News & Analysis as of

Fair Use

Update: Court finds transformative nature of alleged infringing work can’t be decided by side-by-side comparison

by Thompson Coburn LLP on

Adding an Instagram border and a few “gobbledygook” notations to an original photograph is not transformative as a matter of law. In an update to our post on a case filed last year, a federal court in New York recently denied...more

Trademark Fair Use: A Subjective Call No Matter What Side of the Pond

There are occasions where displaying another company’s trademark is desirable. Whether that type of trademark use is lawful generally is a subjective, fact-specific determination under both United States and European Union...more

The Grinch that stole fair use?

by Thompson Coburn LLP on

Since the Supreme Court’s 1994 Campbell v. Acuff-Rose Music landmark decision, courts have expanded fair use protection. While not a license to take liberally from another work, the fair use test has often tilted in favor of...more

Advertising Law - August 2017

U.K. to Ban Gender Stereotypes in Ads - Gender stereotypes in advertising will be banned as a result of new guidelines that will be promulgated by the main advertising regulators in the United Kingdom and go into effect in...more

Music Licensing Basics: How to Legally Use Someone’s Music in Your Business

by Knobbe Martens on

Introduction - •Music copyrights: –Musical works – sheet music and lyrics •Author is generally composer/lyricist and controls •Can be administered through a music publisher - Please see full Presentation below...more

Sultry Lady Liberty leads Postal Service astray

by Thompson Coburn LLP on

Beware sultry-looking ladies. That’s one of the lessons from the recent court decision sending a copyright case against the United States Postal Service to trial, but there are more. The decision can serve as a teaching...more

University's Infringing Reproductions Fall Short of Fair Dealing

by Bennett Jones LLP on

The fair dealing user right, as an exception to copyright infringement, has its limits. The fact that a use falls within an enumerated purpose under the Copyright Act is no guarantee of immunity from infringement. To avoid...more

The Ninth Circuit Writes the Script on Pleading and Proving Reverse Confusion Claims

by Fenwick & West LLP on

The U.S. Court of Appeals for the Ninth Circuit clarified the requirements for pleading and establishing a trademark infringement claim under a “reverse confusion” theory in Marketquest Group v. BIC, Case No. 15-55755 (9th...more

Welcome to the WIPO overview 3.0

by Hogan Lovells on

The World Intellectual Property Organization (WIPO) has recently updated its WIPO Overview of WIPO Panel Views on Selected UDRP Questions, the previous edition of which (WIPO Overview 2.0) was published in 2011....more

Social Links: SCOTUS strikes down law banning sex offenders from social media, denies cert in “dancing baby” case; Germany may...

The U.S. Supreme Court unanimously held that a North Carolina law that the state has used to prosecute more than 1,000 sex offenders for posting on social media is unconstitutional because it violates the First Amendment....more

Fair Use on The Loose For The Great Dr. Seuss!

by Dorsey & Whitney LLP on

You may remember, you may recall, A certain infringement suit filed last fall. It was filed by the heirs of the great Dr. Seuss, And now they’ve run smack dab into the doctrine of fair use....more

Top Ten Urban Legends of Intellectual Property

1. Poor Man’s patent/copyright: mail yourself a copy of what you want protected and don’t open it.The sealed information can then be used to prove ownership of the intellectual property contained in it. While this may...more

The Artist Formerly Known As…Warhol

by Dorsey & Whitney LLP on

Lynn Goldsmith is a professional photographer who rose to fame in the 1970’s for her portrait photography, especially for her work with musicians and other entertainers. Her work has appeared on over 100 album covers....more

Fair use blocks out copyright claim over LeBron’s tattoo

by Thompson Coburn LLP on

Courtside questions: Is it fair or foul to show a player’s tattoo in a video game? LeBron James is a talented individual: three-time NBA Champion; 13-time NBA All-Star. And he gave a more than respectable performance playing...more

A Steep Climb to Own a One Word Mark?

The grocery aisles are fertile grounds for my keyboard, as you know. And, while I’m generally far more interested in coffee grounds than tea leaves (unless we’re speaking of the iced variety or reading between the lines of...more

Third verse same as the first - Will Richard Prince’s transformation defense work yet again?

by Thompson Coburn LLP on

Take a copyrighted photograph of Sonic Youth bass player Kim Gordon, crop it, and add an Instagram border and a few words of text and emojis. Have you “transformed” it sufficiently to avoid copyright infringement? And is it...more

Annotations to Georgia’s Legal Code Are Protected By Copyright

by Reed Smith on

The state of Georgia and the Code Revision Commission achieved a victory when a federal court granted their motion for summary judgment, holding that Georgia’s “Official Code of Georgia Annotated” (OCGA) was protected by...more

Fair Use is Not Always Fair

Photographer TC Reiner sued Watkins Institute and its student Ryon Nishimori for copyright infringement when Nishimori incorporated one of Reiner’s copyrighted photographs into a mock advertisement for a classroom assignment...more

Lawsuits are the Inevitable Cost of YouTube Success

by Weintraub Tobin on

Whenever there is a report of a YouTube creator being sued for copyright infringement, the response from the creator and the community seems to be one of shock and surprise. The truth is, successful YouTube content creators...more

Transformative Use or Infringement

In Cariou v. Prince, 714 F3d 694 [106 USPQ2d 1497] (2d Cir. 2013), the Second Circuit said that a use of a copyrighted work need not comment on the original artist or work, or on popular culture, in order to constitute...more

Auction House Accused of Scraping Competitor’s Web Listings

Screen scraping is a problem that has vexed website owners since the early days of e-commerce – how to make valuable content available to users and customers, but prevent competitors from accessing such content for commercial...more

“Charging Bull” Sculptor Articulates VARA Complaint, But “Fearless Girl” Still Standing Firm

by Sullivan & Worcester on

After a recent discussion about whether the new Fearless Girl sculpture by Kristen Visbal in Lower Manhattan might implicate the copyright of the earlier Charging Bull sculpture that has been there for nearly three decades,...more

Yes—Copying Photographs from the Internet Can Get You into Trouble

by Bennett Jones LLP on

Although it happens all the time, reproducing photographs found on the internet for use in business is fraught with risk. Businesses should only copy images where there is clear permission to use them—or face a substantial...more

"Fearless Girl" Sculpture Near Wall Street Prompts Copyright Allegation That is More Bull than Bear

by Sullivan & Worcester on

The sudden appearance near Wall Street on March 8, 2017 of The Fearless Girl, a bronze life-sized depiction of a roughly ten-year old girl staring defiantly at the famous Charging Bull sculpture has prompted headlines...more

Do You Even Meme Bro? The Law of Internet Memes

by Gray Reed & McGraw on

You know you’ve chuckled at a few of them–the ubiquitous internet meme. But, have you ever wondered whether all this sharing, changing and going “viral” is legal....more

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