Posts in Entertainment Law

On January 26, CBS broadcast the 63rd Annual Grammy Awards, which celebrated America’s finest recording artists and songwriters. Drawing a global audience with performances by super stars such as Aerosmith, Blake Shelton, and Ariana Grande, the event highlighted the music industry’s talents, innovation, and extraordinary financial success. Yet, what keeps the music flowing in a thriving marketplace is the fair operation of the performing rights license marketplace made possible by vigilant antitrust enforcement. The Department of Justice, Antitrust Division (the Department) is currently reviewing the consent decrees between the federal government and two performance rights organization behemoths: ASCAP (American Society of Composers, Authors, and Publishers) and BMI (Broadcast Music, Inc.). While conducting periodic reviews of antitrust law is smart policy, altering or scrapping the music decrees would be a mistake.

The National Collegiate Athletic Association (NCAA) recently took a step toward letting student athletes “benefit” from use of their name, image, and likeness. The move comes after California Governor Gavin Newsom signed into law a Fair Pay to Play Act allowing collegiate athletes in the Golden State to accept endorsement deals once the law takes effect in January 2023. On Tuesday, October 29, the NCAA’s Board of Governors voted “unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image, and likeness in a manner consistent with the collegiate model.” The key phrase here is “in a manner consistent with the collegiate model,” which invokes the NCAA’s commitment to the nebulous tenet of “amateurism.” Pragmatically, this vote amounts to two things for student athletes. First, this process will not happen immediately: the Board set a deadline of January 2021 for changing the rules. Second, and most notably, the Board carefully refused to acknowledge or confirm that student athletes would actually be paid. In other words, this vote is merely a shuffle in the direction of college athlete compensation by way of their “right of publicity.”

This week in Other Barks & Bites: the U.S. Supreme Court hears oral arguments over copyright status of the Official Code of Georgia Annotated; the Federal Circuit remands Ericsson appeal to calculate release payment in patent license; Apple, Ford and others urge the USPTO to retain policy against injunctions on companies practicing SEPs; Huawei asks the Fifth Circuit to undo the FCC’s ban preventing it from supplying U.S. networks; Sergey Brin and Larry Page relinquish executive duties at Google; U.S. antitrust regulators explore Amazon’s cloud business; Washington politicians send letter to ALI over Copyright Restatement Effort concerns; and Qualcomm challenges Judge Koh’s class action certification at the Ninth Circuit.

This week in Other Barks & Bites: the Federal Circuit issues precedential decisions regarding its authority to remand to the PTAB, patent prosecution history estoppel and expert testimony on motivation to combine for obviousness findings; China nominates its choice for WIPO Director while pledging to reach “social satisfaction” on IP protections by 2025; INTA announces Ayala Deutsch as the organization’s new president; the USPTO seeks public comments on information collection related to national security concerns; the TTAB applies Federal Rules of Civil Procedure to discovery requests; Hewlett Packard shares drop after quarterly revenues fall short of analyst expectations; and the PTAB allows additional briefing in a case after the possibility of Administrative Procedure Act violations were raised by a patent owner.

This week in Other Barks & Bites: the Federal Circuit strikes down a district court’s finding of design patent infringement on summary judgment; the USPTO advises trademark attorneys to monitor filings to prevent against the unauthorized use of their names; the U.S. Copyright Office issues final rules eliminating options for physical material submissions for newspaper and serial registrations; the U.S. Supreme Court will take up Booking.com’s appeal of the rejection of its trademark application by the USPTO; AG Barr supports the FCC’s plan to restrict Huawei and ZTE equipment purchases through the Universal Service Fund; Nirvana’s copyright case against Marc Jacobs moves past a motion to dismiss; Biogen loses $3 billion in market value after PTAB hearing; and Amazon seeks an injunction against a patent owner asserting infringement claims against Amazon Fire product retailers.

This week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions on PTAB evidence admissibility and limitation in patent claim preamble; the Copyright Office says that its digital recordation pilot project is on track for Spring 2020; the PTAB Precedential Opinion Panel (POP) will review the Board’s rejection of substitute patent claims in a motion to amend; “This Is Spinal Tap” creators settle copyright suit; and T-Mobile announces December launch for nationwide 5G network.

Just two months after the end of her second copyright infringement lawsuit, fashion model Jelena Noura “Gigi” Hadid was sued for a third time, on September 13, for copyright infringement for posting paparazzi photos to her social media accounts without the license or permission of the photographer. Other celebrities, including Jennifer Lopez, Victoria Beckham and, most recently, Justin Bieber, have made news for the same situation. This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work.

This week in Other Barks & Bites: new patent collective for video technology launched; inventor rally to be held during live IPR hearing at AIPLA meeting; the White House indicates that the first phase of the U.S.-China trade deal will focus on IP; the USPTO shifts burden of proving patentability in PTAB motions to amend to the petitioner after Aqua Products; the House of Representatives passes the CASE Act in a 410-6 vote; the EU invalidates the three-dimensional trademark to the Rubik’s Cube; Power Integrations settles its patent infringement litigation against ON Semiconductor; Intel files an antitrust suit against SoftBank over patent acquisition and assertion activities; Amazon.com posts its first year-over-year earnings loss in more than two years; and the Federal Circuit overturns Google’s challenge to a Philips patent on appeal from the PTAB.

In my previous post, I explored how times have changed for photographers who once appeared to have the upper hand in copyright infringement disputes with appropriation artists and others. As discussed there, the high-water mark for photographers may have been several years ago, when the Associated Press used its leverage to reach a settlement with Richard Fairey regarding his Obama Hope poster. However, since then, photographers have suffered a series of losses, beginning in 2013 with Cariou v. Prince and continuing in 2018 with Rentmeester v. Nike, Inc. The most recent case to strike a blow against photographers is The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (S.D.N.Y. 2019).

This past week in Other Barks & Bites: the Federal Circuit issued precedential decisions affirming the invalidation of patent claims covering osteoarthritis treatments and a costs award to Facebook, but reversed the PTAB on a reasonable expectation of success finding; the U.S. Supreme Court issued orders denying certiorari to several intellectual property cases; North Korea acceded to the Geneva Act of WIPO’s Lisbon Agreement; the Dollywood theme park was hit with a copyright suit over use of the Peanuts’ “Christmas Time is Here”; Nokia announced 2,000 patent families declared as 5G SEPs; former CAFC Chief Judge Rader has called on China to move forward with promised pharmaceutical patent reforms; 2019’s third quarter showed growth in the global PC market; and the USPTO announced that it has met its patent application pendency goals as well as a new senior-level position for an AI expert.

The U.S. District Court for the Eastern District of Michigan, Southern Division, on September 9 granted Motions to Dismiss in favor of all defendants in a federal trademark infringement action brought by R&B band Ready for the World, Inc. (Ready for the World) against Melvin Riley, John Eaton, Daniel Dillman, Renee Atkins, and Jan Mark Land. Ready for the World brought us classic 1980s hits including “Oh, Sheila!” and “Love You Down”. Riley and Eaton are original band members, while Dillman works for a nonprofit that promoted a concert performed by Riley and Atkins and Land were alleged to be employed by Riley. In their Motions to Dismiss, Eaton and Riley argued lack of subject matter jurisdiction because Ready for the World did not plead a claim arising under the Lanham Act. Citing Derminer v. Kramer, they argued that they are co-owners of the Ready for the World trademark and thus cannot infringe upon the mark. The court agreed, and also granted the motions of Dillman, Atkins and Land.

This week in Other Barks & Bites: the Federal Circuit issued precedential decisions regarding secondary considerations of non-obviousness, limits to design patents and collateral estoppel of antitrust claims in patent cases; the CASE Act moved out of the House Judiciary Committee towards a floor vote; AIPLA reported increasing prices for trade secret and pharmaceutical patent lawsuits; the PTAB designated a pair of precedential decisions that limit IPR institutions; the DOJ identified two foreign nationals in GE Aviation trade secret case; LeBron James and Ohio State University lost their respective trademark bids; USPTO Director Iancu talked about balancing innovation and preventing hold-up in the SEP context; Google agreed to a $1 billion fine over European tax evasion; and the UKIPO reported lower patent application filing levels for 2018.

A hashtag is a useful way to promote your brand on social media platforms such as Twitter, Facebook, and Instagram. When the name of a brand, a tagline or catchphrase is hashtagged in a post, other users of the platform can find the hashtag easily by simply searching for that particular tag. It’s become an essential part of every brand’s social media marketing strategy. It can be used to attract new customers and engage with them. IP Australia updated the Australian Trade Marks Office Manual of Practice and Procedure in 2016 to include a definition for a hashtag and offers some guidelines for businesses to follow. It also lists examples of what could be seen as ambiguous cases, which you can look at to see if they could also relate to the eligibility of your brand.

This week in Other Barks & Bites: The Federal Circuit has asked USPTO Director Andrei Iancu to brief the appellate court on deference that should be paid to precedential PTAB opinions; China announced that it will create a credit rating mechanism for patent agents; Russ Slifer Op-Ed revives 101 debate; the FCC will approve the proposed T-Mobile/Sprint merger; amicus briefs filed at the Supreme Court support the abrogation of state sovereign immunity against copyright claims; Nintendo ramps up copyright campaign against YouTube accounts using video game music; Guns N’ Roses settles trademark dispute over craft beer brand; and copyright troll entity Malibu Media faces investor lawsuit.

Let’s face it, intellectual property (IP) litigation is a very expensive and risky endeavor. For the accused infringer, the prospect of going to trial means high legal fees and, even worse, a substantial disruption to the business. Even in cases where an accused infringer has viable defenses, leaving a ruling in the hands of the judge or jury is nothing more than a Las Vegas roll-of-the-dice. Whether through informal settlement discussions, mediation, or court-mandated settlement conference, IP defense litigators must arm their clients with a bevy of effective, business-minded settlement strategies. Settling does not have to mean capitulating and paying the other side an arbitrary sum of money to go away. Instead, think of ways to put your client’s available settlement dollars to work. Here are a few practical concepts to set your client on a viable settlement path.