News & Analysis as of

Transformativeness

Federal Circuit Invalidates Ameranth’s Menu Software Patents as Unpatentable Abstract Ideas

by Knobbe Martens on

The Federal Circuit’s recent decision in Apple, Inc. v. Ameranth, Inc. highlights the potential impact of characterization of recited features as conventional, routine, generic, or known in the field without further...more

USPTO's Patent Subject Matter Eligibility Roundtable on Dec. 5, 2015

by Fenwick & West LLP on

On December 5, 2016 the USPTO will hold its second Patent Subject Matter Eligibility Roundtable to discuss issues in patent eligibility. The USPTO published a list of eighteen questions in anticipation of the event, dealing...more

Gossip Cop Gets Cuffed For Copyright Infringement

by Dorsey & Whitney LLP on

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

Intellectual Property Bulletin - Fall 2015

by Fenwick & West LLP on

Judge Leval Illuminates Google Books Fair Use Issues - Second Circuit Affirms Summary Judgment for Defendant in Massive Copying Case - Based on the defense of fair use, the Second Circuit affirmed summary judgment...more

The Second Circuit Turns the Page on Plaintiffs’ Google Books Copyright Suit

by Reed Smith on

Another important copyright decision is in—this time from the Second Circuit Court of Appeals in Authors Guild v. Google, Inc. Plaintiffs—authors of copyright protected books—brought an action for infringement against Google,...more

Davis v. Electronic Arts: Another Right of Publicity Loss for Media Companies

by Nossaman LLP on

On January 6, 2015, Electronic Arts, Inc. (“EA”), maker of Madden NFL video games, lost its appeal to dismiss claims by approximately 6,000 retired professional football players in Michael Davis, et. al v. Electronic Arts,...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

Post-Alice Federal Circuit Finds Internet Advertising Method to Not Be Patent Eligible

by McDermott Will & Emery on

Citing the Supreme Court of the United States’ Spring 2014 decision in Alice Corp. v. CLS Bank, the U.S. Court of Appeals for the Federal Circuit reversed itself and concluded that a claimed method for distributing online...more

The Transformative Nature of The Fair Use Doctrine: The On-going Debate

by Nossaman LLP on

While the 7th Circuit, in Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (2014), affirmed a finding of fair use, the court’s analysis expresses skepticism about the approach used in Prince v. Cariou, 714 F.3d 694 (2013) and may...more

Litigation Alert: California Superior Court Finds Use of Likeness of Former Panamanian Dictator Manuel Noriega in Video Game...

by Fenwick & West LLP on

Manuel Noriega v. Activision Blizzard, Inc., No. BC 551747 (Cal Super. Ct. filed October 27, 2014) - In recent years, federal and state courts have wrestled with how to assess right of publicity claims in the video...more

Another Step in the Long March from Campbell v. Acuff-Rose toward Fair Use Free-for-All?

by BakerHostetler on

TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” This service allows subscribers to search keywords or...more

Seventh Circuit Criticizes Second Circuit's "Transformative Use" Approach to Fair Use

by Proskauer Rose LLP on

On September 15, 2014, the U.S. Court of Appeals for the Seventh Circuit issued a notable opinion on the relevance and importance of "transformative use" on the copyright fair use analysis. (Kienitz v. Sconnie Nation LLC, No....more

7th Circuit Confirms That “Sorry for Partying” Is Fair Use; Questions Transformative Use Test

by Foley & Lardner LLP on

In 1969, while a student at the University of Wisconsin-Madison, Paul Soglin was arrested at the first Mifflin Street Block Party, a student protest of the Vietnam War. Over forty years later when that same Paul Soglin (now...more

Publicity rights vs. the First Amendment

by Fenwick & West LLP on

The right of publicity continues to emerge as a significant intellectual property right of which businesses must be aware—not only in the context of advertising and marketing, but in the context of a company’s product itself....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

Fair Use Revisited – What’s Transformative?

by Foley & Lardner LLP on

Last month, photographer Peter Cariou petitioned the Supreme Court to overturn the Second Circuit ruling in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), a copyright infringement case, in which the Second Circuit held that...more

Advertising Law - Aug 29, 2013

Facebook Changes Its Promotion Guidelines - Sponsors can rejoice. Effective August 27, 2013, Facebook no longer requires that sweepstakes and contests be conducted on third party apps. By dispensing the apps...more

Leggo My Likeness, Part Four

There are so many fun things you can do with celebrities. In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cards; make movies about them using puppets;...more

Electronic Arts Takes One In The Kisser

For some time now, Electronic Arts–purveyor of sports video games–has been embroiled in disputes relating to using the likenesses of former college athletes without providing them appropriate remuneration. There has been the...more

Athletes’ Rights of Publicity Trump First Amendment in Video Game Context

In a recent 62-page decision by the Third Circuit, obviously intended to give guidance in an unclear area of the law, the rights of publicity of a college athlete in a video game trumped the First Amendment arguments of the...more

Advertising Law -- May 16, 2013

In This Issue: Linda Goldstein to Provide Insight on FTC’s Dot Com Dislosure Guidance at Upcoming Bloomberg BNA Webinar; “All Natural” False Ad Suits Continue, Stalled; Wake Up! FDA Considers Caffeinated Foods;...more

Second Circuit Decision Finds Transformative Use Does Not Require Comment

by Cohen & Gresser LLP on

On April 25, 2013, the Second Circuit issued its decision in Cariou v. Prince, agreeing with the artist Richard Prince and his gallery, Gagosian, that “the law does not require that a secondary use comment on the original...more

The Second Circuit Weighs in on Transformativeness in the Visual Arts

A year after hearing oral argument, the Second Circuit has issued its much anticipated decision in Cariou v. Prince on copyright fair use in the visual arts. ...more

Admissions of “Appropriation Artist” Not Fatal to Copyright Fair Use Defense

The first prong of the fair use defense in copyright infringement cases, the “purpose and character of the use,” is often described as an inquiry into whether the allegedly infringing work is “transformative.” In other words,...more

Yes Rasta! Appropriate Appropriation: Second Circuit Holds That Commentary on Original Work Unnecessary for Fair Use Defense, Only...

In Cariou v. Prince, No. 11-1197-cv (2d Cir. Apr. 25, 2013), an opinion with significant importance for the art world, the U.S. Court of Appeals for the Second Circuit clarified what is required for a defendant’s entitlement...more

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