The Briefing by the IP Law Blog
In The Briefing by the IP Law Blog, intellectual property attorney Scott Hervey and his guests discuss current IP issues related to trademark, copyright, and entertainment, as well as IP litigation and intellectual property in the news.
S1 E219 · Fri, April 11, 2025
Sequel, Spin-Off, or Something Else? The Legal Battle Over "ER" and "The Pitt"
Is ‘The Pit’ a spinoff, sequel, or something else entirely? Scott Hervey and Tara Sattler break down the lawsuit over ‘ER’ and whether ‘The Pit’ crosses the legal line into derivative territory on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: A legal battle is in full swing over the hit medical drama, ER and the Pit, a new medical drama set in Pittsburgh. The agreement between the creator of ER, Michael Crichton and WB, says that any sequels, remakes, spinoffs, and/or other derivative works require the approval of Crichton, Amblin, and Warner Brothers. So, is the Pit any of those things? I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and today I’m joined by my partner, Tara Sattler. We are going We’re going to discuss ER versus the Pit. What is the Pit? On this installment of The Briefing. Tara, welcome back. Tara: Hi, Scott. I’m happy to be here, especially talking about this topic. I really love all these medical traumas and was a big fan of ER back then, so this is going to be a fun one. Scott: Right. Did you do your homework this weekend? Tara: I did. Scott: Yeah, I did, too. I think Binge about five episodes of The Pit. Tara: And I liked it. Scott: Yeah, it was good. Tara: It was easy to do. Scott: I got to say, I Before we get into it, I am amazed at how the actors really sell themselves as doctors. I’m not a doctor, so probably maybe when a doctor is watching this, they probably look at it and go, Th
S1 E216 · Fri, April 04, 2025
ER Redux? The Anti-SLAPP Motion That Didn’t Stick
The estate of ‘ER’ creator Michael Crichton is suing Warner Brothers, claiming their new medical drama ‘The Pit’ is a derivative of ‘ER.’ IP and Entertainment attorneys Scott Hervey and Jessica Corpuz discuss this case on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel. Scott: A legal battle is unfolding over the hit medical drama, ‘The Pit,’ which the estate of Michael Crichton claims is the unauthorized successor to ER. The estate, represented by a roadrunner, JMTC LLC, has sued Warner Brothers television over The Pit, a new medical drama set in Pittsburgh. Warner Brothers attempted to shut down the lawsuit by using California’s anti-slap statute, arguing that the case threatened their free speech rights, but the court didn’t bite. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Corpuz. We are going to talk about the court’s decision to deny Warner Brothers’ anti-slap motion and what this means for contract rights in the entertainment industry on today’s installment of The Briefing. Jessica, welcome back to The I’m glad we could get my people to call your people and get you booked again. Jessica: Thanks so much for having me, Scott. Scott: Thanks. Well, why don’t we jump right into this? Jessica: Thanks, Scott. So today we’re unpacking a high-profile case in the entertainment world, Road Runner: JMTC/LLC versus Warner Brothers Television, which involves the estate of legendary author and screenwriter Michael Crichton, the long-running medical drama, ER, and a new TV show called The Pit. Scott: That’s right. This case revolves around claims of breach of contract, interference with contractual relations, and whether the pit is a derivative of ER. Warner Brothers attempted to shut down the lawsuit with an anti-slap motion under California law,
S1 E215 · Fri, March 28, 2025
Diana Copeland - "Surviving R. Kelly" But Not Netflix's Motion to Dismiss
In this installment of The Briefing , Scott Hervey & Jessica Corpuz cover the landmark defamation case Copeland v. Netflix —dissecting the high bar for public figures to prove defamation and the critical concept of “actual malice.” From the Surviving R. Kelly documentary to First Amendment protections, they unpack the legal complexities surrounding public figures and media reporting. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Surviving R. Kelly was a Netflix documentary series that delved into the extensive allegations of sexual abuse, misconduct, and predatory behavior leveled against the R&B singer R. Kelly. Diana Copeland, Kelly’s former personal assistant, claims she was falsely portrayed in the documentary as being essentially a co-conspirator in Kelly’s alleged sex crimes. Copeland sued Netflix and the producers of the documentary, Lifetime and A&E for defamation. There was a recent decision in Copeland versus Netflix, one that emphasized the stringent First Amendment protections for media when reporting on a public figure. How high is the bar for a public figure to prove defamation against the media outlet? And what does the legal concept of actual malice truly entail in such case? I’m Scott Herbie, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Corpus. Stay tuned as we dissect this significant decision and its implications for producers of programming of this type on this installment of the briefing. Jessica, welcome back. It’s good to have you. Jessica: Thanks so much for having me, Scott. Scott: This one, I think, is going to be quite interesting. I always like defamation cases because there’s always a lot to unpack. Jessica: Oh, they’re very exciting cases. We get this question a lot, and having to edu
S1 E216 · Fri, March 21, 2025
NBA Teams Fight Back Against Trolling - The Validity of the Discovery Rule at Stake
A petition is calling for the Supreme Court to decide on the validity of the “discovery rule,” which allows copyright claims long after the alleged infringement. NBA teams like the Indiana Pacers and Denver Nuggets are even weighing in, worried that social media posts from years ago could be used as grounds for lawsuits. Scott Hervey and Tara Sattler dive into this game-changing copyright case in this installment of The Briefing . Watch this episode on the Weintraub YouTube channel .
S2 E213 · Fri, March 14, 2025
Court Drowns Pepperdine's 'Waves' Trademark Battle Against Netflix
On the latest episode of The Briefing, Weintraub attorneys Scott Hervey and Jessica Corpuz break down the court’s decision in Pepperdine’s trademark fight with Netflix over the name “Waves” in the new series Running Point. Tune in for insights on this case and how the Jack Daniel’s ruling is reshaping trademark law in entertainment. Watch this episode on the Weintraub YouTube channel . For more content like this, subscribe here .
Fri, March 07, 2025
The Briefing: The Stanley Cup Clash - A Trademark Battle
Did you know the popular Stanley Travel Cup is tied to Stanley Black & Decker? A lawsuit is brewing over trademark rights and branding disputes. Is PMI overstepping, or is Stanley Black & Decker overreaching? Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss the legal battle over the iconic cup on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott Most people who have spent any time in a Home Depot, a Lowe’s, or an Ace Hardware are well aware of Stanley Black & Decker Company. They’re a manufacturer of a wide variety of tools and equipment. Well, did you know that the very popular Stanley Travel Cup is manufactured in connection with an agreement with Stanley Black & Decker? Well, I didn’t know of this relationship. Well, it seems that that relationship is soured, and there’s some trouble brewing in that Stanley insulated Stanley Black & Decker, which has filed a lawsuit against the Cupmaker Pacific Market International for trademark infringement and breach of contract. I’m Scott Herbie, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to talk about this case and some issues related to Stanley Black & Decker’s claims on this installment of the briefing. Tara, welcome back to the briefing. Tara Hi, Scott. Always great to be here. Scott Do you own a Stanley Cup? Tara I do. I have one sitting right here on my desk out of the screen. Scott I have one as well. Okay, so that’s why I picked this case for us to talk about because I think everybody has a Stanley Cup. Let’s set the stage here.
Sat, March 01, 2025
The Briefing: Westlaw v. Ross AI - Is This The End of AI Training or The Future of AI Training
Major AI copyright ruling – The Delaware District Court’s decision in Thomson Reuters v. Ross AI could have huge implications for AI training and copyright law. On this episode of The Briefing , Weintraub attorneys Scott Hervey and Andy Tan break down the case, its impact on the AI industry, and what it means for content creators. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: This February, the Delaware District Court, in the case of Thompson Reuters versus Ross AI, issued a decision that will have, in all likelihood, profound ramifications on all pending AI copyright infringement cases. I’m Scott Herbie, a partner at the law firm of Weintraub Tobin, and I’m joined today by my colleague, Andy Tan. We’re going to walk through the court’s decision in Thompson Reuters versus Ross AI and discuss how this case will impact the other AI training, copyright infringement cases currently pending. We’ll also talk about what this case could mean, both for the AI industry and the creators of content on this installment of “The Briefing.” Andy, welcome to “The Briefing.” This is your first time on “The Briefing”, so thanks for doing this. Andy: Thanks, Scott. It’s an honor to be part of it. I’ve been a long-time fan and watcher, so it’s great to be on now. Scott Well, we’re glad to have you. This case is right up your alley. You do a lot of deals in the AI space, so I thought this one would be appropriate for you to do with me. Andy Yeah, it’s definitely coming up, and AI is the hot topic in the legal world for the foreseeable future, I think. Scott Yeah, that’s for sure. Well, let’s start. Why don’t we start with the facts of the case because this case, it’s got some interesting twist and turns. Andy, can you take us through the basic facts of the case? Andy Yeah, I would be happy to. I’ll run through the basic facts of the case. If you want a more in-depth discussion, you should check ou
S1 E211 · Fri, February 21, 2025
Federal District Court Adopts Problematic "Vibe Copyright" Protection in Influencer Fight
In the case of Sydney Nicole vs. Alyssa Sheil, a federal district judge ruled that certain vibes and aesthetics can be protected under copyright law. Weintraub attorneys Scott Hervey and Tara Sattler break down this decision and what it means for content creators and brands in the digital age on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: In December of last year, we talked about the report and recommendation of a magistrate judge that would hold that a vibe or a look could be protected under copyright law. That report was adopted by the district Court for the Western district of Texas. So, it seems, at least in the Western district of Texas, that copyright law extends to protection of ideas, concepts, or general styles. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, I’m joined today by my partner, Tara Sattler. Given the adoption of the Magistrate Judges recommendations, we are going to discuss the potential implications of this case, Sydney Nicole versus Alyssa Sheil, on the creator marketing industry on this installment of the briefing. Tara, welcome back to the briefing. Tara: Hi there, Scott. Always great to be here. Scott: Good to have you again, Tara. I think this is going to be a real interesting discussion here. As a quick recap, this case involved a dispute between Sydney Nicole, a content creator, and Alyssa Sheil, another creator, accused of copying Nicole’s online content. Sydney Nicole alleged that Sheil’s work closely mimicked her original content, including the themes, style, and presentation of
S2 E210 · Fri, February 14, 2025
Bad Spaniels: Infringement? No. Dilution? Yes
On this episode of The Briefing , Scott Hervey and Tara Sattler dive into the landmark Jack Daniels v. VIP Products case that changed trademark law. They break down the Supreme Court’s ruling on trademark infringement vs. dilution and explore how a dog toy parody nearly tarnished Jack Daniels’ brand. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: VIP products versus Jack Daniels’ properties brought a landmark Supreme Court case that forever changed the application of the Rogers Test. However, cross-motions for summary judgment at the District Court following the Supreme Court have provided some degree of closure and finality on the trademark and dilution claims raised by Jack Daniels. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and today I’m joined by my partner, Tara Sattler. We’re going to talk about a dog toy, a bottle of whiskey, and the Sometimes-murky waters of Trademark Law on this installment of The Briefing. Tara, welcome back to the briefing. It’s good to have you back. Tara: Thanks, as always, Scott. Scott: We’ve talked about this Jack Daniels case as it has affected other cases I think, boy, almost ad nauseam. But there has finally been a resolution itself of the Jack Daniels case. Let me just give a little brief history of the background, and then you can recap the Supreme Court’s decision. This legal battle began all the way back in 2014, so over 10 years ago, when VIP Products, a company that makes dog toys, filed a declaratory relief lawsuit against Jack Daniels, seeking a declaration that their Bad Spaniels dog toy did not infringe on Jack Daniels’ trademarks. The Bad Spaniels toy was designed to mimic a bottle of Jack Daniels’ Black Label Whisky. Jack Daniels counterclaimed, alleging both trademark infringement and trademark dilution. The
S1 E209 · Fri, February 07, 2025
Copyright Troll or Rightful Enforcer? The Fifth Circuit’s Curious Ruling In Sports Doc Copyright Litigation
A motivational passage from Keith Bell’s book Winning Isn’t Normal sparks a legal battle after Ole Miss coach Lane Kiffin shares it on Twitter. Scott Hervey and Tara Sattler dive into the lawsuit, exploring how the Fifth Circuit’s ruling raises important questions about fair use, copyright enforcement, and Bell’s “serial litigant” status. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: In 2021, we reported on the copyright lawsuit filed by inspirational book author, Keith Bell, against the defensive back coach for the Miami Dolphins, Jerold Alexander. This was based on the coach’s inclusion of a passage from Bell’s 1982 book, Winning Isn’t Normal , in a social media post, and a federal court’s refusal to dismiss Bell’s lawsuit based on Alexander’s arguments, including fair use. In that case, the Florida federal court judge said that consideration of the fair use defense on a motion to dismiss was not appropriate unless it’s clear, based on the complaint itself, that fair use is applicable. The party The purpose of that case later settled. However, Bell had a much different result in a lawsuit brought against the University of Mississippi football coach, Lane Kiffin. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin and I’m joined today by my partner, Tara Sattler. We are going to take a look at this particular case and a related case in the Fifth Circuit to try to understand why this federal judge and the Fifth Circuit came to such a different conclusion than the judge in Florida based on essentially
Fri, January 31, 2025
Creator Contract Liability When Your Platform Disappears: The TikTok Ban
As TikTok’s future in the US hangs in the balance, influencers and brands are left wondering how a potential ban could impact their posting contracts. In this episode of The Briefing, Scott Hervey and Jamie Lincenberg dive into the potential legal challenges and share insights on how brands can stay ahead of the curve in this ever-changing landscape. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: On January 19, 2025, TikTok went dark, forced to cease operations in the US as a result of a federal law that bans the app in the US unless TikTok divest itself from its Chinese parent company. Now, as we record this podcast today on the 21st, TikTok is back up. It has a 75-day stay granted by current President Trump. While TikTok sorts out whether it’s going to sell itself or some other deal structure that will allow it to continue to operate in the US. For influencers that use TikTok as a content platform, many are concerned, very concerned that this federal law ban will have a serious impact on their livelihood. But here’s something that I haven’t heard much chatter about. What happens to those brand integration contracts where an influencer is required to post content to TikTok after the ban date? Does this Does this mean that an influencer is in breach? Can the influencer be liable to a brand for failure to perform, even though it’s really out of the control of the influencer? I’m Scott Hervia, a partner with the law firm of Weintraub, Tobin, and I’m joined today by my colleague, Jamie Lindsberg, to talk about whether influencers face potential liability due to the TikTok ban on this installment of the briefing. Jamie, welcome back to The Briefing. Jamie: Thanks for having me again, Scott. Scott: This is an interesting topic, and I got
S1 E207 · Fri, January 24, 2025
2025 IP Resolutions Start With a Review of IP Assets
Kick off 2025 by reviewing your company’s IP assets! Whether you’re new to IP protection or a seasoned pro, it’s crucial to keep track of your valuable intellectual property. Scott Hervey & Tara Sattler break down key steps in safeguarding your trademarks, copyrights, and patents on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: As 2025 kicks off, it’s time for companies to review and take stock of their intellectual property assets. This applies to every company, whether you are new to IP protection or an old pro. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to break down how to review and safeguard your company’s most valuable intellectual property assets on this installment of The Briefing. Tara, welcome back to the briefing. Happy New Year to you. Happy New Year to you, too, Scott. Great to be here again. Tara: Great to have you. Let’s jump right into this. As you know, intellectual property is a company asset, just like inventory. No CEO or CFO would think of running a company where they didn’t know the extent of company inventory. Likewise, it makes no sense for a company to not have a firm understanding of all of its potential intellectual property assets. Even companies that regularly take steps to protect intellectual property through, for example, registering trademarks or registering copyrights, should yearly review their IP assets, and this can prove to be very beneficial. Scott: Understanding the extent of a company’s IP holdings usually starts with what’s known to the company, such as all registered copyrights, trademarks, or patents, both domestic and foreign. After compiling a list of those I
S1 E206 · Fri, January 17, 2025
About Face: Courts Weigh AI Face-Swapping Technology and Celebrity Rights
The Ninth Circuit recently upheld a ruling allowing a class action against NeoCortex, the creators of the Reface app, over the unauthorized use of content creator Kyland Young’s likeness. This case highlights the growing tension between AI innovation and individual rights. Scott Hervey and Jamie Lincenber discuss the lawsuit and what it means for AI companies using digital likenesses on this installment of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Recently, the Ninth Circuit upheld the District Court’s refusal to throw out a proposed class action brought by a one-time reality star based on the use of his face by an AI-based face-swapping application. The tech company, NeoCortex, argued that its use of the TV star’s face didn’t violate his publicity rights and moved to dismiss the case under California’s anti-slap laws. Both the District Court and the Ninth Circuit on appeal rejected NeoCortex’s This is Motion to dismiss. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. We are going to talk about this case and its broader implications for AI companies whose business playbook involves exploiting the likeness of others on today’s installment of the Briefing. Jamie, welcome back to the briefing. Jamie: Thanks, Scott. It’s always good to be here. Scott: Yes, this one, I think, is going to be a real fun one, Jamie. How about we get into this one? Kylin Young brought this suit against Neocortex. Neocortex is the creator of the Reface app. Jamie, have you used the Reface app? Jamie: I haven’t. No, but it sounds fun. Scott: It does sound fun. I haven’t used it either. I’m going to have to give it a shot here. Okay, so Mr. Young alleged that Neocortex used his likeness without consent to promote the Reface app. Reface, it’s an app that allows users to superimpose their faces onto celebrities and images and videos. Kyla Dylan was a cast member of a few reality shows, in
S1 E205 · Fri, January 03, 2025
Navigating the Legal Risks for Brands in Social Media Marketing – Part 2 (Archive)
In part 2 of our social media marketing series, Scott Hervey and Jessica Marlow deep dive into the unique legal risks brands face when navigating social media. From FTC compliance to IP infringement and content clearance, discover the essentials for protecting your brand in the digital age on this archive episode of The Briefing . Find part one here . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: Brands spend a lot of money on social media marketing, and that amount continues to grow. According to a recent survey, ad spend on social media is projected to reach 129 billion in 2024. However, social media marketing presents unique legal issues, not generally present in more traditional advertising. Last week, we discussed the legal risks for the celebrity endorser in social media marketing. This week, I’m joined again by my partner, Jessica Marlow, and we’re going to discuss the legal risks for brands in social media marketing. I’m Scott Hervey with Weintraub Tobin; this is “The Briefing.” Jessica, welcome back. Jessica: Pleasure to be back. Scott: Last week, we discussed the risks celebrities or influencers face in social media marketing. Today, we’re going to talk about the risks brands face in social media marketing. Let’s first talk about FTC compliance. Like influencers, brands have FTC compliance requirements. As you mentioned last week, Jessica, we did an entire epi
S2 E204 · Fri, December 27, 2024
Navigating the Legal Risks for Brands in Social Media Marketing – Part 1 (Archive)
While influencer marketing has become popular in the creator space, it doesn’t come without risks. From IP infringement to FTC compliance, Scott Hervey and Jessica Marlow discuss the key issues surrounding brand endorsement deals in this archive two-part episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: Influencer social media marketing is big business, whether it’s a brand integration on Instagram by an influencer or a long-term brand endorsement deal by an A-list movie star. Each deal is different, but there are similar issues that are apparent in all brand deals. I’m Scott Hervey with Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. Today is part one of our profile on understanding and navigating risks in brand marketing deals on today’s installment of “The Briefing” by Weintraub Tobin. Jessica, welcome back to “The Briefing.” Jessica: Thank you. Happy to be back. Scott: This is something we both deal with frequently from both the brand and the talent side. There are certain risks that celebrities and brands have to navigate in these types of deals. Making these risks more prevalent is the fact that we’re talking about digital marketing, where things tend to move quicker. And for whatever reason, people, even marketing professionals, may sometimes believe that the laws applicable to terrestrial or regular advertising don’t apply to the Internet. Let’s talk about our top general risks from a talent perspective and how to deal with them. Now, we have a bunch of lawyers that listen to our podcast, and you might have a different list, and we would
S2 E203 · Fri, December 20, 2024
A Very Patented Christmas: The Quirkiest Inventions for the Holiday Season
Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: Welcome to a special holiday edition of The Briefing. Today, we are decking the Halls with a look at some of the most unique Christmas-related patents ever filed, at least in my opinion. That’s right, the spirit of invention doesn’t take a break during the holiday season. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. We are going to examine these festive follies of intellectual property. So grab your eggnog, snuggle up, and let’s dive into five truly unique Christmas-themed patents on today’s installment of The Briefing. Jamie, welcome back. Are you ready for this? Do you have your Santa hat nearby? Jamie: I’ll grab it in a minute, but you have to put yours on, too. Okay. Scott: Well, I don’t happen to have one nearby, unfortunately. That was really a mistake in prepping for this episode. I really should have brought my Santa hat. Oh, well. Okay. First, let’s just point out, neither of us are patent lawyers. This is really more for humor than anything else. Second, I want to point out in doing my research for this episode, there are a lot of Christmas patents out there. Jamie: Well, that makes sense. Scott, Christmas is a big business. Scott: It is. It This is a big business. All right, so kicking things off, let’s talk about the Santa detector. Every kid wants to try to spot Santa, and this device purports to give kids an edge on the elusive elf. This patent, filed in 1996, is for a device designed to detect Santa Claus entering you
S1 E202 · Fri, December 13, 2024
Is This Just A Copycat Influencer Case or Something More Problematic?
Can an influencer sue another for having a similar aesthetic? Scott Hervey and Jessica Marlow dive into a Texas case that could reshape creator marketing on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: Can a natural beige and cream aesthetic be protected? There’s a case pending in Texas, a lawsuit brought by one social media influencer against another social media influencer in which the plaintiff claims that the defendant copied her look. Can you protect a look? I don’t think so. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. We’re going to discuss the case of Sydney Nicole versus Alyssa Shell and its potential implications on the creator marketing industry on this installment of The Briefing. Welcome back, Jessica. It’s been a while. Jessica: Well, thank you for having me. I’m very interested in this case and looking forward to talking it through. Scott: Yeah, this one is just right up your alley for sure. Can you give us some background on the case? Jessica: Absolutely. This case involves two influencers who both operate in the same niche, promoting Amazon products. Sydney Nicole Gifford, the plaintiff, filed a lawsuit against Alyssa Shell and her company, alleging that Shell copied Gifford’s entire online persona, including her Instagram and TikTok posts, Amazon storefront layout, and even the designs of apparel Gifford created through Amazon. Gifford claimed that Shell replicated her esthetic, described in the lawsuit as a neutral beige and cream brand identity to mislead followers and increase her own
S2 E201 · Fri, December 06, 2024
Trademark Turbulence - Oakland vs SFO in Trademark Showdown
Oakland’s attempt to rename its airport didn’t take off. On this episode of The Briefing, Scott Hervey and Jamie Lincenberg discuss the trademark dispute between San Francisco and Oakland over airport naming rights. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: When Tony Bennett sang about leaving his heart in San Francisco, he wasn’t singing about Oakland. There are no little cable cars climbing halfway to the stars in Jack London Square, as charming as it is. Essentially, that’s why the City and County of San Francisco sued the city of Oakland and the operator of the Oakland International Airport, the Port of Oakland, to stop Oakland from renaming its airport to San Francisco Bay Oakland International Airport. I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my colleague Jamie Lincenberg. Fasten your seat belts and put your seats in the upright and locked position. It’s SFO versus OAK in today’s installment of The Briefing. Jamie welcome back. Thank you for joining me today. Jamie: Thanks, thanks. Thanks for having me, Scott. Scott: Let’s let’s see how many airline airport puns and bits of humor we can spontaneously include in this story here. Jamie: Sounds good. Scott: Okay, so, are you ready for takeoff? Jamie: I’m ready. Scott: Okay, so this case is about the Port of Oakland’s attempt to rename its airport and include San Francisco in its name. And this is also about the city of San Francisco’s claim that such use would create consumer confusion and constitute trademark infringement. But the reason Oakland wanted to include San Francisco, at least it claims, isn’t just about the desire to trade off of San Francisco’s goodwill. Jamie: Okay,
S1 E200 · Wed, November 27, 2024
Turkey, Trademarks, Copyright, and Cranberry Sauce - IP and Recipes
This Thanksgiving, we’re diving into the world of intellectual property and recipes. Can chefs own their culinary creations? Can a recipe be copyrighted? From Turducken trademarks to creative cookbooks, we’re discussing the legal side of your favorite holiday dishes. Tune in to The Briefing’s milestone 200th episode with Scott Hervey and Tara Sattler for all the tasty legal details. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: There are numerous ways to cook a turkey and thousands and thousands of recipes for turkey. Some are old fashioned like roasting with stuffing, some are newer like Tandoori Style, and some, well, I still just don’t get like the turducken. But who exactly owns all of these turkey recipes, not to mention all the recipes for stuffing and cranberry sauce. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin. And today I am joined by my partner, Tara Sattler. We’re going to talk about IP protection for recipes on this special Thanksgiving episode of the Briefing. Tara, welcome back to the Briefing. Happy Thanksgiving to you. Tara: Thanks, Scott. Thanks for having me. And this is an exciting topic to dig into. Scott: Yes, I see we both have our like, fall themed backgrounds up, despite the fact that it’s 71 degrees here today in Los Angeles. Tara: Well, not for much longer. Scott: Yeah. Well, so today we’re diving into the fascinating and often murky world of intellectual property protection for recipe recipes. So can a chef actually own their culinary creation? And what about their cookbooks? And what happens when recipes are copied and shared? Tara: All great questions. So let’s start with the basics. Protection of a recipe. So some famous chef creates a dish that is huge and a really big hit. But legally, how much protection does a recipe actually get? Scott: Well, that’s a great question. So U.S. copyrig
Fri, November 22, 2024
The Briefing: Based on a (NOT) True Story – The Baby Reindeer Defamation Case
Did Netflix push the boundaries of “based on a true story”? Scott Hervey and Jamie Lincenberg discuss Harvey v. Netflix, the risks of docudramas, and explain how truth and fiction collide in this high-stakes lawsuit on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel . Cases discussed: Fairstein v. Netflix Williams v. Netflix Harvey v. Netflix Show Notes: Scott: It seems like every good docudrama results in a defamation lawsuit. There is the recently settled lawsuit, Fairstein versus Netflix, which is a defamation claim over the portrayal of Linda Fairstein, former New York City prosecutor in the Netflix series, ‘When They See Us.’ Then there’s Williams versus Netflix, a defamation lawsuit brought by then Vanity Fair photo editor, Rachel Williams, whose friendship with Anna Delvey is highlighted in the Netflix series, ‘Inventing Anna.’ Then there’s the defamation case du jour, and for some reason, the one that seems to have Hollywood’s current attention, Fiona Harvey versus Netflix, the defamation case surrounding the Emmy Award-winning series, ‘Baby Reindeer.’ Earlier this month, a California federal court hearing the dispute denied Netflix’s anti-slapp motion and allowed the plaintiff’s defamation case to go forward. I’m Scott Hervey, a partner with the Entertainment and Media Group at Weintraub Tobin, and today I’m joined by my colleague, Jamie Lincenberg. We We are going to talk about this case and the lessons in the court’s opinion for avoiding claims like this on today’s episode of The Briefing. Jamie, welcome back. It’s good to have you. Jamie: Thanks, Scott. Great to be here again. Scott: Let’s get into this, Jamie. Can you give us a little rundown of what happened in this case? <st
S1 E198 · Fri, November 15, 2024
Millions at Stake: How 2 Live Crew Beat Bankruptcy to Reclaim Their Music
The 90s hip-hop group 2 Live Crew won big in their copyright case against Lil’ Joe Records. Scott Hervey and Jamie Lincenberg break down termination rights, bankruptcy, and what it means for artists reclaiming their work on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: In mid-October, a Miami federal jury handed a win to Luther Luke Campbell and the heirs of Mark Ross and Christopher Wong Won of the 2 Live Crew in their long-running copyright reclamation lawsuit against Lil’ Joe Records. The Master Sound recordings were transferred in 1990 to Skywalker Records, the label that once released the iconic 2 Live Crew albums. The court case had its twists and turns, including a ruling earlier this month that copyright termination rights survive bankruptcy. I’m Scott Hervey with the Entertainment and Media Group at Weintraub Tobin, and I’m joined today by Jamie Lincenberg, and we’re going to talk about this case on this installment of The Briefing. Jamie, welcome back to the briefing. It’s been a little while. Jamie: Yeah, thanks for having me. Scott: Jamie, before we get into this, I don’t know. I thought we’d chat about what’s on your desk. Is there anything interesting that you’re working on? Jamie: There’s a lot on my desk, always. But let’s see. Lately, I’ve been working on some production legal for a feature film that is going to start principal photography on Sunday. So, it’s been tying up all the loose ends, making sure that we have all of the financing in place, and getting ready to roll camera. Scott: It’s always busy right before the start of principal
S1 E197 · Fri, November 08, 2024
Bad Spirits - How a Dog Toy Changed TV Title Clearance
Clearing titles for creative projects has become more challenging after the Supreme Court’s decision in Jack Daniels v. VIP Products. In this episode of The Briefing, Scott Hervey and Tara Sattler explore the evolution of the Rogers test and the new hurdles studios face in title selection. Cases Discussed: Jack Daniels Properties, Inc. v. VIP Products LLC HomeVestors of America, Inc. v. Warner Brothers Discovery Rogers v. Grimaldi Punchbowl, Inc. v. AJ Press Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: One of the things we do for our production company and studio clients is clear the titles to their projects. Now, ever since the Supreme Court case of Jack Daniels Properties versus VIP products, clearing titles have become a little bit more challenging. And last year’s district Court case of Home Investors of America versus Warner Brothers shows exactly how challenging it’s become. I’m Scott Hervey from the Entertainment and Media Group at Weintraub Tobin, and today I’m joined by my partner, Tara Sattler. We’re going to talk about the impact of Jack Daniels on clearing titles for creative works on this installment of The Briefing. Tara, welcome back to the briefing. It’s good to have you back, especially on this topic, because this is something you and I deal with quite frequently. Tara: Absolutely. It’s great to be here, and thanks for having me back. Scott: All right. So, let’s provide a quick recap of the Rogers test and the impact that Jack Daniels had on the Rogers test. Tara: That’s a great place to start. The Rogers test comes from the 1989 Second Circuit case, Rogers versus Grimaldi. The case involved a lawsuit brought by Ginger Rogers concern
S1 E196 · Thu, October 31, 2024
The Dark Side of Halloween - Unlicensed Costumes and the Legal Haunt
Halloween is here, but beware! That killer costume might come with a lawsuit instead of candy. Scott Hervey and Tara Sattler discuss the legal threats associated with unlicensed costumes on this spooky episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: With Halloween just around the corner, we’re diving into a Spooktacular topic. This is the dark side of Halloween, the side where you get a lawsuit instead of a Kit Kat bar. I’m Scott Hervey from the Entertainment and Media Group at the Law Firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. Today, we’re talking about how the unlicensed use of famous movie characters for Halloween costumes could lead to a copyright and trademark lawsuit. On this installment, the spooky installment of The Briefing. Tara, thank you for joining me today. Oh, look, look, both of us have our Halloween-themed background here. How cute. Tara: Thanks for having me, Scott, and for sharing the background. This is definitely a timely topic. It’s not It’s not all bobbing for apples when it comes to infringement claims.\ Scott: No, it certainly is not bobbing for apples when it comes to infringement claims. Every Halloween, people dress up as characters from their favorite movies or their TV shows, whether it’s superheroes, villains, cartoon characters, you name it. Let’s talk about how costumes, as these characters, could potentially be problematic. Tara: Sure. The issue centers around intellectual property rights, both copyright and trademark. Movie studios and companies often hold copyrights over the characters and their distinctive designs, and they use trademarks to protect the names and logos associated with those characters. If you’re producing or selling costumes based on these characters without permission, you’re infringing on those rights. Scott: Yeah, that’s right. The way a court will determine whether a character
S1 E195 · Fri, October 25, 2024
The Fall of SUPER HERO: When Trademarks Become Generic
For more than half a century, Marvel Comics and DC Comics have jointly owned the trademark ‘Superhero.’ However, the Trademark Trial and Appeal Board recently granted a petition to cancel that mark because it became generic. Scott Hervey and James Kachmar discuss this case and how marks become generic on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: Since as early as 1967, Marvel Comics and DC Comics have jointly owned the trademark ‘Superhero’, covering a variety of goods, including comic books, action figures, and T-shirts. Most people, myself included, didn’t know that Marvel and DC owned this trademark, and their reaction to this tends to be the same. How could Marvel and DC own a trademark for Superhero? Well, that reaction is essentially the reason why the Trademark Trial and Appeal Board granted a petition to cancel that trademark because that mark became generic. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by frequent Briefing contributor James Kachmar. We’re going to talk about this case, what are generic trademarks, and what happens when a trademark becomes generic on today’s installment of The Briefing? James, welcome back to the briefing. It’s good to have you back to talk about generic trademarks. James: Thanks for having me, Scott. I think this is going to be a really interesting discussion, especially since it’s involving heroes. Scott: No, I agree. Let’s get some background on this super dispute. There are a few interesting factual tidbits that I haven’t seen out there in this widely reported case. The case is Super Babies limited versus Marvel Characters, Inc. Super Babies Limited is a comic book publisher, and they petitioned the Trademark Trial and Appeal B
S1 E194 · Fri, October 18, 2024
New California Laws for Digital Replicas Both Live and Dead
California recently passed two new AI laws that aim to protect individuals from the unauthorized creation of digital replicas. Scott Hervey and James Kachmar discuss these laws and their implications for the media industry on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Within the last few weeks, California’s governor, Gavin Newsom, signed into law two new AI bills that are intended to impact the media business. Both of these bills were championed by SAG-AFTRA and were touted as giving individuals more agency over the use of their voice and likeness. Do these bills really deliver on their promise, or are they duplicative? Or might they just create a bunch of confusion with other existing or pending bills? I’m Scott Hervey from Weintraub Tobin, and today I’m joined by James Kachmar. We’ll be discussing A/B 1836 and S/B 2602 on today’s episode of The Briefing. James, thanks for joining me today. You and I have had a number of these similar conversations. You and I talked about the Elvis Bill, and we talked about the No Fakes Act, and now we’re talking about California’s movement in this space. It’s good to have you here to unpack this with me. James: Thanks for having me, Scott. I think as all our as you, of course, know this is an incredibly relevant topic with the explosion of AI and deep fake technology that we’re seeing out there. I think we’re going to be excited to unpack this new legislation. Scott: Yeah, I agree with you. Let’s start with ABA 1836. So this bill amends Section 3344.1 of the Civil Code. And all of us lawyers that work in the media business are very much aware of 3344, which is basically California’s right of publicity statute, a
S1 E193 · Fri, October 11, 2024
Trump Train Derailed In “Electric Avenue” Copyright Lawsuit
Donald Trump is facing another lawsuit from a musician who objects to the use of their music at campaign events and rallies. Scott Hervey and Jamie Lincenberg discuss this latest challenge on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel . Cases Discussed: Isaac Hayes Enters. v. Trump Show Notes: Scott: Donald Trump’s presidential campaign has faced a number of challenges from musical artists that object to the use of their music in connection with his political campaign. We’ve previously covered the copyright infringement case related to the Trump campaign’s use of Isaac Hayes’ song, ‘Hold on, I’m Coming.’ I’m Scott Hervey from Weintraub Tobin, and I’m joined today by Jamie Lincenberg. We’re going to talk about the Court’s order in Eddie Grant’s lawsuit regarding the Trump campaign’s use of Electric Avenue on today’s episode of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thanks for having me back, Scott. I’m excited to dive into this interesting case. Scott: It is interesting. Let’s start with the basics. Can you give us a quick overview of what this case is about? Jamie: Certainly, this case involves a copyright infringement claim by musician Eddie Grant against the former President, Donald Trump, and his campaign. The dispute centers around the use of Grant’s song, Electric Avenue. I think we all know that one in the campaign’s 55-second video posted on Trump’s Twitter account during the 2020 presidential election. The video contains an animation of a high-speed red train bearing the words Trump pence, Keep A
S1 E192 · Fri, October 04, 2024
“Hold On” You Can’t Use That Music in Your Presidential Campaign
The estate of the late singer and songwriter Isaac Hayes sued former President Donald Trump for using one of his songs at campaign events and rallies. Scott Hervey and Tara Sattler discuss this case in this installment of The Briefing . Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: In August of this year, the estate of legendary singer and songwriter Isaac Hayes sued former President and current presidential candidate Donald Trump and his campaign for using the song ‘Hold On, I’m Coming’ at political events and rallies. In mid-September, the US District Court for the Northern District of Georgia partially granted Hayes’ estate’s motion for a preliminary injunction. This case raises some interesting issues about the public performance of music, how it’s licensed, and the controls musicians have over its use. I’m Scott Hervey from Weintraub Tobin, and we’re joined today by Tara Sattler as we talk about the recent ruling in Isaac Hayes enterprises versus Donald Trump enterprise on today’s episode of The Briefing. Tara, it’s good to have you back. Tara: Thanks for having me. I’m Glad to be back. Scott: Let’s jump into the case. I must say, combining politics and copyright law might be the only way to make C-Span seem more exciting in comparison. Can you give me a brief breakdown of the facts. Tara: Sure. This case goes back to Trump’s use of the song, Hold on, I’m Coming, since 2020. Apparently, he played the song at political rallies and events more than a hundred times since then. Hayes Enterprises, which owns all of Isaac Hayes’ publishing and music rights, sent the Trump campaign a letter back in 2020, demanding that it stop using the song. Appa
S1 E191 · Fri, September 27, 2024
The Briefing - Fake Reviews, Real Consequences: Consumer Review Dos and Don'ts
The FTC recently announced a new rule to combat fake consumer reviews and testimonials. Scott Hervey and Jessica Marlow explain how this decision will impact businesses and the influencer marketing industry in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel . Show Notes: Scott: On August 14th, 2024, the Federal Trade Commission announced a final rule that will combat fake reviews and testimonials. All parties involved in influence or marketing or companies that have significant e-commerce businesses need to know about these rules, what they prohibit, and the consequences for violating them. Joining me to break down these new rules is fellow Weintraub partner Jessica Marlow on today’s installment of The Briefing. Jessica, welcome back to The Briefing. It’s been a while. Jessica: It has. Thank you for having me. Scott: Good to have you back. We’re talking about one of your favorite topics, influencer marketing. Jessica: Absolutely. FTC, they’re coming up with new rules all the time, so I’m excited to dig in. Scott: Yeah. Well, so let’s start out with a rule that I think a number of online brands, companies that have significant online businesses, will find maybe problematic. So the FTC says that it’s an unfair or deceptive act or practice and a violation for a business to provide compensation or other incentives in exchange for the writing or creation of consumer reviews expressing a particular sentiment, whether negative or positive, regarding a product, service, or business that is the subject of the review. In other words, no pay-to-play for consumer reviews. Now, according to the FTC notes, this section doesn’t address testimonials such as a blogger or an influencer paid review.
S1 E191 · Fri, September 20, 2024
Punchbowl News' Trademark Win Despite Rogers Setback
Punchbowl News won the trademark infringement lawsuit filed by greeting card and event planning company, Punch Bowl Inc., despite a previous setback at the Ninth Circuit. Scott Hervey and Jamie Lincenberg discuss this recent development in this installment of The Briefing . Cases Discussed: Rogers V. Grimaldi Jack Daniels Properties Inc. Versus VIP products Punchbowl, Inc. V. Aj Press, Llc Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Despite a 2022 setback at the Ninth Circuit, Punch Bowl News ultimately came out a winner in a trademark infringement lawsuit bought by a greeting card and event planning company, Punch Bowl Inc. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by Jamie Lincenberg. We are going to talk about this case again and the future of trademark infringement cases in light of the recent changes to the applicability of the Rogers Test on this next installment of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thank you, Scott. It’s nice to join you here again. Scott: Do you remember talking about this case in 2022 when we covered the appeal to the Ninth Circuit? Jamie: I sure do. Yeah. Scott: I think it’s good to give some closure to this case since we already covered it. Why don’t Let me start with the case? Punchbowl Inc. Is an online technology company whose product is online invitations and online greeting cards. It has been using the mark Punchbowl since 2006, and it has a federal trademark registration covering the mark. AJ Press was founded by two journalists who used to write for Politico. AJ Press operates Punch Bull News, a s
S2 E189 · Fri, September 13, 2024
Does This Court’s Ruling Put an End to Tattoo Copyright Cases?
The US District Court for the Northern District of Ohio issued an opinion in Hayden V. 2K Games, Inc. that could potentially put an end to tattoo copyright cases. Scott Hervey and Tara Sattler discuss the court’s opinion on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Earlier this year, we discussed a jury ruling in Hayden versus 2K Games, Inc, where a jury in the US District Court for the Northern District of Ohio found video game publisher Take-Two Interactive not liable for copyright infringement for a video game that incorporated a depiction of certain tattoos on LeBron James in the game NBA 2K. After the jury verdict, the plaintiff moved the court for a judgment as a matter of law. The court denied the motion and issued an opinion that may potentially put an end to these types of tattoo copyright cases. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by frequent Briefing contributor Tara Sattler. We’re going to talk about the court’s opinion in Hayden versus 2K Games next on The Briefing. Tara, welcome back. It’s been a while. Tara: Thanks, Scott. Glad to be back. Scott: So, Tara, can you give us a rundown of the facts in this case? Tara: Yes, absolutely. So Solid Oak, a licensing firm that represents the go-to tattoo artist for NBA players, sued Take-Two Interactive software, the game publisher behind the popular NBA 2K basketball video game, alleging that the game maker’s depiction of LeBron and his tattoos infringes the tattoo artist copyrights in six tattoos. In ruling on the video game publisher’s motion for summary judgment, the court found that the publisher had an implied license to depic
S1 E188 · Fri, September 06, 2024
Late Night, Early Dismissal: The Santos Kimmel Copyright Case
A New York Judge dismissed former Rep. George Santos’ lawsuit against Jimmy Kimmel Live over the late-night host’s use of personalized Cameo videos in one of his segments. Scott Hervey and Tara Sattler discuss this decision on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I can see the situation unfolding in the writer’s room for Jimmy Kimmel Live. How can they show that former US Representative George Santos would say just about anything for money and have that be extremely funny? The resulting prank video skit got a bunch of laughs and a copyright lawsuit. However, a recent decision by the US District Court for the Southern District of New York ended Santos’ lawsuit. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my colleague Tara Sattler, to discuss this case and its implications on the television and media industry on today’s installment of the briefing. Tara, welcome back. It’s great to have you. Tara: Thanks, Scott. I’m glad to be here. Scott: Tara, by chance, have you seen these George Santos cameo videos? Tara: I have, and they really are quite hilarious. Scott: Yeah, they are. I could see why the writers for Jimmy Kimmel Live pitch this. But why don’t you give our listeners a quick summary of the facts? Tara: Certainly, this case stems from George Santos creating personalized videos on the Cameo platform after he was expelled from Congress. Jimmy Kimmel and his show created fake cameo accounts and requested 14 absurd videos from Santos, which they received and then aired on Jimmy Kimmel Live as part of a segment called Will Santos Say It
S2 E187 · Fri, August 30, 2024
Deep Dive into the NO FAKES Act
A group of senators introduced an update to the ‘No Fakes Act,’ which protects the voice and visual likeness of individuals from unauthorized AI-generated recreations. Scott Hervey and James Kachmar discuss the changes to this act on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis introduced an update to the ‘Nurture Originals Foster Art and Keep Entertainment Safe Act’ or the ‘No Fakes Act,’ which the four senators previously released last October. I’m Scott Hervey, and I’m joined today by James Kachmar, and we’re going to talk about the ‘No Fakes Act’ or the update to the ‘No Fakes Act’ on this installment of The Briefing. James, welcome back to The Briefing. It’s been a while. James: Good to see you, Scott. Thanks for having me. Scott: We have a fun one today, the ‘No Fakes Act.’ The purpose and intent of the ‘No Fakes Act’ is to prevent the creation and use of a digital replica of an individual without that person’s consent. Let’s dive into how this proposed act accomplishes this and what the liabilities are for violations of the act. First and foremost, the act creates a new federal property right to authorize the use of a person’s voice or visual likeness in what’s called a digital replica. Now, a digital replica is defined in the act as a newly created, computer-generated highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual. Now, this right, the right to control a digital replica or grant rights in a the original replica, survives postmortem and is transferable, licensable, and exclusive to the individual, the executors, the heirs or licensees or devices of that individual for an initial ten years, renewable for a rol
S1 E186 · Fri, August 23, 2024
Thirsty for Clarity - Brand Confusion In The Beverage Category
The Trademark Trial and Appeal Board often consider wine, beer, and non-alcoholic beverages related when determining the likelihood of confusion despite there being no per se rule on the matter. Scott Hervey and Jamie Lincenberg discuss the TTAB’s long-standing opinion on this episode of The Briefing . Read Scott’s article on the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: In October 2014, I wrote an article for our law firm’s blog, remember those? That discussed the Trademark Trial and Appeal Board’s tendency to find wine, beer, and non-alcoholic beverages related for the purpose of determining likelihood of confusion. Now, the T-TAB has repeatedly said that there is no per se rule that all beverages are related for Section 2D refusal purposes. But really? Now, most consumers see wine, beer, and non-alcoholic beverages as unrelated products and would not believe, even if they shared a similar trademark element, like a similar word or design, that they’re related or that they emanate from the same source. However, the Trademark Trial and Appeal Board seems to always find otherwise. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my colleague and frequent Briefing contributor, Jamie Lincenberg. I thought it would be interesting to revisit this topic ten years later. So today, we’re going to take an updated look at beer, wine, water, and likelihood of confusion on today’s episode of The Briefing. So, Jamie, welcome back. Jamie: Thank you, Scott. I’m happy to be here and to revisit this topic with you. Scott: Great. So, like all, one of the things I think the best place to sta
S1 E185 · Fri, August 16, 2024
The Briefing: Affiliate Marketing vs Retail Services - TTAB's Landmark Ruling
‘Gabby’s Table’ was denied registration in a major Trademark decision that impacts affiliate marketing. Weintraub attorneys Scott Hervey and Jamie Lincenberg break down what this means for your business in this episode of “The Briefing” Watch this episode on the Weintraub YouTube channel here and listen to the full podcast here . Show Notes: Scott On July 1st, 2024, the US Trademark Trial and Appeal Board issued a precedential decision that has great implications in today’s world of affiliate marketing. In the decision of In re Gayle Weiss, the T-Tab upheld an examiner’s refusal to register the mark Gabby’s Table for computerized online retail store services in the field of cooking utensils, cookware, etc. Because the specimen submitted by the applicant, the Gabby’s Table website, failed to show the mark used in commerce in connection with the identified services. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by Jamie Lincenberg. Today, we’re going to break down this decision and its implications for affiliate marketing on today’s episode of “The Briefing.” Jamie, welcome back. It’s been a while. Jamie Thanks, Scott. Yeah, it’s nice to join you again. Scott Always great to have you, Jamie. But let’s dive into this presidential decision by the Trademark Trial and Appeal Board. As I said in the opening, the TTAB case results from an applicant’s appeal from a trademark examiner’s refusal to register the Gabby’s table, Trademark for online retail store services. I
S1 E184 · Fri, August 09, 2024
How to Avoid Bearing The Risks of A Naked License (Featured)
In Blue Mountain Holdings v. Bliss Nutraceuticals, the 11th Circuit upheld a U.S. District Court finding that Lighthouse Enterprises issued a naked license to Blue Mountain, which covered the trademark in question. Scott Hervey and Eric Caligiuri discuss this case and how to avoid bearing the risks of a naked license in this featured episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: The trademark dispute in Blue Mountain Holdings versus Blitz Nutraceuticals ended with the 11th Circuit upholding the finding by the US. District Court for the Northern District of Georgia that Lighthouse Enterprises had issued a naked license to Blue Mountain, which covered the trademark that was the basis for the dispute. We’re going to talk all about the naked license on this installment of The Briefing by Weintraub Tobin. Thanks for joining us today. My name is Scott Hervey. I’m joined by my colleague, Eric Caligari. Eric, thanks for joining us today. Eric: Thanks for having me, Scott. Scott: Eric, can you give us some background on the case of Blue Mountain Holdings versus Bliss Nutraceuticals? Eric: Yes, of course. Lighthouse Enterprises and Blue Mountain Holdings initially sued Bliss in April of 2020 for federal trademark infringement, federal cybersquatting, and federal trademark dilution, along with some other claims. The lawsuit was based on their ownership of the trademark, Vivazen Botanicals claimed that had been selling Vivazen products since 2012 and registered the name as a trademark with the United States Patent and Trademark Office in 2017. Blue Mountain claimed that it acquired the Vivazen trademark and a 2019 purchase agreement with Lighthouse. B
Sat, August 03, 2024
The Briefing: IOC Goes For Gold In Trademark Suit Over Logan Paul - Kevin Durrant Sports Drink
Weintraub attorneys Scott Hervey and Jessica Marlo explore the US Olympic Committee’s lawsuit against Prime Hydration, co-founded by Logan Paul, for using Olympic trademarks in their ad campaign with Kevin Durant. Discover the power of Olympic trademarks and their protection! Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott The United States Olympic and Paralympic Committee has filed a lawsuit in the United States District Court for Colorado against Prime Hydration, a sports drink company co-founded by social media influencer Logan Paul. The complaint alleges that Prime Hydration’s ad campaign featuring NBA star and Team USA member Kevin Durant infringes numerous Olympic trademarks. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my colleague and huge Olympic fan, Jessica Marlo. We are to talk about this case and the unique aspects of Olympic trademarks in this installment of “The Briefing.” Jessica, welcome back to “The Briefing.” Jessica Thank you for having me. Scott Jessica, I know your absolute fascination with the Olympics runs deep, so I thought this would be a fantastic topic to discuss with you. Jessica Absolutely. This is the per
Fri, July 26, 2024
No Copyright Protection in Fitness Routines for Celebrity Trainer Tracy Anderson
Tracy Anderson, the mastermind behind the Tracy Anderson Method, sued ex-trainer Megan Roup for allegedly stealing her routines and licensing them to Equinox. The US District Court just ruled against Anderson’s copyright claim. Join Scott Hervey and Jamie Lincenberg from Weintraub Tobin on “The Briefing” as they discuss the case’s impact on fitness entrepreneurs. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Exercise is a multi-million-dollar business, and nobody knows that better than Tracy Anderson, celebrity fitness trainer and creator of the Tracy Anderson Method. The Tracy Anderson Method is a fitness routine that combines choreography, fitness, and cardiovascular movement, and it served as the foundation for multiple exercise studios and 19 home videos. Anderson sued one of her former trainers, Megan Roup, for ripping off her routines to create her own choreography-based dance cardio workout, which Roup later licensed to rival gym chain Equinox Holdings. The US District Court for the Central District of California recently ruled on Rupp’s motion for summary judgment, denying Anderson’s relief on her copyright claim. I’m Scott Hervey from Weintraub Tobin, and I am joined today by Jamie Lincenberg. We’re going to talk about exercise routines and copyright and what this case me
Fri, July 19, 2024
Closing The Royalty Loophole- Push for a Public Performance Right in Sound Recordings
Did you know? In the U.S., terrestrial radio stations don’t pay royalties to non-songwriter performers or record labels! Unlike other countries, only songwriters and publishers get paid. Weintraub attorneys Scott Hervey and Jamie Lincenberg share how musicians are pushing Congress to change this with the American Music Fairness Act in this installment of “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott As you are aware, or you may not be aware, that in the United States, terrestrial radio broadcasters do not have to pay royalties to the singer or the record label for the performance of music. That’s correct. While radio stations pay the songwriter and publisher or performance royalty, the non-songwriter performers, whether that be the singer, guitar player, or drummer, as well as the record label, get nothing. This is different than most other countries around the world and is also different from how royalties are paid for songs that are streamed over the Internet, such as on Spotify or Pandora. Some musicians are pushing Congress to change that. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by fellow Weintraub lawyer and frequent “Briefing” contributor Jamie Lincenberg. We are going to talk about what some are calling a loophole that benefits US radio station conglomerates and t
Fri, July 12, 2024
The Briefing: Not Terminated Cher Still Entitled to Her Share of Music Royalties
Cher recently won a major lawsuit over her music royalties from her divorce from Sonny Bono. Join Weintraub attorneys Scott Hervey and Jamie Lincenberg on today’s episode of “The Briefing” as they break down this case and its implications for copyright law. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Cher recently won quite a big victory in a lawsuit over whether a copyright termination in various Sonny Bono compositions could terminate her share of music royalties that were accorded to her in the divorce settlement between her and Sonny. I’m Scott Hervey from Weintraub Tobin, and I’m joined by frequent Briefing contributor Jamie Lincenberg. We are going to talk about this case on today’s episode of “The Briefing.” Jamie, welcome back to “The Briefing.” Jamie Thanks for having me, Scott. Scott Let’s jump into the facts of this case. In 2016, Mary Bono, that’s Sonny Bono’s widow, issued a notice of copyright termination under Section 203 of the Copyright Act to various music publishers that held rights in Sonny Bono’s compositions. Under Section 203, authors or their successors may terminate copyright assignments and licenses that were made on or after January 1, 1978. Upon termination, all rights in the work that were covered by the grant revert to the author. However, any derivative works that were prepared under the authority of the grant before its termination may continue to be utilized under the terms of the grant after that grant is terminated. Apparently, though, in September 2021, Mary Bono notified Cher that pursuant to the copyright termination and their rights, Cher was no l
Fri, July 05, 2024
The Briefing: TheStrength of a Trademark
Trademarks perform a number of important functions. Scott Hervey discusses the spectrum of trademark strength in this archive episode of “The Briefing” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott: Trademarks perform a number of important functions. They are consumer road signs; they tell consumers which products to buy. They are a company’s public persona; they epitomize of all the positive (and negative) qualities of a company or a product. Lastly, trademarks represent a solemn promise to the purchasing public that the products or services branded with a company’s mark will meet certain standards. Yet, even with marks as important as they are, some business select marks that are intrinsically weak and have limited protection. WE are going to talk about the spectrum of trademark strength on this installment of The Briefing by the IP Law Blog Scott: Trademarks can be one of the more valuable assets a company owns. Trademarks generate brand equity based on the amount a consumer will pay for a branded product as compared to a non-branded product. For some companies, brand equity can make up a substantial portion of its value. For example, according to a 2001 ranking by Interbrand, the Coca-Cola brand, valued at $68,945,000, represents 61% of Coca-Cola’s market capitalization as of July, 2001. Xerox’s brand, valued at $6,019,000, represents 93% of Xerox’s market capitalization as of July, 2001. Josh: In business, branding comes as second nature. In order to survive in a competitive environment, a business must separate itself and its products from the pack and summarize these differences in a concise and succinct manner. This is even m
Fri, June 28, 2024
The Briefing: Supreme Court Holds Copyright Damages Can Go Beyond 3 Years
Weintraub attorneys Scott Hervey and Jamie Lincenberg unpack the Supreme Court’s follow-up decision on damages in Neely v. Warner Chapel Music. Explore how this ruling could reshape future infringement cases. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott: In a previous episode of “The Briefing,” we pondered just how far back a plaintiff in a copyright infringement case can go in recovering damages when we discussed the case of Warner Chapel Music versus Neely. Well, the Supreme Court answered that question on May 9th, 2024. The answer is as far back as they’re able. I’m Scott Hervey of Weintraub Tobin, and I’m joined today by my colleague and frequent briefing guest, Jamie Lincenberg. We will be talking about the Neely case and how the Supreme Court’s answer to what was a contested question in copyright law might impact future infringement cases on today’s episode of “The Briefing.” Jamie, welcome back, and thank you for joining us today. Jamie Thanks, Scott. I’m happy to be here. Scott Jamie, can you give us some background on this case? Jamie Of course. In the case of Neely versus Warner Chapel Music, which began in 2018, music producer Sherman Neely filed a lawsuit against Warner Chapel Music and Artist Publishing Group. It was a run-of-the-mill copyright infringement case in which Neely cla
Fri, June 21, 2024
Is the FTC Recent Rule on Non-Competes a New Reality for Reality TV Stars
The FTC just issued a final rule banning post-employment non-compete clauses, and it’s shaking things up, especially in the non-scripted TV world. How will this impact talent deals? Join Weintraub attorneys Scott Hervey and Shauna Correia as they discuss what this means for networks and on-air talent on the latest installment of “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott The FTC recently issued a final rule banning post-employment non-compete clauses in agreements between employers and their workers. While this is causing consternation with the standard corporate GC set, in-house counsel of television networks that are heavy into non-scripted television are quietly expressing concern. Why? Well, post-term exclusivity provisions are huge in the non-scripted television industry, and they’re used to prevent non-scripted talent from jumping ship. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by my partner, Shauna Correia. We’re going to talk about this FTC ban and how it will impact non-scripted talent deals on today’s installment of “The Briefing” by Weintraub Tobin. Shauna, welcome to “The Briefing.” Shauna Thanks for having me, Scott. Scott Okay, so Shauna, why don’t you tell us what this ruling actually says? Shauna This 540-page rule that the FTC came up with prohibits an employer from entering into or attempting to enter into any post-employment non-competent clause with a worker in the United S
Fri, June 14, 2024
Scarlett Johansson vs Chat GPT What the Legal Claims Would Look Like
Did Scarlett Johansson’s voice inspire ‘Sky’? Scott Hervey and Jamie Lincenberg of Weintraub Tobin unpack the controversy between Scarlett Johansson and OpenAI’s Chat GPT. Explore potential legal claims and the intricacies of voice rights in AI on this episode of The Briefing. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Scarlett Johansson claims that Chat GPT’s voice of Sky is her voice, or is intended to be her voice. Despite Sam Altman, the CEO of OpenAI, attempting to engage Johansson to voice Chat GPT, Altman claims that Sky isn’t her, that it’s a voice actress OpenAI hired well before his initial discussions with Scarlett’s agent. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by a fellow Weintraub lawyer and frequent “Briefing” contributor, Jamie Lincenberg. We are going to talk about the Scarlett Johansson OpenAI controversy, the claims she could bring, and how those claims may fair on today’s episode of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.” I think this one’s going to be a good one. Jamie Thanks, Scott. It’s good to be back. I’m excited to dive in. Scott This has been in the news for quite a while now, and the facts are mostly out there. In a nutshell, Sam Altman approached Scarlett Johansson in September 2023 about voicing Chat GPT. According to Scarlett Johansson, Altman said that he felt that by
Fri, June 07, 2024
The Briefing: Another Court Gets It Right in Tattoo Copyright Dispute
The recent decision on Hayden vs. 2K Games is a big win for video game publishers. Dive into the fascinating world of copyright disputes over tattoos in video games. Scott Hervey and Jamie Lincenberg from Weintraub Tobin discuss how this case compares to past decisions and what it means for athletes, celebrities, and the video game industry on the latest episode of “The Briefing” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Two years ago, I took the position that the District Court for the Southern District of Illinois and the Court of Appeals in the case of Alexander versus Take2 Interactive Software got it completely wrong when they found that the depiction of tattoos on wrestler Randy Orton in a video game published by Take2 Interactive infringed the tattoo artist’s copyright in the tattoos. I said that both the court’s rejection of Take-Two’s defenses, defenses that won the day in the US District Court for the Southern District of New York in Solid Oak Sketches versus 2K Games was absolutely incorrect. Now, we have the US District Court for the Northern District of Ohio deciding another copyright dispute over an inked athlete depicted in a take two interactive video game, and this court got it right. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by frequent Briefing contributor, Jamie Lincenberg, and we’re going to talk about this case, Hayden versus 2K Games, Inc, on this next installment of “The Briefing.” Jamie, welcome back to the briefing. Jamie</h5
Fri, May 31, 2024
Paramount Splashes Top Gun Maverick Copyright Lawsuit
Paramount triumphs in the Top Gun Maverick copyright case. Join Scott Hervey and Jamie Lincenberg of Weintraub Tobin on ‘The Briefing’ as they dissect the court’s ruling. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Paramount was finally able to shoot down Ehud Yonay’s copyright infringement lawsuit, which alleged that Top Gun Maverick, the sequel to the popular 1986 motion picture Top Gun, infringed the copyright in his magazine article. The district Court granted Paramount’s motion for summary judgment and dismissed Yonay’s complaint. I’m Scott Hervey from Weintraub Tobin, and I’m here today with Jamie Lincenberg from Weintraub Tobin and we’re going to talk about the Court’s ruling on this installment of “The Briefing.” Jamie, welcome back to “The Briefing.” Jamie Thanks for having me today, Scott. Scott Great. Well, first, let’s get into the facts of the case a little bit. So, in May 1983, California Magazine published the article Top Guns by Ehud Yonay. This article was an inside look at the real Navy fighter’s weapons school, Top Gun, based out of Miramar, California. The article begins with a vivid description of two Top Gun F-14 Tomcat aviators, Yogi and Possum, on a hop, a simulated dogfight training against two Top Gun instructors. Then, the article continues with a deep dive into what makes Yogi and Possum and the other fighter pilots at Top Gun tick. A look at the Top Gun training regimen, what life on the base is like, and the history of Top Gun. When th
Fri, May 24, 2024
The Briefing Filmmakers Express Concern Over Impending Death of ‘Biographical Anchor’ Fair Use Basis
Unraveling the threads of Fair Use and how recent legal rulings threaten documentary filmmakers. Join Scott Hervey and Jamie Lincenberg as they dissect the Tenth Circuit’s Impact on filmmaking in this episode of ‘The Briefing.’ Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott Leading up to the Supreme Court’s decision in Andy Warhol Foundation versus Goldsmith, there was significant concern by documentary filmmakers about how the Court’s decision in favor of Goldsmith could upend how those filmmakers make use of fair use as part of the filmmaking process. Now, in light of the Tenth Circuit recent application of the Warhol case in Timothy Seppi versus Netflix, filmmakers are again concerned and are calling for a rehearing or an inbound rehearing. If left uncheck, the Motion Picture Association said that this decision threatens to severely impair the ability of filmmakers and other creators to create documentaries, docudramas, biographies, and other works based on the real world. I am Scott Hervey from Weintraub Tobin, and today I’m joined by my colleague, Jamie Lincenberg. We are going to talk about the Tenth Circuit’s controversial decision in Seppi versus Netflix. On this installment of “The Briefing.” Jamie, welcome back to “The Briefing.” Jamie Thanks for having me, Scott. Scott For a while now, I have expressed some concern that the Warhol case does, in fact, remove a fa
Fri, May 17, 2024
The Briefing: Netflix Defamation Lawsuit About Inventing Anna – Not an Imposter
Update on Rachel Williams’ defamation lawsuit against Netflix’s “Inventing Anna.” Weintraub lawyers Scott Hervey and Jamie Lincenberg discuss the recent court ruling as a warning for docudrama producers on “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott We have an update on the defamation lawsuit brought by Rachel Williams, the Vanity Fair photo editor whose friendship with Anna Delvey, who passed herself off as German heiress Anna Sorkin, was featured in the Netflix series Inventing Anna. The news is not great for Netflix, and this should be a warning for producers of docudramas who take creative license with facts. I’m Scott Hervey from Weintraub Tobin, and today, I’m joined by fellow Weintraub lawyer Jamie Lincenberg. We are going to review this lawsuit, the recent court ruling not allowing Netflix to get out from under William’s defamation claim, and talk about how this should be a concern for producers of the genre du jour docudramas on today’s installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.” Jamie Thanks for having me today, Scott. Scott So, let’s jump right into this. For those who may not remember, Rachel Williams is a real person. At the time of her portrayal in the Netflix program Inventing Anna, she was a Vanity Fair photo editor and a friend to Anna Delvey, also known as Anna Sorkin. Williams did not come across well in inventing Anna. Jamie No, she didn’t. She comes across as a privileged freeloader who sponges off of Sorkin and then abandons her when her real situation comes to life. </
Fri, May 10, 2024
Brandy Melville Doubles Down Against Redbubble
The ongoing dispute between Brandy Melville and Redbubble over trademark and copyright infringement continues. Despite previous setbacks, Brandy Melville has filed a new lawsuit against Redbubble, alleging the sale of counterfeit products and copyright infringement. Scott Hervey and Jamie Lincenberg from Weintraub Tobin explore the history of the dispute, the claims made in the new complaint, and potential legal strategies moving forward. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott We have covered Brandy Melville’s dispute with Redbubble, including the Ninth Circuit’s refusal to hold Redbubble liable for contributory copyright infringement because Redbubble didn’t know or have reason to know of specific incidents of infringement by its users and the Supreme Court’s refusal to take on Brandy Melville’s certiorari petition. Despite these significant setbacks, Brandy Melville seems determined to hold Redbubble accountable and has filed a new lawsuit against Redbubble. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by Weintraub lawyer Jamie Lincenberg to talk about this update in the Brandy Melville Redbubble Dispute on this installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to the briefing. Jamie Thanks, Scott. I’m glad to be here and happy we can jump into this Brandy Melville Redbubble case again. Scott This is our third conversation about Brandy Melville Redbubble, and I have the feeling that it will not be our last. Before we dive into this new complaint, can you take us back through the history of the Brandy Melville Redbubble dispute? Jamie Sure. The dispute began in 2018 when Brandy Melville, the popul
Fri, May 03, 2024
How “knockoff” furniture landed Kim Kardashian in an IP lawsuit
Kim Kardashian faces a lawsuit from the Donald Judd Foundation for allegedly using and promoting knockoff furniture in her office tour video. While Kardashian’s counsel denies liability, the case underscores the importance of due diligence in endorsements. Scott Hervey and Jamie Lincenberg from Weintraub Tobin dissect the legal drama in this installment of “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Jamie Last week, the art world was buzzing with yet another dupe scandal. Kim Kardashian has been sued by the Donald Judd Foundation for using and promoting knockoffs of the late designer’s furniture. We will dive into the details of this case on today’s episode of “The Briefing.” I’m Jamie Lincenberg of Weintraub Tobin, and I’m joining my colleague, Scott Hervey, on today’s episode of “The Briefing.” Scott Thank you for joining me today, Jamie. Can you provide us with a recap of how this case came about? Jamie Of course. Yeah. In a lawsuit filed just two weeks ago on March 27th in California’s district Court, the foundation of artist Donald Judd, who passed in 1994, known famously for his minimalist designs, is suing reality television star and entrepreneur Kim Kardashian and the Los Angeles-based interior design firm, Clements Design, the company who’s been faulted for fabricating and selling allegedly infringing tables and chairs to Kardashian. The lawsuit asserts that the firm sold Kardashian fakes of Judd’s tables and chairs for the offices of Skin by Kim, which is Kardashian’s skincare company, and accuses Kardashian of false endorsement and Cl
Fri, April 26, 2024
Authors Get Mixed Results with Initial Skirmish in OpenAI Lawsuit
Delve into the complexities of vicarious infringement and DMCA violations in AI training. Scott Hervey and James Kachmar from Weintraub Tobin dissect the recent district court ruling on OpenAI’s copyright infringement allegations on this installment of “The Briefing.” Watch this episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott As we have previously reported, in 2023, several authors, including the comedian Sarah Silverman, filed putative class action lawsuits against OpenAI’s ChatGPT, alleging various copyright infringement claims. On February 12th, 2024, a district court in the Northern District of California issued its order and ruled on the OpenAI defendants’ motion to dismiss various claims in the two pending putative class action lawsuits. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my partner, James Kachmar, and we’re going to discuss the Court’s order on this installment of “The Briefing by Weintraub Tobin. James, welcome back to “The Briefing.” James Thanks, Scott. It’s good to be back. Scott So, James, could you give us some background on these cases? James Sure, Scott. The author plaintiffs alleged that OpenAI infringed on their published works by using these works to help train its Large Language Model or LLM. Basically, OpenAI is alleged to have scanned the books into their system to help train the language models. The authors claim that because these books are protected by copyright law, using them in this training and the output generated by OpenAI, which the app is known ChatGPT, by summarizing thei
Fri, April 19, 2024
The Briefing: Tennessee’s ELVIS Act Isn’t What You Think
ELVIS Act —Breaking down the Ensuring Likeness, Voice, and the Image Security Act of 2024. Scott Hervey and James Kachmar from Weintraub Tobin discuss its impact on AI audio technology and how it protects musicians in the next installment of “The Briefing.” Watch this episode on the Weintraub YouTube channel here or listen to this podcast episode here . Show Notes: Scott: Tennessee’s ELVIS Act isn’t what you think. The acronym stands for Ensuring Likeness, Voice, and the Image Security Act of 2024. It’s about protecting a musician’s voice from AI clones. The bill was signed into law on March 21st, 2024, amid a growing concern by the music industry and musicians over AI soundalikes and deep fakes. I’m Scott Hervey from Weintraub Tobin, and I’m joined again by my partner, James Kachmar, to talk about this bill and its impact on the nascent AI audio space in this episode of “The Briefing” by Weintraub Tobin. James, welcome back to “The Briefing.” James: Thanks, Scott. Scott: So, James, let’s dive right into this bill and see what it does and doesn’t do. So, this bill amends Tennessee’s existing right of publicity statutes. Tennessee’s existing law has previously provided that individuals, or in the case of a deceased individual, their estate, have a proprietary right in the use of that person’s name, photograph, or likeness in any medium, in any manner. Now, one could probably have argued that likeness included voice, but this bill now makes it clear that a person’s voice is among the personal property rights this statute now protects. James: Right, Scott. And in the bill, voice is defined as a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual. So essentially, a soundalike. Scott: That’s right.
Fri, April 12, 2024
Navigating the Legal Risks for Brands in Social Media Marketing - Part 2
Safeguard your brand in the world of social media marketing, from IP infringement risks to FTC guidelines compliance. Scott Hervey and Jessica Marlow from Weintraub Tobin continue the discussion on legal risks brands face in part 2 of our social media marketing series on “The Briefing.” Make sure to catch Navigating the Legal Risks for Brands in Social Media Marketing – Part 1 . Watch this episode on the YouTube channel here Show Notes: Scott: Brands spend a lot of money on social media marketing, and that amount continues to grow. According to a recent survey, ad spend on social media is projected to reach 129 billion in 2024. However, social media marketing presents unique legal issues, not generally present in more traditional advertising. Last week, we discussed the legal risks for the celebrity endorser in social media marketing. This week, I’m joined again by my partner, Jessica Marlow, and we’re going to discuss the legal risks for brands in social media marketing. I’m Scott Hervey with Weintraub Tobin; this is “The Briefing.” Jessica, welcome back. Jessica: Pleasure to be back. Scott: Last week, we discussed the risks celebrities or influencers face in social media marketing. Today, we’re going to talk about the risks brands face in social media marketing. Let’s first talk about FTC compliance. Like influencers, brands have FTC compliance requirements. As you mentioned last week, Jessica, we did an entire episode on this. Jessica: Right, but let’s review a few points because it seems that this can be one of the biggest blind spots for brands. Scott:</
Fri, April 05, 2024
The Briefing: Navigating the Legal Risks for Brands in Social Media Marketing - Part 1
Delve into the legal terrain of influencer marketing from IP infringement risks to FTC guidelines compliance. Scott Hervey and Jessica Marlow from Weintraub Tobin navigate the complexities of brand deals with expert insights on safeguarding your brand partnerships on this episode of “The Briefing.” Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Influencer social media marketing is big business, whether it’s a brand integration on Instagram by an influencer or a long-term brand endorsement deal by an A-list movie star. Each deal is different, but there are similar issues that are apparent in all brand deals. I’m Scott Hervey with Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. Today is part one of our profile on understanding and navigating risks in brand marketing deals on today’s installment of “The Briefing” by Weintraub Tobin. Jessica, welcome back to “The Briefing.” Jessica: Thank you. Happy to be back. Scott: This is something we both deal with frequently from both the brand and the talent side. There are certain risks that celebrities and brands have to navigate in these types of deals. Making these risks more prevalent is the fact that we’re talking about digital marketing, where things tend to move quicker. And for whatever reason, people, even marketing professionals, may sometimes believe that the laws applicable to terrestrial or regular advertising don’t apply to the Internet. Let’s talk about our top general risks from a talent perspective and how to deal with them. Now, we have a bunch of lawye
Fri, March 29, 2024
Defamation by Docudrama - Inventing Anna (ARCHIVE)
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a defamation dispute between Rachel Williams – a victim of con artist Anna Sorokin – and Netflix, over her portrayal in the docudrama “Inventing Anna.” Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Netflix finds itself mired in yet another defamation and false light lawsuit, this one brought on by its portrayal of Rachel Williams, the Vanity Fair photo editor who’s friendship with Anna Delvey – who passed herself off as German heiress Anna Sorokin. Williams’ complaint raises some interesting questions about the portrayal of Williams in the program. We are going to discuss this lawsuit on the next installment of the Briefing by the IP Law Blog Scott: Rachel Williiams does not come across well in the Netlix program, Inventing Anna. Rather, she comes across as a privileged, freeloader, who sponges off of Sorokin and then abandons Sorkin when Sorkin’s real situation comes to life. So, let’s talk about what Williams will have to establish in order to move her claim forward. Josh: Williams. brings claims for defamation and false light. For her defamation claim Williams will have to establish: that the statements were defamatory; that the statements were published to third parties; that the statements were false; and that it was reasonably understood by the third parties that the statements were of and about herf. Since Williams is a public figure – she published a story in Vanity Fair and a book about her experiences with Sorkin – she must also prove by “clear and convincing evidence” the statement was made with “actual malice” meaning that the defendant knew the statement was false, or had
Sat, March 23, 2024
Truth Maybe Crazy, But Truth Just Got Kanye West Out of a Defamation Case
Discover how truth became the ultimate defense in the legal battle between Cynthia Love and Kanye West. Join Scott Hervey and Eric Caligiuri from Weintraub Tobin as they unpack the court’s ruling on whether displaying historical footage amounts to defamation on this episode of ‘The Briefing’. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Truth is a defense to a defamation claim. So, it would be no surprise to think that displaying a recording of the way someone actually behaved at some past date would also not be defamation. That assumption was put on trial, literally, in the case of Cynthia Love versus Kanye West in the Central District of Illinois. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by Weintraub lawyer and frequent guest of “The Briefing,” Eric Caligiuri, to talk about this case and the court’s ruling on today’s episode of “The Briefing.” Eric, welcome back to “The Briefing.” Eric: Good to be here again, Scott. So, Scott, can you tell us a little bit about the history of the case? Scott: Sure. Absolutely. So, in 2003, Cynthia Love appeared in a Kanye West music video for “Talking Through The Wire.” Love apparently does some short dance number in a barbecue restaurant before asking West for some change. She, according to the complaint and according to the court documents, she looks unsteady and sounds slurred. Fast forward to 2022, when Netflix released a docuseries called “Jeen-yuhs,” a Kanye trilogy, which included clips of Love from that music video, plus previously unreleased footage, all totaling about two minutes of screen time. Love took issue with how she was portrayed in the clips taken in that barbecue restaurant decades ago, and so she sued. Eric:
Fri, March 15, 2024
The Patent Puzzle: USPTO's Guidelines for AI Inventions
Can AI inventions be patented? Scott Hervey and Eric Caligiuri explore recent USPTO guidance on patenting AI-assisted inventions in this installment of “The Briefing” by Weintraub Tobin. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Can AI inventions be patented? Can inventors use AI assistance in the creation of an invention, and can that invention be patented? On February 12, 2024, the United States Patent and Trademark Office issued guidance on the patentability of inventions developed with the assistance of artificial intelligence. I’m Scott Hervey from Weintraub Tobin, and I am joined today by Weintraub lawyer and frequent guest to the briefing, Eric Caligiuri, to discuss this new development in patent prosecution on this episode of “The Briefing.” Eric, welcome back to “The Briefing.” Eric: Good to be here, Scott. Scott: So, Eric, the USPTO recently issued a guidance statement that addressed the listing of non-humans on patent applications. Now, this seems to stem from the various patent applications filed by Stefan Thaler or Thaler, which lists his AI tool device for the autonomous bootstrapping of unified sciences, or DABUS, as the inventor. The USPTO denied these applications, and this denial was upheld by the Federal Circuit. Eric: Right, Scott, in the guidance, the USPTO explained that AI systems and other non-natural persons cannot be listed as inventors on patent applications or patents. The USPTO reasoned that the US Supreme Court has indicated that the meaning of invention in the patent act refers to the inventor’s conception. Similarly, the Federal Circuit has made clear that conception is the touchstone of inventorship. Conception is often referred to as a mental act or the m
Fri, March 08, 2024
How Far Back Can You Go: Supreme Court to Decide Circuit Split on Recovery of Copyright Damages
How far back can a plaintiff recover damages in a copyright infringement case? Scott Hervey and Jamie Lincenberg discuss this contested copyright law question in this installment of “The Briefing” by Weintraub Tobin. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Just how far back can a plaintiff in a copyright infringement case go in recovering damages? I’m Scott Hervey of Weintraub Tobin, and today, I’m joined by my colleague Jamie Lincenberg. We will take a look at an important and contested question in copyright law, which is headed to the Supreme Court this spring, on today’s episode of “The Briefing” by Weintraub Tobin. Jamie, welcome back, and thank you for joining us today. Jamie: Thanks, Scott. Happy to be here. Scott: Jamie, can you tell us more about the topic that we’re diving into here? Jamie: Of course. In the case of Nealy versus Warner Chappell Music, the Supreme Court will be discussing the question of when the clock starts ticking in the Copyright Act’s three-year statute of limitations and whether a copyright claim plaintiff can recover damages beyond the three years from when the claim was filed. The justice’s decision to hear this case highlights a circuit split on the matter. The case began in 2018 when music producer Sherman Nealy filed a lawsuit against Warner Chappell Music and Artists Publishing Group. It was a run-of-the-mill copyright infring
Sat, March 02, 2024
Writers, Actors, AI: The AI Centric Changes to the WGA and SAG Agreements
Delve into the new WGA and SAG contract provisions relating to AI. Scott Hervey and Jamie Lincenberg tackle the terms and changes in this installment of “The Briefing” by Weintraub Tobin. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott AI ended up being a bigger than expected part in the writers’ and actors’ strikes. What exactly are the new WGA and SAG contract provisions relating to AI? I’m Scott Hervey from Weintraub Tobin, and today, I’m joined by my colleague Jamie Lincenberg. We are going to talk about the AI terms and the 2023 changes to the WGA and SAG MBA on this installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.” Jamie Thanks. It’s good to be back. Looking forward to getting into this topic with you. Scott Yeah. So, let’s dive right in. So, let’s first talk about the changes to the Writers Guild MBA related to AI. I think the most logical place to start is with how the WJ defines AI. So the term generative artificial intelligence, or let’s call it GAI, because we don’t have enough acronyms, let’s call it GAI. And that generally refers to a subset of AI that produces content based upon learned patterns like Chat GPT, DALL-E, and Llama, and it does not include traditional AI technologies such as those used in computer-generated imagery like CGI and visual effects. Jamie Scott, the WGA terms say that GAI cannot be a writer or professional writer as defined in the MBA because it’s not a person, and therefore, materials produced by GAI should not be considered literary material under any MBA. This is important because th
S1 E162 · Fri, February 23, 2024
The Briefing: Tag, You're Sued: Graffiti Artists Sue Over Use of Their Tags
Graffiti artists Nekst and Bates have filed a lawsuit against Guess and Macy’s for incorporating their tags in various articles of clothing. Scott Hervey and James Kachma r discuss this case in the next installment of “The Briefing.” Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: This case is a head-scratcher. Graffiti artists Nekst and Bates have filed the lawsuit against Guess and Macy’s for incorporating their tags in various articles of clothing manufactured by Guess and sold by Macy’s. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my partner, James Kachmar. We are going to talk about this lawsuit on the next installment of “The Briefing” by Weintraub Tobin. James, welcome back to “The Briefing.” James: Thanks, Scott. Scott: So it seems that Guess manufactured various clothing items that incorporated the tags of graffiti artists Nekst and Bates, and those pieces of clothing were then sold by Macy’s. Now, a tag, in the parlance of street art, graffiti art, is a design element that reflects, among other things, the artist’s elaborately expressed signature or name. The plaintiffs contend that these tags are the primary calling cards and source identifiers of their artwork and, well, themselves. James: That’s right, Scott. The plaintiffs in this case bring a number of claims in the complaint, including a false endorsement claim under the Lanham Act, a right of publicity claim under California law, and a copyright infringement claim. Let’s talk first about the Lanham Act claim. Scott: Sure. So that’s section 43A of the Lanham Act, and that imposes civil liability on any person w
S1 E161 · Fri, February 16, 2024
Nirvana Stuck in Lawsuit Over “Nevermind” Album Cover
As James Kachmar previously wrote on the IP Law Blog, the man who was photographed as a naked baby in 1991 for Nirvana’s iconic “Nevermind” album cover is now suing the band for distributing child pornography. Scott Hervey and James discuss the Ninth Circuit’s opinion on the case in this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: James : In 1991, the grunge band Nirvana was one of the most popular musical acts in the United States with its anthem “Smells like Teen Spirit”, which was featured on its album Nevermind. Many will remember the cover of that album, which featured a naked baby swimming underwater and reaching for a dollar bill on a fishing hook. Three months after its release, Nevermind rose to the top of the Billboard 200 rankings and since then has sold over 30 million copies. The picture on the album was licensed for use on other merchandise, such as t-shirts, and was also the subject of various parodies. Now, 30 years later, Nirvana, its surviving members, and its record companies face a civil lawsuit for allegedly distributing child pornography by the now-grown man who was depicted on the album cover as a baby. I am James Kachmar from Weintraub Tobin, and I am joining Scott Hervey from Weintraub Tobin to talk about this case on the next installment of “The Briefing.” Scott : James, welcome back to The Briefing. This case, the case of Elden versus Nirvana, has been on my mind since I read your excellent article on the case. Can you give us some background? James : Sure. Scott, the baby in that photo, is now a gentleman. His name is Spencer Elden, and he was four months old at the time the photograph was taken. He turned 18 in 2009 12 years later in 202
S1 E160 · Fri, February 09, 2024
Brandy Melville v Redbubble: Navigating Contributory Infringement
Brandy Melville has asked the Supreme Court to review the 9th Circuit’s decision in its dispute with Redbubble. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Jamie: This past summer, we analyzed the willful blindness doctrine, which was highlighted by the 9th Circuit’s decision in the case of Redbubble, Inc. Versus Y.Y.G.M. doing business as Brandy Melville. The 9th Circuit in that case refused to hold Redbubble liable for contributory infringement because Redbubble didn’t know, or have reason to know of specific incidents of infringement by its users. The matter seems settled, but Brandy Melville has asked the Supreme Court now to review the 9th Circuit’s decision, which now causes a circuit split. I’m Jamie Lincenberg of Weintraub Tobin. We’re going to talk about this update in the Brandy Melville Redbubble dispute on this installment of The Briefing. Scott: I’m Scott Hervey of Weintraub Tobin. Jamie, welcome back to The Briefing. Jamie: Thank you, Scott. It’s great to be here again. Scott: So before we dive into Brandy Melville’s petition for assert to the Supreme Court, can you take us back through the history of the case? Jamie: So this dispute began in 2018 when Brandy Melville, the popular clothing retailer, brought a trademark infringement suit against Redbubble, an online marketplace that allows independent artists to upload their own designs for on-demand printing on various items of merchandise. Brandy Melville had found products on Redbubble’s website that infringed their company’s trademarks. Scott: Initially, the district court had found R
S1 E159 · Fri, February 02, 2024
Ninth Circuit Pulls Back Rogers Test in Light of Jack Daniels Decision
As Scott Hervey previously wrote on the IP Law Blog , the holding in the Supreme Court case Jack Daniels Properties v. VIP Products limits the applicability of the Rogers test. Scott and Jamie Lincenberg talk about this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Cases Discussed: Jack Daniels Properties v. VIP Products Rogers v. Grimaldi Punch Bowl v. AJ Press 20th Century Fox Television v. Empire Distribution, Inc. Show Notes: Scott: The holding in Jack Daniels properties versus VIP products. The case of the infringing bad spaniel’s dog toy limits the applicability of the Rogers test. A recent case in the 9th Circuit Punch bowl versus AJ press addressed the interplay between the Jack Daniels opinion and the Rogers test, and this case goes directly to the heart of Rogers versus Grimaldi. We are going to talk about this case and the future of the Rogers Test on this installment of the briefing by Weintraub Tobin. Thank you for joining us. I’m Scott Hervey from Weintraub Tobin, and I’m joined by my colleague Jamie Lincenberg. Jamie, welcome back to The Briefing. Jamie: Thanks, Scott. It’s good to be back after a little bit of a hiatus. Scott: Yeah, good to have you back. So, before we get into the case itself, I think we should set the stage and talk a little bit about both the Rogers te
S1 E158 · Fri, January 26, 2024
It’s Not Yabba-Dabba-Delicious - TTAB Denies Color Mark for Post Fruity Pebbles!
Fruity Pebbles failed to attain a trademark for the various colors of its cereal. Scott Hervey and Jessica Marlow discuss the TTAB’s decision to reject the trademark application on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: A trademark examiner refused to register a trademark for the various colors that make up the colors of Fruity Pebbles Cereal on the grounds that the proposed color mark fails to function as a trademark. The applicant, Post Foods, could not stomach the refusal, and it appealed it to the Trademark Trial and Appeal Board. On January 4, 2024, the TTAB upheld the examiner’s refusal. This case exemplifies the difficulty of securing a color trademark. And there’s some other takeaways, important takeaways, too. We’re going to discuss this on this next installment of The Briefing by Weintraub Tobin. Welcome back to The Briefing. I’m Scott Hervey of Weintraub Tobin, and today, I’m joined by my law partner, Jessica Marlow. Jessica, welcome back to The Briefing. Jessica: Thank you. Happy to be back. Scott: So, Jessica, I know that you’re a fan of fruity pebbles, right? Jessica: I am. Scott: Okay. Jessica: At all ages. Scott: Yeah, this case is right up your alley. So Post Foods applied to register a trademark for the various colors that make up the colors of Fruity Pebble Cereal. Understanding just how difficult it would be to register the color mark, the application included a declaration from the applicant’s counsel supportin
S1 E157 · Fri, January 19, 2024
Beyond the Hashtag: FTC Revises Guidelines for Endorsement Use in Advertising
The FTC recently made changes to its guide concerning the use of endorsements and testimonials in advertising. Scott Hervey and Jessica Marlow discuss these changes and their expected impact on the influencer marketing industry in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: It’s a new year, and some changes are in place for those in the influencer marketing business, whether it’s on the brand side or on the talent side. We’ll be covering recent changes to the FTC’s guide concerning the use of endorsements and testimonials in advertising on this installment of The Briefing by Weintraub Tobin. Happy New Year, and thank you for tuning in to today’s installment of The Briefing. I’m Scott Hervey of Weintraub Tobin, and today, I’m joined by a first-time guest to The Briefing, my law partner, Jessica Marlow. Jessica, welcome to the briefing. Jessica: Thank you, Scott. Happy to be here. Scott: So, Jessica, can you give us a little background on the FTC’s involvement in endorsements and testimonials and the endorsement guide? Jessica: Absolutely. So, the FTC has the authority to investigate and bring cases related to endorsements made on behalf of an advertiser under section five of the FTC Act, which generally prohibits deceptive advertising. The endorsement guide is intended to give insight into how the FTC perceives various marketing activities involving endorsements and how the FTC’s acts prohibition against deceptive advertising might apply to those particular activities. The guides do not have the force of law, but they are
S1 E156 · Fri, January 12, 2024
The Protectability of Short Phrases (Archive)
While iconic catchphrases from TV and film can hold significant equity, protection of them can be spotty. Scott Hervey and Tara Sattler talk about the protectability of short phrases on this archive episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: “Show me the money.” “Who are you going to call?” “Go ahead, make my day.” These are a few iconic phrases with significant equity, but protection of catchphrases like these is spotty. We’re going to talk about the protectability of short phrases on this next installment of The Briefing by Weintraub Tobin. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. Tara, thank you for joining us. Tara: Thanks for having me, Scott. Glad to be here. Scott: So, Tara, we deal with this quite a bit. Iconic short phrases that come up usually in script search reports. Now, these phrases are worth their weight in gold, and the creators of these short phrases would probably like to prevent others from using those phrases under any circumstances. But that’s not always the case. Tara: Yeah, you’re right, Scott. So let’s first talk about quoting a short phrase in another first creative work, such as in a book, TV show, movie, or song. In order for the author of the short phrase to prevent it from being quoted in such a manner, that short phrase would have to be protectable under copyright law, and that isn’t the case. Scott: That’s right. Short phrases are not protectable under U.S. copyright law. According to a copyright office circular, short phrases such as slogans are unprotectable because they contain an insufficient amount of authorship, no matter how creative
S1 E155 · Fri, January 05, 2024
IP Rights and the “Public Good” Exemption to California’s Anti-SLAPP Law: An Update
In the case of Martinez v. Zoom Info Technologies, the Ninth Circuit addressed the “Public Interest” exemption to California’s anti-SLAPP law. Scott Hervey and James Kachmar talk about this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: The 9th Circuit was recently asked to address the public interest exemption to California’s anti-SLAPP law in a proposed class-action lawsuit brought by a plaintiff whose photo and personal information were used without her consent to advertise subscriptions to the website Zoom info. The case is Martinez v. Zoom Info Technologies. My colleague James Kachmar recently wrote an article exploring the interesting substantive and procedural issues concerning the interplay between one’s intellectual property rights and California’s anti-SLAPP law that arose in this case. James is joining me today to talk about this case on this installment of The Briefing by Weintraub Tobin. James, welcome back to The Briefing. James: Thanks for having me. Scott. Scott: James, you wrote an extremely insightful article about the holding in Martinez versus Zoom Info Technologies, Inc. Can you give us some background on the case? James: Sure, Scott. Zoom Info is a website. It boasts a database of approximately 125,000,000 business professionals and contains their relevant information. When someone searches for a person or a business person, either through a web search or through Zoom Info’s website, they can view a teaser profile of Zoom Info with some information about that person, such as their photo, may
S1 E154 · Fri, December 22, 2023
Merry Litigation: All I Want for Christmas is a Copyright Infringement Lawsuit
Country singer Andy Stone, A.K.A Vince Vance, has renewed his lawsuit against Mariah Carey, which claims that her holiday hit ‘All I Want for Christmas Is You’ infringes the copyright of his song with the same name. Scott Hervey and Tara Sattler discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Andy Stone, known professionally as Vince Vance, is suing Mariah Carey and Sony Music Entertainment for copyright infringement. Vance claims that the decades-old Christmas hit ‘All I Want for Christmas is You’ infringes his 1989 song ‘All I Want for Christmas is You.’ I’m Scott Hervey with Weintraub Tobin, and I’m joined today on this holiday edition of The Briefing by my partner Tara Sattler to discuss this Christmas-themed copyright infringement dispute on this next installment of The Briefing by Weintraub Tobin. So, Tara, I think nothing rings in the holiday like a good copyright infringement lawsuit. Tara: Yeah, who doesn’t want to spend the holidays with their lawyers in court? Scott: I know I certainly do. So, Tara, according to the complaint, Stone and his co-writer Troy Powers claim that in 1989, they co-wrote a country music hit also titled ‘All I Want for Christmas is You.’ That song was recorded by Stone’s band Vince Vance and the Valiants, and apparently, it went to number 23 on Billboard’s Hot 100 airplay list. He claims that he has performed this song over 8000 times in concerts across 20 countries. He also claims that this song was licensed by Kelly Clarkson, who recorded her version of it in 2021. Tara: </st
S1 E153 · Fri, December 15, 2023
Jingle Brawl: The Battle for 'Queen of Christmas’
Mariah Carey has widely been referred to by fans as the ‘Queen of Christmas,’ but when she attempted to trademark the title last year, it was met with pushback from another singer and songwriter who claimed to hold the same title. Scott Hervey and Tara Sattler discuss this dispute on this Holiday edition of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: In 2022, Mariah Carey sought to register the trademark ‘Queen of Christmas’ for a wide variety of goods and services. Her application was opposed by a singer-songwriter who claimed she was known as the Queen of Christmas. I’m Scott Hervey with Weintraub Tobin, and I’m joined today by my partner Tara Sattler to discuss this holiday trademark dispute on this next installment of The Briefing, Christmas edition, by Weintraub Tobin. Tara, welcome to The Briefing. You have a great holiday sweater on. Tara: Thanks for having me, Scott, and so do you. Scott: So, as you know, Tara, Mariah Carey is extremely well known for her 1994 holiday hit “All I Want for Christmas is You”, which has reportedly made more than $60 million in royalties alone. In 2022, her company filed a trademark registration application for Queen of Christmas, covering a wide variety of goods and services. In the prosecution of her trademark application, while the United States Patent and Trademark Office trademark examiner assigned to the application raised a few issues, the application pretty much sailed through to publication. Tara: Then, later that year, singer-songwriter Elizabeth Chan filed an opposition to the registration of the mark. The basis of Chan’s opposition was likelihood of confusion. In her filing, Chan claimed that she is pop music’s only full-time Christmas singer-son
S2 E151 · Fri, December 08, 2023
Netflix to Pay $2.5M to GoTV for Patent Infringement
Netflix has been ordered to pay GoTV Streaming $2.5 Million in damages for infringing one of its wireless technology patents. Scott Hervey and Eric Caligiuri discuss this update on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I’m Scott Hervey with Weintraub Tobin. In a prior discussion with my colleague, Eric Caligiuri, earlier this year, we talked about a case where a federal court denied discovery requests aimed at uncovering details surrounding the financing of a plaintiff’s patent litigation. That case was GoTV Streaming LLC versus Netflix in the Central District of California. In response to some inquiries and requests for further updates from some of our viewers and listeners, we wanted to give you an update on the broader outcome of this case. That’s coming up on this installment of The Briefing by Weintraub Tobin. Eric, welcome to another episode of the Briefing. Thanks for joining us today. Eric: Great to be here, Scott. Scott: Eric, what can you tell us about what’s happened in the GOTV streaming versus Netflix case since we last spoke? Eric: Well, Scott, California jury has found that Netflix did in fact, infringe one of GOTV Wireless’s technology patents with its television and movie streaming platform, and found Netflix owes GOTV Streaming 2.5 million for the infringement. In the verdict, the jury said that Netflix should pay GOTV the damages in one lump sum as a penalty for infringing US patent number 898715. But the jury did find that Netflix did not infringe a second patent that was also included in the suits. Both patents generally covered methods for rendering content on a wireless device. Scott: So
S1 E150 · Fri, December 01, 2023
Once Upon A Time - SCOTUS Rejects Trademark Infringement Claim Against Quentin Tarantino Film
The Supreme Court rejected a trademark infringement claim against the producers of the Quentin Tarantino film ‘Once Upon a Time… in Hollywood’ over its portrayal of the late actor Christopher Jones. Scott Hervey and Tara Sattler discuss this decision in this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Tara: The laws surrounding false endorsement claims in the United States are rooted in section 43 A of the Lanham Act. There’s quite a bit of case law that analyzes false endorsement claims brought by celebrities who claim that a company or brand used a lookalike or soundalike to promote the brand in advertising or marketing campaigns without the celebrity’s permission. Recently, the U.S. Supreme Court refused to review a California case about this exact topic. This time, the case was brought by the partner of the late actor Christopher Jones concerning the popular 2019 Quentin Tarantino film ‘Once Upon a Time in Hollywood.’ This is what we will be discussing in today’s installment of the Briefing by Weintraub Tobin. Scott: I’m Scott Hervey from Weintraub Tobin. Tara, thanks for joining me today. So you’re right that celebrities bring these types of false endorsement claims under section 43 A of the Lanham Act relatively frequently. So, let’s talk about the specific language in the Lanham Act that addresses false endorsement. Tara: That’s a great place to start. Section 43 A imposes civil liability on any person who, on or in connection with any goods or services, uses in commerce any word, term, name, symbol or, device, or any combination thereof, or any false designation of o
S1 E149 · Wed, November 22, 2023
Are LEGO Creations Based on Religious Texts Eligible for Copyright Protection?
The creator of a LEGO brick Second Holy Temple product is accusing another LEGO creator of copyright infringement for their interpretation of the same temple. Scott Hervey and Eric Caligiuri discuss this case on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here or read Eric’s article about this case here . Show Notes: Scott: I’m Scott Hervey from Weintraub Tobin. My colleague Eric Caligiuri wrote an interesting article for The Briefing about a recent copyright ruling involving competing LEGO sets. And we’re not talking about just any old LEGO set, but a LEGO Brick interpretation of the Second Holy Temple. We are going to talk about this case, the case of JBrick versus Chazak Kinder, Inc, on this installment of The Briefing by Weintraub Tobin. Eric, welcome back to the podcast. Eric: Thanks, Scott. Good to be here. Scott: Great. Can you give us a rundown of the case? Eric: Yeah, sure. Of course. The founders of Plaintiff JBrick created a LEGO brick Second Holy Temple product that was based on independent research and at least three years of studying of historical teachings. Plaintiff also consulted with various rabbis as part of the design process. According to the court, the Second Holy Temple product is a tangible, sculptural interpretation of what the Second Holy Temple may have looked like in real life, based on the written words and interpretations of Hebrew scholars and philosop
S1 E148 · Fri, November 17, 2023
SCOTUS to Determine if USPTO Refusal to Register TRUMP TOO SMALL is Unconstitutional
The Supreme Court recently heard oral arguments in the case of Vidal v. Elster to determine whether the USPTO’s refusal to register the trademark “Trump Too Small” violates the applicant’s First Amendment rights. Scott Hervey and Eric Caligiuri discuss this case on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Today, November 1, 2023, the Supreme Court will hear oral arguments on whether the Trademark Office’s refusal to register the trademark “Trump Too Small” on the grounds that it violates Section Two C of the Lanham Act, which bans the issuance of trademarks that include the names identifying a particular individual without that individual’s consent violates the applicant’s First Amendment rights. We are going to talk about this case on this installment of The Briefing by Weintraub Tobin. The case is Vidal v. Elster. The facts are relatively simple. Elster sought to register the mark “Trump Too Small” for T-shirts. The USPTO refused to register the mark based on section Two C of the Lanham Act, which bans the issuance of trademarks that include the names identifying a particular individual without that individual’s consent. Elster appealed this refusal to the Federal Circuit, where Judge Timothy B. Dyke held for a unanimous panel that the government’s interest in protecting the privacy and publicity rights of President Trump did not outweigh Elster’s First Amendment right to criticize that public figure. Eric: USPTO suspended the examination of applications of trademarks that cover phrases that are critical of government officials or public figures an
S1 E147 · Thu, November 09, 2023
AI Training and Copyright Infringement: Lessons from the Ross Intelligence Case
Thomson Reuters sued Ross Intelligence for using its content to train its AI technology. Scott Hervey and Tara Sattler talk about this copyright dispute on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Thompson Reuters, the provider of the Westlaw Legal Research Platform, sued Ross Intelligence for copyright infringement based on Ross’s use of Westlaw content to train Ross’s IP technology. This court ruling on a motion for summary judgment may provide guidance for future similar cases, and it even provides some additional guidance into the application of a post-Warhol fair use defense. We’re going to talk about this case on the next installment of The Briefing by Weintraub Tobin. These are the basic facts underlying this lawsuit. Ross is an AI legal startup. Ross hired a subcontractor to create memos with legal questions and answers. The questions were meant to be those that a lawyer would ask, and the answers were direct quotations from legal opinions. Those memos were used to train Ross’s AI tool. Thompson Reuters contends that these questions were essentially Westlaw case Headnotes. Ross denies that the Westlaw Headnotes were copied but also raises a fair use defense. As the case went forward, both sides moved for summary judgment on Ross’s fair use defense. The court denied the party’s motions for summary judgment on Ross’s fair use defense, but there are a few points in this opinion that may shape the way future AI training cases play out. Tara: Before we get into the analysis of Ross’s fair use defense, the court spent a significant amount of time talking about the scope of Westlaw’s copyright. Westlaw’s copyright extends to its Headnotes and its arrangement of the
S1 E146 · Fri, November 03, 2023
Tattoos, Tiger King, and Copyright Lawsuits - Oh My - Cramer v. Netflix
A tattoo artist is suing Netflix for showing one of her tattoos in the series “Tiger King” without her permission. Scott Hervey and Tara Sattler discuss this case on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: On this installment of The Briefing, we’re going to talk about yet another post-Warhol fair use case. However, in this case, the Court finds the secondary use to be transformative. This case also makes me think that fair use, grounded in use as a biographical anchor, isn’t quite as dead as I may have thought it is. We’re going to talk about Molly Cramer vs. Netflix on this installment of the Briefing. The case is Molly Kramer vs. Netflix. It arises from a tattoo artist’s lawsuit against Netflix due to the portrayal of her Joe Exotica tattoo, actually, a picture of her Joe Exotica tattoo as tattooed on her husband’s arm that she posted on Facebook, and the use of this image in the first episode of the second season of Tiger King. The context of the display of this photo and the tattoo is relevant to the Court’s analysis. So the opening of the episode, this is the first episode of the second season, is meant to be reflective of the popularity of Tiger King and Joe Exotica and how it spread like literal wildfire during the first half of COVID The montage shows approximately 27 TikTok videos depicting dancers dressed as Joe Exotica are wearing animal print clothing and a clip from a Trump press conference where he asks, is that Joe Exotica? Then there are about 58 seconds into the episode, an eight-way split-screen montage appears with all types of images of or relating to Joe Exotica, and this includes the photo of the tattoo in the lower left-hand corner. And this appears on screen fo
S1 E144 · Fri, October 27, 2023
Is Linda Fairstein's Portrayal in Netflix's "When They See Us" Fair?
Former New York prosecutor Linda Fairstein is suing Netflix over her portrayal in the limited series “When They See Us,” which tells the story of the 1989 Central Park Five case. Scott Hervey and Tara Sattler discuss this dispute on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Tara: There have been quite a few high-profile defamation cases making their way through the courts recently. One of those cases is Fairstein v. Netflix, a defamation case brought by attorney Linda Fairstein, the New York City prosecutor who ran the sex crimes unit and oversaw the prosecution of five African American men known as the Central Park Five, who were wrongly accused and imprisoned for a near-fatal rape in Central Park. Fairstein sued Netflix for defamation over her character’s depiction in the limited series When They See US, that was released by Netflix and produced by The Streamer. Even though the case has not yet gone to trial, there have been several interesting pretrial rulings. In the most recent ruling, a federal judge in New York denied Netflix’s motion for a summary judgment, which means that the case is one step closer to trial. On this installment of the briefing, we’re going to talk about the recent ruling and the potential impacts that this ruling may have on the uber-popular film and television programming that’s based on real events and real people. Scott: Since it has been a while since we’ve talked about this case, let’s briefly talk through Fairstein’s allegation of defamation. She alleges that she was incorrectly portrayed by actress Felicity Huffman as having a larger role in the Central Park Five’s fate than was factually accurate. She mentions three specific episodes and that she is portrayed in a fal
S1 E143 · Fri, October 20, 2023
When Parmesan isn't Parmesan - Cheese Consortium Attempts to Fight Off Counterfeit Cheese
The Parmigiano Reggiano Consortium claims that Italy’s renowned Parmigiano Reggiano cheese is one of the most counterfeited cheeses in the world. Scott Hervey and Jamie Lincenberg discuss how they plan to fight off these counterfeits on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Scott: The Parmigiano Reggiano Consortium claims that Italy’s renowned Parmigiano Reggiano cheese is one of the most counterfeited cheeses in the world. And the consortium is seeking to fight off the cheap imitations through lawsuits and through technology. I’m Scott Hervey from Weintraub Tobin. I’m joined today by my colleague, Jamie Lincenberg. We are going to talk about when Parmesan cheese isn’t Parmesan cheese on this next installment of the Briefing by Weintraub Tobin. For those who may not know, Parmigiano Reggiano traces its history back to the Middle Ages. In 1996, the European Union recognized a protective designation of origin, or a PDO, for Parmigiano Reggiano. According to the PDO, this cheese can only be produced in a small geographic area of northern Italy, which includes Parma and Reggiano. A PDO designation is used for agricultural products that traditionally have been produced in a particular geographic region. When used on a product, the PDO designation guarantees that the food product originates in that specific region or follows a particular traditional production process. Jamie: If I’m recalling correctly, there was a legal issue involving a challenge to Germany permitting the sale of cheese branded as Parmesan, but it didn’t meet the PDO designation requirements. Germany argued that Parmesan was a generic term for a type of cheese often grated over food and could not be called uniquely Italian. A European Court of Justice, hea
S1 E142 · Fri, October 13, 2023
Unmasking Luxury Knockoffs: Amazon Sues Influencers for Promoting Counterfeit Goods
Amazon is suing two social media influencers for promoting the sale of counterfeit luxury goods on the platform. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Jamie: Last week, Amazon.com, Seattle-based tech and e-commerce giant, and its counterfeit crimes unit launched lawsuits in Seattle federal court against two social media influencers and their coconspirators, accusing the defendants of using their profiles to promote, advertise, and facilitate the sale of knockoff luxury brand products as part of a scheme with third-party counterfeit sellers. I’m Jamie Lincenberg of Weintraub Tobin, and we’ll be joining my colleague Scott Hervey to talk about this case on today’s episode of The Briefing. Scott: Thank you for joining me today, Jamie. Can you provide us with a quick recap of the lawsuits? Jamie: Sure. In the filed complaints, Amazon Alleges that Influencers Ashley Howett and Cameron Russell posted links on Instagram and other social platforms to direct their followers to dupes of Prada, Hermes, Chanel, Louis Vuitton, Christian Dior, and other designer accessories through hidden links leading to seemingly generic product listings in the Amazon store. The lawsuits say that both influencers collaborated with a series of retailers on, per the complaints, sophisticated campaigns of false advertising in an attempt to evade Amazon’s counterfeit and infringement detection tools. Amazon alleges that both influencers use the same CD method to avoid getting caught through social media posts. The influencers make it very clear that they are promoting fake versions of the luxury brand items but then direct their followers
S1 E141 · Fri, October 06, 2023
The AI Copyright Conundrum Continues - An Update
A recent article in The Hollywood Reporter explores TV and movie studios’ potential use of AI for generating scripts. Scott Hervey and Jamie Lincenberg discuss this and other statements in the article on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: An August 23rd article in The Hollywood Reporter had the title, “Studio’s Offer to Writer May Lead to AI-created Scripts that are Copyrightable.” The article acknowledged that copyright law doesn’t recognize works solely created by artificial intelligence, but the article theorized that by incentivizing writers to participate in the creation process, studios may have a better shot at getting that work protected. We are going to dissect some of the statements made in this article in light of the recent ruling by the D.C. District Court that AI works are not entitled to copyright protection on this installment of The Briefing by Weintraub Tobin. Let’s set the stage with a recent ruling by Judge Howell in the lawsuit brought by Stephen Thaler against the Copyright Office based on the Office’s rejection of his application to register their work. A recent entrance to paradise. The work was created by an AI technology called Creativity Machine and was submitted for copyright registration in 2018 by Stephen Thaler as a work made for hire, in which Thaler listed the Creativity Machine as the author and Thaler as the copyright owner. In his application, Thaler left a note from the Office stating that the work was autonomously created by a computer algorithm running on a machine, and he was seeking to register his computer-generated work as a work for hire as the owner of the Creativity Machine. Jamie: We previously covered the Copyright O
S1 E140 · Fri, September 29, 2023
Judge Finds Lyrics and Themes "Guns, Money, and Jewelry" Too Commonplace for Copyright Protection
An Illinois judge rejected an infringement claim brought by rapper Gutta, alleging that a song released by hip-hop artist Future infringed his rights. Scott Hervey and Jamie Lincenberg talk about this dispute on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Jamie: On August 25, 2023, the U.S. District Court for the Northern District of Illinois rejected an infringement claim brought by rapper Dequan Robinson, otherwise known as Gutta, alleging that a song released by hip-hop artist Future infringed his rights. We are going to talk about this case and why the court dismissed Robinson’s claim on today’s episode of The Briefing I’m Jamie Lincenberg of Weintraub Tobin and I’m joined today by my colleague Scott Hervey. Scott: Hi Jamie, thanks for having me today. Looking forward to diving into this case. So first, why don’t you provide us with a quick recap on the lawsuit. Jamie: So, on Friday, a Chicago federal court dismissed the copyright infringement lawsuit that was brought in 2021 against popular Atlanta hip hop artist Future by Virginia rapper Dequan Robinson, who, as I said, performs as Gutta. He alleged that Future’s song, ‘When I Think About It’, released in 2018, ripped off his own 2017 song ‘When You Think About It’ to make a hit of his own and claiming that he had emailed a draft of his song to future’s producer a year before the song was released. His complaint alleged that they created the song in the image of his song, likening his case to the famous Blurred Lines lawsuit in which Pharrell Williams and Robin Thicke’s very popular track Blurred Lines was found to have infringed Marvin Gaye’s iconic ‘Got to Give It Up.’ The lawsuit raised arguments tha
S1 E140 · Fri, September 22, 2023
Court Rejects Dirt.com's Post-Warhol Fair Use Defense in Photographer's Copyright Lawsuit
A photographer is suing a real estate media site for copyright infringement after publishing several of his photos without permission. Scott Hervey and Jamie Lincenberg discuss this case and explain how media companies can handle similar situations in a post-Warhol world on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: One of the recent copyright infringement cases post the Supreme Court’s decision in Warhol is Brandon Vogts, I hope I’m pronouncing that correctly. Brandon Vogts vs. Penske Media Corporation. This case involved the display of Vogts photographs in connection with various articles appearing on Penske’s Dirt online media site. I’m Scott Hervey from Weintraub Tobin. I’m joined today by my colleague Jamie Lincenberg. We are going to take a look at this case and talk about how online media companies can deal with similar situations in a post-Warhol world, on this next installment of The Briefing by Weintraub Tobin. These are the facts of this case boots is a professional photographer who specializes in real estate photography. His clients include real estate companies, real estate agents and interior designers. The majority of these clients are real estate agents who retain Vogts to photograph a property to facilitate its sale. Dirt.com is an online news publication owned by Penske Media Corporation. Dirt publishes material on real estate transactions involving persons in the entertainment industry or prominent business persons. Dirt’s articles are intended to provide a unique peek into those individuals’ lifestyle. Dirt published various articles about transactions involving certain properties and used Vogts photographs in connection with those articles. Vogts eventually sued for copyright in
S1 E139 · Fri, September 15, 2023
Failure to Disclose Relationship with Real Party in Interest Results in Serious Sanctions
Failure to disclose certain relationships with a third party may result in significant consequences from the court. Scott Hervey and Eric Caligiuri talk about this on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: In our last discussion with my colleague Eric Caligiuri, we looked into a case where a federal court denied discovery request aimed at uncovering details surrounding the financing of a plaintiff’s patent litigation case. Today, we are going to discuss a case where a failure of one party to disclose certain relationships with a third party resulted in significant consequences. On this installment of The Briefing by Weintraub Tobin. Welcome to another installment of The Briefing. I’m Scott Hervey. I’m joined today by my colleague, Eric Caligiuri. Eric, thank you for joining us. Eric: Thanks, Scott. Great to be here. Scott: So, Eric, you wrote an interesting article on the case of Ventex versus Columbia Sportswear of North America. Similar to the last case we discussed, go to Streaming versus Netflix. This case, the Ventex case, deals with litigation financing and how the failure to disclose or possibly the attempt to hide critical information showing a financial relationship between two parties interested in the outcome of a certain proceeding can impact that legal proceeding. Eric, can you break down the key details of the case? Eric: Yes, absolutely. In this case, we have ventex comp versus Columbia Sportswear of North America. It centers around an inner parties dispute filed by Ventex. An inner parties dispute, or an IPR, is a proceeding before the Patent Trial and Appeal Board of the USPTO. Basically, it’s an administrative proceed
S1 E138 · Fri, September 08, 2023
How to Avoid Bearing The Risks of A Naked License
In Blue Mountain Holdings v. Bliss Nutraceuticals, the 11th Circuit upheld a U.S. District Court finding that Lighthouse Enterprises issued a naked license to Blue Mountain, which covered the trademark in question. Scott Hervey and Eric Caligiuri discuss this case and how to avoid bearing the risks of a naked license in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: The trademark dispute in Blue Mountain Holdings versus Blitz Nutraceuticals ended with the 11th Circuit upholding the finding by the US. District Court for the Northern District of Georgia that Lighthouse Enterprises had issued a naked license to Blue Mountain, which covered the trademark that was the basis for the dispute. We’re going to talk all about the naked license on this installment of The Briefing by Weintraub Tobin. Thanks for joining us today. My name is Scott Hervey. I’m joined by my colleague, Eric Caligari. Eric, thanks for joining us today. Eric: Thanks for having me, Scott. Scott: Eric, can you give us some background on the case of Blue Mountain Holdings versus Bliss Nutraceuticals? Eric: Yes, of course. Lighthouse Enterprises and Blue Mountain Holdings initially sued Bliss in April of 2020 for federal trademark infringement, federal cybersquatting, and federal trademark dilution, along with some other claims. The lawsuit was based on their ownership of the trademark, Vivazen Botanicals claimed that had been selling Vivazen products since 2012 and registered the name as a trademark with the United States Patent and Trademark Office in 2017. Blue Mountain claimed that it acquired the Vivazen trademark and a 2019 purchase agreement with Lighthouse. Bliss claimed that
S1 E137 · Fri, September 01, 2023
A Prototypical Corporate Salesperson is Not Patentable
The Federal Circuit Court of Appeals invalidated seven patents owned by an AI technology company after applying the two-step Alice test. Scott Hervey and Audrey Millemann talk about this decision on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Under the Alice test for patent subject matter eligibility, the Federal Circuit Court of Appeals continues to strike down patents directed to abstract ideas. The case of People AI, Inc. V. Clary, Inc. was just such a case in which the Court invalidated seven patents owned by People AI. We are going to talk about this case and the Alice test on this next installment of The Briefing by Weintraub Tobin. Welcome to another episode of The Briefing by Weintraub Tobin. I am joined today by my partner, Audrey Millemann, a patent attorney who wrote an intriguing article titled a Prototypical Corporate Salesperson Is Not Patentable. We’ll be discussing the recent People AI v. Clary, Inc. Case and its implications on patent subject matter eligibility under the Alice test. Welcome, Audrey. Audrey: Hi, Scott. How are you? Scott: Great to have you here today, Audrey. So, let’s start by discussing the Alice test for patent subject matter eligibility. Can you explain the two-part test established by the Supreme Court in the 2014 case of Alice Corp. Versus CLS Bank International? Audrey: Yes, I can. Patent subject matter eligibility refers to whether an invention falls within categories of subject matter that can be patentable. So that’s referred to as patent eligible subject matter and by statute. And that’s federal statute. Section 101 of Title 35 of the United States Code provides
S1 E136 · Fri, August 25, 2023
Deepfakes vs Right of Publicity: Navigating the Intersection Between Free Speech and Protected Rights
The rise of deepfakes is a growing concern within the entertainment industry. Scott Hervey and Jamie Lincenberg discuss this and the intersection between free speech and protected rights on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Deepfakes and AI-generated likeness are not just the concerns of striking actors. Just ask Drake, The Weeknd, and UMG, a Drake and Weeknd collaboration that busted the Internet in May of this year wasn’t real. It was generated by AI and made to sound like the performers. Where is it that current write of publicity laws work? And in what situations do they fail to address the scenarios presented by Deepfakes and AI-generated images? We are going to talk about this next on The Briefing by Weintraub Tobin. Let’s first identify the type of AI output that triggers the right of publicity concerns. It’s visual likeness and appearances, and then it’s also voices or vocal likeness. California’s right of publicity statute is Civil Code section 3344, and it prohibits the use of another’s name, voice, photograph, or likeness on or in products, merchandise, or goods, or for the purpose of advertising or selling such products, merchandise or goods without such person’s prior consent. California also has a common law right of publicity that’s a bit broader than the statute. But whereas a celebrity’s likeness isn’t being used on or in products, merchandise, or goods, or for the purpose of advertising or selling such goods, California’s right of publicity statute isn’t applicable, really. As for a common law claim, even though common law provides for a broader right of publicity protection than the statute, the First Amendment may prevent any recovery. Generally, a claim for common law appropriatio
S1 E135 · Fri, August 18, 2023
Shedding Light on 'Willful Blindness': Brandy Melville v Redbubble
In the case of Brandy Melville v Redbubble, a three judge appellate panel explored whether an owner of an online market place is liable for contributory trademark infringement. Scott Hervey and Jamie Lincenberg discuss this on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: On today’s episode of The Briefing, we will be taking a dive into the Willful Blindness Doctrine which is highlighted by a recent filed opinion in the case between Redbubble and YYGM doing business as Brandy Melville, in which a three-judge appellate panel discussed what legal standard the district court should apply when examining whether an owner of an online marketplace is liable for contributory trademark infringement, which is committed by artists who sell products on its marketplace. I’m Scott Hervey of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. Jamie, thank you for joining us today. Jamie: Thank you, Scott. I’m happy to be here. Scott: Jamie, can you provide a quick recap of the lawsuit? Jamie: Absolutely. In 2021, Brandy Melville, a popular manufacturer of clothing, home goods, and other items, sued Redbubble for trademark violations alleging infringement of its registered Brandy Melville heart mark and La lightning mark. The defendant, Redbubble, owns and operates an online marketplace where artists can upload their own work to be printed on various products and then sold. Unlike other print on demand vendors, Redbubble outsources everything other than marketing and payment processing, so third party users upload their images, and third party manufacturers and other vendors produce and ship the ordered items. The district court had fo
S1 E134 · Fri, August 11, 2023
No CTRL-ALT-DEL For the Server Test
Alexis Hunley v. Instagram has been referred to as one of the top copyright cases to watch this year. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: It’s been referred to as one of the top copyright cases to watch this year. The case Alexis Hunley v. Instagram. It questioned the scope and validity of the server test, a copyright doctrine that was established by the 9th Circuit and has since been rejected by a number of other courts. The 9th Circuit has spoken, and we’re going to talk about this case on the next installment of the briefing by Weintraub Tobin. Alexis Hunley versus Instagram involved a potential class action claim against Instagram related to its embedding practice. The plaintiffs were two photojournalists whose photographs were featured on websites of various media outlets without a license. Hunley alleged that Instagram provided an embedding tool which allowed the photos or videos posted on an Instagram account to be simultaneously displayed on third party websites. Hunley alleged that these third parties who displayed her photos via the use of Instagram’s embedding tool, committed direct copyright infringement and that Instagram was secondarily liable for infringement. Jamie: Embedding is the process of copying unique HTML code assigned to the location of a digital copy of a photo or video published to the Internet, and the insertion of that code into a target web page or social media post enables that photo or video to be linked for display within the target post. Scott: The lower court tossed the case, holding that the third-party media companies that displayed the photographs Tim
S1 E133 · Fri, August 04, 2023
Zillow Loses Second Round of Copyright Fight
The Ninth Circuit recently issued an opinion affirming that Zillow infringed thousands of copyrights owned by a real estate photography studio. Scott Hervey and James Kachmar discuss this case on this episode of The Briefing . Watch this episode on the Weintraub YouTube channel, here . Show Notes: Scott: In 2019, the 9th Circuit affirmed the trial court’s judgment against Zillow Group based on Zillow’s use of VHT’s photographs on Zillow’s Digs platform. In June of this year 2023, this case found itself back up to the 9th Circuit. I’m joined by my partner, James Kachmar, to talk about this recent decision on this episode of The Briefing You. Thanks for joining us. I’m joined today by Weintraub litigation partner, James Kachmar. James, thanks for joining us today. James: Thanks, Scott, for having me. Scott: Certainly, James. Let’s start by providing some context for our viewers and listeners. Could you briefly explain the background of the case between VHT and Zillow Group? James: Sure, Scott. Everyone should know what Zillow is the website with homes for sale. VHT is the largest professional real estate photography studio in the US. It is generally engaged by real estate agents and brokers to photograph homes for sale. These photos are edited, loaded into VHT’s database, and then sent back to the agents and brokers pursuant to a license agreement to help promote their listings. VHT’s photographs appear on Zillow’s website one of two ways. First, Zillow will use these photographs as part of showing property listings on its website. Second, Zillow would feature some of these photographs on their website, Digs, to offer users or give people some home improvement ideas. VHT filed a copyright infringem
S1 E132 · Fri, July 28, 2023
The Briefing: Is Warhol Bad for Documentarians?
There is some concern that the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith will harm the documentary filmmaking community. Scott Hervey and Tara Sattler discuss the implications of this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: When Andy Warhol Foundation versus Goldsmith was pending before the Supreme Court, a group of prominent documentary filmmakers, including the makers of The Last Days of Vietnam, The Invisible War. Won’t you be my neighbor? And RBG filed an amicus brief and claimed that the Second Circuit’s proposed change to the way fair use is analyzed could, quote, devastate now that Warhol has been decided, it’s clear that the way in which fair use is now to be determined will have an impact on documentarians who rely on the use of unlicensed third-party materials as part of conveying their story. We are going to talk about this on this installment of The Briefing. We covered the Supreme Court’s decision in Andy Warhol Foundation versus Goldsmith in a previous episode, but let’s hit on some highlights relevant to the impact of this decision on documentarians. The decision changes the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell versus Acuffro’s Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether the new work merely supersedes the objects of the original creation or instead adds something new with further purpose or different character, altering the first with new expression, meaning, or messag
S1 E131 · Fri, July 21, 2023
The Supreme Court Limits the Reach of The Lanham Act
The U.S. Supreme Court recently decided that trademark infringement claims under the Lanham Act only apply if the infringing “use in commerce” occurs in the United States. Scott Hervey and Tara Sattler talk about this case on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Tara: Extraterritorial? Not quite for the Lanham Act. The U.S. Supreme Court recently decided that trademark infringement claims under the Lanham Act only apply if the infringing “use in commerce” occurs in the United States. This is what we will be discussing on this installment of the Briefing. Scott: We talked about the facts of this case, Abitron Austria GmbH, v. Hetronic International, Inc ., and the holdings of the lower courts on an earlier episode of “The Briefing,” so Tara, why don’t you give us a quick reminder of the facts and how this case came before the U.S. Supreme Court. Tara: Sure, Hetronic International, Inc., is a U.S. company that manufactures radio remote controls used to operate heavy-duty construction equipment. Abitron, the defendant, distributed Hetronic’s products in Europe. When the distributor relationship ended, Abitron started manufacturing their own products that were identical to Hetronic’s and that included the Hetronic trademark. The defendant sold their products with the Hetronic branding in Europe, so Hetronic sued Abitron. A jury in the Western District of Oklahoma awarded Hetronic over $100 million in damages, most of which tied to the defendants’ trademark infringement based on sales outside of the U.S. as 97% of the defendant’s sales were made “in foreign countries, by foreign companies, to foreign customers, for use in foreign countries”. On appeal to the 10th
S1 E130 · Fri, July 14, 2023
Netflix Settles Defamation Dispute with Docu Film Subjects
The subjects of a documentary have dropped their long-standing defamation lawsuit against Netflix and producers. Scott Hervey and Jamie Lincenberg talk about this case on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show notes: Scott: As of last week, a longstanding lawsuit against Netflix and producers, Doc Shop Productions, has been dropped. In a previous episode of The Briefing, we discussed the then-current status of the case where seven subjects of the Netflix docuseries “Afflicted” sued Netflix for claims of defamation, fraud and invasion of privacy. We are going to take a look at this dismissal on this installment of the Briefing by Weintraub Tobin. I am Scott Hervey of Weintraub Tobin and I am joined today by my colleague, Jamie Lincenberg. Jamie, welcome to The Briefing. Jamie: Thank you, Scott. I’m happy to be here. Scott: Jamie, can you provide a quick recap on the lawsuit. Jamie: Sure. the seven-part series “Afflicted” explores the world of chronic diseases, following a number of patients and their loved ones suffering from the same. The show casts a skeptical eye on some of the subject’s illnesses and those subjects then brought claims accusing Netflix and the producers for editing the show to make the subjects’ rare illnesses look psychosomatic and alleging that the plaintiffs were “duped by the defendants into participating in a salacious reality television program that questioned the existence of chronic illness and portrayed the plaintiffs as lazy, crazy, hypochondriacs who were deserving of scorn and who in fact have since received scorn and abuse because of the shows false representation. Scott:</strong
S1 E129 · Fri, July 07, 2023
Bad Spaniels in the Doghouse - Jack Daniels Prevails in Trademark Fight
The U.S. Supreme Court provided clarification on the application of the Rogers test in relation to Jack Daniels v. VIP Products. Scott Hervey and Jamie Lincenberg talk about this ruling on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: In the case of Jack Daniel’s Properties, Inc. v. VIP Products, the Supreme Court has spoken and provided clarification on the application of the Rogers test and whether the parodic use of another’s trademark is always non-commercial use for the purposes of a dilution claim. We are going to talk about this ruling and its potential future applications on this installment of the Briefing by WT. I am Scott Hervey of Weintraub Tobin, and I am joined today by my colleague, Jamie Lincenberg. Jamie, welcome to the briefing. Scott: On June 8, 2023, the United States Supreme Court handed down its opinion in JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS. The dispute dates back to 2014 when Jack Daniel’s sent a series of cease and desist letters to VIP products concerning its squeaky dog chew toy, Bad Spaniels. This toy parodies the Jack Daniel’s product; “Jack Daniel’s” becomes “Bad Spaniels.” And the phrase “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into “The Old No. 2 On Your Tennessee Carpet.” Jack Dailes claimed that VIP Products had infringed and diluted its trademarks. In 2018 a district court judge ruled in Jack Daniels’s favor. Jamie: In its ruling on a motion for summary judgment, the district court held that the Rogers test, which is used to balance the interests between trademark law and the First Amendment, was inapplicable because the toy is not an expressive work. Later, after a four-
S1 E128 · Fri, June 30, 2023
Court Rules Litigation Funding Not Relevant in Netflix v. GoTV
A court denied Netflix’s request for GoTV Streaming to supply documents relating to the source of its patent litigation funding. Scott Hervey and Eric Caligiuri discuss this dispute on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Read more about this case here .
S1 E127 · Fri, June 23, 2023
USPTO Suspends Applications Including Criticisms of Known Living Figures
The U.S. Supreme Court will hear the USPTO’s appeal of a Federal Circuit ruling that allows individuals to register trademarks using the name of a living person without their consent. Scott Hervey and Tara Sattler discuss this on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show Notes: Tara: The U.S. Supreme Court has agreed to hear the USPTO’s appeal of a Federal Circuit ruling that allows individuals to secure registration of a trademark using the name of living persons without that person’s consent. That’s what we’ll be discussing in this installment of the Briefing by Weintraub Tobin. Tara: Last year, the Federal Circuit overturned a decision from the USPTO Trademark Trial and Appeal Board in which the USPTO refused to grant a trademark registration for the mark TRUMP TO SMALL for use on t-shirts. The USPTO refusal was based on Section 2(c) of the Lanham Act, which requires the USPTO to refuse registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”. Scott: After the TTAB affirmed the trademark examiner’s refusal to register, the applicant, Steve Elster, appealed the matter to the Federal Circuit, and there, Judge Timothy B. Dyk held, for a unanimous panel, that “the government has no legitimate interest in protecting the privacy of President Trump.” Tara: Elster argued that the phrase was “political criticism” and accordingly protected by the First Amendment. The Federal Circuit agreed and overturned the USPTO’s refusal to register. The USPTO appealed to matter to the Supreme Court and suspended applications on all pending applications for trademarks that
S1 E126 · Fri, June 16, 2023
What Now for Fair Use After Warhol v. Goldsmith
The U.S. Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. Scott Hervey and Tara Sattler talk about this decision on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Cases Discussed: Andy Warhol Foundation v. Goldsmith Campbell v. Acuff-Rose Music Show Notes: Scott: In a closely watched copyright case, the U.S. Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. The decision affirms a previous ruling by the Second Circuit, which found that Warhol’s artwork shared the same commercial purpose as the original photograph taken by photographer Lynn Goldsmith. The Supreme Court seemed to make a great effort to state that its analysis was limited to the specific use alleged to be infringing – the foundation’s licensing of Warhol Prince portrait to Conde Nast – and stated that the court is not expressing an opinion as to the creation, display or sale of the original series of Warhol Prince portraits, and the case itself presents the unique situation of the two works actually competing in the same marketplace. However, this opinion is now the go-to for determining fair use, and it will have a very wide impact. We are going to talk about the impact of this case in this installment of the briefing by Weintraub Tobin. Scott: These are the underlying facts. In 1981 Lynn Goldsmith was commissioned by Newsweek to photograph a then “up and coming” musician named Prince Rogers Nelson. Newsweek later published one of Gold
S1 E125 · Fri, June 09, 2023
The Protectability of Short Phrases
While iconic catchphrases from TV and film can hold significant equity, protection of them can be spotty. Scott Hervey and Tara Sattler talk about the protectability of short phrases on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Show me the money. Who you going to call? Go ahead, make my day. These are a few iconic phrases with significant equity. But protection of catchphrases like this are spotty. We are going to talk about the protectability of short phrases on this next installment of the Briefing by Weintraub Tobin. Scott: Iconic short phrases are worth their weight in gold, and the creators of those short phrases would probably like to prevent others from using those phrases under any circumstances. That’s not always possible. Tara: Let’s first talk about quoting a short phrase in another first creative work, such as in a book, TV show, movie, or song. In order for the author of the short phrase to prevent it from being quoted in such a manner, that short phrase would have to be protectable under Copyright law, and that isn’t the case. Scott: That’s right. Short phrases are not protectable under US Copyright law. According to a Copyright Office Circular, short phrases, such as slogans, are uncopyrightable because they contain an insufficient amount of authorship. Even if the Copyright Office will not register short phrase even if they are novel, distinctive, or lends itself to a play on words. Tara: And if a work is not protectable under copyright, then it can’t be the subject of a copyright infringement claim. But that doesn’t mean that all uses of a third part
S1 E124 · Fri, June 02, 2023
No Beating Around the Bush: TTAB Upholds Anti-Pot Policy
The Trademark Trial and Appeals Board denied an application to register a trademark for essential oil dispensers meant to fill smoking devices with cannabis-based oils. Scott Hervey and Tara Sattler talk about this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here . Show notes: Scott: On May 3, the TTAB issued a precedential opinion denying an application to register a line of essential oil dispensers used to dispense premeasured amounts of cannabis-based oil to a vaping or smoking device for ‘dabbing on the grounds that such products are illegal under the Federal Controlled Substances Act. It’s been known since the legalization of medical cannabis that it’s impossible to get a federal trademark. However, here the Applicant argues that an exemption under the Controlled Substances Act makes these goods lawful under federal law and thus eligible for federal trademark registration. We are going to talk about this case next on the briefing by Weintraub Tobin. Scott: National Concessions Group, Inc sought to register the mark BAKKED and a stylized drop design mark for an essential oil dispenser. The trademark examiner assigned to the application contended that this oil dispenser is drug paraphernalia, used in dabbing, and is illegal under the CSA, and refused registration on that basis. Even though the Applicant argued that the goods were intended for and could be used for legal purposes, the examiner looked at extrinsic evidence, including NCG’s website and advertisements for the products, which supported the examiner’s position that the goods were primarily intended for use with cannabis. Tara: Under Section 1 of the Lanham Act (15 USC 1051), the owner of a trademark used in
S1 E123 · Fri, May 26, 2023
Aaron Judge Hits a Grand Slam Before the Trademark Trial and Appeal
Major League Baseball player Aaron Judge went before the Trademark Trial and Appeals Board to block a person’s attempt to secure trademark rights for slogans that play on his name. Scott Hervey and Josh Escovedo discuss this dispute on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show Notes: Josh: Welcome to the Briefing. Today we have some interesting news coming out of the sports world. Aaron Judge, the New York Yankees captain, has successfully blocked a Long Island man’s attempt to secure trademark rights on the judicially themed slogans “All Rise” and “Here Comes The Judge” for apparel. The Trademark Trial and Appeal Board issued a 61-page precedential opinion, stating that Judge and the Major League Baseball Players Association had priority of use over Michael P. Chisena’s use of “All Rise,” “Here Comes The Judge,” and a logo design with an image of the scales of justice superimposed on a baseball field, which all cover various articles of clothing. Scott: According to the TTAB, Judge and the MLBPA presented evidence of third-party licensees that paid royalties to use words and designs referring to Judge, often including judicial terminology, on apparel since August 2016. Chisena did not use the marks until he filed the applications in July and October 2017, which worked against him. Josh: That’s right, but Chisena argued that Judge and the MLBPA’s prior use of “All Rise” and “Here Comes The Judge” did not function as source- indicating trademarks and were only meant to “engender acknowledgment of, enthusiasm and overall support” for Judge. But the TTAB stated that the consuming public recognizes the subject slogans and symbols carrying judicial connotations as pointing to only one baseball player on one major lea
S1 E122 · Fri, May 19, 2023
AI Generated Fake Drake Song - Legit or Lawsuit?
The Universal Music Group is accusing a TikTok creator of copyright infringement after they published an AI-Generated song that was made to sound like a Drake and Weeknd collaboration. Scott Hervey and Josh Escovedo discuss this dispute in this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Cases Discussed: Middler v. Ford Astley v. Matthew Hauri, pka Yung Gravy Show Notes: Scott: Last week, a new Drake and Weeknd collaboration disrupted the Internet. The only problem is that it wasn’t a Drake and Weeknd collaboration, after all. The song “Heart on My Sleeve” was written and produced by TikTok user ghostwriter977. The vocals for “Heart on My Sleeve” were generated by artificial intelligence, made to sound like Drake and The Weeknd. UMG, the record label behind the artists, is furious and is pushing music streamers to block AI tools from training on its artists’ melodies and lyrics. While “Heart on My Sleeve” was ultimately removed from Spotify due to a copyright issue…the song had an unauthorized sample in it…we could see more original AI fake Drake songs from ghostwriter 977, and there may not be anything UMG or the artist can do about it. We are going to talk about this next on the Briefing by the IP Law Blog. Scott: The music industry sees generative AI tools that can create music that sounds like a specific artist, as a real threat to business. In response to the fake Drake AI song, UMG issued a statement publicly encouraging digital service providers not to let generative AI tools train on music issued by their artists. UMG considers this a violation of copyright law. Josh: As we have previously covered, this issue-whether the training of an AI tool on existing copyright-protected works constitutes infringe
S1 E121 · Fri, May 12, 2023
Chipotle and Sweetgreen Settle Food Fight Over CHIPOTLE Trademark
Popular food chains Chipotle and Sweetgreen settled a trademark dispute relating to Sweetgreen’s use of ‘CHIPOTLE’ on its menu. Scott Hervey and Josh Escovedo talk about this dispute on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I’m Scott Hervey with Weintraub Tobin. Josh: And I’m Josh Escovedo with Weintraub Tobin. Over the course of a few days, Chipotle and Sweetgreen engaged in a trademark skirmish concerning the CHIPOTLE mark and settled the matter just a few days later. That what we’ll be discussing on this installment of The Briefing by the IP Law Blog. Josh: Today we’re going to discuss a recent legal dispute between two fast-casual restaurant chains, Chipotle and Sweetgreen. In short, Chipotle filed a lawsuit in California federal court against Sweetgreen, accusing the rival chain of infringing its trademark by selling a “Chipotle Chicken Burrito Bowl” that Chipotle claims is directly competing with Chipotle’s own menu item. Scott: That’s a bold move by Chipotle. What exactly are their claims? Josh: Chipotle alleges that Sweetgreen has been infringing its well-known Chipotle trademark since March 30 by selling a menu item with very similar ingredients to Chipotle’s own popular burrito bowl and incorporating the CHIPOTLE mark into the name of the item. By now, you may be wondering, how exactly is Sweetgreen infringing on Chipotle’s trademark? Scott: Well, according to the complaint, Sweetgreen’s menu item is listed with a capitalized “Chipotle” or sometimes in all caps on its website and in its social media posts on Instagram or Twitter. In addition, some ads for the allegedly infringing item utilize a font or background color which
S1 E120 · Fri, May 05, 2023
Woodward Asks Court to Dump Trump's Complaint
Journalist Bob Woodward asked the court to dismiss former President Trump’s copyright infringement claim regarding Woodward’s audio book “The Trump Tapes,” which consists of 20 raw audio interviews with Trump. Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Cases Discussed: Trump v. Woodward Taggart v. WMAQ Channel 5 Chicago Show Notes: Scott: Veteran investigative reporter Bob Woodward conducted an audio interview of former president Donald Trump for Woodward’s book, Rage. Woodward later released these recordings as a separate audiobook, and Trump claimed that Woodward did not have his permission to release these audiotapes as a separate audiobook and sued Woodard and his publisher for, among other claims, copyright infringement. Woodward filed a motion to dismiss, arguing that Trump’s complaint is without legal merit. We are going to talk about this. Scott: These are the facts according to Trump’s complaint against Woodward and his publisher, Simon and Schuster. Woodward sought and obtained President Trump’s consent to be recorded for a series of interviews with President Trump. Woodward interviewed Trump, both in person and over the phone, on numerous occasions during 2019, mostly during his term as president. Trump contends that he did not give permission for the recordings to be released as audio recordings and claims that he owns the copyright in the entire sound recording or at least Trump’s response to the interview questions. Josh: We previously covered this when Trump initially filed his complaint, and we questioned the merits of his copyright claim. Did Woodward’s motion to dismiss track our analy
S1 E119 · Fri, April 28, 2023
SCOTUS Hears Arguments in VIP Products V. Jack Daniels
The Supreme Court has finally heard arguments in the VIP Products v. Jack Daniels case, in which the whiskey company accused the dog toy maker of infringing its trademark with its whiskey bottle chew toy. Scott Hervey and Josh Escovedo discuss this dispute in the episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I’m Scott Hervey with Weintraub Tobin. Josh: and I’m Josh Escovedo with Weintraub Tobin. The Supreme Court has finally heard arguments in the much talked about VIP Products v. Jack Daniels matter concerning the balancing of free speech under the First Amendment and trademark rights under the Lanham Act. That’s what we’ll be discussing on this installment of The Briefing by the IP Law Blog. Josh: As many of you know, Jack Daniel’s is claiming that the “Bad Spaniels” dog toy made by VIP Products infringes JD’s trademark, as it replaces key elements of their whiskey bottle with dog and poop references. Perhaps what is most interesting about this case is that it requires The Supreme Court to try to figure out what test is needed to balance trademark rights under the Lanham Act and Free Speech under the First Amendment. Scott, let’s tell the readers about the arguments. Scott: Sure. Jack Daniel’s argues that VIP’s dog toy is trademark infringement that needs to be reined in so customers don’t presume the liquor company is associated with the product. So, the main question is whether the so-called Rogers test should apply. The Rogers test provides First Amendment protections to works with others’ trademarks on them, so long as the work is considered “artistically expressive” and does not “explicitly mislead” consumers. As you know, the Ninth Circuit had said VIP’s toy met the test. Josh, can you tell our li
S1 E118 · Fri, April 21, 2023
Trademark Claim Over 'Anne of Green Gables - The Musical' Hits Sour Note With NY Producer
The Anne of Green Gables Licensing Authority is accusing a New York theater production company of trademark infringement for producing a show titled ‘Anne of Green Gables – The Musical.’ Scott Hervey and Josh Escovedo talk about this dispute on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Cases Discussed: Anne With An E, Limited Liability Company v. Anne of Green Gables Licensing Authority Inc. Hermes v. Rothschild Show Notes: Scott: Copyrights have a finite lifespan and after the copyright term expires the works fall into the public domain. That’s not the case with trademarks which can last indefinitely. Anne of Green Gables was a children’s book originally published in 1908. This means that the work is now in the public domain. However, Anne of Green Gables Licensing Authority owns various trademarks for Anne of Green Gables. What happens when the right to create a musical interpretation of the public domain work and use Anne of Green Gables in the title runs headlong into the trademarks owned by the Licensing Authority. Are the producers who created a new musical interpretation of Anne of Green Gables, actually prohibited from using the name of the work in the title of the musical. We are going to talk about this on the next installment of the briefing by the IP law blog Scott: Anne With An E, LLC is a New York theatrical production company that is developing the musical, ‘Anne of Green Gables: A New Musical,’ based on the Public Domain Novel, ‘Anne of Green Gables’ by L.M. Montgomery. The musical features new original dialogue or book and music. Anne of Green Gables Licensing Authority is a Canadian corporation, jointly owned by the Province of Prince Edward Island (the location where the original novel took place)
S1 E117 · Fri, April 14, 2023
Law Firm Sues Las Vegas Raiders for Threatening Trademark Infringement Claim
The NFL and Las Vegas Raiders threatened to sue a local law firm for trademark infringement, after the firm hired one of its athletes to appear in an advertisement with black and silver branding. Scott Hervey and Josh Escovedo talk about this dispute on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I’m Scott Hervey with Weintraub Tobin. Josh: I’m Josh Escovedo with Weintraub Tobin. A dispute has arisen between the owner of the Dimopoulos Law Firm and the NFL over the NFL threatening to sue the firm for trademark infringement. That’s what we’ll be discussing on this installment of the Briefing by the IP Law Blog. Josh: In a recently filed complaint in federal court, the Dimopoulos Law Firm, a personal injury firm based in Las Vegas, Nevada, alleges that it has been using a black and silver color scheme to promote its services since its inception in 2012. However, they recently hired three professional athletes, including Jon Bones Jones of the UFC, William Karlsson of the Vegas Golden Knights, and most importantly for this case, Maxx Crosby of the Las Vegas Raiders, to appear in a new advertisement. According to the firm, the advertisement did not feature any logos or trademarks of the NFL, the Raiders, or any other sports teams. Despite this, the complaint states, the NFL sent Dimopoulos a cease-and-desist letter accusing the firm of unauthorized use of the Raiders’ marks. Scott: That’s quite interesting. So, what are the grounds for this dispute? Josh: Well, according to the cease-and-desist letter, the NFL claims that Dimopoulos used hashtags including the Raiders’ marks and engaged in unauthorized use of their marks. However, it’s worth noting that the Complaint alleges that the advertisement did no
S1 E116 · Fri, April 07, 2023
Copyright Office Issues Guidance for Works Containing Material Generated by AI
The US Copyright Office issued a policy statement regarding the registration of works that contain material generated by AI technology. Scott Hervey and Josh Escovedo talk about this clarification on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: With the buzz still fresh from the copyright office’s partial revocation of the registration issued to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. On March 16 the Copyright office issued a rule concerning the registration of works containing material generated by Artificial Intelligence. We are going to talk about this on the next installment of the Briefing by the IP Law Blog Scott: On March 16, the Copyright office issued a rule concerning the registration of works containing material generated by Artificial Intelligence. The purpose of the rule, which really is a policy statement, is to clarify the Copyright Office’s practices for examining and registering works that contain material generated through the use of artificial intelligence technology. First, a little background on why the Copyright Office had to issue this rule in the first place. Scott: Generative artificial intelligence technologies are capable of producing a variety of expressive material, including text and images, in response to text provided by a user. Most generative AI technologies operate through “prompts,” which are text commands and contain text describing what the AI should generate. The output can be text, graphics or audio and are based on the input material the AI has been trained on. Josh: Generative AI technologies have raised questions about whether the material produced is protected by copyright, and if not, to what extent a work consisting of both human-authored and AI-generated mate
S1 E115 · Fri, March 31, 2023
USPTO Suspends Action on Trademark Applications Targeting Names of Public Figures
The United States Patent and Trademark office has suspended action on trademark applications targeting the names of public figures. Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: I’m Scott Hervey with Weintraub Tobin. Josh: I’m Josh Escovedo with Weintraub Tobin. The USPTO has suspended action on trademark application trying to take advantage of a new appellate decision that would let people license trademarks that poke fun at the names of living people. That’s what we’ll be discussing on this installment of the Briefing by the IP Law Blog. Josh: Scott, have you heard about the recent guidance issued by the US Patent and Trademark Office on trademarks that make fun of living public figures? Scott: I have, but why don’t you tell our listeners what’s going on. Josh: Well, the USPTO has announced that its suspending action on any trademark applications that try to take advantage of a new appeals court ruling that potentially allows people to license trademarks that make fun of the names of living figures like former President Donald Trump. The Trademark Office has indicated that it will continue to do so while it waits for the US Supreme Court to weigh in. Scott: Right, and according to the one-page document issued by the Trademark Office, its examiners will not look at trademarks that cover phrases “that are critical of government officials or public figures,” in line with the agency’s longstanding rules. This is because of Section 2(c) of the Lanham Act, which bans the issuance of trademarks that include names “identifying a particular individual” without their consent. Josh: You might be wo
S1 E114 · Fri, March 24, 2023
Copyright Office Goes After Registration Issued to AI-created Graphic Novel
The U.S. Copyright Office instituted an inquiry into a registration relating to a graphic novel that uses AI-generated artwork. Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: Kristina Kashtanova is the author of the graphic novel, Zarya of the Dawn . Ms. Kashtanova had previously applied for and obtained a copyright registration for the graphic novel. Sometime after the novel was registered, the Copyright office, on its own accord, instituted an inquiry into registration with a specific focus on the artwork in the novel which was generated through the use of Midjourney AI technology. After the inquiry, the Copyright office revised the registration and excluded from protection the images created by the use of the AI technology. We are going to talk about this on the next installment of the Briefing by the IP law blog Scott: Here is the brief history of the matter. In September, 2022 Kashtanova submitted a copyright application for her graphic novel. Her application did not disclose that she used an AI application to create any part of the novel nor did she disclaim any portion of the work. After the application was registered, apparently the Copyright office became aware of statements made by Kashtanova in social media that she had created the graphic novel using Midjourney’s AI tool. Josh: Don’t you find it a bit odd that the Copyright office was watching or reviewing Kashtanova’s social media. The examiner must have had some belief that AI was somehow involved in the creation of the graphic novel. Scott: I never thought that the registration process at the copyright office was that in depth. I always thought it was mo
S1 E113 · Fri, March 17, 2023
Rick Astley Sues Yung Gravy for Use of Imitation Voice in "Betty (Get Money)"
Singer Rick Astley is suing rapper Yung Gravy for vocal imitation in his smash hit, Betty (Get Money). Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Cases discussed: Richard “Rick” Paul Astley vs. Matthew Hauri PKA Yung Gravy; Nick Seeley PKA Popnick; Dillon Francis; David Wilson PKA dwilly; Republic Records Midler v. Ford Motor Co. Waits vs Frito Lay Show notes: Scott Hervey: I’m Scott Hervey with Weintraub Tobin. Josh Escovedo: And I’m Josh Escovedo with Weintraub Tobin. Rick Astley has sued Yung Gravy for use of an imitation voice in his smash hit, Betty (Get Money) . That’s what we’ll be discussing on this installment of the Briefing by the IP Law Blog. Josh Escovedo: Rick Astley, artist of the hit song Never Going to Give You Up from 1987, has filed suit against rapper Yung Gravy for impersonating his voice on Yung Gravy’s breakout hit, Betty (Get Money) . Astley claims that Gravy imitated his voice without legal authorization and has therefore filed suit in Los Angeles County Superior Court, alleging violation of his right of publicity under California law. Josh Escovedo: According to Astley’s complaint, Gravy seeks to capitalize off of the immense popularity and goodwill of Mr. Astley by creating a nearly indistinguishable imitation of Mr. Astley’s voice throughout the song. For reasons that we’ll be discussing, Astley did not file a claim for copyright infringement. But while copyright law may not be at issue in the complaint, it is likely to be at issue in the dispute itself. Scott, can you explain to our listeners why Astley did not file a claim for copyright infringement? Scott Hervey: Sure. In orde
S1 E112 · Fri, March 10, 2023
Getty Images Sues Stability AI for Copyright Infringement
Getty Images filed a lawsuit against startup tech company Stability AI for allegedly scraping more than 12 million photographs from Getty Images’ portfolio without consent. Scott Hervey and Josh Escovedo discuss this case on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Cases discussed: Getty Images (US), Inc. v. Stability AI, Inc. Visual Arts v. Goldsmith Show Notes: Josh: Getty Images, a preeminent global visual content creator and leading source for visual content, has filed suit against startup technology company Stability AI for allegedly scraping more than 12 million photographs from Getty Images’ portfolio without consent or compensation. Getty Images also alleges that Stability removed or altered Getty Images’ copyright management information, such as watermarks, and provided false copyright management information. Accordingly, Getty Images’ complaint includes claims for copyright infringement, providing false copyright management information in violation of 17 U.S.C. section 1202(a), removal or alteration of Copyright Management Information in violation of Section 1202(b), trademark infringement, unfair competition, trademark dilution, and deceptive trade practices under Delaware law. In order to understand the nature of the claim a bit better, it’s important to understand what these parties do. Scott, do you mind providing a brief overview of what the parties do for our listeners? Scott: Sure. Getty Images is a visual media company and a supplier of stock images, editorial photographs, video, and music for businesses and consumers. It has over 477 million assets, and it generates revenue by licensing the right to use these assets to creatives, the media, corporate entities, and general consumers. Many of you have probably seen their images online, complete with the Gett
S1 E111 · Fri, March 03, 2023
Did the Court Bag the MetaBirkin Case?
The jury hearing Hermes v. Rothschild found the artist’s ‘MetaBirkin’ NFTs constitutes trademark infringement and trademark dilution. Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: The jury hearing Hermes v Rothschild found Rothschild liable for trademark infringement and trademark dilution. The matter went to trial after the judge dismissed both Hermes and Rothschild’s motions for summary judgment. Should the court have sent the matter to the jury and what may be the basis for an appeal. We are going to discuss this case on the next installment of the briefing Scott: Mason Rothschild is an artist who has created a series of digital artworks called MetaBirkins. The artist claims that each work comment on Hermès’ “Birkin” handbags. is a unique, fanciful interpretation of a Birkin bag. Rothschild claims that the depiction of each bag as fur covered, Comments on the animal cruelty inherent in Hermès’ manufacture of its ultra-expensive leather handbags. He has over 100 pieces as part of the collection and has sold over 1.1 million. Josh: Hermes filed suit in January 2022 alleging trademark infringement and trademark dilution. Rothschild moved to dismiss, relying heavily on Rogers v Grimaldi. The court dismissed Rothschild’s motion because the amended complaint included sufficient allegations that Rothschild entirely intended to associate the MetaBirkins mark with the popularity and goodwill of the Hermes Birkin mark rather than intending an artistic association Scott: Shortly thereafter both parties moved for summary judgment. Although the court found that the Hermes’ claims should be analyzed under the Rogers test, the court f
S1 E110 · Fri, February 24, 2023
Is Trump’s Copyright Claim Against Woodward “Trumped Up”?
Journalist Bob Woodward conducted an audio interview with former President Donald Trump for his book ‘Rage’ and later released the tapes as its own audiobook. Now, Trump is suing for copyright infringement. Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog . Cases discussed: TRUMP v. SIMON & SCHUSTER INC et al Falwell v. Penthouse Community for Creative Non-Violence v. Reid Read Scott’s article about this dispute on the IP Law Blog here . Watch this episode on the Weintraub YouTube channel here . Show notes: Scott: Veteran investigative reporter Bob Woodward conducted an audio interview of former President Donald Trump for Woodward’s book, Rage. Woodward later released these recordings as a separate audiobook, Trump claims that Woodward did not have his permission to release these audiotapes as a separate audiobook and sued Woodard and his publisher for, among other claims, copyright infringement. Does Trump have a claim or is his copyright claim “trumped up”. We are going to talk about this. Scott: These are the facts according to Trump’s complaint against Woodward and his publisher, Simon and Schuster. Woodward sought and obtained President Trump’s consent to be recorded for a series of interviews with President Trump and repeatedly informed him that such interviews were for the sole purpose of a book. Woodward interviewed Trump, both in person and over the phone, on numerous occasions during 2019 and 2020. The audiobook, The Trump Tapes, is comprised of 20 audio interviews, one with Trump during his presidential campaign in 2016 and the remaining 2
S1 E109 · Fri, February 17, 2023
Miami Terminates FTX's Naming Rights Deal for NBA Arena
A Florida bankruptcy court has terminated FTX’s naming rights agreement for an NBA arena. Scott Hervey and Josh Escovedo discuss this case on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel, here .
S1 E108 · Fri, February 10, 2023
9th Circuit Agrees with Woz - No Promise to Pay, No Desny Claim
The recent Reilly v. Wozniak 9th Circuit decision upheld a 1950s ruling that requires a promise to pay to be present for an implied contract to exist. Scott Hervey and Josh Escovedo discuss this case and how the Desny decision applies to idea theft cases in California in this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: S: In a previous episode we discussed recent applications of the 1950 case, Desny v Wilder , which set the ground rules for an idea theft case in California. A recent non-citable 9 th Circuit opinion on an idea theft looks at the promise to pay element. We are going to talk about this on the next installment of The Briefing by the IP Law Blog. In California, an idea theft claim is based in large part on the California supreme court case of Desny v Wilder . In Desny, the plaintiff Victor Desny wrote a script depicting the real-life story of Floyd Collins, a boy who made headlines after he was trapped in a cave eighty feet underground. In an effort to market his script, Desny called Billy Wilder, a writer, producer and director at Paramount Pictures. Desny could not get through to Wilder and subsequently stripped his scrip to the bare facts so that Wilder’s secretary could copy it in short-hand over the phone. After reading his synopsis, Desny told Wilder’s secretary that Wilder and Paramount could use the script only if they paid him a reasonable amount for doing so. Shortly thereafter, Wilder created his own movie script mirroring Densy’s. Because Densy’s script was based on historical facts, and because Desny only conveyed the bare minimum of those facts to Wilder’s secretary, both parties conceded for the purpose of the
S1 E107 · Fri, February 03, 2023
Trademark and Copyright Cases to Watch in 2023
The Supreme Court will bring finality to several IP disputes this year. Scott Hervey and Josh Escovedo provide an overview of the trademark and copyright cases to watch on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here . Show Notes: Josh: It’s always good to start off the year with an overview of the trademark and copyright cases to watch for the year. This year, we have a couple of cases that we’ve previously discussed on The Briefing when they were on appeal with the circuit courts, but we will now see the Supreme Court bring finality to the issues. Scott: This sounds like great information to me, Josh. Let’s get into it. Josh: We’ll start with Andy Warhol Foundation v. Goldsmith, which we’ve discussed at length on this show. In that case, the Supreme court will decide whether the Andy Warhol Foundation made fair use of a photo of the late artist Prince. In short, the matter at issue will address when a work is sufficiently transformative to qualify for fair use protection under the Copyright Act. In the matter below, the Second Circuit reversed the decision of the District Court and held that the Warhol work was not transformative because it maintained the “essential elements of its source material” and was not “fundamentally different and new.” This is the first time since 1994 that the Supreme Court has addressed fair use in the context of an artistic work. This is one I’ll be looking forward to. Scott: Next, we have Abitron Austria GmbH v. Hetronic International. In that case, US-based remote-control maker Hetronic International sued its former European partners Abitron Austria for trademark infringement. The Defendants in that action argued that since 97% of the sales related to the verdict were “purely foreign” and no one affiliated with the companies was based in th
S1 E106 · Fri, January 27, 2023
2023 IP Resolutions Start with a Review of IP Assets
The start of a new year is a good opportunity for companies to review and take stock of their intellectual property assets. Scott Hervey and Josh Escovedo talk about the importance of this review on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here . Show Notes: Scott: As 2023 commences, it’s time for companies to take review and take stock of their intellectual property assets. This applies to companies that have never taken serious steps to protect intellectual property, and those companies that understand the value of intellectual property and take active steps to secure and protect those assets. We are going to talk about this on this next installment of the Briefing by the IP Law Blog Scott: Intellectual property is a company asset, just like inventory. No CEO or CFO would think of running a company where they didn’t know the extent of company inventory. Likewise, it makes no sense for a company not to have a firm understanding of all of its potential intellectual property assets. Even companies that regularly take steps to protect intellectual property through, for example, registering trademarks, or registering copyrights, a yearly review can prove beneficial. Josh: Understanding the extent of a company’s IP holdings usually start with what’s known to the company, such as all registered copyrights, trademarks or patents, domestic and foreign. After compiling a list of those IP assets, the next step would be to review what the company is using and compare that to the list of registered or pending IP. For trademarks, a good place to start is the company’s marketing and promotional materials, website, mobile app, and social media. If these materials show use of trademarks, logos, or slogans that are not already the subject of a trademark registration or application, then these marks should be cleared fo
S1 E105 · Sun, January 22, 2023
The Briefing by the IP Law Blog: The Strength of a Trademark
Trademarks perform a number of important functions. Scott Hervey and Josh Escovedo discuss the spectrum of trademark strength in this episode of The Briefing by the IP Law Blog . Watch this episode here . Show Notes: Scott: Trademarks perform a number of important functions. They are consumer road signs; they tell consumers which products to buy. They are a company’s public persona; they epitomize of all the positive (and negative) qualities of a company or a product. Lastly, trademarks represent a solemn promise to the purchasing public that the products or services branded with a company’s mark will meet certain standards. Yet, even with marks as important as they are, some business select marks that are intrinsically weak and have limited protection. WE are going to talk about the spectrum of trademark strength on this installment of The Briefing by the IP Law Blog Scott: Trademarks can be one of the more valuable assets a company owns. Trademarks generate brand equity based on the amount a consumer will pay for a branded product as compared to a non-branded product. For some companies, brand equity can make up a substantial portion of its value. For example, according to a 2001 ranking by Interbrand, the Coca-Cola brand, valued at $68,945,000, represents 61% of Coca-Cola’s market capitalization as of July, 2001. Xerox’s brand, valued at $6,019,000, represents 93% of Xerox’s market capitalization as of July, 2001. Josh: In business, branding comes as second nature. In order to survive in a competitive environment, a business must separate itself and its products from the pack and summarize these differences in a concise and succinct manner. This is even more important for emerging companies who are new to the field and in competition against established businesses with market share. Scott: G
S1 E105 · Fri, January 20, 2023
The Strength of a Trademark
Trademarks perform a number of important functions. Scott Hervey and Josh Escovedo discuss the spectrum of trademark strength in this episode of The Briefing by the IP Law Blog . Watch this episode here . Show Notes: Scott: Trademarks perform a number of important functions. They are consumer road signs; they tell consumers which products to buy. They are a company’s public persona; they epitomize of all the positive (and negative) qualities of a company or a product. Lastly, trademarks represent a solemn promise to the purchasing public that the products or services branded with a company’s mark will meet certain standards. Yet, even with marks as important as they are, some business select marks that are intrinsically weak and have limited protection. WE are going to talk about the spectrum of trademark strength on this installment of The Briefing by the IP Law Blog Scott: Trademarks can be one of the more valuable assets a company owns. Trademarks generate brand equity based on the amount a consumer will pay for a branded product as compared to a non-branded product. For some companies, brand equity can make up a substantial portion of its value. For example, according to a 2001 ranking by Interbrand, the Coca-Cola brand, valued at $68,945,000, represents 61% of Coca-Cola’s market capitalization as of July, 2001. Xerox’s brand, valued at $6,019,000, represents 93% of Xerox’s market capitalization as of July, 2001. Josh: In business, branding comes as second nature. In order to survive in a competitive environment, a business must separate itself and its products from the pack and summarize these differences in a concise and succinct manner. This is even more important for emerging companies who are new to the field and in competition against established businesses with market share. Scott:</strong
S1 E104 · Fri, January 13, 2023
Viacom Wins Trademark Dispute Over MTV's 'Floribama Shore'
An 11th Circuit Opinion in the ‘Floribama Shore’ trademark case provides guidance on establishing artistic relevance under the Rogers Test. Scott Hervey and Josh Escovedo talk about this case in this episode of The Briefing by the IP Law Blog. Watch this episode here . Show Notes: Scott: Despite challenges to the application of the Rogers test outside of traditional artistic works, the Rogers test remains a valuable defense to TV and movie producers sued for trademark infringement. Establishing that the producer’s use of the allegedly infringing mark has artistic relevance is one of the two factors of Rogers and a recent 11th Circuit opinion cementing MTV’s win over the use of Floribama Shore as the title of a docu-series shows provides guidance on steps producers should take in order to establish the existence of artistic relevance. Scott: MTV FLORIBMA SHORE is the title of an MTV docu-series modeled after the JERSEY SHORE franchise. The series purports to celebrate youth culture, profiling a summer of fun for eight young adults in the Florida panhandle. The Flora-Bama Lounge is a restaurant and marina facility located on the Florida Alabama border that has been in operation since 1964. The owners of the lounge were not happy with MTV’s use of FLORIBAMA as the title of its series, especially after MTV held a few casting sessions at the Flora Bama Lounge, and sued for trademark infringement. Josh: In the district court case MTV moved for summary judgment which was granted. The owners of the Flora-Bama lounge appealed to the 11th circuit. Scott: In the 9th Circuit (as well as the 2nd, 5th, 6th and 11th Circuits), the test for determining whether the use of a third-party trademark in an expressive work (i.e, use of a brand within a movie, TV series, video game, etc., including as part of the title of an express
S1 E103 · Fri, January 06, 2023
Supreme Court Takes Up Jack Daniel's-Bad Spaniels Trademark Dispute
The Supreme Court granted Jack Daniel’s petition for certiorari and will hear the trademark infringement case involving a parody dog chew toy that resembles the Jack Daniel’s Whiskey Bottle. Scott Hervey and Josh Escovedo discuss this latest development in this episode of The Briefing by the IP Law Blog . Watch this episode here .
S1 E102 · Fri, December 30, 2022
The Yonays Take the First Sortie in Copyright Fight With Paramount Over Top Gun Maverick
The heirs of the author who wrote an article upon which “Top Gun” is based, claims the film’s sequel is an infringing derivative work. Paramount has since filed a motion to dismiss the case. Scott Hervey and Josh Escovedo discuss this on The Briefing by the IP Law Blog. Watch this episode here . Show Notes: Scott: We previously reported on the copyright lawsuit filed by the heirs of the author who wrote an article upon which Top Gun is based alleging that “Top Gun Maverick” is an infringing derivative work. Paramount recently filed a motion to dismiss, arguing that the sequel to the 1986 motion picture, Top Gun, does not infringe the copyright in Ehud Yonay’s magazine article. The District Court denied Paramount’s motion to dismiss. We are going to talk about that on this installment of the Briefing…by the IP law blog. Scott: In May 1983, California magazine published the article Top Guns, by Ehud Yonay . This article was an inside look at the real Navy Fighter Weapons School Top Gun based out of Miramar California. When the article was published, it was optioned and in the credits for Top Gun Yonay is credited on the original movie as a writer of the magazine article. On January 23, 2018, the Yonays properly availed themselves of their right to recover the copyright to this article by sending Paramount a statutory notice of termination under Copyright Act, and then filing it with the Copyright Office.as we have discussed previously on this program, subject to the satisfaction of certain conditions, Section 203 of the Copyright Act permits authors or their successors to terminate copyright assignments and licenses that were made on or after January 1, 1978. Upon termination, all rights in the work that were covered by the grant revert to the author, however any derivative work prepared under authority of the grant before its termination may contin
S1 E101 · Fri, December 23, 2022
After 70 Years, Supreme Court Will Once Again Weigh in on The Exterritorial Reach of Lanham Act
The U.S. Supreme Court will weigh in on the reach of the Lanham Act and whether it can protect against the infringement of a U.S. trademark in a foreign territory. Scott Hervey and Josh Escovedo discuss this case in this episode of The Briefing by the IP Law Blog. Watch this episode here . Show Notes: Scott: What’s the reach of the Lanham act? Can it protect against the infringement of a U.S. trademark in a foreign territory? The U.S. Supreme Court is taking up the appeal of a 10th Cir case of Abitron Austria GmbH v. Hetronic International, Inc. to hopefully shed light on the matter. This is what we are talking about on this installment of the Briefing by the IP Law Blog. Scott: Here are the underlying facts of Abitron Austria GmbH v. Hetronic International, Inc. Hetronic International, Inc., a U.S. company, manufactures radio remote controls—used to remotely operate heavy-duty construction equipment. The Defendants distributed Hetronic’s Products in Europe. The distributor relationship deteriorated, and the Defendants began manufacturing their own products—identical to Hetronic’s—and selling them under Hetronic. Brand in Europe. Hetronic sued Abitron in the U.S., and a jury in the Western District of Oklahoma awarded Hetronic over $100 million in damages, most of which related to Defendants’ trademark infringement relating to sales outside of the US. Then on Hetronic’s motion, the district court entered a worldwide injunction barring Defendants from selling their infringing products. On appeal to the 10th Circuit, the defendants insist that the Lanham Act’s reach doesn’t extend to their conduct, which generally involved foreign defendants making sales to foreign consumers. Josh: The Lanham Act governs federal trademark and unfair competition disputes. It subjects to liability any person who uses in commerce any . . . “color
S1 E100 · Fri, December 16, 2022
Jack Nicklaus Companies Landed Hole-In-One With Court's Recent Injunction
In this 100th episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo talk about a company founded by Jack Nicklaus that was awarded a preliminary injunction enjoining him from using his name, image, & likeness in commercial endorsement deals. Watch this episode here . Show Notes: Scott: A company founded by Jack Nicklaus, Nicklaus Companies, LLC has been awarded a preliminary injunction which enjoins Jack Nicklaus from using his name, image and likeness in commercial endorsement deals. The judge who entered the ruling called it awkward, but its an interesting look at the interplay between non-compete clauses and the transfer of name, image and likeness rights. We are going to discuss this case on this installment of the briefing by the IP law blog. Scott: In 2007, Jack Nicklaus and GBI Investors, a company owned and controlled by Jack Nicklaus, entered into an agreement with Nicklaus Companies, LLC. a company formed by real estate magnate Howard Milstein, whereby for $145m Nicklaus Companies purchased certain assets of GBI which included substantial portfolio of trademark registrations and applications related to Mr. Nicklaus’ name and signature and “Golden Bear” nickname in the United States and various other countries around the world – more than 600 in the US and 50 other countries. Also included in the purchase was the exclusive right to the golf course design services rendered by GBI and marketing, promotional and branding businesses of GBI, which included the right to use Nicklaus’s name, image and likeness. The complaint alleges that Nicklaus Companies because the sole owner of and the rights to use all of the intellectual property related to Jack Nicklaus. GBI and Mr. Nicklaus became members of the Company, and Mr. Nicklaus became a manager. Josh: In 2017 Jack Nicklaus retired from his day to day involvement with Nicklaus Comp
S1 E99 · Fri, December 09, 2022
The Sneakerhead Breakup of the Century - Yeezy and Adidas
Adidas, which manufactures and sells the wildly popular “Yeezy” line of shoes in partnership with rapper Kanye West, recently terminated the relationship after anti-Semitic statements by the star. In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the trademark and contract issues that Adidas is navigating with shoe designs and future related designs. Watch the video here. Read the Adidas press release here . Show notes: Josh: Following its split from rapper Kanye West, Adidas has announced that it owns the designs formerly associated with the Yeezy mark. We will be discussing how and why that is possible on this installment of the Briefing by the IP Law Blog. Following a personal meltdown that included various antisemitic statements, Kanye West has been abandoned by a variety of his partners and representatives. Among those partners is Adidas, the company that makes and distributes his highly sought after Yeezy shoes. And when I say highly sought after, I mean that these shoes are nearly impossible to get for retail price. If you want a pair, unless you have a connection, you probably have to buy them on the aftermarket. Nonetheless, while the shoe represents a golden ticket for Adidas, Kanye West’s behavior left the company with no choice but to cut ties and move on. But this left a lot of people wondering, would Adidas continue to sell its holy grail of shoes? And more importantly, could Adidas continue to sell the shoes? Scott: That really comes down to a couple of issues. First, can Adidas continue to market shoes in connection with the Yeezy trademark, assuming that it wanted to? The answer to that question is no. That trademark is own
S1 E98 · Fri, December 02, 2022
Vogue Sues 21 Savage and Drake Over Imitation Vogue Cover Marketing Campaign
Vogue Magazine is suing 21 Savage and Drake after they created mock Vogue Magazines to market their new album. Scott Hervey and Josh Escovedo discuss the dispute on this episode of The Briefing by the IP Law Blog . Watch this episode here . Show Notes: Josh: Conde Nast, the publisher of Vogue magazine, filed a Complaint against Drake and 21 Savage in the United States District Court for the Southern District of New York, alleging claims under the Lanham Act concerning Drake and 21 Savage’s promotion of their recent collaboration album Her Loss, which was released on November 4. In the Complaint, Conde Nast alleges that Drake and 21 Savage ran a deceptive campaign and utilized Vogue’s reputation by creating fake Vogue magazine covers to promote the album. According to the Complaint, they even thank editor-in-chief Anna Wintour for her support. Scott: The complaint also includes allegations that Drake and 21 Savage misled the public into thinking the fictitious Vogue covers were from a real issue that would have been released on October 31. Conde Nast has been clear that none of this promotion was authorized by the company, especially not the alleged distribution of copies throughout North America, or the placement of so-called counterfeit covers along streets and buildings in various cities. The Complaint also takes issues with the fact that Drake and 21 Savage have posted similar content to more than 135 million social media followers. Josh: One of Drake’s posts featuring the faux Vogue ad included a caption that states, “Me and my brother on newsstands tomorrow!! Thanks, @voguemagazine and Anna Wintour for the love and support on this historic moment. ‘Her Loss’ Nov. 4 th .” Conde Nast was obviously displeased since it has been using the mark in commerce since at least 1892, and in connec
S1 E96 · Wed, November 23, 2022
Law Firm's Suit Against Namesake Provides Two Important Trademark Lessons
A law firm has filed a trademark infringement lawsuit against its namesake. Scott Hervey and Josh Escovedo discuss this case in this installment of The Briefing by the IP Law Blog . Watch this episode here . Show Notes: Scott: Lewis Brisbois Bisgaard & Smith, LLP is suing Lewis Brisbois Bisgaard & Smith, LLP in a Texas federal court for trademark infringement. No, this is not law firm schizophrenia. But it is a weird case that may exemplify the strength of common law trademark rights. Scott: Lewis Brisbois Bisgaard & Smith is a well-regarded national law firm with 1,600 lawyers across many states, including Texas. Since 2002 Lewis Brisbois has operated under the business name Lewis Brisbois Bisgaard & Smith, and since 2009 the law firm has operated an office in Texas. The firm also owned a registered trademark for Lewis Brisbois Bisgaard & Smith, but apparently, that trademark registration went abandoned in 2020. This fact is a plot point later on in our story. Josh: So who is this other Lewis Brisbois Bisgaard & Smith. Scott: Yes, it’s time for this weird twist. Michael Bitgood and Richard JonesMay 26, 2022, Bitgood filed a registration for a domestic limited liability partnership, “Lewis Brisbois Bisgaard & Smith, LLP” in the Office of the Secretary of State of Texas. Bitgood listed the services as mediation and related services. They then filed an assumed name certificate in the Office of the Secretary of State identifying the Bitgood Entity’s assumed name as “Lewis Brisbois Bisgaard & Smith.” I am sure you are asking why would Bigtood and Jones do this. Well, it seems that the law firm represented some third parties to defend an unrelated case where the plaintiffs were Bitgood and Jones. After Bitgood and Jones formed their entity, they amended the complaint an
S1 E95 · Fri, November 18, 2022
Cardi B Makes Money Moves with the Jury and Prevails in IP Trial
Cardi B was cleared of liability in an action alleging that she misappropriated a man’s likeness by using his unique back tattoo on the cover of her 2016 mixtape. Scott Hervey and Josh Escovedo discuss this in this installment of The Briefing by the IP Law Blog. Watch this episode here . Show Notes: Josh: Rap star Cardi B has been cleared of liability by a California jury in the Central District in the action alleging that she misappropriated a man’s likeness by using his unique back tattoo on the cover of her 2016 mixtape. That’s what we’ll be discussing on this installment of The Briefing by the IP Law Blog. Josh: On October 21, 2022, a federal court jury found Cardi B was not liable for misappropriation of a man’s likeness by using his back tattoo on the cover of her 2016 Gangsta Bitch Music Vol. 1 mixtape to make it look as if he were performing a sex act on Cardi. This all began in 2017, when Kevin Michael Brophy, a tattoo model and marketing manager for surf and skate company RVCA, filed suit against Cardi over the aforementioned mixtape cover after sending a cease-and-desist letter that went unanswered. According to Brophy, the tiger and serpent tattoo on the model on the cover resembles his own and constitutes a misappropriation of his likeness under Civil Code section 3344 and false light invasion of privacy. Brophy claims that he was angry because “It looks like I’m giving oral sex to somebody that’s not my wife, or somebody that’s not my partner, and an image that I never signed off on, ever. Being a father of two and a devoted husband and a man of faith as well, this goes against everything that I stand ford, and I would never ever sign off on something like this.” Scott: Brophy claims that he suffered shame, embarrassment, and humiliation after learning that portions of his tiger back tattoo had been
S1 E94 · Thu, November 10, 2022
Hermes Tries to Bag Digital Designer Selling MetaBirkin NFTs
Hermès is suing an artist for trademark infringement over his series of digital artworks called MetaBirkins. Scott Hervey and Josh Escovedo discuss the case on this episode of The Briefing by the IP Law Blog . Watch this episode on the Weintraub YouTube channel here .
S1 E93 · Fri, November 04, 2022
NBA Star Luka Doncic Goes Hard in the Paint and Seeks to Cancel Mom's Trademark(Part 2)
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss developments in the trademark dispute between NBA star Luka Doncic and his mother. Watch this episode here .
S1 E92 · Fri, October 28, 2022
NBA Star Luka Doncic Goes Hard in the Paint and Seeks to Cancel Mom's Trademark (Part 1)
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark dispute between NBA Star Luka Doncic and his mother. Watch this episode here .
S1 E91 · Fri, October 21, 2022
Tattoo Artist Copyright Win Will Create Uncertainty Over Celebrities with Tattoos
As Scott Hervey previously wrote on the IP Law Blog, a tattoo artist won a copyright lawsuit against a video game publisher for showcasing an athlete with their tattoo design in a game. Scott and Josh Escovedo discuss the case on this episode of The Briefin g. Watch this episode here . Read Scott’s article here . Show Notes: Scott: A jury in the district court for the southern district of Illinois in the case of Alexander v. Take-Two Interactive Software found that the depiction of tattoos on wrestler Randy Orton in a video game published by Take Two Interactive infringed the tattoo artist’s copyright in the tattoos. I think the trial court, and the court of appeals that rejected Take Two’s defenses- defenses that won the day in the US District Court for the Southern District of NY in Solid Oak Sketches v 2k Games-got it all wrong and this decision could have wide-ranging implications. We are going to talk about this on the next installment of the briefing by the IP law blog. Scott: So here is the history of this case. Tattoo artist Catherine Alexander sued Take-Two and 2K Games in the U.S. District Court for the Southern District of Illinois for depicting World Wrestling Entertainment wrestler Randy Orton in the video game WWE 2K. On a motion for summary judgment, Take 2 made the same arguments that garnered it a win previously Solid Oak Sketches v 2k Games – (1) Take-Two’s use of the tattoos was authorized by an implied license, (2) the fair use doctrine insulates their utilization of the tattoos and (3) the tattoos constitute a de minimis part of WWE 2K Josh: Alexander testified in 2009, Alexander contacted WWE’s legal department to negotiate about a possible faux slee
S1 E90 · Sun, October 16, 2022
Titania v. She-Hulk: Trademark Infringement in the Marvel Universe
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a recent episode of Marvel’s “She-Hulk: Attorney at Law” and the accuracy of a trademark infringement case featured on the show. Watch this video here . Show Notes: Josh: The last few weeks, every Thursday night in my household, we sit down to watch the latest episode of She-Hulk on Disney+. Full disclosure, we consume every bit of content that the Marvel cinematic universe puts out. I have been waiting a few months for the release of She-Hulk though, since the main character Jennifer Walters is an attorney and a graduate of UCLA School of Law, not unlike myself. But what I didn’t expect was for the content of a particular episode to become my choice of topic for this program. A few weeks ago, at the end of that week’s episode of She-Hulk, Jennifer Walters was served with a complaint by a process server at her home, and when she removed the pleading from its folder, Walters learns that she had been sued by an influencer from an earlier episode for trademark infringement. As you can imagine, at that point, I could not wait for the next episode of the show. Scott: Although we are obviously big fans of intellectual property, it isn’t often that a trademark dispute is at the center of a movie or television shows or plot. This instance in particular was unique because it constituted the focal point of the entire episode and walked the viewers through an abridged version of the process. Josh: The next episode picked up exactly where the prior episode had left off, with Walters being in possession of the recently served complaint. She went to her full-service law firm and retained an attorney who specialized in trademark litigation. At first, I was little put off by a co
S1 E89 · Fri, October 07, 2022
The Briefing by the IP Law Blog: Defamation by Docudrama - Inventing Anna
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a defamation dispute between Rachel Williams – a victim of con artist Anna Sorokin – and Netflix, over her portrayal in the docudrama “Inventing Anna.” Watch this episode here . Show Notes: Scott: Netflix finds itself mired in yet another defamation and false light lawsuit, this one brought on by its portrayal of Rachel Williams, the Vanity Fair photo editor who’s friendship with Anna Delvey – who passed herself off as German heiress Anna Sorokin. Williams’ complaint raises some interesting questions about the portrayal of Williams in the program. We are going to discuss this lawsuit on the next installment of the Briefing by the IP Law Blog Scott: Rachel Williiams does not come across well in the Netlix program, Inventing Anna. Rather, she comes across as a privileged, freeloader, who sponges off of Sorokin and then abandones Sorkin when Sorkin’s real situation comes to life. So, let’s talk about what Williams will have to establish in order to move her claim forward. Josh: Williams. brings claims for defamation and false light. For her defamation claim Williams will have to establish: that the statements were defamatory; that the statements were published to third parties; that the statements were false; and that it was reasonably understood by the third parties that the statements were of and about herf. Since Williams is a public figure – she published a story in Vanity Fair and a book about her experiences with Sorkin – she must also prove by “clear and convincing evidence” the statement was made with “actual malice” meaning that the defendant knew the statement was false, or had serious doubts about the truth of the statement. In most states, libel is defined similarly. Scott: A false light claim is a type of in
S1 E88 · Fri, September 30, 2022
The Essential Purpose of the Short Form Copyright Assignment (Archive)
In this archive episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo explain the importance of short-form copyright assignment agreements. Read more about this topic here .
S1 E87 · Fri, September 23, 2022
Paramount is Ready to Dogfight in Top Gun Maverick Copyright Lawsuit
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss Paramount’s motion to dismiss a copyright infringement lawsuit relating to ‘Top Gun: Maverick.’ Watch this episode here . Show Notes: Scott: Paramount came into the Top Gun Maverick copyright lawsuit guns hot by filing a motion to dismiss claiming that the sequel to the 1986 motion picture, Top Gun, does not infringe the copyright in Ehud Yonay’s magazine article. We are going to talk about this… Scott: In May 1983, California magazine published the article Top Guns, by EHUD YONAY. This article was an inside look at the real Navy Fighter Weapons School Top Gun based out of Miramar California. The article begins with a vivid description of two Top Gun F14 Tomcat avaitors, Yogi and Possum, on a hop, simulated dog fight training, against Top Gun instructors then continues with a deep dive into what makes Yogi and Possum (and other fighter pilots) tick, a look at the Top Gun training regimen, life on base and the history of Top Gun. When the article was published, it was optioned and in the credits for Top Gun Yonay is credited on the original movie as a writer of the magazine article Josh: On January 23, 2018, the Yonays properly availed themselves of their right to recover the copyright to the Story under the sent Paramount a statutory notice of termination under Copyright Act, and then filed it with the Copyright Office.As we have discussed previously on this program, Section 203 of the Copyright Act permits authors (or, if the authors are not alive, their surviving spouses, children or grandchildren, or executors, administrators, personal representatives or trustees) to terminate grants of copyright assignments and licenses
S1 E86 · Fri, September 16, 2022
Evil Knievel IP Lawsuit Against Disney Crashes and Burns
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo provide an update on the IP dispute between the heirs of Evel Knievel and Disney, over claims of similarities between the late daredevil and the “Toy Story 4” character Duke Caboom. Watch this episode here . Show Notes: Josh The Ninth Circuit refused to revive a lawsuit filed by Evel Knievel’s son alleging that Disney infringed his company’s intellectual property and publicity rights associated with Evel Knievel by creating the Canadian stuntman character Duke Caboom in Toy Story 4. That’s what we’ll discussing on this installment of the briefing by the IP law blog. Josh In October 2021, Evel Knievel’s son, through his company K and K Promotions, Inc., filed suit against Disney claiming that Disney’s creation of the Toy Story 4 character Duke Caboom, a Canadian motorcycle stuntman, infringed the company’s IP and publicity rights related to Evel Knievel. The District Court dismissed the matter in response to a motion to dismiss, finding that the challenged product is an expressive work under Rogers v. Grimaldi, and that Duke Caboom clearly has artistic relevance and was not explicitly misleading. Scott But Knievel’s son was obviously displeased with this ruling, and so he appealed to the Ninth Circuit, hoping the appellate court would revive his case. Much to his chagrin, he learned that he does not have a friend in the Ninth Circuit. Josh I think that’s fair statement, Scott. The Ninth Circuit essentially echoed the District Court and found that the Rogers test applied to the case, that Caboom did have artistic relevance, and that K&K did not alleged sufficient facts to show that the character was explicitly misleading as to its source. The Ninth Circuit stated that the “explicitly mislead
S1 E85 · Fri, September 09, 2022
Mattel Isn't Toying Around About Nicki Minaj Barbie-Que Chips
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a Trademark dispute between toy maker Mattel and Rap Snacks after the snack company launched ‘Barbie-Que Chips’ in collaboration with rapper Nicki Minaj. Watch this episode here . Show Notes: Josh: The toy maker Mattel has filed an action against Rap Snacks in the United States District Court for the Central District of California for trademark infringement. Specifically, Mattel claims that Rap Snacks’ potato chip collaboration with rapper Nicki Minaj infringed its BARBIE trademark. A couple months ago, Rap Snacks announced that it would collaborate with Minaj on a new chip flavor known as “Barbie-Que Honey Truffle Potato Chips,” a play on Minaj’s Barbie nickname. Mattel was not amused. In fact, the Complaint states that “Not only does the name of Rap Snacks’ product packaging wholly incorporate Mattel’s Barbie trademark, but the logo is confusingly similar to the current Barbie logo.” Scott: And Mattel’s frustration with the situation was surely inflamed by Rap Snacks’ extensive marketing campaign, which included NYC billboards, giveaways at music festivals, an article in People magazine, and social media posts on FB, IG, and TikTok. Josh: Mattel is likely bothered because of its efforts to expand its franchise beyond toys. For example, Mattel has created Barbie-branded snack food items, including pasta, candy, cookies, drinks, and other snacks. According to Mattel, this makes Rap Snacks’ alleged infringing use of BARBIE even more confusing. Scott: According to Mattel, its Barbie brand has been one of the world’s most well-known and recognizable brands for decades. For that reason, Mattel claims that Rap Snacks has improperly benefitted from the goodwill associated
S1 E84 · Fri, September 02, 2022
Fox Wins Another Copyright Lawsuit Over 'Empire' Character
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss an author’s copyright lawsuit against Fox and the producers of ‘Empire,’ alleging one of the show’s characters was inspired by her biography. Watch this episode here .
S1 E83 · Fri, August 26, 2022
Miami Dolphins Coach Gets Sacked on Motion to Dismiss
In this episode of T he Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright infringement dispute between a sports psychologist and Miami Dolphins defensive back coach Gerald Alexander. Watch this episode here .
S1 E82 · Fri, August 19, 2022
Unofficial Bridgerton Musical - Fair Use or Infringing Fan Fiction
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss an intellectual property dispute between Netflix and two digital content creators who wrote a musical inspired by the hit Netflix series, Bridgerton. Watch this episode on the Weintraub YouTube channel, here .
S1 E81 · Fri, August 12, 2022
NY Court Catches Bieber Fever, Denying RHODE NYC's Motion for Preliminary Injunction
In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a Trademark Infringement Lawsuit filed by the clothing brand RHODE NYC against Hailey Beiber’s new skincare line RHODE. Watch this episode, here .
S1 E80 · Fri, August 05, 2022
Is the Server Test Ready for a Reboot?
In this episode of The Briefing by the IP Law Blog , Weintraub attorneys Scott Hervey and Josh Escovedo discuss the impact of Alexis Hunley, et al v. Instagram, LLC on copyright law, specifically on the Server Test. Considered one of the top copyright cases to watch, Hunley deals with the practice of “embedding” and its copyright implications. Watch the video of this episode here. Read Scott’s blog post about this case on The IP Law Blog .
S1 E79 · Fri, July 29, 2022
Seattle Space Needle Pokes at Local Coffee Shop's Logo
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark infringement dispute between the Seattle Space Needle and a local coffee shop over the cafe’s use of the Space needle’s image in its logo. Watch this episode on Weintraub’s YouTube channel, here .
S1 E78 · Fri, July 22, 2022
What Makes a Character Protectable Under Copyright
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright dispute between Carroll Shelby Licensing and the widow of the late filmmaker H. B. Halicki regarding copyright protection granted to Eleanor, a car featured in the 1974 film “Gone in 60 Seconds.” Watch this episode on the Weintraub YouTube channel, here .
S1 E77 · Fri, July 15, 2022
THE Ohio State University Registers "The" as a Trademark
In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss Ohio State University’s trademark registration for the word THE. Watch this episode on the Weintraub YouTube channel here .
S1 E76 · Fri, July 08, 2022
2nd Circuit to Determine if Rogers Test Fits Shoe Trade Dress Dispute Between MISCHF and Vans
In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a dispute between Vans and MSCHF, over MSCHF’s new sneaker line that contains “striking visual similarities” to Vans shoes and packaging. Watch this episode on the Weintraub YouTube channel, here .
S1 E75 · Fri, July 01, 2022
Update - Andy Warhol Foundation Urges Supreme Court to Reverse Fair Use Decision
In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo provide an update on the copyright dispute between a photographer and the Andy Warhol Foundation over several Warhol paintings that utilize the photographer’s images as source material. Watch this episode on the Weintraub YouTube channel, here .
S1 E74 · Fri, June 24, 2022
Top Gun Maverick - Right Into The Copyright Lawsuit Zone
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright dispute, in which the heirs of the author who inspired the movie “Top Gun” claim that the film’s sequel infringes on their copyright to the story. Watch this episode on the Weintraub YouTube channel, here .
S1 E73 · Fri, June 17, 2022
What The Settlement of Ratajkowski/Paparazzi Copyright Lawsuit Means For Fair Use
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo provide an update on the copyright infringement dispute between a paparazzo and Emily Ratajkowski, and discuss the settlement’s implications for Fair Use. Watch this episode on the Weintraub YouTube channel, here .
S1 E72 · Fri, June 10, 2022
Judge Throws a Flag on the Play in USFL IP Litigation
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo provide an update on the dispute between the original USFL and Fox, over the network’s attempt to revive the football league. Watch this episode on the Weintraub YouTube channel, here .
S1 E71 · Thu, June 02, 2022
The Supreme Court Grants Certiorari in Copyright Infringement Action Involving Warhol, Prince, and Goldsmith
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a photographer’s copyright infringement action against the Andy Warhol Foundation, over several Warhol paintings that utilize the photographer’s images as source material. Watch this episode on the Weintraub YouTube channel, here .
S1 E70 · Fri, May 27, 2022
Senator Hawley Targets Disney with So-Called Copyright Reform Bill
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss Senator Josh Hawley’s proposed copyright bill and its implications for the Walt Disney Company. Watch this episode on the Weintraub YouTube channel, here .
S1 E69 · Fri, May 20, 2022
An Idea Doesn't Have to be Novel to be Stolen (In California)
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss idea theft claims in California and whether the issue of novelty can be an element of the case. Watch this episode on the Weintraub YouTube channel, here .
S1 E68 · Fri, May 13, 2022
Jerry West Thinks His Portrayal in HBO's "Winning Time" is a Loser
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a dispute between Jerry West and HBO over his portrayal in the Lakers docudrama “Winning Time.” Watch this episode on the Weintraub YouTube channel, here .
S1 E67 · Fri, May 06, 2022
The Original USFL Throws a Flag at Fox's Attempted Revival of the United States Football League
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a dispute between the original USFL and Fox, over the network’s attempt to revive the football league. Watch this episode on the Weintraub YouTube channel, here .
S1 E66 · Fri, April 29, 2022
The Case of the Stolen Ampersand and the (Non)Protectability of Fonts
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss an intellectual property dispute between a typeface designer and Banana Republic, over the retailer’s use of a stylized ampersand design. Watch this episode on the Weintraub YouTube channel, here .
S1 E65 · Fri, April 22, 2022
SCOTUS Issues First IP Ruling of 2022 in Unicolors, Inc. v. H&M Hennes & Maurits, LP
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the Supreme Court’s first intellectual property ruling of 2022. Watch this episode on the Weintraub YouTube channel, here .
S1 E64 · Fri, April 15, 2022
March Madness Marketing Rebounds With a New Twist
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss how marketing practices changed for the March Madness tournament this year, and what that meant for athletes. Watch this episode on the Weintraub YouTube channel, here .
S1 E63 · Thu, April 07, 2022
Supreme Court Petitioned to Overturn 8th Circuit's Holding on Architectural Plans that Upends "Standard Marketing Practices" in Real Estate Industry
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the 8th Circuit’s opinion on copyright protection for architectural plans that could uphend “standard marketing practices” in Real Estate. Watch this episode on the Weintraub YouTube channel, here .
S1 E62 · Thu, March 31, 2022
Cookie Co's Motion to Dismiss Trademark Lawsuit by Restaurant Crumbles
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark dispute between a restaurant and a craft cookie maker, over the use of similar marks for cookies. Watch this episode on the Weintraub YouTube channel, here .
S1 E61 · Fri, March 25, 2022
Heirs of Evel Knievel Clearly Do Not Have a Friend in Disney
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedodiscuss a dispute between the heirs of Evel Knievel and Disney, over claims of similarities between the late daredevil and the “Toy Story 4” character Duke Caboom. Watch this episode on the Weintraub YouTube channel, here.
S1 E60 · Thu, March 17, 2022
Hermès Attempts to Bag Digital Creator Selling MetaBirkin NFTs
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a Trademark dispute between luxury retailer Hermès and a digital artist over his creation of Birkin Bag NFTs. Watch this episode on the Weintraub YouTube channel, here .
S1 E59 · Thu, March 10, 2022
Copyright Office Rejects Application for A.I. Created Art Work
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the U.S. Copyright Office’s refusal to register a copyright for a piece of artwork created by Artificial Intelligence. Watch this episode on the Weintraub YouTube channel, here .
S1 E58 · Thu, March 03, 2022
Nike Tries to Stomp Out StockX's Attempt to Sell NFTs of Nike Sneakers
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss Nike’s attempt to stop StockX from selling NFT’s of Nike sneakers. Watch this episode on the Weintraub YouTube channel, here .
S1 E57 · Thu, February 24, 2022
If a Photograph is Infringed But No One Sees it, is it Still Infringement?
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a photographer’s copyright infringement lawsuit against a travel website that stored his image on a webpage where it’s unlikely to be viewed by the public. Watch this episode on the Weintraub Youtube channel, here .
S1 E56 · Thu, February 17, 2022
More NFT Confusion: Art Collector Files Lawsuit to Establish Right to Turn Painting into NFT
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss an art collector’s attempt to turn a painting that was purchased into a series of NFTs, and the artist’s estate’s effort to stop it. Watch this episode on the Weintraub YouTube channel, here .
S1 E55 · Thu, February 10, 2022
Sponsored Post Lands Beauty Influencer in Trademark Infringement Lawsuit
In this episode of The Briefing from by IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark infringement lawsuit that was filed against a beauty influencer for a sponsored post she shared on social media. Watch this episode on the Weintraub YouTube channel, here .
S1 E54 · Thu, February 03, 2022
Federal Judge Holds Swiss Cheese Makers' Claim to Gruyere Full of Holes
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the exclusive right to control the use of Gruyere for cheeses in the U.S. Watch this episode on the Weintraub YouTube channel, here .
S1 E54 · Tue, February 01, 2022
Jack's Lawsuit Against FTX is Back in the Box
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo provide an update on the legal dispute between fast-food chain Jack in the Box and cryptocurrency exchange FTX. Watch this episode on the Weintraub YouTube channel, here .
S1 E53 · Thu, January 27, 2022
Copyright Cases to Watch in 2022
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo talk about copyright cases to look out for in 2022. Watch this episode on the Weintraub YouTube channel, here .
S1 E52 · Thu, January 20, 2022
Miami Dolphins Coach Plays Defense Against Sports Psychologist's Copyright Infringement Lawsuit
In this episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright dispute between a sports psychologist and a Miami Dolphins assistant coach. Watch this episode on the Weintraub YouTube Channel, here .
S1 E51 · Wed, January 12, 2022
YouTube Removes 150 Videos from Popular AniTuber's Channel
In this episode of The Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright dispute which led to the removal of three years worth of content from a popular anime YouTuber’s channel. Watch this episode on the Weintraub YouTube channel, here .
S1 E50 · Wed, January 05, 2022
Supreme Court Boots Australian Boot Maker's Appeal for Attempting to Use Ugg's Trademark
In this episode of The Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark dispute between UGG and an Australian shoemaker who attempted to sell a boot called “UGG”. Watch this episode on the Weintraub YouTube channel, here .
S1 E49 · Thu, December 30, 2021
Trouble in House of Gucci: Does the Family Have a Claim Following Release of New Film?
In this episode of The Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo say family members behind the fashion powerhouse Gucci may take legal action following the release of the film, House of Gucci. Watch this episode on the Weintraub Vimeo channel, here .
S1 E48 · Wed, December 22, 2021
Lord of The Rings Author's Estate Clings to its Precious Trademark, Blocking JRR Token
In this episode of The Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark dispute between the Lord of The Rings author’s estate and the cryptocurrency JRR Token. Watch this episode on the Weintraub YouTube channel, here .
S1 E47 · Thu, December 16, 2021
Say NFT Again - I Dare You: Miramax Sues Quentin Tarantino Over Plans to Sell "Pulp Fiction" NFT
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a legal dispute between Miramax and Quentin Tarantino, over his efforts to sell “Pulp Fiction” themed NFTs. Watch this episode on the Weintraub YouTube channel, here .
S1 E46 · Fri, December 10, 2021
Cleveland Now Has Two Guardians: The Baseball Team and the Roller Derby Team Settle Their Case and Agree to Joint Use
In this episode of The Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss an update in the trademark legal battle between the Cleveland Guardians Baseball and Roller Derby teams. Watch the episode on the Weintraub YouTube channel, here .
S1 E45 · Fri, December 03, 2021
Jack in the Box Pops a Spring Over Mascot Trademark Dilution
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark dispute between Jack in the Box and cryptocurrency marketplace FTX. Jack in the Box claims that FTX’s new mascot is too similar to theirs. Watch this episode on the Weintraub YouTube channel, here .
S1 E44 · Wed, November 24, 2021
DMCA: The Right to Repair and More new Exemptions
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss the U.S. Copyright Office’s new exemptions to the DMCA. Watch this episode on the Weintraub YouTube channel, here.
S1 E43 · Thu, November 18, 2021
Embed at Your Own (Copyright) Risk
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright lawsuit against Buzzfeed over its practice of embedding images from social media pages into their website. Watch this episode on the Weintraub YouTube channel, here.
S1 E42 · Fri, November 12, 2021
Guardians of the Trademark: Cleveland Baseball Team and Cleveland Roller Derby Team Clash Over IP
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo discuss the latest developments in the trademark dispute between the Cleveland Guardians Baseball Company – formally the Cleveland Indians – and the Cleveland Roller Derby. You can watch this episode on the Weintraub YouTube channel, here .
S1 E41 · Fri, November 05, 2021
This Could Change Paparazzi Mood Forever - Update on the Ratajkowski / Paparazzi Copyright Lawsuit
In this episode of the Briefing from the IP Law Blog , Scott Hervey and Josh Escovedo provide an update on a copyright lawsuit against model Emily Ratajkowski, for sharing images taken of her by paparazzi on her social media accounts. Watch this episode on the Weintraub YouTube channel, here.
S1 E40 · Fri, October 29, 2021
A Spooky Copyright Decision for Producers of Friday the 13th Franchise
As Scott Hervey mentioned on the IP Law Blog , a much-anticipated copyright reversion case involving the slasher franchise, Friday the 13 th was decided. In this episode of the Briefing by the IP Law Blog, Scott and Josh Escovedo dive deeper into the lawsuit. Watch this episode on the Weintraub YouTube channel, here . Read more about the case on the IP Law Blog, here .
S1 E39 · Fri, October 22, 2021
Don’t Scream: Copyright Infringement Case Finds for “Scary Terry” Rozier
In this episode of the Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a copyright dispute between professional basketball player Terry Rozier III and holiday product manufacturer, Easter Unlimited, over his use of the iconic ghost mask from the horror film, “Scream.” Watch this episode on the Weintraub YouTube channel, here .
S1 E38 · Fri, October 15, 2021
Court Melts Ice Cube's Trademark Lawsuit against Robinhood + Update
This week on the Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a dispute between rapper Ice Cube and Robinhood over the trading app’s use of Ice Cube’s image in a newsletter. Watch this episode on the Weintraub YouTube channel, here .
S1 E37 · Thu, October 07, 2021
Naming Rights for LA Clippers Dome: FinTech Steps Intuit
This week on the Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the naming rights agreement between the Los Angeles Clippers and Intuit whereby the Clippers agreed to name their new $1.8 billion arena in Inglewood, California, the Intuit Dome. Watch this episode on the Weintraub YouTube channel, here .
S1 E36 · Thu, September 30, 2021
Keeping an Eye on Warby Parker Adwords Trademark Infringement Lawsuit
This week on The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a trademark infringement lawsuit filed by 1-800 Contacts that accuses Warby Parker of buying search-engine keywords for “1-800 Contacts” to misdirect customers to its competing online store. Watch this episode on the Weintraub YouTube channel, here .
S1 E35 · Thu, September 23, 2021
Could a Trademark Search Have Saved 'The Cleveland Indians' Botched Rebrand?
In this week’s episode of the Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the Cleveland Indian’s attempt to rebrand as the Cleveland Guardians, and the complications that arose surrounding the new trademark. Watch the episode on the Weintraub YouTube channel, here .
S1 E34 · Fri, September 17, 2021
San Diego Gulls' Wings Clipped in Dispute Over Logo Copyright
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss an intellectual property dispute between the San Diego Gulls Hockey Club and ECHL, Inc. Watch the full episode on the Weintraub YouTube channel, here .
S1 E33 · Thu, September 09, 2021
Could Netflix Be Liable in "When They See Us" Defamation Case?
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a defamation lawsuit filed by a former Manhattan prosecutor against Netflix over her portrayal in the “When They See Us” series. Watch the full episode on the Weintraub YouTube channel, here .
S1 E32 · Thu, September 02, 2021
Prince Estate Wants Winery's 'Purple Rain' Trademark Back in the Bottle
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss a legal dispute between the Prince estate and an Ohio-based winery over the rights to the trademark “Purple Rain.” Watch the video episode on the Weintraub YouTube channel, here .
S1 E31 · Thu, August 26, 2021
Dealmaking Pitfalls in NCAA’s New NIL Policy
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the NCAA’s recent policy change which allows college athletes to monetize their NIL, as well as potential downsides to the new policy. Watch the full episode on the Weintraub YouTube channel, here .
S1 E30 · Fri, August 20, 2021
NCAA Erects Challenge to ‘Vasectomy Mayhem’ Trademark
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the NCAA’s decision to petition a trademark held by a urology office due to its alleged likeness to its own trademarks, ‘March Mayhem’ and ‘March Madness.’ Watch the video version of this episode on Weintraub’s YouTube channel, here .
S1 E29 · Thu, August 12, 2021
Tattoos, Videogames, and Lawsuits: Who Owns the Copyright on Athletic Ink?
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss lawsuits over identifiable tattoos on professional athletes featured in video games, and who owns the copyright to body art. Watch the video version of this episode on the Weintraub YouTube channel here . Cases discussed: Solid Oak Sketches, LLC v. 2K Games, Inc. Alexander v. Take-Two Interactive Software, Inc. Bill Graham Archives v. Dorling Kindersley, Ltd. Darabont v. AMC Network Entm’t, LLC
S1 E28 · Fri, August 06, 2021
Dr. Seuss Sets Photon Torpedoes on Star Trek Mashup in 9th Circuit Appeal (Part Two, Trademark)
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the Ninth Circuit ruling on the trademark aspects of Dr. Seuss “mashups.” Watch the video version of this episode on the Weintraub YouTube channel here. Listen to part one of this topic here . Watch the video version of part one here . Cases discussed: Dr. Seuss Enterprises v. Penguin Books USA Dr. Seuss Enterprises v. Comic Mix LLC Mattel Inc. v. MCA Records Inc. VIP Products LLC v. Jack Daniels Properties Inc.
S1 E27 · Thu, August 05, 2021
Dr. Seuss Sets Photon Torpedoes on Star Trek Mashup in 9th Circuit Appeal (Part One, Copyright)
In this week’s episode of The Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the Ninth Circuit ruling on the copyright aspects of Dr. Seuss “Mashups.” Watch the video of this episode on the Weintraub YouTube channel here . Listen to part two of this topic here . Watch part two of this topic here . Cases discussed: Dr. Seuss Enterprises v. Penguin Books USA Dr. Seuss Enterprises v. Comic Mix LLC
S1 E26 · Fri, July 30, 2021
Don't Film So Close to Me: Can Copyrighted Music Keep Vids of Police Encounters Off The Internet?
In this week’s episode of the Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss recent news stories reporting that police officers played copyrighted music during filmed encounters, ostensibly to keep the videos from being uploaded to the Internet. Scott and Josh discuss how copyright law, the DMCA, and fair use apply to this tactic. Watch the video of this episode on the Weintraub YouTube channel, here . Scott’s article on this topic on the IP Law Blog can be read here . Case discussed: Lenz v. Universal Music Group
S1 E25 · Thu, July 29, 2021
Bonus Episode: IOC Gets Gold in Trademark Enforcement
In this bonus episode of the Briefing by the IP Law Blog , Scott Hervey and Josh Escovedo discuss the stringent trademark enforcement protection for Olympic symbols, words, and phrases as well as recent lawsuits that have reinforced that protection. Watch the video version of this episode on Weintraub’s YouTube channel, here . Lawsuits discussed: San Francisco Arts & Athletics, Inc. v United States Olympic Committee USOPC v Puma
S1 E24 · Fri, July 23, 2021
Space Erotica Flick Not Infringed by Black Mirror
This week on the Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss the copyright lawsuit over a Black Mirror episode starring Miley Cyrus, the plot of which filmmaker Geoffrey Blair Hajim said was lifted from his film Strange Frame: Love and Sax . Watch the episode on the Weintraub YouTube channel, here .
S1 E23 · Tue, July 13, 2021
Nike Threatens Fire & Brimstone Over Satanic Custom Shoe Maker
In this week’s episode of The Briefing by The IP Law Blog , attorneys Scott Hervey and Josh Escovedo discuss the trademark litigation between Nike and a custom shoe maker, MSCHF (pronounced “Mischief”). In Nike Inc. v MSCHF Product Studio, Inc . Nike sued MSCHF over unauthorized versions of the Nike Air Max 97 featuring satanic imagery. The shoes were tied into marketing by Rapper Lil Nas X, and all 666 pairs created by MSCHF were sold. View the video recording of this episode on the Weintraub Tobin YouTube channel, here .
S1 E22 · Fri, July 09, 2021
Andy Warhol Warhol's Prince Prints: Not Fair Use!? (Part Two)
In this week’s episode, attorneys Josh Escovedo and Scott Hervey discuss an update to the litigation over Andy Warhol’s series of portraits of the artist Prince ( Andy Warhol Foundation v Goldsmith ). They provide a recap of last week’s episode , which covers the Second Circuit decision in favor of Goldsmith, the photographer whose image Warhol used to create the Prince Portraits, and the holding that Warhol’s renditions were not transformative enough to be fair use. That decision overturned a lower court decision in favor of the Warhol Foundation. This week, Scott and Josh discuss the possible impact of the Supreme Court fair use decision in Google LLC v Oracle America, Inc ., including the Andy Warhol Foundation’s petition to the Second Circuit for review of the Goldsmith decision. Watch the video version of this episode on the Weintraub YouTube channel, here . Listen to part one of this topic, here . Watch part one of this topic, here .
S1 E21 · Tue, June 29, 2021
Andy Warhol Warhol's Prince Prints: Not Fair Use!? (Part One)
In this week’s episode, attorneys Josh Escovedo and Scott Hervey discuss the litigation over Andy Warhol’s series of portraits of the artist Prince ( Andy Warhol Foundation v Goldsmith ). Their discussion covers the Second Circuit decision in favor of Goldsmith, the photographer whose image Warhol used to create the Prince Portraits, and the holding that Warhol’s renditions were not transformative enough to be fair use. The decision overturned a lower court decision in favor of the Warhol Foundation. Production Note: This episode includes a discussion of the high-profile litigation between the artist Shepard Fairey and the Associated Press over Fairey’s iconic “Hope” poster of then-presidential candidate Barack Obama. Throughout the episode, Scott and Josh mispronounce Fairey’s last name as “Farley.” They offer apologies to listeners and to the artist. Watch a video version of this episode on the Weintraub YouTube channel, here . Listen to part two of this topic here . Watch part two of this topic here .
S1 E20 · Thu, June 24, 2021
What's In a Name: Clearing Titles for Film and Television
In this week’s episode, attorneys Scott Hervey and Josh Escovedo discuss the process of clearing titles for Film and Television shows. They discuss recent high-stakes litigation around entertainment titles, including Stouffer v. National Geographic Partners LLC, Jon Astor-White v. Daniel Strong (Empire), and the “Honey Badger” case. Watch this episode on YouTube here . Watch a previous episode of The Briefing by the IP Law Blog discussing the Empire litigation, here . Read an article Scott wrote on how the Empire litigation extended the permitted use of third-party trademarks on T he IP Law Blog , here . Read an article on The IP Law Blog about the “Honey Badger” case, here .
S1 E19 · Wed, June 09, 2021
Defamation Lawsuit Against Netflix Dropped; New York Protects Dead Celebrities
Scott Hervey and Josh Escovedo discuss two topics in this episode of The Briefing by the IP Law Blog . First, they talk about GEO Group’s defamation lawsuit against Netflix over the show “Messiah,” which was just dropped. Then, at 8:20, they move on to New York’s new post-mortem Right of Publicity law. Watch this episode on Weintraub Tobin’s YouTube channel . For more information on the New York statute, read Scott’s post on the IP Law Blog : I See Dead People…Filing Lawsuits in New York.
S1 E18 · Wed, March 10, 2021
SPIN Trademark Has Peloton Wrapped Around the Axel
In this episode of The Briefing by the IP Law Blog , Peloton petitions to establish that SPIN and SPINNING are generic terms and can’t be trademarked. Josh and Scott discuss Peloton bringing a case against Mad Dogg’s trademarks and how they are now generic. Watch this episode on YouTube, here . Read Scott Hervey’s article about the topic on the IP Law Blog.
S1 E17 · Fri, March 05, 2021
“Inspired By” Characters – Defamation Lawsuit As a Spinoff Part II
In this second of two episodes on this topic, Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss defamation lawsuits in movies and TV that deal with “Inspired by” characters. Watch this episode on Weintraub’s YouTube channel, here . Listen to part one of this series here . Read Scott Hervey’s blog post about this topic on the IP Law Blog .
S1 E16 · Fri, March 05, 2021
“Inspired By” Characters – Defamation Lawsuit As a Spinoff Part I
This episode is part one of a two-part series of The Briefing by the IP Law Blog in which Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss defamation lawsuits in movies and TV that deal with “Inspired by” characters. Watch this episode on Weintraub’s YouTube channel, here. Listen to part two of the series here . Watch part two of the series here . Read Scott Hervey’s blog post about this topic on the IP Law Blog .
S1 E15 · Fri, March 05, 2021
Celebrities Sued for Posting Images of Themselves
In this episode of The Briefing by the IP Law Blog, Scott and Josh discuss the possible legal issues celebrities face when they post images of themselves that they did not take. Watch this episode on Weintraub’s YouTube channel, here . Read Scott Hervey’s article about this topic on the IP Law Blog .
S1 E14 · Fri, March 05, 2021
Hard Cider Maker Can’t Whine About Trademark Opposition
In this episode of The Briefing by the IP Law Blog , Weintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss a recent decision by the Trademark Trial and Appeal Board involving winemaker Delicato Vineyards and a hard cider maker from Virginia. Delicato Vineyards, which owns the trademark GNARLEY HEAD for wine, opposed the registration of GNARLED ORCHARD for hard cider. Watch this episode on the Weintraub YouTube channel, here .
S1 E13 · Fri, March 05, 2021
The Ninth Circuit Affirms That Comic-Con isn't Generic
In this episode of The Briefing by the IP Law Blog , intellectual property attorney Scott Hervey talks with co-host Josh Escovedo about Josh’s article “ The Ninth Circuit Affirms Ruling that COMIC-CON isn’t Generic for Comic Conventions.” Watch this episode on Weintraub’s YouTube channel, here . Read Josh’s article on the IP Law Blog .
S1 E12 · Fri, March 05, 2021
9th Circuit Provides Clear Copyright Guidance for Producers of Bio Pics
In this episode of The Briefing by the IP Law Blog , Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss copyright litigation around the “ Jersey Boys ” — a musical and movie about The Four Seasons– involving an unpublished biography by one of the band members. Watch this episode on Weintraub’s YouTube channel, here .
S1 E11 · Thu, March 04, 2021
Navigating the Hazy Intersection of Cannabis Law & Trademarks
On this episode of The Briefing by the IP Law Blog , Weintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss Josh’s article “Navigating the Hazy Intersection of Federal and State Law on Cannabis and Advising Clients on Protecting Their Trademarks. ” Watch this episode on Weintraub’s YouTube channel, here . Read the full article on The IP Law Blog, here .
S1 E10 · Thu, March 04, 2021
The Essential Purpose of the Short Form Copyright Assignment
In this episode of T he Briefing by the IP Law Blog , W eintraub attorneys Scott Hervey and Josh Escovedo discuss Scott’s article covering the merits of filing a Short Form Copyright Assignment. Watch the video of this episode on the Weintraub YouTube channel, here . Read the full article on the IP Law Blog , here .
S1 E9 · Thu, March 04, 2021
Copyright Infringement: BuzzFeed just got Buzz Worthy
In this episode of The Briefing by the IP Law Blog , Weintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss Scott’s article on a copyright dispute between a photographer and Buzzfeed. Watch the episode on Weintraub’s YouTube channel, here . Read the full article on the IP Law Blog , here: “Second Circuit Frames Novel Issue of Photographer’s Claim of Copyright Infringement and DMCA Violation ”
S1 E7 · Mon, March 01, 2021
Empire Copyright Litigation
In this episode of The Briefing by the IP Law Blog , Weintraub attorneys Scott Hervey and Josh Escovedo discuss the copyright dispute over the TV show “ Empire ” Watch this episode on the Weintraub YouTube channel, here. Case discussed: Jon Astor-White v. Daniel Strong.
S1 E7 · Mon, March 01, 2021
COVID 19 Bill Stimulates the Economy and Changes in the Intellectual Property Law
In this episode of The Briefing by the IP Law Blog , co-hosts Scott Hervey and Josh Escovedo discuss the changes in intellectual property law stemming from the recently passed COVID-19 stimulus bill. Watch the episode on the Weintraub YouTube channel, here. Read a related article by Weintraub attorney Jessica Corpuz on the IP Law Blog.
S1 E6 · Mon, March 01, 2021
Twitch Under Fire From the Music Industry
In this episode of The Briefing by the IP Law Blog , Weintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss the streaming platform Twitch, which has found itself in the middle of a conflict regarding the use of music by live streamers on the platform. Watch this episode on the Weintraub YouTube channel, here .
S1 E5 · Fri, February 26, 2021
Federal Court Finds UGG is not Generic for Famous UGG Boots
In this episode of The Briefing by the IP Law Blog , Weintraub IP attorneys Scott Hervey and Josh Escovedo discuss a case involving the Australian boot company UGG. Watch this episode on the Weintraub YouTube channel, here .
S1 E4 · Fri, February 26, 2021
Sushi Restaurants Battle for Control over Hand Roll Trademark
Sushi Nozawa LLC, owner of the popular sushi destination Sugarfish, is challenging the HRB Experience LLC over use of the term “Hand Roll Bar.” In this episode of The Briefing by the IP Law Blog, attorneys Scott Hervey and Josh Escovedo discuss the lawsuit, including descriptive versus generic terms, secondary meaning, and the potential strategies of the parties. Watch this episode on the Weintraub YouTube channel, here.
S1 E3 · Fri, February 26, 2021
Trademark Infringement - Tiffany & Co. Versus Costco
In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss Tiffany & Co’s lawsuit against Costco for selling Tiffany-like rings and using the word Tiffany on nearby signage, claiming trademark infringement and unfair business practices. Watch the episode on Weintraub’s YouTube channel, here .
S1 E2 · Thu, February 11, 2021
Dogs, Whiskey, and Intellectual Property: Need I Say More?
In this episode of The Briefing by the IP Law Blog, Weintraub attorneys Scott Hervey and Josh Escovedo discuss Josh’s article for the IP Law Blog, “Dogs, Whiskey, and Intellectual Property: Need I Say More?” Jack Daniel’s Properties, Inc. has petitioned the Supreme Court of the United States for certiorari following an unfavorable ruling from the Ninth Circuit in the matter of VIP Products LLC v. Jack Daniel’s Properties, Inc . In that case, VIP Products sued Jack Daniel’s after receiving a cease-and-desist letter concerning its Bad Spaniels Silly Squeaker dog toy. The toy is intentionally similar to the famous Jack Daniel’s Old No. 7 whiskey bottle but is clearly intended to be a joke. Watch the episode on the Weintraub YouTube channel, here . Read the full article here .
S1 E1 · Thu, February 11, 2021
Let Russ Cook: An NFL-Sized Introduction to ITU Applications
In this episode of The Briefing by the IP Law Blog , Weintraub attorneys Scott Hervey and Josh Escovedo discuss NFL athlete Russell Wilson and ITU applications. Watch the episode on the Weintraub YouTube channel, here.
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