Tag Archives: First Amendment

“A Gronking To Remember” Plaintiffs Lose Right Of Publicity Appeal

For those of you in desperate need of Christmas present ideas for a New England Patriots fan, you can rest assured that your ironic backup option – a copy of the romance novel, A Gronking to Remember – is still available for sale. Truth be told, the self-published volume was not in serious danger of becoming unavailable, but the recent Sixth Circuit opinion in Roe v.… More

Trademark Case Too “Banal” To Justify Social Media Gag Order

Before the social media era really kicked into gear, I was representing a defendant in a defamation case who was being sued by a very wealthy plaintiff. Because of his charitable generosity, the plaintiff’s name was on everything in town (I’m not saying which town), including schools, buildings, bus stops and highway exit signs. There was even (I swear this is true) a statue of the plaintiff’s mother in the city park across from the courthouse.… More

Blogger-Journalist Protected From Defamation Suit By Anti-SLAPP Statute

Are journalists protected by anti-SLAPP statutes?  Until last week, the likely answer would have been: “probably not,” at least in Massachusetts.  But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the “SJC”). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation.… More

Charles Dickens And Copyright Law: Five Things You Should Know

One hundred and seventy five years ago, on January 22, 1842, Charles Dickens first set foot in America, specifically in Boston, after a twenty day steamship voyage from Liverpool. Dickens, only a few days shy of his thirtieth birthday, was already an acclaimed author, and was greeted with great adulation. However, the trip was soon ruined by, and was to become best-remembered for, Dickens’ ugly spat with the American press over the issue of international copyright.… More

Texas Film Commission Permitted to Slice and Dice Financial Incentives to Machete Films

MacheteIt’s been a disappointing few months for Machete, Danny Trejo’s “Mexploitation” character created by Robert Rodriguez.  After making powerful enemies in Mexico, former Federale Machete found himself a day laborer and vigilante in Texas. His adventures allowed him to exact some bloody satisfaction against fictional corrupt Texas lawmen and politicians, but he is having decidedly less success against the real-world Texas government. … More

The Twelve Res of Christmas: Yule-Themed IP Matters in 2015

It is often said Christmas is creeping ever-backwards, each year striving to begin its domination of our collective consciousness and consumer dollars at an earlier date. In the realm of litigation, Christmas creep manifests itself in part in the Yule-themed disputes that can occur at any time of the year, particularly in the areas of intellectual property and free speech. In order to get the Trademark and Copyright Law Blog into the holiday spirit,… More

Implied Threat on Facebook Insufficient to Support Stalking Conviction

FacebookLast month, the Massachusetts Supreme Judicial Court (SJC) held that a Facebook profile may constitute a “threat” within the meaning of the Massachusetts stalking statute. However, a profile that is merely “vaguely ominous or disturbing,” as was the case in Commonwealth v. Walters, is insufficient to support a conviction.


In 2006, Michael Walters and his girlfriend bought a house together in Seekonk,… More

Are You Sure This Isn’t About Copyright? Chicken Sandwiches, Monkey Selfies and the Boundaries of Copyright Law

CaptureLast week, a wild crested macaque named Naruto (but really People for the Ethical Treatment of Animals) filed a copyright infringement lawsuit against photographer David John Slater in the Northern District of California. The suit alleges that Slater infringed Naruto’s copyright in the famous “monkey selfies” (taken by Naruto with Slater’s camera). The complaint requests that the Court order Slater to disgorge any profits he has realized from the distribution of the images and establish a trust,… More

Of Slants, Skins and Signs: The Coming First Amendment Showdown

adsfAre we heading for a constitutional showdown over Section 2(a) of the Lanham Act?  Will the Supreme Court strike down this prohibition on disparaging marks as an abridgement of First Amendment rights?  It is certainly beginning to look like a distinct possibility. Two developments lead me to this conclusion.

Disparaging Marks and Spending Power

The first development arises from two trademark cases that are now on appeal,… More

Statute Criminalizing Election Campaign Lies Found to Violate First Amendment and Article 16

CaptureOn August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false statement in relation to” a candidate for public office or a ballot question. Violations of the statute were punishable by a thousand dollar fine or up to six months imprisonment.… More

Sue-per Bowl Shuffle 2014: The Year in NFL-Related Intellectual Property Litigation


Heading into this year’s Super Bowl party season, there are two things every lawyer should be concerned about. First, why can’t your team get it together? Second, what do you do if you are asked to explain to your friends and neighbors some NFL-related litigation that you haven’t been following? We can’t help you with the first problem (although, as an Iggles fan living in the heart of Patriots Nation,… More