Fair Use

News & Analysis as of

Copyrighting a Dream

This week we celebrated the life and legacy of Dr. Martin Luther King, Jr. Dr. King’s mission was to teach our nation the value of tolerance and mutual respect regardless of each person’s differences. These lessons still ring...more

Circuit Split Remains: SCOTUS Passes on Defining Nominative Fair Use

In a recent disappointment to those advocating clarity for the muddy waters of determining permissible use of third-party trademarks under the nominative fair use doctrine, the Justices of the United States Supreme Court...more

Boldly Going Where no Fanfic has Gone Before

Fanfiction refers to the art of creating fiction using another author’s characters or universe. I was first introduced to the concept in high school, when a friend began writing Harry Potter fanfiction. (Side note: this is...more

Does Louis Vuitton Lack A Sense Of Humor? The Parody Defense Is No Laughing Matter For Brand Owners

On December 22, 2016, the Second Circuit gave tote bag manufacturer My Other Bag an early Christmas present by tossing out luxury giant Louis Vuitton’s claims of trademark infringement, copyright infringement, and trademark...more

Of Klingons and Copyrights: Trekkie Fan Film Hits Fair Use Flameout

A Star-Trek fan-film is boldly headed to a jury trial to determine whether Axanar Productions—the company behind the fan-film—is liable for copyright infringement. Paramount Pictures and CBS Studios sued Axanar Productions...more

Does the Fair Use Exception Shield Ivanka Trump from Artists Who Want Nothing to Do with Her?

Much has been written about how the Trump family uses their name to market their own businesses, but the Trumps are equally gifted at trading on others’ notoriety to promote themselves and their businesses. Consider the...more

Louis Vuitton Left Holding the Bag

In Louis Vuitton Malletier S.A. v. My Other Bag, Inc., [16-241-cv] (December 22, 2016), the Second Circuit affirmed summary judgment for My Other Bag that its parody bag did not infringe or dilute Louis Vuitton’s trademark...more

Supreme Court Corner - Q4 2016

CASES WE ARE WATCHING Lenz v. Universal Music Corp. - COPYRIGHT – Cert. Pending ISSUE: Whether, in sending a takedown notice under the DMCA, the copyright holder’s “good faith belief” of copyright infringement may be...more

Phasers Set to Stun – Star Trek and Fan Film Producers Trade Copyright Shots

Fan films and fan fiction ordinarily don’t end up being the subject of a federal court lawsuit. Most fan fiction are creative expressions reflecting adoration of a series, film or character and the majority of copyright...more

Celebrity Brands: The Line Between Fair Use and Infringement

All brand owners are faced with difficult decisions regarding how aggressively to police their brands. The decision is particularly difficult when the unauthorized use is by a loyal customer or fan. While some traditional...more

Tiffany vs. Costco: Jury Awards Tiffany Substantial Damages for Costco’s Sale of Counterfeit Diamond Rings

In a highly publicized decision of over a year ago, Judge Swain of the U.S. District Court of the Southern District of New York ruled in favor of the luxury retailer Tiffany and Co., deciding that Costco Wholesale Corp., the...more

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

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

Tiffany Awarded $8.25M In Punitive Damages For Costco’s Sale Of Counterfeit Rings

On October 5, 2016, a Manhattan civil jury awarded Tiffany $8.25 million in punitive damages for Costco Wholesale Corp.’s sale of rings falsely identified as brand-name “Tiffany” rings. This ruling came on the heels of the...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

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