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N.Y. JUDGE MANDATES SAME-SEX MARRIAGE NEW YORK — A Manhattan judge has declared New York’s Domestic Relations Law unconstitutional and enjoined the city clerk from denying marriage licenses to same-sex couples. Supreme Court Justice Doris Ling-Cohan ruled Friday that the statute, by implicitly permitting only heterosexual marriage, violates the Due Process and Equal Protection clauses of the state Constitution. Throughout her 62-page decision, Justice Ling-Cohan compared laws that prohibit same-sex marriage with laws that banned interracial ones. “It was only less than 40 years ago that the United States Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one’s choice,” she wrote in Hernandez v. Robles, 103434/2004. “Similarly, this court must so hold in the context of same-sex marriages.” The decision could put New York on the same path as Massachusetts, whose highest court also found its state law unconstitutional. Justice Ling-Cohan stayed her opinion for 30 days to allow New York City to appeal before the injunction takes effect. A spokesperson for the city Law Department declined to say whether the ruling will be appealed. However, two other recent Supreme Court cases had contrary holdings. Judges found the denial of marriage licenses constitutional in Shields v. Madigan, 1458/04, and Samuels v. New York State Department of Health, 1967/04. Susan Sommer, senior counsel for Lambda Legal, which represents the five couples who brought the suit, called the decision historic. The gay rights organization initiated the action in March, after City Clerk Victor Robles, the named defendant in the case, declined the couples’ marriage license applications. — New York Law Journal COURT EYES COPYRIGHTS UNDER COMMON LAW ALBANY, N.Y. — The Second Circuit U.S. Court of Appeals will journey back to its common law roots to determine whether classical 1930s-era recordings produced in England and in the public domain overseas are protected by copyright in New York. On Tuesday the court is slated to hear Capitol Records v. Naxos of America, a case of common law copyrights to the recordings of cellist Pablo Casals, violinist Yehudi Menuhin and pianist Edwin Fischer. The case made its way to Albany via Foley Square, where the Second Circuit certified three questions to the state’s highest court: � Whether the expiration of copyrights in the United Kingdom necessarily means that the New York common law copyrights have expired as well. � Whether a successful claim under New York common law copyright law requires evidence of an unfair competition tort. � Whether an infringement claim in the Empire State is defeated by proof that the alleged infringer produced a “new” product as opposed to a mere copy of the plaintiff’s existing product. Entertainment law experts have said the outcome of the case will affect scores of recordings, eventually including those by the Beatles. That is because copyright law in England and much of the European Union protects sound recordings for only 50 years while the United States protects such work for 95 years. If New York law does not control, the earliest Beatles recordings could be re-issued by anyone who wishes to do so starting in 2013. — New York Law Journal

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