News & Analysis as of

Summary Judgment Fair Use

Fair use is never simple

by Thompson Coburn LLP on

To secure evidence for an anticipated lawsuit against TV host Dr. Phil McGraw, a producer for the show, Leah Rothman, recorded nine seconds of the show’s unaired archive footage onto her cellphone....more

Dr. Phil and His Texas-Sized Copyright Victory in the Lone Star State: Is This “EDTX 2.0” After TC Heartland?

by Dorsey & Whitney LLP on

And just like that, it was over. The U.S. Supreme Court’s decision in TC Heartland v. Kraft Foods Group sun-setted the reign of the U.S. District Court for the Eastern District of Texas as the country’s busiest (and arguably,...more

Summary Judgment “Disfavored” for Resolving Fair Use Trademark Defense

by McDermott Will & Emery on

Examining the issue of trademark fair use, the US Court of Appeals for the Ninth Circuit reversed a district court grant of summary judgment in favor of a promotional products company and remanded the case for reconsideration...more

A Bold Victory for Copyright Fair Use

Get your webcams ready: the reaction video genre got a huge shot in the arm from the Southern District of New York this week. h3h3 Productions, a popular YouTube channel with well over four million subscribers, has been...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

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

by Knobbe Martens on

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

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

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

by WilmerHale on

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

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

by McDermott Will & Emery on

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

Eight is Not Enough: Second Circuit Adopts Eleven Factor Nominative Fair Use Test in Certification Mark Case

International Information Systems Security Certification Consortium (known as ISC2) is a non-profit organization that owns a registered certification mark for the term CISSP® (meaning “Certified Information Systems...more

Second Circuit Highlights Splits on Nominative Trademark Fair Use

by Morgan Lewis on

The Second Circuit disagrees with sister circuits and rejects arguments that nominative fair use is an affirmative defense that is available even when confusion is likely and that the traditional nominative fair use analysis...more

Nominative Fair Use: The Second Circuit Joins Neither The Third Nor Ninth Circuits In Its Approach

In an important decision delineating the boundaries of fair use of another person’s trademark, the Second Circuit announced a standard by which nominative fair use of a trademark will be evaluated in that Circuit in...more

Judge Leval Illuminates Google Books Fair Use Issues Second Circuit Affirms Summary Judgment for Defendant in Massive Copying Case

by Fenwick & West LLP on

Based on the defense of fair use, the Second Circuit affirmed summary judgment for Google in the decade-long copyright battle between an authors group and the Internet search giant. The lawsuit concerned Google’s right to...more

Entertainment and Media Litigation Update - October 2015

The "Dancing Baby" Case—Ninth Circuit Rules That "Fair Use" Must First Be Considered Before Sending Takedown Notices Under the DMCA - Why it matters: On September 14, 2015, the Ninth Circuit ruled in Lenz v. Universal...more

Second Circuit Holds Google Library Project Is Fair Use

by Snell & Wilmer on

Since 2004, Google has scanned, converted to searchable text, and indexed over 20 million books for the Google Library Project.  In Authors Guild, Inc. v. Google, Inc., the Second Circuit held that such use is a fair use of...more

MoFo IP Newsletter - October 2015

by Morrison & Foerster LLP on

The Survey Says: Tiffany Is Not Generic for A Ring Setting - Last month, the Southern District of New York granted summary judgment to Tiffany & Co. on its trademark infringement claim against Costco Wholesale...more

Ninth Circuit: Copyright Holders Must Consider Fair Use Before Sending DMCA Takedown Notices

by Snell & Wilmer on

The Ninth Circuit held last week in Lenz v. Universal Music Corp. (the “dancing baby” case) that a copyright holder must consider fair use before sending a takedown notice under the Digital Millennium Copyright Act (DMCA)....more

Ninth Circuit Says Think Twice Before Sending That Takedown Notice Under DMCA: Be Sure You Have a Good Faith Belief It’s Not Fair...

The Digital Millennium Copyright Act (DMCA) requires copyright holders to consider fair use before sending a takedown notification, according to the U.S. Court of Appeals for the Ninth Circuit in Lenz v. Universal Music...more

Ninth Circuit Says “Let’s Go Crazy” On Fair Use of Prince Song In YouTube Video

n Lenz v. Universal Music Corp. et al, the Ninth Circuit held that the Digital Millennium Copyright Act (the “DMCA”) requires copyright holders to consider fair use before sending a takedown notice and that the failure to do...more

The Survey Says: TIFFANY Is Not Generic for a Ring Setting

by Morrison & Foerster LLP on

Last week, the Southern District of New York granted summary judgment to Tiffany & Co. on its trademark infringement claim against Costco Wholesale Corporation for selling rings advertised under the TIFFANY mark. Tiffany &...more

Transformative Use in the Seventh Circuit

by McDermott Will & Emery on

Kienitz v. Sconnie Nation LLC - The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s grant of summary judgment based on fair use, but cited different grounds than the district court and...more

Google Wins Summary Judgment in Books Case - Full Copying to Make Search Snippets Available to End-Users Held Fair Use

by Fenwick & West LLP on

Round one of the long-fought Google Books case has ended in a summary judgment victory for defendant Google. The Federal District Court for the Southern District of New York held yesterday that Google’s copying, use,...more

Intellectual Property Bulletin - Fall 2012

by Fenwick & West LLP on

In This Issue: - Court Declines to Dish Out Preliminary Injunction in Commercial-Skipping Case Despite Likelihood of Infringement - Free and Open-Source Software Diligence in Mergers, Acquisitions, and...more

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