David Rabinowitz

David Rabinowitz, Co-Chair of Moses & Singer's Litigation practice group and a member of its Intellectual Property and Law Firm Management practice groups, has been a partner with the firm since 1985. 

Within a broad commercial litigation and litigation counseling practice, David has focused in the substantive areas of financial industry litigation, including corporate trusts and letters of credit, trusts and estates, intellectual property, contracts and employment.

David has represented major financial institutions in matters relating to indenture trusts, letters of credit, negotiable instruments and electronic transfers, real estate and cross-border judgment enforcement.

In the trusts and estates area, David has represented fiduciaries and beneficiaries in fiduciary accountings, will and trust construction and trust and estate administration. These have included representing large financial institutions in major Surrogate’s Court litigations including claims ranging up to $2 billion for mismanagement of trusts.  He has represented individuals and charitable institutions in disputes over dispositions from estates.  He has represented individuals in will contests, claims to restore allegedly alienated property to estates, and other claims against estates.  He has represented individuals as fiduciaries in claims of improper estate administration and claims to enforce dispositions under wills.

In the area of intellectual property, David has represented entertainment, sports and media companies, talent and rights owners on matters concerning contracts and licenses, copyright, trademark and unfair competition, right of publicity, and defamation and related free speech issues.

David has also represented both employers and employees in disputes concerning employment agreements, termination of employment and employment discrimination, and health care organizations in contract and reimbursement disputes.

David represents clients in arbitrations and other alternative dispute resolution procedures as well as state and federal courts throughout the United States.

David is a regular speaker on legal ethics.  He has lectured and participated on panels before The Association of the Bar of the City of New York, the American Bar Association, the Practicing Law Institute, The Institute of International Banking Law & Practice The Copyright Society of the U.S.A., the Licensing International Annual Convention and the Massachusetts Software Council.  He has taught Copyright Law at Seton Hall Law School as an adjunct professor. He is a member and former trustee of The Copyright Society of the U.S.A. David has published articles which have appeared in Advertising Age, Entertainment Law Reporter, The Entertainment Publishing and the Arts Handbook, the Journal of The Copyright Society of the U.S.A. and Practical Lawyer. He has written a series of articles on Internet Law entitled "Web Site Story," which appeared in American Lawyer's Corporate Counsel magazine.

David is recognized as a New York Metro Superlawyer. He is an AV® Preeminent™ Rated lawyer and one of New York's Top Rated Lawyers in his field according to Martindale-Hubbell.

• Corporate Trust and Agency
• Litigation
• Intellectual Property
• Labor, Employment & Employee Benefits
• Internet & Technology
• Entertainment and Sports
• Healthcare
• Healthcare Privacy and HIPAA Rules
• Legal Ethics & Law Firm Practice
• Trusts and Estates
• Estate Litigation

• Columbia University School of Law (J.D.)
• Massachusetts Institute of Technology (B.S.)

• U.S. Court of Appeals, Fourth Circuit
• U.S. District Court, District of Colorado
• U.S. Supreme Court
• U.S. Court of Appeals, Second Circuit
• U.S. District Court, Western District of New York
• U.S. District Court, Northern District of New York
• U.S. District Court, Southern District of New York
• U.S. District Court, Eastern District of New York
• New York

• Moses & Singer Obtains Dismissal Of Multi-million Dollar Claim To Cosby Show Profits
• Super Lawyers Honors 36 Moses & Singer Attorneys in 2014 New York Metro Edition
• Moses & Singer Closes $150 Million Sale of Apple & Eve, LLC
• Martindale-Hubbell Announces List of Top Rated Lawyers In New York
• Super Lawyers Announces List of Winning Moses & Singer Attorneys
• New York Super Lawyers® Lists Moses & Singer Lawyers
• Moses & Singer Hosts In-House Counsel for Ethics CLE Program
• Moses & Singer Attorneys Earn Top Listing
• Moses & Singer Attorneys Named New York's Legal Elite
• New York Super Lawyers® Lists Moses & Singer Lawyers
• Super Lawyers® Lists Moses & Singer Lawyers
• Moses & Singer Lawyers Listed in New York Super Lawyers®
• Moses & Singer Attorneys Listed in Super Lawyers®
• Moses & Singer Lawyers Listed in 2008 New York Super Lawyers®
• Moses & Singer settles copyright royalty rate dispute for client Music Choice®.
• Moses & Singer triumphs as a friend of the Court

• Advanced Licensing Agreements 2018
• Understanding the Intellectual Property License 2017
• Advanced Licensing Agreements 2017
• Understanding the Intellectual Property License 2016
• Ethics for the Negotiating Lawyer 2016
• PLI Advanced Licensing Agreements 2016
• 16-Hour Bridge-The-Gap: Corporate & Litigation
• Understanding the Intellectual Property License 2015
• Outsourcing 2015: Sourcing Critical Services
• PLI Advanced Licensing Agreements 2015
• NYC Bar Bridge-the-Gap Corporate and Litigation
• Ethical Issues in Licensing test
• Outsourcing 2014 - Sourcing Critical Services
• Show Me the Money - Essentials of Copyright Valuation
• Ethical Issues in Licensing
• Ethical Considerations in Licensing
• Ethics for the Negotiating Lawyer 2013
• Ethical Issues in Licensing
• Negotiation Ethics
• Ethical Issues in Licensing
• Ethical Considerations in Licensing
• Ethics for the Negotiating Lawyer 2011
• Ethical Issues in Licensing
• Ethics in Negotiations
• Ethical Considerations in Licensing
• Ethics for the Negotiating Lawyer
• Ethical Issues in Licensing
• Choice-of-Law and Choice-of-Forum Clauses in New York: Drafting Provisions that Work
• Ethical Considerations In Licensing
• Advanced Licensing Agreements 2009
• Ethical Issues in Licensing
• Ethical Issues in Licensing
• Ethics for the Negotiating Lawyer
• Non-Traditional Fee Arrangements; Doing Business with Your Client
• Advanced Licensing Agreements 2008
• The 'Mid-Winter' Meeting
• Games Without Frontiers Panel Discussion
• Advanced Licensing Agreements: 'Ethical Considerations In Licensing'

• Privacy Lawsuits Based on Federal Statutes Protecting Electronic Data Generally
• New York State Insurance Enacts Privacy Rule: Part 2
• Everything You Ever Wanted To Know About the Copyright Act Before 1909
• New York State Insurance Enacts Privacy Rule: A Two Part Series
• Health and Financial Privacy Rules May Link Up: The Proposed Medical Financial Privacy Protection Act
• Everything You Didn't Want to Know About HIPAA But Have to Ask (Part 3-Administrative Simplification Rules)
• Healthcare Websites: The Other Privacy Issue
• e-Health Law Issue
• Web Site Story 4-Nationwide Internet Jurisdiction is not Ended by Blue Note
• Notice of Nonrenewal of an 'Evergreen' Letter of Credit Must be 'Clear and Unequivocal'
• Web Site Story 6-Breakaway Employees Beware
• Web Site Story 3-The Emerging Tort of Domain Name Infringement
• Web Site Story 5-Emerging Limits to Out-of-State Jurisdiction over Web Sites
• Web Site Story 2-Finding Yourself Subject to Jurisdiction Far, Far Away
• Web Site Story-A Legal Primer for Web Site Owners and Designers
• What To Do With A Fallen Star: Voiding Endorsement Deal Can Be a Legal Headache
• Choice of Law in Sound-Alike Cases
• Copyright Preemption: New York State's Erroneous Interpretation
• Copyright and Trademark Infringement: Current Techniques for Plaintiffs and Defendants
• Are Communications Between An Indenture Trustee And Its Attorneys Privileged? Pre-Default Communications Held To Be Privileged
• How Privilege Applies To Multinationals' In-House Counsel
• Collateral Manager Cannot Enforce Trustee’s Promise To Indemnify For Expenses In Excess Of Indenture Waterfall
• Supreme Court Eases Copyright Protection For Fashion, Product Designs
• Second Circuit Reverses Marblegate, Clarifying Meaning of TIA Section 316(b)
• Plaintiff-Assignee Of Claims Against Trustee Escapes Sanctions For Failure To Produce Assignor's Documents
• Assignee Of Noteholders Suing Trustee Must Produce Assignorsâ„¢ Documents In Litigation
• No Claim For Negligence Against Mortgage Servicer
• Trustees Post-Bankruptcy Counsel Fees not Allowed as Part of its Unsecured Claim against the Bankruptcy Estate
• Potential Expansion of Trustees' Duty to Give Notices of Default
• In re XTO Energy Inc., Timberland Gathering & Processing Company, Inc., and Bank of America, N.A., No. 05-14-01446-CV, 2015 WL 4524197
• Indenture Trustee Cannot Remove Bondholder Class Action to Federal Court
• Indenture Trustee Cannot Remove Bondholder Class Action to Federal Court
• Indenture Bars Guarantor's Defenses Based on Allegations Trustee Failed to Keep Records and Act in Good Faith
• Why New York Law and Jurisdiction Offers Advantages for International L/C Transactions
• Intellectual Property Contracts: New Decision Alert
• Intellectual Property Contracts: New Decision Alert
• Intellectual Property Contracts: New Decision Alert
• Indemnity Clause Prevails Over Limited Remedy Clause In Software License
• Clickthrough Terms of Use Effective to Transfer Copyright of Posted Photographs
• Intellectual Property Contracts: Invention "Conceived" During Employment Awarded to Employer's Assignee
• Non-Class Action Arbitration Compelled in Consumer Antitrust Case Based on Click Wrap Agreement
• Work Made For Hire Agreement Cannot Be Retroactive
• Demystifying ESQrow Ethics
• Sleeplessness Caused in Seattle
• Save E-Mails, Avoid Sanctions: Court Creates New Duty To Preserve E-Mails During A Transaction
• Why Written Employment Agreements are Important - to Employers
• Second Circuit Topples Some NY Rules on Certified Specialists
• No Office, No Practice? No! Requirement of New York Office for Non-resident Attorneys Ruled Unconstitutional
• How to Outsource Legal Work
• Severe Penalties Related to NY's New Wage Law
• New York Resolves In-House Counsel Bar Admission Problem
• Up Close and Professional with New York's Engagement Letter Rules
• EEOC v. Kelley Drye & Warren LLP: The Sequel
• EEOC Attacks Law Firm Retirement Again
• Employment Law Update
• New Hire Requirements Effective October 26, 2009
• Landmark Decision on Judgment Enforcement
• New Model Order of Maritime Attachment May Reduce Burden on Banks
• Employee Arbitrations May Be Costly To Employers
• Communications Decency Act
• Non-Traditional Fee Arrangements and Doing Business with Clients
• Intellectual Property
• Why Employers Have to Pay Attention to the HIPAA Privacy Rule

August 26, 2013 - Clickthrough Terms of Use Effective to Transfer Copyright Of Posted Photographs

Copyrights in photographs posted by users of a real estate multiple listing website were effectively transferred under posted clickthrough terms of use. 

Metropolitan Regional Information Systems, Inc. (“MRIS”), a fee-based online real estate multiple listing service, offered real estate brokers and agents the opportunity to post listings, including photographs, of available properties.  MRIS’s terms of use, to which brokers and agents had to click assent in order to post properties, provided: 

All images submitted to the MRIS Service become the exclusive property of [MRIS]. By submitting an image, you hereby irrevocably assign (and agree to assign) to MRIS, free and clear of any restrictions or encumbrances, all of your rights, title and interest in and to the image submitted. This assignment includes, without limitation, all worldwide copyrights in and to the image, and the right to sue for past and future infringements.

 A competing multiple listing service, American Home Realty Network, Inc. (“American Home”), copied the photographs from the MRIS site and made them directly available to consumers on American Home’s real estate referral website. 

 MRIS sued American Home for copyright infringement and sought a preliminary injunction.  American Home defended by asserting that MRIS’s clickthrough agreement did not satisfy section 204(a) of the Copyright Act, requiring a writing signed by the transferor for a valid transfer of copyright, and that MRIS therefore did not have standing to sue for copyright infringement. 

 The federal Court of Appeals for the Fourth Circuit held that the clickthrough assent to MRIS’s terms of use by the owners of the photographs satisfied the Copyright Act.  Relying on the federal E-Sign Act, which validates electronic signatures under certain circumstances, the Court held that the users’ clicked assents to the terms of use were effective.  The Court found only one previous case applying the E-Sign Act to validate an electronic signature under the Copyright Act; in that case, the electronic signature was contained in an email.

 The Court noted that it was not the users who claimed that the copyright transfers were ineffective, but a third party infringer, a situation where courts have been leery of the defense of ineffective transfer.  However, the result appears to be based firmly in the E-Sign Act and seems likely to be followed.

Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., No. 12-2102 (4^th Cir. 7/17/13)

  Please click here to view case document.

August 20, 2013 - Invention "Conceived" During Employment Awarded to Employer's Assignee

An idea for using ultrasound to treat hypertension belonged to the bankrupt company that employed the scientist that had the idea, and in turn to the company that purchased its assets, rather than to the scientist, under a recent decision by the Delaware Chancery Court.

The Court construed a clause in the company’s inventions assignment agreement with the scientist that gave all inventions “conceived” during employment to the company. The Court construed “conceive” broadly in its ordinary English sense and not as a term of art from patent law.

Because the scientist witnessed the results of an experiment exploring the idea during his employment and filed two provisional patent applications for inventions using the idea 30 days after his employment terminated, the Court concluded that the idea was conceived during employment. It held that the inventions, including the resulting patent applications, belonged to the former employer and the company that bought its assets.

It may be of interest that the scientist was the CEO of the bankrupt company and that he formed a company to exploit the idea shortly after leaving the bankrupt company, although the Court did not enunciate a higher level of duty due to the scientist’s high position with the former employer.

RECOR MEDICAL, INC. v. WARNKING, CA #7387-VCN (Del. Ch. 5/31/13).

Please click here to view link.

August 6, 2013 - Non-Class Action Arbitration Compelled in Consumer Antitrust Case Based on Click Wrap Agreement

Users of online travel services must individually arbitrate, in the travel service’s home county, their claims that online travel services conspired with hotels to fix hotel room prices. The Federal District Court in Dallas enforced Travelocity’s clickwrap agreement containing the arbitration clause.

Plaintiffs contended that the arbitration clause was unenforceable because the litigation costs, including experts necessary to prove the antitrust violations, would make it prohibitively expensive to vindicate their rights.

The Court noted that Travelocity agreed to pay all costs of the arbitrator, including any proof or witnesses required by the arbitrator. The Court held that costs of “advocating the case” would not be considered in determining whether the arbitration clause made it prohibitively expensive for plaintiffs to vindicate their rights.

In re: ONLINE TRAVEL COMPANY (OTC) HOTEL BOOKING ANTITRUST LITIGATION, 12-cv-3515 (N.D. Tex. June 14, 2013). Please click here to view case document.

June 20, 2013 - Work Made For Hire Agreement Cannot Be Retroactive

Having independent contractors agree that a copyrightable work is a work made for hire can, under certain circumstances, allow employers to capture the entire term of the copyright. If a work is not a work made for hire, even if the full copyright is assigned to the employer, the individual creators or their successors can recover the copyright after 35 years. However, work made for hire agreements cannot be retroactive. A work that is not work made for hire when it is created cannot thereafter be made into work made for hire by a subsequent  agreement.

This rule was reaffirmed in the recent case of Gary Friedrich Enterprises v. Marvel Characters.

Gary Friedrich created the cartoon character Ghost Rider in 1971. Friedrich was a free-lancer when he created the character. Ghost Rider was picked up by Marvel Comics in 1972 and became a huge success.

In 1978, in response to the then-new Copyright Act of 1976, Marvel had Friedrich sign an agreement stating that all of Friedrich’s work for Marvel was work-made-for-hire. The agreement also assigned to Marvel all rights in any work governed by the agreement “forever.” The copyright in the original Ghost Rider character entered its renewal term in 2001. In 2007, Friedrich sued Marvel, claiming that the renewal term of the copyright belonged to him and that Marvel’s continued use of the character infringed Friedrich’s copyright.

The Federal District Court in Manhattan granted judgment to Marvel, holding that the assignment of all rights “forever” gave Marvel the renewal term of copyright. However, on June 11 the Court of Appeals reversed, holding that the agreement was ambiguous as to whether it applied to works created before it was signed.

Friedrich had cross-moved in the District Court for a judgment that he was the author of Ghost Rider (or at least a joint author). This raised the issue of whether Ghost Rider was a “work made for hire.” If it was, Marvel was the author in the eyes of the law and owned the renewal term of copyright. On appeal, Friedrich urged the Court of Appeals to hold that Ghost Rider
was not a work made for hire.

In response, Marvel relied on the part of the 1978 agreement, which allegedly created a work made for hire relationship. However, following established precedent, the Court of Appeals held the work-made-for-hire part of the 1978 agreement ineffective as to works created before the agreement was signed, including Ghost Rider. The Court of Appeals said that copyrightable works were either works made for hire when created or not, and subsequent agreements could not change their status. Nevertheless, the Court of Appeals remanded the case to the District Court for further fact finding because it was not clear from the record whether Ghost Rider was a work-made-for-hire when it was created.

Work Made for Hire Under Current Law
The work made for hire issue in the Friedrich case arose under the copyright law as it was before 1978. Nowadays, work-made-for-hire applies to two categories of work: Work by employees within the scope of their employment and work by non-employees, such as independent contractors or consultants, if there is a written agreement specifying that the work is work made for hire and if the work is one of nine different kinds listed in the Copyright Act. If a work is not a work made for hire, the greatest duration of copyright that employers can obtain is the first 35 years of the term of copyright. The rights assigned to the employer can be terminated thereafter by the author or the author’s statutory successors, and no agreement waiving that termination right in advance is enforceable.

Best Practices:
1. If you engage someone to create what will be a copyrightable work, make sure that there is a written agreement before the work begins specifying that the work will be work-made-for-hire.

2. Because even a written agreement specifying work-made-for-hire is not effective if the creator is not your employee and if the work to be done does not fall within the nine statutory categories, include a back-up clause assigning all rights to you in any event. This will assure your ownership of the rights at least for the 35 years provided by statute.

April 12, 2013 - Cases That Caught My Eye

Avazpour Networking Services v. Falconstar Software, CV 12-3574 (E.D.N.Y. March 11, 2013).

Software services vendor allegedly mishandled upgrade of storage area network, causing loss of data and corruption of files.  On motion to dismiss by vendor, applying New York law, all claims other than breach of contract dismissed.  Held that there is no claim for professional malpractice by software services vendor and no claim for negligence or gross negligence in breach of contract duties, absent catastrophic harm or injury to the public interest.

It is likely that the non-contract claims were filed to avoid contract clauses excluding consequential damages limitation and exclusion of all warranties other than performance of services in a good and workmanlike manner.  The loss of data and corruption of files would likely fall into the category of consequential damages.