Intellectual Property Art, Entertainment & Sports Conflict of Laws

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Copyright and Trademark Case Review: Copyright Preemption, Software-as-a-Service and Popularity on the Internet

Copyright Decisions - Claim for Copying of Useful Article Design Preempted by Copyright Act: Ultraflo Corp. v. Pelican Tank Parts, Inc., No. 15-20084 (5th Cir. Jan. 11, 2017)...more

New York Court of Appeals Says No Common Law Public Performance Right For Pre-1972 Sound Recordings

On December 20, 2016, the New York Court of Appeals, the highest court in the state, held that no common law public performance right exists for pre-1972 sound recordings. The issue of whether a common law public performance...more

California District Court Puts Baby In A Corner

In the United States, federal laws take precedence over state law and common law causes of action where there is an overlap. This lesson was recently learned again in Lions Gate Entertainment Inc v TD Ameritrade Services...more

CBS Radio Remasters the Art of Not Paying Artists Royalties

Two years ago, a federal judge rocked the music industry in holding that pre-1972 recordings may be protected under state copyright laws and are protected by California copyright law. This holding, in a case brought against...more

‘The Autumn Wind’ and the Right of Publicity

As a child of the 60’s and 70’s and an insatiable NFL football fan, I can still hear the swaggering voice of narrator John Facenda in the now-iconic 1974 NFL Films production “The Autumn Wind,” which has been dubbed The...more

The Right of Publicity: How Much Control Do NFL Players Have Over Their Names?

How much control should athletes have over their names? Not an unlimited amount, according to one recent court ruling. Late last month, in Dryer v. National Football League, the Eighth Circuit denied an appeal by three...more

Central District of California Holds That the California Resale Royalty Act Is Preempted by Federal Copyright Law

As previously discussed on this blog, the validity of the California Resale Royalty Act (the “RRA,” Civil Code Section 986), a 1976 law that requires resellers of fine art to pay a royalty of 5 percent to the artists behind...more

California Resale Royalty Act Claims Dismissed as Preempted by Copyright Law, Despite 1980 Ninth Circuit Holding to the Contrary

Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in...more

NFL Players’ Right of Publicity Claims Denied - J. F. Dryer et al. v. The National Football League

The US Court of Appeals for the Eighth Circuit affirmed a district court summary judgment in favor of defendants, denying plaintiffs’ publicity rights claims in footage and interviews made by the defendants and finding that...more

Intellectual Property and Technology: Players’ Hail Mary Pass Incomplete: Copyright Trumps Right of Publicity in NFL Dispute...

Last month, the U.S. Court of Appeals for the Eighth Circuit stopped three former NFL players at the goal line when it rejected the players’ appeal in their likeness lawsuit against the NFL. The three former players,...more

Former NFL Players’ Right of Publicity Claims Get Sidelined—Will We Hear From The Replay Officials?   

In Dryer v. The National Football League, three former gridiron gladiators who played in the NFL had their claims for right of publicity under state law tossed out by the Eighth Circuit Court of Appeals. These three players...more

Eighth Circuit Tells Former NFL Players: Your Right Of Publicity Claims Are Preempted By The Copyright Act

The Eighth Circuit recently rejected three former NFL players’ appeal of a district court’s dismissal of their right of publicity claims, among other claims. John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White...more

8th Circuit Finds Copyright Act Preempts State Right Of Publicity Of Professional Athletes

In a recent case, Dryer v. Nat’l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016), former National Football League (“NFL”) players (the “Players”) sued the NFL over the use of their name, image, voice,...more

Litigation Alert: 8th Circuit Clarifies Reach of Copyright Act in Preempting Right of Publicity Claims

8th Circuit affirms summary judgment in favor of NFL on former NFL players’ right of publicity claim, finding the claim to be preempted by the Copyright Act. Courts around the country have long struggled to define and...more

Star Power Arrives in Marijuana Branding

Willie Nelson has “Willie’s Reserve“. Snoop Dogg has “Leafs By Snoop“. And rumor has it that Bob Marley’s heir’s will have their own brand out soon. As more states legalize medical and even recreational marijuana, brands and...more

Reality Check: Fantasy Sports Sites Facing Serious New Challenges

Fantasy sports, especially Daily fantasy sports (“DFS”), are big business in the United States. Two DFS sites in particular, FanDuel and DraftKings, are the most dominant players in this industry (they control 95% of the DFS...more

State Law Claims Suffer “Awfully Big Adventure”: New York Court Finds Federal Copyright Preemption in Dispute over Peter Pan...

On June 8, 2015, the New York County Supreme Court dismissed with prejudice eight of twelve state law claims brought by a producer seeking damages for the purportedly unauthorized use of his music in a world-wide production...more

Ninth Circuit Draws Fine Line Around Fine Art Resale Royalties

In a partial victory for artists such as Chuck Close and the Sam Francis Foundation—and for other visual artists who sold early works for rent money before establishing their name and value—the Ninth Circuit Court of Appeals...more

Second Circuit to Weigh In on Copyright Owner-Digital Broadcaster Dispute Over Pre-1972 Sound Recording Performance Rights

On April 15, 2015, the Second Circuit granted digital broadcaster Sirius XM Radio, Inc.'s (Sirius XM) petition for interlocutory appeal of U.S. District Judge Colleen McMahon's November 2014 ruling that New York state law...more

Court Finds Misappropriation Claims Arising From Licensing of Copyrighted Photographs Are Preempted

Judge André Birotte Jr. of the U.S. District Court for the Central District of California has dismissed a lawsuit brought by former college athletes alleging that the licensing of copyrighted photographs from their NCAA...more

NFL Films Ruling Blurs Right of Publicity

Earlier this year the Seventh Circuit stated that “there is no judicial consensus on how to resolve conflicts between intellectual-property rights and free-speech rights.” Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 514...more

Germany: Collecting society’s payout to publishers highly disputed

On 13 May 2014 the District Court of Berlin (16 O 75/13) rejected a claim brought by a songwriter and a composer against a collecting society’s payout to music publishers. The claim was directed at a declaratory judgment that...more

Nevada Gaming Commission NOTICE OF REQUEST FOR COMMENTS AND/OR LANGUAGE ON REGULATIONS CONCERNING INTERSTATE AGREEMENTS FOR...

Nevada Gaming Commission NOTICE OF REQUEST FOR COMMENTS AND/OR LANGUAGE ON REGULATIONS CONCERNING INTERSTATE AGREEMENTS FOR INTERACTIVE GAMING. --- Section 6 of Assembly Bill 114 from the 2013 Legislative Session...more

9th Circuit: California Idea-Submission Claims Not Preempted by Copyright Act

The 9th Circuit giveth and the 9th Circuit taketh away. Last year, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit breathed life into copyright preemption as a defense to idea-submission claims under...more

The Empire Strikes Back: Recent UK Decision Highlights Uncertainties in Protecting and Enforcing IP Rights Abroad

A recent UK decision highlights the difficulties in protecting and enforcing intellectual property rights outside the United States....more

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