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April 2021
Welcome
Welcome to readers of Making the Connection!   
 
In this issue, you will find: 
  • In Focus : New York Introduces Covid-19 Passport
  • Question of the Month, answering an inquiry about endorsements and testimonials 
  • Case on Point, discussing the limits of an "artist's reference" license
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
New York Introduces Covid-19 Passport 
The federal Occupational Safety and Health Act imposes a duty on employers to provide a safe workplace. New York law extends that duty to customers, vendors, and other visitors. To comply with that duty, and with applicable New York State COVID-19 reopening guidelines, restaurants, venues and other businesses where people gather, will be screening visitors to ensure they have been vaccinated or can produce a recent negative Covid-19 test. New York State has just introduced an app, known as the Excelsior Pass, to facilitate that screening process. Click here for more information. 
Question of the Month
This feature answers a reader's question. Please submit proposed questions to lisa@lisapom.com.
This month's question is inspired by a client inquiry.
Q: Should I agree to endorse a business whose products or services I have never used?

A: No. The Federal Trade Commission guidelines for endorsements and testimonials state that they must be based on actual experience with the product or service, and that any claims made must be representative of what a consumer or user of the product or service could expect. These requirements apply to advertising or marketing in any medium.
Case On Point
In this month's case, the court considers whether Andy Warhol exceeded the limits of an artist's reference license.
The Andy Warhol Foundation for The Visual Arts, Inc. v. Lynn Goldsmith
(U.S. Ct. of App. for the 2d Cir. 2021)

Lynn Goldsmith is a successful professional photographer known especially for her portraits of rock musicians and other celebrities. In 1981, she was assigned by Newsweek to photograph Prince but retained the copyright to the photographs. Goldsmith applied make-up and adjusted the lighting to emphasize the singer's chiseled features and sensuality.

Three years later, Goldsmith licensed one of the photos to Vanity Fair magazine for use as an artist's reference. The license permitted the magazine to use the photo as the basis for an illustration to appear in the November, 1984 issue, and required it to give credit to Goldsmith.
Vanity Fair then commissioned Andy Warhol to create the illustration, which appeared in the magazine, together with the required attribution.

Unbeknownst to Goldsmith, Warhol went on to create a series of 15 silk screened prints and two pencil drawings based on the licensed photo.  In 2016, after Prince's death, Vanity Fair licensed one of the other Warhol works to use for the cover of a tribute issue. It was published with no attribution to Goldsmith.

When Goldsmith saw the magazine cover, she contacted the Andy Warhol Foundation, which now owned the copyright. The Foundation sued seeking a declaratory judgment that there was no infringement, or, in the alternative, that the fair use defense applied. The district court granted summary judgment to the Foundation, agreeing that Andy Warhol's use of the photo beyond the scope of the license was "transformative" and that such use did not reduce market demand for Goldsmith's work.

The Court of Appeals reversed. While in most instances "transformative works" copied from the original for purposes of commenting on them, the Warhol print served the same purpose as the Goldsmith photo and was readily recognizable as being derived from Goldsmith's photo. The Court also noted that the Warhol prints could reduce the demand for licenses to Goldsmith's photos.

At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances. At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.    
    
  • On April 5, 2021, from 5:00 p.m. to 6:00 p.m., I will be a panelist at a program on Covid-19 and Employment Law sponsored by the Touro Law School Employment and Labor Law Society.

  • On April 7, 2021 I will speak to the Long Island chapter of SCORE (Service Corps of Retired Executives) on Business Basics - The Legal Aspects.

  • On April 8, 2021, from 12:00 pm to 1:00 pm I will speak at the MWI Monthly  Roundtable on The Advantages of Transparency in Mediation. Click here for information and registration.  
Client Corner
Client Corner features client announcements and events of potential interest to readers.  Some Client Corner events are also listed on the calendar page of my website.    

  • Congratulations to Dr. Marc Miller of MLM Coaching and Consulting, LLC on receiving the Professional Certified Coach designation from the International Coaching Federation.

  • Nick Nikiforakis, an Associate Professor at Stony Brook University, published a 7-month-long study on understanding and detecting malicious bots that scour the Internet, stealing user information and compromising vulnerable systems. His study titled "Good Bot, Bad Bot: Characterizing Automated Browsing Activity" will appear in the 2021 IEEE Symposium on Security & Privacy, the most prestigious academic conference in computer security. A teaser video of that presentation is available online  as well as the full paper .

  • Congratulations also to Theresa Jacobellis of Prescrxptive Communications, LLC who was named the recipient of the Howard M. Blankman Outstanding Mentor Award by Public Relations Professionals of Long Island. The award ceremony will be held remotely on Wednesday, May 12.


80 Orville Drive, Suite 100 | Bohemia, NY 11716
www.lisapom.com
© 2021, Lisa Renee Pomerantz. All rights reserved.



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