Fair Use

News & Analysis as of

Is Coopting Graffiti's Street Cred a Fair Use?

Estate of Graffiti Artist Sues McDonald’s Over Fast-Food Décor - The estate of Dashiell “Dash” Snow, better known as graffiti artist “Secret Snow”—has sued McDonald’s over allegedly infringing use of Snow’s street art...more

“Who’s on First?” Routine in Broadway Play Strikes Out as Transformative Fair Use

The US Court of Appeals for the Second Circuit determined that a Broadway play’s verbatim use of William “Bud” Abbott and Lou Costello’s “Who’s on First?” comedy routine was not a transformative fair use, but nonetheless...more

It Is Not “Easy Like Sunday Morning” To Use Commodore As A Trademark

The band’s song “Easy” does not reflect Commodores’ founder Thomas McClary’s court battle to use the trademark “COMMODORES founder Thomas McClary” for his solo career. As I dug further into the meaning of the song, it is...more

You Just Used My Picture Without Permission?

Artist Richard Prince’s exhibit entitled “New Portraits’’ was displayed at New York City’s Gagosian Gallery and Frieze New York during the summer of 2015. This exhibit featured screenshots of other people’s Instagram photos....more

Copyright and Trademark Case Review: Who’s on First?, Virtual Lockers and Lanham Act Fee-Shifting

Copyright Opinions - Second Circuit Permits Distribution of Cloud-Based Samples, But Declines to Consider “Novel” Cloud Storage Infringement Issue: Smith v. Barnesandnoble.com, LLC, No. 15-3508 (2d Cir. October 6,...more

Puttin’ on the “Ritts”: Political Speech and Fair Use

Leaving aside the outcome of election day (and indeed I confess I wrote this before the polls closed), I couldn’t help but notice these ads in downtown Minneapolis...more

Second Circuit Finds Use of "Who's on First" Routine Not Transformative and Not Fair Use

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright...more

Losing Control of V

A common client question is: “Can I ‘get in trouble’ for copying a picture, drawing, or cartoon and pasting it into my report, PowerPoint, etc.?” Before you can answer, they try to answer their own question, adding “Everyone...more

Tiffany Prevails!

The title is not a reference to a win by me, but rather my namesake Tiffany and Company’s big win in the Southern District of New York....more

The Katten Kattwalk - Issue 11

The Katten Kattwalk discusses legal issues in the fashion industry affecting the trademarks, patents and copyrights associated with companies, brands and products. Please see full Newsletter below for more...more

TCA TV Corp. v. McCollum - USCA, Second Circuit, October 11, 2016

Second Circuit rejects fair use defense in copyright action brought by Abbott and Costello heirs for use of comic duo’s “Who’s On First?” routine in play “Hand to God,” but affirms dismissal on grounds that plaintiffs failed...more

Trick or Tweet? Team Trump Gets Sued Over Skittles Twitter Pic

Life may not be bowl of cherries for Mr. Trump’s presidential campaign these days. It’s more like a bowl of Skittles, as that is exactly what landed Team Trump in a copyright infringement suit filed in Chicago federal court...more

10 Copyright Cases Every Fan Fiction Writer Should Know About

If you are a Star Trek fan, the name Axanar has almost certainly crossed your lips or your computer screen recently. Axanar is a film (well, at least a very good trailer aspiring to be a film) set in the Star Trek universe,...more

Advanced Copyright Issues on the Internet

During recent years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet has moved from a quiet means of...more

Copyright At The Museum: Musings In Anticipation Of The IPO Dinner At The MOMA

As a fan of modern art, I am looking forward to the dinner reception at next week’s Annual Meeting of the Intellectual Property Owners Association (IPO), which will be held at New York’s Museum of Modern Art. As a member of...more

Legal Concerns for Social Media Influencers: Intellectual Property

Social media “influencers” – individuals who are powerful, popular and relevant enough to influence others within their online social sphere – generate ad dollars, product endorsement opportunities and other revenue streams...more

#RIO, #SUPERBOWL, #FAIRUSE?

It’s Olympics time! And while most of the news has been about Zika and the conditions on the ground in Rio, brand owners know this as a time when the U.S. Olympic Committee is on the warpath sending notices and cease and...more

Dancing Baby May Be Headed To Supreme Court

On August 12, 2016, the Electronic Frontier Foundation (“EFF”) petitioned the Supreme Court on behalf of its client, Stephanie Lenz, to reverse the Ninth Circuit’s decision in Lenz v. Universal Music Corp., 801 F.3d 1126...more

Ninth Circuit Retcons Its “Dancing Baby” Fair-Use Decision and Creates More Confusion

Apparently, George Lucas is not the only party in California who can edit his own work after release in order to change aspects he does not like. While perhaps not as culturally significant as changing “Star Wars: A New Hope”...more

Gossip Cop Gets Cuffed For Copyright Infringement

The U.S. District Court for the Southern District of New York recently found that Gossip Cop, a website that rates celebrity gossip on a scale of “real” to “rumor,” infringed the copyrights in three photographs of famous...more

Dancing Baby Waltzes Up to The Biggest Dance Floor in the Land

It’s not every day that SCOTUS is asked to review a case involving a video of a dancing baby. But that’s what happened late last week when the lawyers for Stephanie Lenz asked the Court to review the 9th Circuit’s decision...more

“Gossip Cop” Held To Willfully Infringe Copyrighted Photos

In BWP Media USA v. Gossip Cop Media, a case sure to bring cheer to paparazzi and tabloid publishers everywhere, a judge in the Southern District of New York has found after a bench trial that a gossip website willfully...more

Intellectual Property Law - July 2016

Supreme Court: Status Quo in Cuozzo - Why it matters: On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee, where it rejected challenges to the Patent Trial and Appeal Board (PTAB) inter partes...more

Campaign IP Violations Part 3 – Huckabee’s Campaign Pays Up

In December, we told you about Mike Huckabee’s campaign getting sued for copyright infringement for using “Eye of the Tiger” without permission at a rally supporting Kim Davis, the Tennessee clerk that refused to issue...more

Certification Mark May Be Infringed Despite Nominative Fair Use, Lack of Source Confusion

Addressing the use of a certification mark in connection with information systems training, the US Court of Appeals for the Second Circuit reversed and remanded a district court grant of summary judgment for the defendants on...more

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