to be free of illegality.  The copyright law is unclear when it comes to the standards for original work that is illegal in nature.  As a good amount of street art is done illegally it could be that American Eagle Outfitters did not think that the work was protected by copyright. The U.S. copyright law does not provide that all original works that are done unlawfully are exempt from copyright protection and his might be the saving grace for street artists looking to stop the unauthorized use of their work.

If you believe your copyrighted work is being used unlawfully or you have been accused of copyright infringement you should seek the advice of an attorney experienced in this area.  Thomas Lancia has years of experience representing clients in these matters.  Call (212)964-3157 for a consultation today.


Monday, August 11, 2014

New Protections for Unpaid Interns Under New York Law

Whether in college, transitioning from one career to another or just trying to get your foot in the door, the unpaid internship has become quite popular.  These situations benefit the employer and the intern in that the employer receives free labor while the intern gains valuable experience in the industry they aspire to work in.  Colleges and graduate schools push unpaid internships and some even require them before allowing students to graduate.  Unfortunately, interns are often abused and are afraid to speak up because they do not want to ruin their chances of getting a job.  New York State has now enacted a law that protects interns from these abuses.

Previous case law issued by a Federal District Court in 2013 made unpaid interns exempt from protections for on the job discrimination and harassment.  The new legislation, actually an amendment to the New York State Human Rights Law, makes certain employment laws relating to discrimination, retaliation and harassment applicable to unpaid interns.  This law overturns the previous case law and goes into effect immediately.  The law specifically defines interns as unpaid individuals whom the employer is not required to hire after the internship, that are being closely supervised, do not replace regular employees and that are being trained to make them more employable in the future.  It focuses on discrimination and sexual harassment against interns making these acts specifically illegal.  It also makes it clear that even though these laws apply it does not mean that an employment relationship has been created.  Although New York is not the first state to enact these types of laws, and New York City recently put a similar statute in place, the law will surely make the experience of an unpaid internship much more valuable to those who decide to participate in one in New York.

If you feel you are currently being discriminated against, harassed or retaliated against at your unpaid internship you need the advice of an experienced employment law attorney to navigate the new law and decide whether you have a claim.  Call New York City attorney Thomas M. Lancia at (212)964-3157 for a consultation.


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