Star Athletica and the Expansion of Useful Article Protection: Copyright Office Permits Registration of Automotive Floor Liner

The Supreme Court’s decision in Star Athletica v. Varsity Brands established a new and simplified test for determining whether useful articles can obtain copyright protection. Many have wondered, in the year since it was decided, about the practical effect of the ruling. Are there really that many items that would not have merited protection before Star Athletica, but that will get it now? … More

Watch: Copyright Basics for the Generalist In-House Counsel

What does the generalist in-house counsel need to know about copyright? While patents and trademarks often receive the lion’s share of an organization’s intellectual property focus, copyrights comprise a critical third prong to a healthy overarching IP strategy – even for companies whose products and services involve little or no content creation.

David KluftJoshua Jarvis, Jenevieve MaerkerMarion Cavalier and Nicole Kinsley presented a webinar offering guidance for in-house counsel regarding copyright law,… More

The Black Hole of Misappropriation: Astronaut’s Right of Publicity and Trademark Claims Survive Summary Judgment

Is astronaut David Scott more like fellow astronaut Buzz Aldrin or NASA pilot Chuck Yeager? Scott was the Commander of the Apollo 15 mission and the seventh person to walk on the moon, so the obvious answer is Aldrin. However, when it comes to the right of publicity, Scott has much more in common with Yeager, at least according to Judge Nathanael Cousins of the Northern District of California in Scott v.… More

Political Fair Use Argument Fails to Rescue Republicans from Copyright Claim

It’s been a while since we felt compelled to revisit the topic of political fair use, that is, the extent to which the use of copyrighted works in political campaigns qualifies as a fair use pursuant to 17 U.S.C. § 107.  Back in 2014, we discussed the Northern District of California’s holding that the use of a candidate’s photograph by her political enemies was fair use.… More

Oracle v. Google, Copyright & Fair Use: One of “Billions” of Summaries

Earlier this week, the Federal Circuit Court of Appeals released its blockbuster decision in Oracle America, Inc. v. Google LLC, which held that Google’s unauthorized use of certain aspects of Oracle’s Java software was not fair use. In the past few days and in the coming weeks, nearly every lawyer who has ever had occasion to turn to Title 17 is going be writing,… More

Port in Porto, Portugal: Wine And Geographical Indications At PTMG

I am in Porto, Portugal for the spring conference of the Pharmaceutical Trade Marks Group, and I have enjoyed learning a bit about port wine – and the associated geographical indication – while I am here.  Port, of course, is a sweet, heavy wine popular as an after-dinner drink, though it comes in various varieties, including a white version handy for mixing cocktails.  The essential quality of port arises from the process by which it is made,… More

“Party and Bull****” Copyright Plaintiff Serves Up Fair Use Defense With Political Critique

Here’s a tip for copyright owners.  Your infringement complaint is not a good place to make political distinctions between the purpose of your work and that of the defendant’s. See that buzz saw you are walking into? It’s called “fair use.”

That’s what happened to Abiodun Oyewole, founding member of The Last Poets (considered by some to be the first American hip-hop group).… More

Owner of Foreign Copyrights Must Plead Registration Exemption

What exactly is the definition of a “United States work” for copyright registration purposes? And why is a certain Albanian television company unlikely to forget that definition any time soon?

As we’ve previously discussed, plaintiffs must register their work with the Copyright Office before filing suit in a U.S. court. Section 411(a) of the Copyright Act, 17 U.S.C. § 411(a),… More

Creative Trademark Enforcement Part IV: Going “Olde” School

Over the past few years, we have seen numerous instances of companies protecting their trademarks in creative ways – approaches that leverage humor and the brands themselves in order to achieve an acceptable legal outcome while simultaneously promoting the company and its brands, thus minimizing the risk of public relations blowback. In this “Creative Trademark Enforcement” series of blog posts, I’ll be exploring some of the more interesting takes on this approach,… More

Multimillion Dollar “Moral Rights” Judgment for 5Pointz Graffiti Artists

It’s been a few years since we first wrote about the 5Pointz dispute, where graffiti artists first tried to prevent the destruction of their works by the owner of the spray-painted buildings, and then sought money damages for their destruction. Gerald Wolkoff, who initially allowed and encouraged the creation of the artwork on his buildings, is widely portrayed as the “bad guy” in this story. … More

President Ford Ascends Copyright Mount Rushmore

On past Presidents’ Days, we have discussed the critical roles in the development of U.S. copyright law played by Abraham Lincoln (who extended copyright protection to photographs) and George Washington (whose correspondence was at the center of the dispute that gave rise to the fair use doctrine). This year, it’s Gerald Ford’s turn to ascend to our Mount Rushmore of Copyright.… More

Meet The New Co-Chairs: Josh Jarvis & Natasha Reed

Congratulations to Trademark and Copyright Law Blog co-editor Natasha Reed and author Josh Jarvis on their appointment as Co-Chairs of Foley Hoag’s Trademark, Copyright & Unfair Competition practice group.  To celebrate their ascension, we asked them to interview each other about their practices, their histories, and their thoughts on trademark and copyright law.

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Natasha: First question!… More

The Shape Of My Heart: A Guide To Chocolate Shape Trademarks For Your Valentine

The past year has been an active one in the chocolate trademark wars, as confectionery giants attempt to use trademark law to protect the shapes of iconic candy products.  In the US, and in many other jurisdictions, companies can protect product shapes or configurations, but only if they are sufficiently distinctive that the design functions as an indicator of source.  Chocolatiers have had varying degrees of success in convincing trademark offices and courts that their confections have attained that status. … More

Watch: Brand Management for In-House Counsel

The Intersection of Trademarks, Advertising and Corporate Social Responsibility

Protecting the value of your corporate brand is a critical mission. As companies are increasingly asked to make disclosures regarding their efforts to address social and environmental risks, these disclosures create both opportunities and challenges for those entrusted with protecting a company’s intangible assets.

In this webinar, we explore the interrelationship between trademarks, false advertising and emerging compliance requirements in the field of corporate social responsibility (CSR).… More

From Runway To Replica: The Most Fashionable Intellectual Property Infringement Beefs Of 2017

New York Fashion Week (NYFW) 2018 kicks off on Thursday, February 8 through Friday, February 16, with a full schedule of exciting and exhilarating runway shows. This year’s designers include many of the usual faces, like Tom Ford, Ralph Lauren, and Jason Wu, to name a few. As usual, there is some controversy concerning designers that are notably missing from this year’s schedule, like Georgina Chapman’s label Marchesa.… More