For 29 years, this unique conference has provided thorough and nuanced coverage of the most pertinent employment law issues, presented by national panels of distinguished speakers.
Expand your comprehension of employment law and practice through updates, review of recent case law and regulatory changes, as well as valuable tips and strategies from our diverse national panels of federal judges, EEOC representatives, and top practitioners. The collaborative spirit and informal learning is enhanced by opportunities to meet and converse with federal judges, who stay and contribute throughout the program.
This year’s engaging discussions will offer a unique 360-degree view of today’s most significant employment law developments, including:
2023-24 Supreme Court decisions
Wage and hour, FMLA, and ADA updates
What’s new from today’s active NLRB
Evidence and discovery in employment litigation
Corporate DEI initiatives
AI and employment law, risks and opportunities
The challenges surrounding speech in the workplace
Don’t miss your chance to hear featured sessions from our planning chairs and planning committee, like Frank C. Morris, Jr. and Daniel L. Bonnett’s NLRB Update discussing the Supreme Court’s Muldrow decision and its effect on the workplace.
Enjoy the collegial learning environment and start making valuable connections from day one with panelists and like-minded colleagues from across the country at a special lunchtime event and a welcoming evening reception. Experience the unique offerings of Santa Fe, including its history, restaurants, art, architecture, and the renowned Spanish Market immediately following the conference.
Whether you’re looking to strengthen your expertise or gain a broader understanding of current trends, this conference is tailored to meet your needs.
Join us for our upcoming program, Current Developments in Employment Law 2024, either in person or via live webcast on July 25 – 27, 2024! To learn more about this program and to register for the in-person course or live webcast, click here.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
For many years, the most valuable form of consumer advertising involved television commercials. Many television ads featured people extolling the virtues of various products and services, and these endorsements typically came from the ranks of athletes and celebrities who had gained fame through their success in sports, modeling, or entertainment.
However, an increasing number of consumers no longer watch traditional television, opting instead for commercial-free streaming services like Netflix, YouTubeTV, and Hulu. This shift has forced makers of consumer products to find new ways to reach potential consumers.
Fortunately for makers of consumer products and their advertising firms, the downturn in television viewership coincided with the rise of social media platforms like Facebook, YouTube, Instagram, and TikTok. These platforms generated a new type of product spokesperson: content creators (commonly referred to as influencers).
Most content creators are not anointed by a cabal of advertisers nor selected for their prowess at throwing a baseball or making action films. Instead, most start their own social media channels and produce content for a small number of followers. No special sports talent or studio backing is required. All one needs is a camera and microphone, a creative hook, and commitment to post regularly. A little luck never hurts, of course. Over time, they grow a grassroots following and eventually gain the attention of advertisers who provide free products and direct compensation to content creators willing to share their endorsements and reviews via their own platforms.
So-called “influencer marketing” has become immensely lucrative. According to some estimates, the global influencer market was less than $2 billion in 2016 but has exploded to more than $21 billion as of 2023.1 The rise of the global influencer market affords opportunities for individuals seeking to become influencers and content creators with very little startup costs. However, because content creators often do not have legal guidance, their assets and interests are vulnerable to attack and theft, and they could also face costly legal actions from others or from the government.
Of course, most do not become rich from their content creation venture. While only a small percentage of content creators earn over $1 million, nearly a quarter make $50,000 or more a year.2 Of those, about half are full time content creators, while the rest use social media platforms as a “side-hustle” or financially friendly hobby.
This article is tailored to attorneys who provide counsel to content creators and/or those clients engaging with content creators and influencers, offering a comprehensive exploration of legal considerations in this dynamic industry.
WAYS THAT BRANDS AND CONTENTCREATORS WORK TOGETHER
Before an attorney can advise a content creator or brand, they must first understand the risks involved. Key to understanding these risks is an appreciation of the various ways brands can partner with content creators. Here are some of the ways content creators earn money from their content, and how they partner with brands:
Brand Ambassadors
One way that influencers earn money is by serving as brand ambassadors, based on their experience with a certain brand. Sponsored postings are comparable to brand ambassadorships, but there are a few differences.
For example, sponsored articles are often onetime events, whereas brand ambassadorships are frequently long-term commitments. An influencer might, for example, sign a six- to 12-month ambassador arrangement with a brand.
When an influencer is a brand ambassador, they do more than just promote the brand on social media. They frequently appear as a model or spokesperson for the product on the brand’s social media channels or website.
Affiliate Marketing
When influencers share a link to purchase a product, they receive a part of the transaction if a follower buys something through that link. As a result, affiliate marketing has become one of the most popular methods for influencers to earn money.
In their daily social media posts, fashion influencers, for example, are likely to offer links to the clothing they are wearing. Their fans buy the products, generating a cash stream for the influencer. The affiliate commission may be as low as a few percent, depending on the item. However, the money can quickly pile up for influencers with many followers.
Advertising Websites
Bloggers have been using advertising on their websites to monetize traffic for a long time. Bloggers may earn money only when a visitor clicks on an ad or whenever it appears on the screen, depending on the type of ad. Sidebar and in-content advertising can be incredibly profitable for bloggers with substantial traffic to their websites.
Digital Products and E-Courses
Many influencers sell digital items to educate their followers on a specific topic. A travel blogger, for example, might build an entire course on how to travel on a budget. A fashion influencer might write an eBook about putting together a capsule wardrobe. Selling online courses may bring in thousands of dollars every month for some people.
Donations, Tipping, and Subscriptions
Tipping and contributions are other methods influencers use to get money. Some influencers, for example, offer a page on their websites where followers can donate money to the influencer. Likewise, some feature a link where followers can purchase a cup of coffee from them. Using services like Patreon as a kind of tipping is another option. It works based on a membership model, in which followers can sign up to donate a set amount of money to an influencer each month. The influencer may create content only available to Patreon backers in other circumstances.
Reselling of Clothing
It’s becoming more typical for fashion influencers to generate money by reselling the items they promote. In addition, these influencers frequently purchase significantly more clothing than they require, primarily to show their fans a range of outfits. Then, many people sell their lightly used products on a separate Instagram page or Poshmark.
Sales from Live Events
Live events, whether in-person or online, provide another opportunity for influencers to generate income. A travel influencer, for example, could make money by booking a vacation for a limited group of followers. On the other hand, a fashion influencer might make money by conducting a live closet sale where fans can buy worn goods that they’ve showcased on their social media platforms.
Product Lines Created Particularly for Influencers
Influencers can also generate money by creating product lines. Some influencers start from the ground up with their own product lines. Other influencers leverage their following to form partnerships with businesses, launching beauty lines, clothing lines, and other products.
Each of the foregoing income streams creates its own type of legal issues that must be addressed by content creators.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
Detailed Factual Findings on Public Benefit are Required
In re Gen. Mun. Auth. of City of Nanticoke involved a private benefit challenge to a proposed taking allegedly for construction of affordable elderly housing.1 In consolidated cases, the trial court overruled both a facial challenge to the state Municipality Authority Act (MCA) and case-specific challenges that the actual nature of the taking was for more than an incidental private benefit.
On appeal, dismissal of the facial challenge was upheld on grounds that the language of the MCA violated neither the federal baseline reiterated in Kelo v. City of New London2nor Pennsylvania’s common law. The case was remanded for further proceedings to determine whether the taking would result in more than an incidental private benefit. To inform proceedings on remand, the appeals court provided an explication of the different public use tests under state common law and the more protective, post-Kelo, Private Property Rights Protection Act (PPRPA).3 Noting the legislative intent to curb “abuse of the eminent domain power,” the court explained that the PPRPA prohibits taking property “to use it for private enterprise,” which is a more protective standard than the common law test, “solely for private enterprise.”4
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
Against this backdrop, the court identified gaps in the factual record and questions about how the development authority intended to use the properties and to whom the primary benefits would inure.5 The court concluded that the record was not sufficiently clear regarding: (i) what the referenced entities were and what role they would play in the project; (ii) the magnitude of the benefits to named entities and the unnamed “equity investor”; and (iii) the existence of public need for the alleged benefits and the actual benefits that would flow toward those needs.6 On remand, the trial court was directed to conduct a de novo hearing on these delineated factual issues.
Ability to Reconvey Taking to Private Developers Does Not Negate the Original Public Use
In Penney Prop. Sub Holdings LLC v. Town of Amherst, the owner of 2.3 acres of land that was leased and operating as a JC Penney department store unsuccessfully sought to annul a condemnation determination to take 62 acres of land predominantly comprised of a mall.7 The court denied a lack of notice challenge despite the fact that two of the three required means of notice of the public hearing failed (certified mail notice was never delivered and the secretary of state did not send alternate notice until after the hearing). The court ruled that notice by publication alone sufficed because the town was not informed before the hearing that the means of individual notice had failed.
The court rejected the owner’s other public use challenges finding sufficient evidence that the targeted property was within an “[a]rea of economic underdevelopment and stagnation” and that the possibility of re-transfer to private entities did not negate the instant public purpose of acquiring land within a stagnant area.8
No Strict Construction of “Commercial” Use to Exclude Parking Predominantly for Healthcare Providers
In Bowers Dev., LLC v. Oneida Cnty. Indus. Dev. Agency, the Court of Appeals of New York reversed the appellate division’s denial of a redevelopment taking, holding that an industrial redevelopment agency could condemn land at the request of an adjacent landowner to provide parking for the adjacent landowner’s planned development of a medical office building.9 The owner of the targeted parcel and the developer who had contracted to purchase it from the owner co-petitioned to annul the condemnation determination, and the appellate division granted the petition. In reversing, the court held that the envisioned parking for medical office tenants, retail tenants, and night usage for the public sufficiently met the “commercial use” criteria of the agency’s statutory authority.10 The challenger’s argument that the parking would be for health-care, not commercial, purposes failed because of the overall commercial nature of the building to provide office space to rent-paying tenants.
Taking Upheld Even Though Proposed Project Deviated from Plan
Niagara Falls Redevelopment, LLC v. City of Niagara Falls involved a multi-faceted challenge by landowner/developer to a redevelopment taking by Niagara Falls.11 The developer argued that the city had not established how it would pay for its proposed project, the city had failed to conduct a market study as required by its own Comprehensive Plan, and that the plan also set forth predetermined public use for the subject parcel that would involve Redevelopment LLC. Never mind all that, said the court. It reasoned that these considerations were outside of the court’s limited review under the redevelopment statute and that, in any event, the plan provisions could not bind future councils. The court also went on to reject contentions that the take parcel was not described with adequate specificity (it had only been described by tax parcel and street address) and that the city had not timely issued its written synopsis of its determination, finding that the one-day tardiness was harmless.
Bald Conclusions Do Not Satisfy Necessary Blight Findings
In Twp. of Cinnaminson v. Cove House LLC, an appellate division reversed a trial judge’s approval of condemnation for “blight” where the Township of Cinnaminson (Township) presented a 2013 expert report and some testimony about the current condition of old residences it wished to redevelop upon which the trial judge found the Township had satisfied what he viewed as a low evidentiary burden.12 The trial judge found the evidence presented satisfied one statutory blight criteria:
Areas with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.13
In granting the taking, the trial judge noted some evidence in the record to support the Township’s findings which he was constrained to second-guess, stating:
So [the Township does not] need that much to connect the dots. I mean the standard is if there’s evidence in the record and there is evidence in the record, I’m not supposed to second-guess the judgment of the Township in that regard. There’s some evidence in the record that an expert testified, who has expertise, appropriate expertise in this area, and testified as to obsolescence and that the obsolescence was detrimental.14
The problem with this, however, was the conclusory nature of the expert report, the Township’s findings, and the trial court’s acceptance of them. In reversing, the Appellate Division sternly reminded that “a standard that requires ‘substantial evidence’ does not bespeak ‘a relatively low evidentiary threshold.’”15 Relying on the decision of the New Jersey Supreme Court in Malanga v. Twp. of W. Orange, issued just months before, the Appellate Division noted the blight statute “‘does not ask whether property could potentially be more useful or valuable; it requires proof of a current problem, such as ‘dilapidation,’ ‘obsolescence,’ or ‘overcrowding,’’” and further that it does “not presume harm; it requires a showing of actual detriment.”16 To illustrate the inadequacies of the Township’s evidence, the Appellate Division elaborated:
[The expert] proclaimed in her report the property’s “land use [was] deleterious and obsolete and the design [was] faulty” and its driveways were “inadequate” and “detrimental” to the community. But she did not identify what, if any, underlying characteristics of the property had led her to reach those conclusions and did not give any detail to support those blanket statements. She asserted the buildings needed to be “upgraded” and that the property needed “site improvements,” but she did not specify what upgrades or improvements were needed. And those details are critically important in making and reviewing a redevelopment determination.17
Interestingly, Malanga involved a successful citizen challenge to a municipal determination that its own public library was blighted, which allowed the Township of West Orange to sell the land to a preferred developer instead of selling it under competitive bidding laws. In reversing lower courts that had validated this action (and proceeding with the case despite the pendency of a sale contract to a redeveloper), the New Jersey Supreme Court held that the Township of West Orange had not demonstrated the necessary requirements under the blight.18 The court held that the record lacked evidence that: (i) the library suffered from “obsolescence” even though it lacked modern infrastructure and could function better: and (ii) the library’s condition was detrimental to the public welfare.19
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
This article is part of a continuing series of interviews between Rajiv S. Khanna and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv S. Khanna: Tara, welcome. Please introduce yourself to our readers.
Tara Gonsowski: Thank you so much for having me. My name is Tara Gonsowski and I have a boutique firm that serves museums and other nonprofit cultural institutions around the country. I had previously worked in-house at a major modern art museum and saw firsthand that museums have a huge legal workload but often a small legal budget. I thought there was a real need for a firm that provides specialized arts-related legal services through a cost-efficient model for museum and other nonprofit clients.
We provide all transactional services. Museums are corporations like any other except they’re nonprofits, so we’ll review and negotiate any sort of contract that might come across the museum’s desk, whether it’s an art-specific agreement related to a commission, installation, loan, or exhibition or agreements for janitorial services for the museum, elevator services, software agreements, marketing agreements, internship, and volunteer agreements. Really any contract that the museum might need legal counsel on.
So, the typical issues you encounter are related to contracts that are common to all nonprofits, not specific to museums?
Yes. But there are some museum-specific considerations when we’re looking at the risk that museums are willing or able to take on because they hold their assets in trust for the benefit of the public and serve specific, charitable purposes in relation to the art that they make available to the public.
Do you also deal with things like when exhibits are on loan to museums? What do you watch out for?
That’s a lot of what we do. We work in that realm in two ways. We help our museum clients draft really solid incoming and outgoing loan templates that they can use when either borrowing or lending artworks. When they’re doing a specific loan, whether it be incoming or outgoing, we help review and negotiate the terms as necessary.
Talk to me about the history of your career. How did you happen to become a specialist in museum-related work?
I took a very non-traditional career path. When I was starting college, I thought I wanted to be a lawyer, but I didn’t have any lawyers in my family and I didn’t really know the different areas of law, so I couldn’t justify the financial or time commitment at that time. I also was taking art history courses and had always loved art, so I pursued that path instead. I worked at a gallery in New York for about 10 years where I started to see firsthand how art and the law intersected. In particular, an issue came up in relation to the Endangered Species Act and some works that we had in our collection, and I helped navigate that and resolve it for the gallery. When I saw that I could actually marry my two passions, I decided to go to law school. So, I went back to law school later in life after I had already had a full career that was hard to leave. While I was in law school, I was hyperfocused on working in art law. Because it is a niche field, there aren’t a ton of opportunities so in order to build my skill set and gain as much experience as much as I could, I worked with an organization called Volunteer Lawyers for the Arts, providing free legal aid to low-income artists.
During law school, I also worked in-house at Christie’s as an intern and then I had my post-grad position, which was a general counsel fellowship at SFMOMA and that was where I really got this museum experience. Of all the areas in the art world I had worked, working at a museum was where I felt the most rewarded and most passionate about the work I was doing. I felt like I could see in the museum the impact of the work that I did and that’s how I kind of stuck in that path.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
“This land is your land, this land is my land. This land was made for you and me.” —Woody Guthrie
INTRODUCTION
The iconic Woody Guthrie Song “This Land Is Your Land” is a song celebrating the great diversity of landscapes which define the geography of the United States, from spring-fed turquoise rivers and unique and vast deserts to awe-inspiring mountain precipices and prairies that hold countless ecosystems and mythologies. The United States government holds many of these public lands in trust for the whole of the American people, providing an opportunity both to engage with these wondrous spaces and to protect their beauty for generations to come.
Throughout American history, different presidential administrations and congresses have dealt with federal lands in a variety of ways—reflecting the complexities implicit in land being both yours and mine.
Interested in learning more and staying current about the changes in the many facets of environmental law ? Check out ALI CLE’s Environmental Law 2024, on-demand now!
There have been periods that focused on land conservation—famously, during the Teddy Roosevelt administration—and others on resource extraction—most recently, during the Donald Trump administration. Many of the most famous (and controversial) actions of both administrations regarding federal lands center on their use of the Antiquities Act of 1906, which enables the President to establish, modify, and possibly disestablish national monuments. This executive branch authority exists in tension with Congress’s ability to pass legislation creating, modifying, and disestablishing national monuments.
This article examines the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It concludes by offering three recommendations. First, the Antiquities Act should be amended to reserve the right to diminish existing monuments solely to Congress. Second, any amendment should also require minimum management standards for all new national monuments. Finally, the article calls for executive branch agencies to develop more robust means for incorporating stakeholder input in the management planning of national monuments, including through advisory boards and co-stewardship agreements with Native American tribes and organizations.2 Where agencies lack authority to create such forums and advisory bodies, Congress should codify requirements to do so.
FEDERAL PUBLIC LANDS
Federal Land Acquisition and Disposition
The United States contains 2.27 billion acres of land.3 Of that, 28 percent (610 million acres) is federally owned, and these federal lands are valuable assets.4 They provide ecosystem services, are used in commodity production, provide support to the defense industry, support wildlife and biodiversity, and attract people and businesses. Tourism to national parks brings significant amounts of revenue to the local economies; in fact, the 2018 National Park Visitor Spending Effect reported $40.1 billion in visitor spending to the benefit of communities near national parks—supporting 329,000 jobs.5
However, despite their obvious benefits, public lands have been subject to controversy—both with respect to their existence and their management—since the founding of the US. In the present day, to some individuals, businesses, and state and local governments, the federal government’s ownership of land is seen as an infringement of their property rights and economic freedoms.
Throughout the late 1700s and early to mid-1800s, the United States acquired large amounts of land through forced removal of Native Americans, cessions from war with Mexico, and purchases from European countries.6 The federal policies of this period reflected popular ideas that the American West was an unlimited frontier for economic gain—despite water scarcity and the Indigenous populations living there.7 Through the Homestead Act of 1862,8 the General Mining Law of 1872,9 and the Desert Lands Act of 1877,10 the federal government further emphasized private property ownership and resource extraction.11 The Homestead Act of 1862 aligned with the prevailing sentiment of Manifest Destiny.12 Under the Homestead Act, the federal government provided settlers with land if they journeyed west to populate the newly gained territories.13 To encourage individual settlement, the federal government deployed the military to forcibly move Native Americans off prospective homesteads and onto reservations.14
By the turn of the twentieth century, widespread disposition and unfettered development culminated in corporate abuse of the nearly-free land and mineral rights,15 depleted timber resources, diminished wildlife populations, and scarred landscapes through boom-and-bust mining cycles.16 In response, the federal government began to withdraw certain lands from public sale.17 By 1890, the western frontier was nearly closed and the sale of public lands decreased significantly.18 However, the emphasis on land disposition guided federal policy into the twentieth century,19 culminating in the repeal of the Homestead Act in 1976.20
MANAGEMENT AND USE OF FEDERAL PUBLIC LANDS
The way public lands should be managed and used is a contentious topic, particularly in the American West, where much land is federally owned.21 Two land ethics predominate this debate: conservation and preservation, which can be traced back to John Muir and Gifford Pinchot at the turn of the twentieth century.22 Muir believed in preservation—the idea that land ought to be kept as close to its natural state as possible, and that exposure to nature offers spiritual benefits to people and society.23 Preservationists believe that land serves the people best when undeveloped and unfettered; thus, preservationists generally oppose logging, mining, and other extractive uses on federal land.24
Alternatively, conservation stems from Pinchot, who argued that lands ought to be managed to provide the highest possible return to society. Conservationists believe that one can attach monetary value to resources and attributes of the land; the way these lands are managed ought to best value the ecological and scientific evaluation of the land for both the present day and for generations to come.25 Conservationist principles have largely guided the American approach to managing federal lands.26
Congress and the executive branch are in something of a tug-of-war regarding authority over public lands. Article IV, Clause 3 of the US Constitution states that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property of the United States.”27 The first case to significantly interpret this power was United States v. Gratiot. This case, from the 1840s, gave a broad reading to the clause, holding that Congress’s power on federal land is “without limitation.”28
The broad authority of Congress over federal lands articulated in Gratiot was upheld by a 1976 Supreme Court case, Kleppe v. New Mexico, which adopted a broad interpretation of “without limitation” under Article IV, Clause 3.29Kleppe addressed the question of whether the federal government can regulate and protect wildlife on federal land. Specifically, the case dealt with the Wild Free-Roaming Horses and Burros Act, which provides that if protected horses or burros that live on land administered by the Secretary of the Interior or Secretary of Agriculture wander onto private land, they are protected from “capture, branding, harassment, or death,” as they are considered components of public land.30 The State of New Mexico argued that the Act was an infringement upon New Mexico’s sovereignty, as it conflicted with state law.31 In Kleppe v. New Mexico, the Supreme Court held that “the Clause must be given an expansive reading,” and that Congress has “complete authority over the public lands [and the wildlife living there].”32
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
