August 11, 2026
By Laura Trachtman
When I was in high school, I worked on the school plays. And why not? We techies were a little gang of misfits and weirdos: some of us goths, some of us queer, some of us just odd. It was a safe space, without anyone imposing their ideas on how we should behave. There wasn’t any room for that – we were in the theatre (italics and British spelling indicative of how dramatically “theater” should be pronounced). And it was okay to be yourself, no matter how out there you were.
So you can imagine my dismay when I read that a certain musician, Kevin Lynch, has been slowly but surely challenging DEI efforts in and amongst Broadway theaters in New York’s federal courts. (For those just tuning in, DEI stands for diversity, equity, and inclusion). I have some thoughts about this, which I’ll discuss below, in no particular order.
What’s the Deal?
Kevin Lynch is suing based on Playwright Horizon’s so-called discriminatory ticket-selling practices for the onstage performance of the show Practice in the first action, which settled. Lynch is also suing based on so-called discriminatory hiring practices by Maestra Music, Inc., Arts Ignite Inc. d/b/a Musicians United for Social Equity (MUSE), and Wicked LLC in the second action, which remains ongoing.
The complaint in the first action, Lynch v. Playwrights Horizons, Inc., alleged that on November 6, 2025, Playwrights Horizons, an esteemed off-Broadway theater in New York City, hosted a “BIPOC night”, where it sold tickets to the show Practice to persons of color at a heavily discounted price. Lynch, a Caucasian man, paid full price for his tickets – a difference of $102 in total.
The complaint in the second action, American Alliance for Equal Rights et al v. Maestra Music, Inc., summarizes Maestra directory’s ban on musicians who are male, and the MUSE directory’s ban on white musicians. Subsequently, the American Alliance for Equal Rights, alongside Lynch, detail how Wicked created and marketed a THREE WEEK position with a “modest paid weekly stipend” only to members of either Maestra or MUSE: In other words, it was only for a non-white male.
Why Here?
Why pick Broadway? In both actions, I think it was the perfect storm: Means, motive, and opportunity all came together.
For the first action, Lynch had an opportunity and the means to capitalize on it: The theater advertised the availability of a discount for BIPOC consumers. That enabled Lynch to paint himself – and everyone else similarly situated – as a victim. And, he had a motive: < sarcasm > We all know it’s terribly difficult to be a white man in today’s day and age, so obviously he needed to teach that awful racist theater a lesson! < / sarcasm >
Lynch was clever about it, or rather, his attorneys were: They requested that the Court recognize the matter as one with sufficient numerosity to warrant a class action. So the recovery would be exponentially greater than the $102 that would have been his damages for the pair of theater tickets.
For the second action, my answer is the same: The theater created a THREE WEEK job so that a person of color could have limited access to Broadway, which seems like a mitzvah in my opinion. And Lynch seized the opportunity to make the entire situation about himself.
Why Now?
Why choose to sue these Broadway companies right now? Of course, we already know the answer: It’s the politically popular thing to do. With the Trump Administration’s evisceration of the EEOC and generally negative attitude towards anyone who isn’t a cisgendered heterosexual white Christian male, it’s easy enough to find backers to bankroll anti-DEI lawsuits.
While this article talks about the changes in New York and federal law, I’ve already discussed that it has been illegal to discriminate against someone based on their race for decades, no matter their race. (Read this article and this one, too.). In other words, Kevin Lynch could have brought these lawsuits during the Obama Administration, and they would have been just as viable. However, they wouldn’t have been politically popular, because unlike President Obama, President Trump is a racist. Let’s not forget that he called the white supremacists who led the January 6, 2021 insurrection “very fine people.” (And no, before you ask, I’ll never, ever get over the fact that he said that – among other things he has said and done.)
My Two Cents
Look, as a white person myself, I get it. Is it fun to be excluded? No. But this isn’t kindergarten, it’s real life. And anyone who seriously sits down and complains that it is hard to be a white male in today’s day and age is either delulu or selling something. And here, Kevin Lynch is selling the story of the tragedy of white men in American to the American Alliance for Equal Rights – an institution which only seems interested in safeguarding the rights of white Americans.
There are several big issues in play here: The first is that this conduct is, whether we like it or not, illegal. Employers cannot discriminate in hiring based upon race, even for a three-week gig. Excluding certain candidates based on race will disincentivize employers from espousing DEI programs and hiring practices. Accordingly, employers need to get smarter about how they hire people if they want to take diversity into account.
The second big issue I see unfolding involves institutions that worry about the white race no longer being the dominant race in America. They will seize these opportunities to make a big stink about reverse racism, or whatever they want to call it.
That leads me to our final big issue. Instead of becoming defensive, we need to prioritize education in this county. Whitewashing the racism in which the U.S. was baptized (Three Fifths Compromise, anyone?) doesn’t do us any favors. Is it uncomfortable to learn that our Founding Fathers were slave-owners? Yes. Does it create cognitive dissonance to think that someone who wanted freedom for certain people didn’t also want freedom for all people? Also yes.
People need to learn that saying something like “black lives matter” doesn’t mean white lives don’t matter. Not everything needs to be personalized or internalized. Life sucks for everyone. But sometimes, life sucks a little more for certain people, and it’s okay to give them a boost from time to time.
August 10, 2026
By Emily Poler
These two images of Miles Davis look pretty similar, eh?
The question is, does the one on the right — a tattoo inked by reality TV star Katherine von Drachenberg (a/k/a Kat Von D) — infringe on the original, copyrighted photo taken by Jeff Sedlik in 1989?
According to the 9th Circuit, which affirmed a jury’s finding earlier this year, the answer is no. But that’s where things get interesting (at least for copyright nerds like us). Two of the three judges who affirmed the jury’s decision wrote separate, concurring opinions saying, in essence, that based on existing law we have to affirm the jury’s finding of no infringement — but we think that existing law is kinda f’d.
Before I explain their thinking, a little background. When Sedlik took the photo of the famed jazz trumpeter, he made all sorts of creative decisions regarding wardrobe and pose, going so far as to position Davis’ fingers to represent musical notes. He registered the photograph with the U.S. Copyright Office in 1994 and has since sold licenses authorizing limited reproduction, distribution, display, and creation of derivative works; he even once licensed the image for a tattoo. Just not the one pictured above.
In 2021, after Kat Von D inked that on a subject (purportedly tracing the photograph to create a stencil) and then posted pics on social media, Sedlik sued her. And yet, despite what to you and me might seem very obvious similarities between the photo and the tattoo, a jury concluded the tattoo did not constitute copyright infringement. Sedlik appealed, and a panel of three judges declined to overturn the jury’s decision.
That said, two of those judges took issue with the process by which the jury reached their decision. What’s their beef? Taking a step back, to establish infringement, the plaintiff has to show that the defendant unlawfully appropriated the copyrighted work. This requires showing that the two works are “substantially similar.” In the 9th Circuit — which includes California and, naturally, hears more than its share of copyright cases — this is examined through a two-part test. The first part of this test, which is called the extrinsic test and is decided by a judge, is supposed to assess the objective similarities of the two works with a particular focus on only those parts of the copyrighted work that are protectable. (It’s not always easy to separate what’s protectable from what’s not, since copyright protects original expression, and not the underlying concept. Lots of gray area there).
The second part — the intrinsic test — looks “for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” This part is, generally, up to a jury.
Copyright infringement requires both of these tests to be satisfied.
In the Kat Von D case, the two judges with the aggressive opinions took issue with the intrinsic test, with one of them writing it is “fundamentally flawed” and “virtually devoid of analysis.” Each judge wrote that the court should consider doing away with it because, in their view, it hands a complicated and ambiguous analysis to a jury with zero guidance. They find this problematic because it leaves decisions up to a jury’s “feel,” which in this case resulted in the jurors seeming to have ignored Sedlik’s protectable expression in his composition of the subject, which Von D clearly copied, instead deciding, “well, one’s a photo and one’s a tattoo so they’re not similar.” This intrinsic test, according to the two judges, does nothing to help jurors distinguish between the protected portions of a work and the unprotected portions and is at odds with Supreme Court precedent that suggests “to accord with the Copyright Act, a court should focus on carefully filtering out [unprotectable] concepts and ideas.”
What’s more, the judges are concerned that appeals courts don’t generally go around second-guessing juries on these types of decisions — which, in effect, gives juries in these cases a ton of power they maybe shouldn’t have. The judges also took issue with the fact that the nature of this test makes it nearly impossible for a plaintiff to win without going to trial, which places a heavy financial burden on anyone who feels they’ve been infringed upon.
Provocative stuff indeed (again, for copyright nerds). So what do I think? Well, the judges definitely make some good points. Infringement analysis can be very difficult for the average citizens on a jury who have no knowledge of the fine points of creative expression. The problem is, they don’t offer up any ideas for what they would put into place instead of the current test. They seem to be suggesting that such determinations would be better decided by judges and/or with the help of expert witnesses. Now, I’m not sure that judges are necessarily any more able than your average juror to determine what is or isn’t protectable, or that having judges make these decisions is going to lead to more predictable and consistent results.
This case is now going to be heard by all of the judges on the 9th Circuit. Maybe they’ll give us some guidance, which would be nice since, ultimately, this case is about how we figure out what is protected by copyright law and who determines this. Which is pretty important.
July 28, 2026
By Laura Trachtman
A situation where a client is litigating two separate matters can sometimes be confusing. When I was a prosecutor in the Bronx, defense counsel would usually ask that the multiple matters be scheduled to meet on the same day to avoid too many trips to the courthouse, and the DA’s office never objected. But that was criminal land. What do you do when you have a client litigating two separate matters in civil terms?
Of course, it depends; in today’s blog, we’re going to talk about what happens when the two matters share common facts or law. In such a situation, you make one of two motions: a motion to consolidate or a motion for a joint trial. Both motions are governed by the same statute, that is, CPLR § 602(a).
What’s the difference?
For all intents and purposes, there is no real difference. As noted by the Second Department in Cohalan v. Johnson Elec. Constr. Corp., 104 A.D.2d 920 [2d Dept 1984], there would be “no significant or practical distinction between the courtroom procedures that [would] occur if the actions [were] consolidated rather than jointly tried.” In Cohalan, the court recognized that proposed consolidation of two trials would have no negative impact on the judgment that could not be reconciled by the diligence of the court.
Where does one bring a motion to consolidate or a motion for a joint trial?
Generally, a motion for consolidation under the statute “is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact.” RCN Constr. Corp. v. Fleet Bank, N.A., 34 AD3d 776, 777 [2d Dept 2006]. Nonetheless, consolidation is not appropriate where the movant “fail[s] to specify the commonality in issues of law.” Id. at 777. A motion for consolidation should also be denied “where the actions involve dissimilar issues or disparate legal theories or where a joint trial would substantially prejudice an opposing party or pose a risk of rendering the litigation unwieldy.” Cromwell v. CRP 482 Riverdale Ave., LLC, 163 AD3d 626, 627-628 [2d Dept 2018] [internal citations omitted].
So which Do I Pick?
If you are worried about jury confusion, a joint trial is your best bet. Why? Because a joint trial results in the creation of two separate judicial actions in which the verdict and judgment are rendered independently from one another, although they are both decided by the same jury. In Mas-Edwards v. Ultimate Services, Inc., the Second Department noted that joint trials are the appropriate method of combination when “the actions involve different plaintiffs.” Mas-Edwards v. Ultimate Services, Inc., 45 A.D.3d 540 [2d Dept 2007]. While the courts a hundred years ago noted that the parties being a plaintiff in one matter and a defendant in another matter was no obstacle to the matters being consolidated, see Goldey v. Bierman, 201 A.D. 527 [App. Div. 1922], courts nowadays prefer to merge the matters into a joint trial, instead of a consolidated matter, so as to avoid jury confusion.
By contrast, the act of consolidation creates a fused judicial action where a singular judgment is rendered. For example, in Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506 [2d Dept 2013], Cieza was first injured in a work-related accident, but his injuries were further exacerbated by an auto accident mere months later. The Second Department granted Plaintiff Cieza’s motion for consolidation, noting that “[i]n view of Cieza’s allegations that certain injuries that he sustained in the automobile accident were exacerbated by the work-related accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly.”Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506, 506–07, supra.
Conclusion
When two matters share common laws or facts, a moving party would be able to either motion for a joint trial or consolidation. Both methods grant benefits for the judicial system as well as the individual parties by, inter alia, conserving judicial resources and avoiding inconsistent verdicts. However, the circumstances in which each situation will be granted will be dependent on the facts of the cases, needs of each party, and, ultimately, the discretion of the court.
July 22, 2026
By Emily Poler
It’s the middle of summer and, as much as I love writing this blog, right now I’d rather go lie in the shade and finish my book. All of which is to say, this week is going to be a short roundup of a few things that have caught my eye, and then I’m getting back to reading. It’s my All-Star break!
First off, because it’s summer, let’s talk about ice cream. A federal district judge directed ice cream maker Rebel Creamery to pay Van Leeuwen Ice Cream more than $20 million, finding Rebel duplicated the look of Van Leeuwen’s minimalist ice cream containers. The judge also directed Rebel to use packaging that wasn’t going to confuse consumers. (As an aside, it’s still hard to believe that Van Leeuwen started in a NYC food truck not that long ago, then opened a tiny storefront in Greenpoint, and now you can buy their flavors in bodegas, gas stations, supermarkets, and their own stores pretty much anywhere in America. That’s a whole lot of Cookies & Cream).
Next: Last week, the companies that own and operate Madison Square Garden sued Wired and one of its authors over an article titled “Madison Square Garden Kept a List of Gay Celebrities,” which, according to the plaintiffs, created a misleading impression that they keep such information to “discriminate against LGBTQIA celebrities, artists, guests, fans, and patrons because of their sexual orientation or gender identity . . . .” For what it’s worth, I read the Wired article, and that wasn’t the impression I took away from it. Still, it’s caused a bit of a furor, adding to the never-ending season of MSG in the news (Knicks in 5!).
And finally, on July 1 a federal district court judge denied motions for summary judgment in a lawsuit over whether a particular rhythm at the basis of the reggaeton genre is sufficiently original to be copyrightable. This means that the case will now go to a jury that will have to figure out if almost 2,000 tracks by artists including Bad Bunny, Pitbull, Drake, and Justin Bieber infringe on the “dembow riddim” created by Jamaican dancehall producers Cleveland Browne and Wycliffe Johnson (aka Steely & Clevie) in their 1989 track “Fish Market.” Defendants argue that the rhythm is part of an ancient musical tradition and not a unique creation, and thus belongs to the public domain. Bad Bunny has already asked the court to reconsider its decision here.
See you in August (where, oh where, did July go?)!
July 7, 2026
By Emily Poler
A couple of months ago, I wrote about a case brought by big movie studios, including Disney, against Nanoble Pte. Ltd. over its Hailou AI app, which allows users to generate short videos in response to prompts. The media empires’ problem with Hailou AI, which Nanoble markets as “a Hollywood studio in your pocket,” is that it can be used to generate videos featuring Star Wars, Marvel, and other well-known, copyrighted characters — videos like the ones Plaintiffs themselves created with Hailou AI to submit as evidence with their filing. And that’s where things suddenly get interesting.
Recently, Nanoble answered the studios’ complaint with an unexpected salvo: a counterclaim alleging the studios breached Nanoble’s terms of service by creating those sample videos and, thus, to the extent Nanoble is found liable for copyright infringement, the studios themselves will have to pay Nanoble’s damages and its attorneys’ fees. In other words, in this seemingly bizarre scenario, if the studios win, they themselves could be liable for any monetary judgments against Nanoble. Talk about hoisted by their own petard! (I think I finally understand what that expression means, even if I still don’t know what a petard is).
How does this make sense? Well, as is generally stated by the terms of service for the apps and websites we all routinely and thoughtlessly sign, by using that service, a user accepts its terms. Here, Hailou AI’s terms of service say users will not use the app in a way that violates applicable law or may expose Nanoble to liability. Notably, Hailou AI’s terms of service provide that if a user violates its terms, that user has to “defend, indemnify, and hold harmless Nanoble against claims, losses, costs, expenses, and fees, including reasonable attorneys’ fees, arising out of or relating to the user’s violation . . . .” In plain English, Nanoble is saying that, because the studios used Hailou AI to create outputs that infringe on their own copyrights, the studios violated Nanoble’s terms of service and are responsible for any monetary judgments against Nanoble.
The studios have responded with a bunch of arguments that amount to saying, in a variety of different ways, that Hailou AI’s terms of service are unenforceable because it would be dumb to allow someone to escape any responsibility for their own actions in this way. They’ve raised a whole host of defenses, including that the counterclaims fail because they violate the California Civil Code which states that “contracts which have for their object, directly or indirectly, to exempt any one from responsibility for … violation of law, whether willful or negligent, are against the policy of the law.” They also assert the counterclaims fail because “Nanoble’s interpretation of its Terms of Use is contrary to the public policies behind Federal Rules of Civil Procedure Rule 11 for pre-lawsuit investigations and the Copyright Act’s policy against copyright infringement and internet service providers interfering with standard technical measures to police infringement online.”
Interestingly, the studios are not claiming that the outputs they created in their Hailou AI videos are not, in fact, infringing, since they own the copyrights to the characters they generated; there are prior decisions holding that a copyright owner can’t infringe on its own copyrights. Going this route could get the studios out of any claim that they breached Nanoble’s terms of service by creating infringing works. However, it would also mean that they couldn’t use the works they generated as a basis for a claim of copyright infringement, which is at the heart of their case. There is also precedent recognizing that the use of copyrighted work in litigation is fair use, but again, doing so could lead a court to hold that since there is no infringement, the studios have no case. See how tricky this is?
One obvious question I have: Couldn’t the studios have found user-generated infringing videos produced using Hailou AI to enter as evidence? Don’t people make Darth Vader videos and post them on YouTube or TikTok? (According to my 14-year-old, yes, duh.)
So where is all this going? Well, Nanoble’s argument is certainly creative. However, I think it’s going to be hard for a court to swallow the idea that a party can basically remove itself from any possibility of liability by a contract. With that said, Nanoble’s arguments significantly increase the studio’s potential exposure, since even if they win, they face the prospect of having to pay Nanoble’s damages and its legal fees. The risk of this may well give the studios incentives to settle and walk away from the whole mess, which seems unfair but may well be better than what would amount to a very 21st-century Pyrrhic victory.
