An Act for the Encouragement of Learning - Copyright Law Then and Now

My latest contribution to San Francisco Attorney Magazine detailing the evolution of American copyright law: http://www.sfbar.org/forms/sfam/q32015/copyright-law-now-and-then.pdf . The piece concludes with a nice lead in to this week's Lenz v. Universal Music ruling (AKA: the Prince / Dancing Baby Case).  More on that here: http://www.lexology.com/library/detail.aspx?g=f2d102db-c028-4ea4-80e4-9b106d29f501

9th Circuit Reversal Holds the Line on Copyright and the First Amendment

While it may have been for all the wrong reasons - defending Youtube's right to continue posting the inflammatory anti-Islamic Innocence of Muslims - the 9th Circuit Court of Appeals made the right call in reversing an earlier decision finding that an injunction filed by actress Cindy Garcia was valid because her performance in the film (she appears for 5 seconds) was independently copyrightable.  Ms. Garcia's position was not enviable.  She claims her original lines were dubbed over with hateful speech, and that she had no knowledge of the film's intended message during shooting.  Upon release in 2012, she and other cast members began receiving death threats.  Still, upholding her injunction would have shaken the foundation of the entertainment industry, where the age-old norm holds that copyright ownership remains with the filmmaker, and is not divided amongst the actors and other creative contributors.  The new precedent set by the injunction would fly directly in the face of the Copyright Act's "work-for-hire" provisions, which is essentially what the court found in its rehearing.  A related dissent from one 9th Circuit Judge also highlights the troubling free speech implications of barring access to a film for over a year solely due to its content.  Read more here: http://www.wired.com/2015/05/court-ruling-stark-reminder-image-isnt/

Sloppy Trademark Applications: Even Katy Perry's Guilty!

It's rare to find too much comedy in the technicalities of the trademark application process, but leave it to The Onion A.V. Club to highlight the misadventures of an unassuming USPTO examiner and his run-in with America's favorite pop sensation...and her lawyers...up your game, fellas.

 

The Reality of Music Licensing: Cover Bands Beware!

An often controversial topic for music fans.  Providing that BMI speaks the truth about prolonged outreach to infringing venues, I think you have to take the perspective that many musicians are essentially small businesses too, and that orgs like BMI help them make ends meet.  See more here: http://kstp.com/article/stories/s3772041.shtml?utm_source=Linkedin_Domain_negotiation_article&utm_medium=Linkedin_Domain_negotiation_article&utm_campaign=Linkedin_Domain_negotiation_article

The Power of The Spoof and Other Reasons to Question the C&D Letter

Receiving a "Cease and Desist" letter claiming that your trademark is infringing or diluting an established brand can be an extremely unnerving experience.  Even more so when that letter has been sent by a Fortune 500 company.  The cynical purpose of such correspondence is to intimidate, to cause the recipient to scramble and abandon their mark.  Sometimes, this is a warranted and necessary enforcement of a company's brand.  But it is important to remember that the C&D is often a reflex tactic, employed without much consideration for the underlying legal authority.  As this article illustrates (http://www.nydailynews.com/new-york/n-entrepreneur-beats-saks-avenue-copyright-dogfight-article-1.1991023), it's best not to panic.  Contact an experienced IP attorney first to see where you stand.  Recent decisions suggest that even if the opposing party is looking to flaunt their legal war chest, they would be wise to think twice about the strength of their argument before lighting the litigation fuse.  More on that here: http://www.natlawreview.com/article/recovering-legal-fees-trademark-litigation-just-got-little-easier

With the Legalize It! Movement Comes Avoidable Legal Pitfalls

As the legal cannabis industry matures in Colorado and Washington, with propositions on several other states' ballots pending this November, what was once taboo is now big business.  But as the market emerges from the legal gray area of medical into commercial, so too comes a host of intellectual property concerns that cannabis start-ups must take into consideration.  What may have gone unnoticed when things remained under the radar, is now fair game for infringement actions.  The solution: proactive consultation, original branding, proper trademark searches and registration.  Read more here: http://www.thedenverchannel.com/news/local-news/hershey-settles-trademark-infringement-lawsuit-with-colorado-edible-pot-company10162014

Hollywood v. Silicon Valley: Can't We All Just Get Along?

Despite the money and power dynamics at play here, both industries likely stand to benefit from more mutual cooperation and integration, and less of things looking  "like watching tourists go cage-diving with sharks."  It would be exciting and lucrative to have a bit more of Hollywood on the Bay, and vice versa.  Read More: http://www.nytimes.com/2014/10/16/fashion/silicon-valley-stirs-up-hollywood.html?emc=edit_th_20141016&nl=todaysheadlines&nlid=39033930&_r=0

Trademark Dispute Wades in Irony

Once you're done laughing over the fact that an ethics consulting firm is suing over use of one of the most common words in the English language, the facts of this dispute touch on a number of crucial trademark considerations...not least of which may ultimately be when or when not to sue someone for infringement in the first place: http://www.nytimes.com/2014/10/06/business/chobani-and-dov-seidman-wrestle-over-use-of-how-trademark.html?emc=edit_th_20141006&nl=todaysheadlines&nlid=39033930&_r=0

 

Battle Over "Fair Use" Heats Up

Artists, Satirists, Copyright Lawyers and T-shirt Enthusiasts, take note of this recent development in the ongoing battle over what constitutes fair use.  The importance of the "transformative quality" of a person's work now starkly differs amongst the U.S. Circuit Courts.  How long will it be until SCOTUS addresses the rift?  Read more here: http://us.practicallaw.com/0-581-9123?source=linkedin