Will Film/TV Production Insurance Cover Covid-Related Losses? More Lawsuits Emerge

One of the questions that has come about in the Film and TV world as a result of the pandemic is “do insurance companies have an obligation to cover losses due to Covid?”  With millions of dollars in losses due to circumstances beyond anyone’s control, studios and producers have hoped or expected their insurance policies to help with these losses.  

Insurance companies have of course resisted, if not outright refused, to cover Covid-related losses.  As a result, thousands of lawsuits have been filed since March of last year.  Now, producers of the Apple+ series The Morning Show claim their insurer is refusing to pay  $44 million of COVID-19 related losses after the pandemic delayed production of the show’s second season. According to a new lawsuit filed in California federal court, thus far, the insurer – Chubb National Insurance Company – has only agreed to pay $1 million under the producer’s civil authority coverage (which covers losses due to government orders that interfere with the use of facilities), and has declined all other claims. 

While the producers of The Morning Show, Always Smiling Productions, have insured their star-studded cast, which includes Jennifer Anniston, Reese Witherspoon, and Steve Carell, for $125 million in cast coverage, Chubb has claimed that they do not have an obligation to pay for Covid-related losses because the insurance policy only covers “death, injury, sickness, kidnap, or compulsion by physical force or threat of physical force.”  According to Chubb, Covid doesn’t constitute “direct physical loss or damage” to persons or property, and as such, is not covered under the policy.

However, Always Smiling Productions insists that Chubb owes them at least $44 million and stresses that the insurer had prior knowledge of the risk of a pandemic. According to the lawsuit, “Chubb also has known for more than a decade that it and its insureds face a substantial risk of loss from various viruses and pandemics and, since 2006, has had available to it an insurance industry standard-form exclusion applicable to certain losses caused by viruses and bacteria. Yet, in selling the policy to Always Smiling, Chubb did not include any such exclusion. In fact, Chubb did nothing in selling the policy to Always Smiling to limit its liability for virus or pandemic-associated risks. Nor did Chubb warn Always Smiling that even though it did not include a virus or pandemic exclusion, it would interpret the policy as if it contained one.”

Always Smiling also claims that Chubb forced the production company to buy additional insurance on less favorable terms because the insurer refused to extend the policy through the completion of its production beyond the policy expiration date, even though that is “the insurance industry’s long-established custom and practice and the relevant language of its insurance policy,” according to the lawsuit. 

Thus far, insurers that have used similar arguments against COVID-19 related claims have been largely successful in court. According to Penn Law’s COVID Coverage Litigation Tracker, nearly 2,000 lawsuits have been filed against insurers since March 2020. Of the 371 cases in federal court that have heard fully briefed dismissal motions, 93% of them have been dismissed. 

What do you think? Should insurance companies be required to cover Covid-related losses under existing policies?

Britney Spears’ Lawyer and Manager Step Down; Will Britney be Freed of her Conservatorship?

Fans around the world have been rallying for Britney Spears to be freed of her conservatorship and be allowed to make her own life choices.  Britney, who’s personal life and finances have been under the control of both her father and a co-conservator, has been begging the court to allow her some semblance of control over her life, including the right to marry and have children. The attention brought about by fans and celebrities has garnered the attention of some US Congressmen. In fact, Democrats and Republicans alike have expressed their outrage about the situation.  Congressman Ted Cruz called her situation “freaking ridiculous.” Congressman Matt Gaetz even invited Britney to speak before Congress, stating that her speaking before them could inform policy change.  In a letter addressed to Britney, he unequivocally showed his disagreement with her situation, that she has been “mistreated by America’s legal system,” and told her that “what happened to you should never happen to any American.”

Britney has spent the last 13 years living under a conservatorship – a legal status in which a court of law appoints a person to manage an incapacitated or incompetent individual’s or minor’s financial affairs. In Spears’ case, her father, Jamie Spears, serves as a co-conservator, controlling her spending, communications, and personal decisions. 

On June 23, Spears testified in a public court session. In her 24-minute statement, she detailed instances where she was forced to work or perform and was threatened with lawsuits and lifestyle restrictions if she did not cooperate. Spears also said medical professionals medicated her with drugs, including lithium, against her consent, and expressed her belief that she is subject to unnecessary and excessive psychological evaluations. Additionally, she stated that her conservators failed to supply her with self-care and shared that she was prevented from marrying and having a child, the latter as a result of an intrauterine device (IUD) implemented without Spears’ consent, which she has since been prevented from removing. 

Following Spears’ testimony, her court-appointed attorney, Sam Ingham, requested to resign, “effective upon the appointment of new court-appointed counsel.” According to Bianca Betancourt, an associate editor of Harper’s Bazaar, a source told her, “[Britney] thinks people are resigning because they know she is speaking the truth. She is relieved her attorney resigned and hopes that if she can pick her own lawyer, it means the judge is leaning towards terminating the conservatorship.”

Additionally, Bessemer Trust, a wealth management company that had been set to take over as co-conservator for Spears’ estate, also requested to resign in the aftermath of Spears’ testimony, as did her longtime manager, Larry Ruldolph. In a letter to Spears’ co-conservators Jamie Spears and the court-appointed Jodi Montgomery, Rudolph wrote, “It has been over 2 1/2 years since Britney and I last communicated, at which time she informed me she wanted to take an indefinite work hiatus. Earlier today, I became aware that Britney had been voicing her intention to officially retire.” 

Spears’ mother, Lynne Spears, has requested that Britney Spears be allowed her own private lawyer.

While Spears has made it explicitly clear that she wants to either end the conservatorship or remove her father, Jamie Spears, as a conservator, no such motions have yet been filed. In order for a conservatorship to end, a petition must be filed by the conservator, the conservatee, or “the spouse, or domestic partner, or any relative or friend of the conservatee or other interested person.” Spears would also have to show that she can take care of herself, both personally and financially, which can be hard to prove, as she has not been allowed to perform basic tasks – such as paying her bills – for at least 13 years. 

In the event that the court does not approve a petition to fully end the conservatorship, they can grant Spears back some power over her money, giving her more opportunities and authority to make decisions. Additionally, even if Spears never files any petition to end the conservatorship the court has the power to do so itself.  

Regardless of the outcome, we should be taking a second look at how this situation arose in the first place.  How many others whose voices are not heard, are not celebrities, or don’t have the funds to go to court, are living lives under the control of others?  How is this even regulated, and do you think Congress will actually do something?  What are your thoughts?

Another Media Merger: Spanish-Language Content-Kings Univision and Televisa Join Forces for $4.8 billion to Bring You Streaming; Former Netflix VP to Manage SVOD Content and Strategy

Just weeks after Amazon announced its purchase of MGM and its extensive media library for $8.45 billion, Univision announced plans to launch a new, two-tier streaming service in the U.S. and Latin America following its $4.8 billion merger with Televisa. As part of the merger, Televisa, a Mexican multimedia mass media company that claims to be the largest producer of Spanish-language content, and Univision, an American Spanish-language free-to-air television network and the United States’ largest provider of Spanish-language content, will combine media, production and content into a new company called Televisa-Univision. According to Univision, the streaming service will serve as a “milestone” for the Hispanic market. 

The newly announced streaming service will include a free, ad-supported tier, a subscription tier and full access to Televisa’s content library. The ad-supported tier, called PrendeTV, will include “select originals, major studio films, premium Spanish-language titles, an expanded live sports offering and a 24/7 news service.” The premium subscription tier will offer “over 6,000 hours of Spanish-language content and around 30 original productions exclusively on the service within its first year.” Overall, the new service will have more Spanish-language originals than any other streaming service, according to Univision. 

Rodrigo Mazon, the former Netflix vice president of content, will serve as executive vice president and general manager of SVOD, overseeing content and programming strategy, original content production, talent relations, content acquisitions from third-party producers and subscriber growth and retention. While pricing details and an exact launch date have yet to be announced, the service is expected to launch sometime in the first quarter of 2022. 

Curious what your thoughts are on whether these mergers are good for the consumer, or will they ultimately hurt our pocket books?

ANOTHER LIBEL LAWSUIT FILED AGAINST NETFLIX: MAKING A MURDERER

Last week, a federal judge in Wisconsin ruled that a libel lawsuit filed against Netflix and the makers of the hit true crime documentary television series (also known as a docuseries) Making a Murderer will be allowed to proceed. The lawsuit was filed by Andrew Colborn, a retired Wisconsin police sergeant, who alleges the series libeled him by insinuating he planted evidence in an effort to frame Avery. Colborn also filed a claim for intentional infliction of emotional distress. 

The Emmy Award-winning series premiered in 2015 and tells the story of Steven Avery, a man from Manitowoc County, Wisconsin who was wrongfully convicted of sexual assault and attempted murder of a female jogger and spent 18 years in prison before being exonerated by DNA evidence. Avery was released from prison but was eventually convicted for the murder of another woman and remains in prison for that crime. 

Colborn claims the docuseries is “biased and falsely depicts him as having framed Avery for the [Teresa] Halbach murder.” He also claims that, due to his (allegedly unfair) portrayal in the series, he has become the target of an “onslaught of threats and criticism.”

In response to Colborn’s claims, Netflix attempted to assert a version of fair report privilege, which allows for the republication of statements – even potentially defamatory ones – from official government proceedings. Netflix argued that the parts of the series that Colborn is challenging all come from Avery’s defense at his murder trial or from conclusions drawn by those who are familar with the criminal proceeding. 

However, U.S. District Court Judge Brett Ludwig disagreed, writing, “Neither the Supreme Court nor the Seventh Circuit has ever suggested a speaker enjoys unconditional First Amendment immunity for making defamatory statements simply because the statements concern legal proceedings.” 

Netflix also requested to have the case thrown out, stating that Colborn failed to serve them in a timely manner with his complaint, and also claimed that the statute of limitations had run out before Colborn filed his claim. However, Ludwig stated that Netflix had failed to convince the court of the inadequacy of Colborn’s claims, as records show process servers made several attempts to deliver the complaint to the production company and streaming service, meaning Colborn had exercised “reasonable diligence.”

Ludwig also added that Netflix’s portrayal of the series as an accurate report of the Avery trial is a factual issue that should be adjudicated later on, given that Colborn claims the docuseries “intentionally altered excerpts from the Avery trial transcripts.”

Colborn is considered a public figure.  In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court held that for a publicly-known figure to succeed on a defamation claims, the public-figure plaintiff must show that the false, defaming statements was said with “actual malice.” The Sullivan court stated that”actual malice” means that the defendant said the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by “clear and convincing” evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard. As for whether Colborn will manage to muster sufficient evidence in order to convince a jury that Netflix and the other defendants defamed him with “actual malice,” that remains to be seen. 

O.J. Simpson, Harvey Weinstein, Donald Trump and Jeffrey Epstein Lawyer Alan Dershowitz sues Netflix for Libel

In yet another example of how participating in a documentary or reality TV show can go awry, Alan Dershowitz is not happy with how he was portrayed in the documentary television miniseries (docuseries) Jeffrey Epstein: Filthy Rich, and has filed a new libel suit against Netflix as well as against the series producers Leroy & Morton Productions and Radical Media. In addition to the libel claim, the American lawyer who is perhaps best known for his work on the legal defense teams of O.J. Simpson, Harvey Weinstein, Donald Trump and Jeffrey Epstein, is also suing for breach of  contract and fraudulent inducement causes of action based on the agreement for an interview, alleging the producers promised not to disparage him. He is demanding at least $20 million each in damages for the four separate causes of action. 

The docuseries is based on the book Filthy Rich: A Powerful Billionaire, the Sex Scandal that Undid Him, and All the Justice that Money Can Buy: The Shocking True Story of Jeffrey Epstein by James Patterson and features interviews with survivors of Epstein. The miniseries also examines how the convicted sex offender was able to use his wealth and power to commit such crimes. 

Dershowitz, a Harvard Law professor emeritus, alleges he was misled “knowingly and deliberately” by the docuseries’ producers, who he claims “maliciously and intentionally” portrayed him in “a defamatory manner” and created a series with a “deliberately one-sided narrative.”   Respectfully, did he not see that coming?

Filthy Rich features a series of interviews with Dershowitz in which the lawyer defends the plea bargain he had negotiated for Epstein in 2008 which required the financier to register as a sex offender. Dershowitz also denies the allegations that he raped Virginia Roberts Giuffre as part of Epstein’s sexual trafficking of minors. 

According to Dershowitz’s defamation suit, Netflix had agreed to present evidence establishing he never had sex with Giuffre. Instead, he alleges, they portrayed the sexual allegations against him as a “he said/she said” situation. The complaint Dershowitz filed states that if Netflix “presented that evidence in Filthy Rich, as had been promised, [it] would have undercut the credibility of … the very people whose interviewed comments Filthy Rich depended upon.”

Dershowitz also claims that non-chronological editing choices in the series add credibility to Giuffre’s accusations and alleges that portions of the docuseries “presented allegations ‘anew’ and outside the context of any report of litigation.” Furthermore, he claims that the producers deliberately chose not to include evidence in the series that would exonerate him from Giuffre’s accusations.  

A Netflix spokesperson responded to news of Dershowitz’s lawsuit, saying, “Mr. Dershowitz’s lawsuit is without merit, and we will vigorously defend our partners and the series.”

How do you think this lawsuit should go? Do most documentaries have an agenda, and is participating in a documentary always risky?

Ice Cube Sues Robinhood for Unauthorized Use of His Image and Likeness

Ice Cube is suing Robinhood, a financial services company known for offering commission-free trades of stocks and exchange-traded funds via mobile app. The rapper claims the company used his image without permission and misquoted some of his lyrics in an advertisement. 

Celebrities guard the valuable use of their image and likeness closely. In fact, under a doctrine of law referred to as the “right of publicity,” they alone have the right to control (and benefit from) the commercial value of their name, likeness, voice, signature, and any other personal identifying traits that are unique to them (which may include, as in this case, song lyrics).  In California, where many celebrities work and live, this concept is actually codified in a civil law that makes it “unlawful, for the purpose of advertising or selling, to knowingly use another’s name, voice, signature, photograph, or likeness without that person’s prior consent.”   There are also federal laws (such as trademark laws) that protect celebrities against these unauthorized uses.

According to the complaint filed by Michael Taitelman and Sean Hardy of Freedman + Taitelman on behalf of Ice Cube, Robinhood has violated the Lanham Act (also known as the Trademark Act of 1946) which prohibits trademark infringement, trademark dilution and false advertising, along with a number of other California statutes that prohibit the misappropriation of someone’s likeness and unfair competition.

The complaint states:

In a cynical effort to appeal to a young demographic, Robinhood has engaged celebrity endorsers such as Jay-Z, Nas, and Jared Leto to endorse its products and services,” states the complaint. “However, in an act of unmitigated gall and transparent retribution, Robinhood and its subsidiary have now used the image and likeness of Ice Cube – without his permission – to promote Robinhood’s terrible products and services. Robinhood has picked on the wrong man this time.

Ice Cube claims the company’s use of his image and lyrics is damaging his reputation, referencing the hundreds of other lawsuits and multiple government investigations involving Robinhood. Additionally, he claims that the company has repeatedly ignored his multiple requests and demands that they cease using his image and likeness. 

The filed complaint sums it up as such: “Robinhood flagrantly displays its belief that it is exempt from the rules and laws that govern everyone else in the United States.”

Pulitzer Prize-Winning Author Claims Guillermo Del Toro Plagiarized The Shape of Water

A lawsuit claiming that Guillermo Del Toro plagiarized The Shape of Water from Pulitzer Prize-winning author Paul Zindel’s play Let Me Hear You Whisper has been dismissed.  

First, it’s important to note that most cases are settled outside of court, so we don’t always get court rulings that would otherwise help us determine what is and isn’t copyright infringement when it comes to similar works of art.  This case is no different.

Both The Shape of Water and Let Me Hear You Whisper feature plots about employees at scientific facilities who decide to free a creature imprisoned within the facility. The suit, which quickly gained international attention, was first filed in February 2018, right before Oscar voting concluded for that year’s ceremony. Despite the allegations against Del Toro’s work, it still won Academy Awards in four categories, including Best Picture. 

Mere months after the lawsuit was filed, U.S. District Court Judge Percy Anderson rejected the case, finding that, “Although the Play and the Film share the basic premise of an employee at a scientific facility deciding to free a creature that is subjected to scientific experiments, that concept is too general to be protected.” 

However, in June 2020, the 9th Circuit Court of Appeals decided to reopen the case, citing a need for additional evidence and expert testimony to “aid in the objective literary analysis needed to determine the extent and qualitative importance of the similarities that Zindel identified in the works’ expressive elements, particularly the plausibly alleged shared plot sequence.” Both sides were due to present expert reports and witness designations this week, with a trial scheduled for July. 

Instead, it was announced this week that the case is being dropped. A spokesperson for Searchlight, one of the co-defendants, stated, “David Zindel, the son of Paul Zindel, author of Let Me Hear You Whisper, acknowledges, based on confidential information obtained during the litigation process, that his claims of plagiarism are unfounded. He acknowledges Guillermo del Toro as the true creator of The Shape of Water. Any similarity between the two works is coincidental.” 

The Shape of Water has been the subject of other copyright claims, in addition to those made on behalf of Paul Zindel. Jean-Pierre Jaunet, a French film director accused del Toro in February 2018 of copying a dance scene from his movie Delicatessen. Additionally, some viewers pointed out that Shape of Water shares a similar plot with The Space Between Us, a 13-minute short film by Marc S. Nollkaemper. However, the Netherlands Film Academy, who produced the short, rejected these claims, stating that the two films “are not in any conceivable way interlinked or related” and “have their own very different identities.”

A Rare Lawsuit over Writing Credits Filed Against Co-Creator of Ozark

A lawsuit over writing credits for the upcoming Liam Neeson movie Blacklight has recently been drawing people’s attention. While credit disputes are far from uncommon, this particular case stands out for two reasons. First off, writing credit disputes rarely go to court, and are instead often settled in guild (WGA) arbitration. So this case is already one to watch. Second, the plaintiff, Nick May, is an attorney and assistant regional director at the Federal Trade Commission, in charge of “supervising staff in enforcement actions over deceptive business practices.” 

According to the complaint May has lodged against Mark Williams, a co-creator of the television series Ozark, May wrote a screenplay, which he then optioned to Williams and Alevè Loh. The movie was then filmed in Australia in late 2020, after the country lifted its COVID-19 restrictions. 

However, once filming wrapped, May was shocked to find he had been granted only a shared “Story By” credit, and that the writing credits of “Screenplay By” and “Written By” had been awarded solely to Williams. While May acknowledges Williams made some changes to his screenplay, including shifting the time period in which the story takes place and tweaking some of the dialogue, he asserts that:

“Williams’ revisions to the final shooting script in no way rise to the level of a greater-than-50% contribution to the screenplay’s elements—the amount that would be required under the applicable, contracted-for standards to award Williams even a shared ‘Screenplay by’ credit for the film.”

In addition to not granting May the recognition he alleges he deserves, the lack of writing credit has a financial impact as well. With a “Screenplay By” credit, May would be entitled to 3% of the film’s net proceeds. Without the credit, he’ll get zero. 

When asked by The Hollywood Reporter for his response to May’s claims, Williams said:

“I have not seen this suit as of yet.  Considering I no longer control the rights to the movie or the credit determination, and the movie is still in early post and no credit determination has been made, I believe this may be the case of an overzealous attorney/writer.  The writing credits will be arbitrated per the contract, in due course.”

Williams appears to be alluding to the fact that this case will probably be kicked down to arbitration.  Most writing agreements have a clause stating that credits will be determined by the WGA, and that if there is any dispute over credits, those will be resolved by the WGA in arbitration. A judge who sees that will have no choice to dismiss it, unless there are other claims involved in the case.

While it remains to be seen whether Williams’ claims are accurate, it is clear that May feels his experience is a tale as old as time. As the lawsuit states, “This is thus the common Hollywood tale of established players stealing credit and money from creative newcomers.”

Before you sign that Reality TV Contract…

Reality TV contracts are notoriously one-sided, aggressive, and difficult to negotiate unless you’re a celebrity. If you’re an “Average Joe” hoping to get famous by starring in a reality show, be ready to “sign your life away,” if you’re not careful. A common tactic is to put a time pressure on when they need the agreement signed by, often leaving little time for an attorney to do a review, if you even have one.  So what exactly are you signing away?  The below is just one example.

A California appeals court has ruled that American Idol contestant Michael Simeon Smith waived the right to sue for injuries when he signed the show’s contestant agreement. Smith, who appeared on the 14th season of the long-running singing competition show and placed within the top 24 contestants, claims he suffered a severe injury when an audiologist’s assistant, Ana Marie Montoya, attempted to make an impression of his ear canal while fitting him for an earpiece. 

According to the complaint Smith filed back in 2016, “Montoya placed the silicone and/or molding material into Plaintiff’s right ear. Plaintiff immediately felt pain and told Montoya to remove the Product. Montoya forcefully pulled it from Plaintiff’s right ear, and in the process of pulling out the Product, a portion of Plaintiff’s eardrum was removed. Blood began to come out of Plaintiff’s ear. Plaintiff was moved to a separate room, and left there for several hours.”

The complaint goes on to state that Smith subsequently sought medical treatment for his injuries, including tympanoplasty, a surgical technique involving a graft and “has been unable to perform music at the same level as prior to the incident, due to the absence of much of his eardrum.”

However, on Tuesday, Judge Tricia A. Bigelow affirmed a summary judgement that the Los Angeles Superior Court had granted in favor of the defendants finding that, although contestants were required to sign the contestant agreement, the “level of unconscionability of the provisions was not such as to render those waivers unenforceable.”

In her opinion, Bigelow wrote, “Smith contends [the contestant agreement] is procedurally unconscionable because he lacked the ability to negotiate its terms, and the challenged release and waiver provisions were hidden in the middle of a dense contract that was more than 20 pages long. Smith contends [the contestant agreement] is also substantively unconscionable because it required him to waive statutory rights and remedies available to him.”

Bigelow continued:

The Contestant Agreement, while adhesive in nature, did not involve surprise or other sharp practices. Smith presents no evidence of such. Instead, Smith acknowledges he was given weeks to review the agreement and could have sought legal advice if he wished. [The Contestant Agreement] was written in plain language and each provision within [the Contestant Agreement] was initialed by Smith separately. The heading of each provision, presented in bold-faced type and underlined, disclosed its subject in plain language: ‘Assumption of Risk of Unknown or Undiscovered Facts, Claims or Defects;’ ‘Waiver of All Claims and Suits;’ and ‘No Representations or Warranties from Producer.’… Further, Smith presents no evidence respondents lied to him, placed him under duress, or otherwise manipulated him into signing the Contestant Agreement.

Furthermore, while Smith argued on appeal that Montoya was guilty of gross negligence and that he should have allowed to amend his complaint to reflect this, Bigelow stated that any amendment to his claim would not change the court’s decision, as Smith had “failed to meet his burden to demonstrate that a triable issue exists regarding gross negligence, not because he failed to allege it in his complaint” as he had not presented any evidence that proved Montoya had deviated from safety instructions or industry standards in making the impression of his ear or in taking it out.

In short – reality TV contracts, however aggressive, are enforceable. Make sure you budget for hiring an attorney to review them before you sign, or you could (and probably will) pay big for it later.

Anyone surprised by this ruling?

Nike stops the sale of Lil Nas X Satanic Shoes in its tracks

Nike successfully got a judge to order the Lil Nas X’s limited edition satanic-themed Nike Air Max 97 shoes be “pulled from the shelves” following a temporary restraining order granted by federal court judge Eric Komitee. 

Early last week Musician Lil Nax X collabed with streetwear brand MSCHF to release a limited edition, devil-themed Nike shoe that contains a drop of blood MSCHF employees. Nike was not happy.

Many consumers claimed they will never again purchase Nike products due to their supposed support of satanism.  “Likelihood of confusion in the marketplace” being one of the requirements of trademark infringement, Nike quickly filed suit against MSCHF Product Studio, the company that partnered with Lil Nas X to release 666 pairs of satanic-themed shoes, claiming trademark infringement and dilution and unfair competition. 

The shoe giant claims the company materially altered their trademarked product without permission, causing customers to boycott Nike due to an incorrect belief that the company is endorsing satanism.The company is seeking compensatory, statutory and punitive damages, plus disgorgement of profits in an amount to be determined. Additionally, they are asking the court to order that the shoes and all marketing materials be turned over to Nike for destruction. 

MSCHF’s attorneys fought back, arguing that the shoes are “not typical sneakers, but rather individually-numbered works of art that were sold to collectors for $1,018 each,” and contends that confusion is unlikely, due to the presumed sophisticated nature of the purchasers.  MSCHF also pointed out that there were never any statements made that would imply Nike was in any way affiliated with the shoes and also claimed that all but one pair of shoes had already been shipped out, thus rendering a recall baseless. 

Nike alleged that they have good reason to believe some of the shoes were shipped out after the lawsuit was filed and that some of the pairs already in the hands of consumers will be resold on the secondary market.  I’ve confirmed as of today that there are pairs being sold on both etsy and ebay (although I did note some have been removed).

At the conclusion of the hearing, Judge Komitee that Nike had presented sufficient evidence to be granted a temporary restraining order and that the company has shown a likelihood of prevailing on the merits at the deeper injunctive hearing that is still to come. 

What do you think? Did you think Nike endorsed and released the Lil Nas X shoes?  Should the shoes be considered “works of art?” Was your image of Nike tainted after first hearing about the shoes?