Legal Blog

Waving the Checkered Flag: Ninth Circuit Affirms Dismissal of Trademark Claims Arising from PlayStation Racing Games

The U.S. Court of Appeals for the Ninth Circuit this week summarily affirmed a dismissal, from two years ago, of trademark claims brought by flooring company VIRAG, S.R.L. (“Virag”) against Sony Computer Entertainment America, LLC (“Sony”).  In a three-page unpublished opinion, the appeals court held that Sony’s use of the “VIRAG” trademark as set dressing in its Gran Turismo 5 and 6 video games was protected by the First Amendment and immune from liability under federal trademark law.  The ruling’s brevity, however, should not detract from its significance.

In 2004, Virag, a global commercial flooring distributor, became a sponsor of the Rally of Monza, a Formula One auto race held in Monza, Italy.  Starting in 2006, the plaintiff’s “VIRAG” mark was displayed on a bridge over the Monza track for each race.  Virag claims that its name and trademark has not only become affiliated with its products, but also the rally.  Continue reading

Who’s Punch Line Is It Anyway? Jokes Are Potentially Copyrightable, Says the U.S. Copyright Office.

For the many everyday citizens who have no recollection of when the New England Patriots won Super Bowl XLIX against the Seattle Seahawks after a “questionable” play call, comedy blogger Robert “Alex” Kaseberg’s (“Kaseberg”) saves the day.  Thanks to his witty remarks, and the legal controversy that subsequently unfolded, the world may never forget. Kaseberg wrote in his blog “A Little Bit Bad” on February 3, 2015: “Tom Brady said he wants to give his MVP truck to the man who won the game for the Patriots. So enjoy that truck, Pete Carroll”. Pete Carroll is the Seahawk’s head coach, and was at the time of the fateful “Big Game.”  The U.S. Copyright Office seems to have gotten the joke, at least on the second telling.

Kaseberg originally sought to register the joke as a two-sentence 27-word textual work, titled “A LITTLE BIT BAD, Blog Content, Brady Joke February 3, 2015” (the “Work”).  The U.S. Copyright Office federal review board (the “Board”) denied Kaseberg’s first request to register the Work. Kaseberg later sued, among others, Conan O’Brien, and his production company Conaco, after the late night host told a similar joke during his show.  On May 12, 2017, the U.S. District Court for the Southern District of California ruled partially in Kaseberg’s favor, holding that he was entitled to a “thin” copyright in the Work. Continue reading

Court Denies FX’s Anti-SLAPP Motion in Olivia de Havilland’s Feud Lawsuit

A California court recently ruled that a lawsuit by actress Olivia de Havilland over her portrayal in the television series Feud:  Bette and Joan could move forward, denying FX Networks’ motion to strike the lawsuit on First Amendment grounds.

The show, which is a docudrama centered on the rivalry between Bette Davis and Joan Crawford during the early 1960s, portrays numerous real-life figures from the era including de Havilland. De Havilland, who is 101 years old, is portrayed by Catherine Zeta-Jones on the show.  In her lawsuit, de Havilland alleges that the show falsely depicted her as a gossip who used vulgar language about other people, including her sister, and brought claims against FX for “false light” (a cause of action similar to defamation), violation of her right of publicity, and unjust enrichment.

FX responded by filing a motion to strike the lawsuit under California’s anti-SLAPP statute, which provides a procedural vehicle for defendants to obtain an early dismissal of meritless lawsuits that are premised on First Amendment activity which is in the public interest.  In other recent cases, entertainment companies have successfully used the California anti-SLAPP statute to defend themselves from claims arising from expressive speech in motion pictures, television shows, and video games.  For example, last year the producers of the film American Hustle used the anti-SLAPP statute to dismiss a defamation lawsuit stemming from a scene in that film, and in 2014 the video game publisher Activision Blizzard used the anti-SLAPP statute to dismiss right of publicity claims brought by the former Panamanian dictator Manuel Noriega over his depiction in Call of Duty: Black Ops II. The anti-SLAPP statute is an especially potent weapon for defendants because if they succeed in dismissing the plaintiff’s claims on an anti-SLAPP motion, the plaintiff must pay the defendants’ attorney fees. Continue reading

Initial Coin Offerings: Benefits and Legal Risks on the New Frontier of Investing

It takes a lot to build a successful business.  Entrepreneurs need a great idea, dedication and a hearty appetite for risk.  That’s not to mention the more practical considerations, like employees, legal and accounting, work space, computers, software and technology, marketing, advertising, publicity, and the list goes on.  How, one may ask, can a business just getting on its feet do all of this?  The answer is at once simple and obvious, yet extremely complex: money.

Most early-stage companies require some amount of start-up capital if they hope to grow the business.  As a result, entrepreneurs and their attorneys have invented numerous creative ways to raise money.  Examples include selling equity, the convertible promissory note, the “simple agreement for future equity” (SAFE), which eliminates the debt features of the note, and the “keep it simple security” (KISS), which aims for a fair balance between company and investor.  Increasingly popular for certain projects are crowd-funding campaigns on platforms like Kickstarter and Indiegogo, where businesses can pre-sell products, offer rewards for donating money, or even sell equity in the company. Continue reading

Ninth Circuit Affirms Injunction Against VidAngel’s “Family Friendly” Video Filtering Service, Halting Long-Running Dispute with Hollywood Movie Studios

On August 24, 2017, the Ninth Circuit Court of Appeals affirmed a district court’s issuance of a preliminary injunction barring Utah-based content filtration company VidAngel from filtering and streaming any content owned by a group of Hollywood movie studio plaintiffs, who opposed VidAngel’s editing of their content (to omit “objectionable” material) and distribution without permission.


The movie studio plaintiffs (“Studios”) produce and distribute copyrighted motion pictures and television shows through many sources, including through DVD and Blu-ray sales and various online channels.  To protect against unauthorized access to and copying of their works, the Studios employ technological protection measures (“TPMs”), which allow consumers to use players from licensed manufacturers to playback (but not copy) content.

In 2014, VidAngel launched an online service which eliminated objectionable content from movies and television shows using a software program that removed the TPMs, allowing VidAngel to copy content, and tag it for over 80 categories of “inappropriate” material.   To remove the objectionable content, VidAngel would purchase a physical disc containing the copyrighted movie or television show, “rip” a digital copy to a computer, and stream the filtered version of the work to its customers through any VidAngel-supported device, including Roku, Apple TV, mobile phones and tablets, and desktop or laptop computers.  Customers using VidAngel’s streaming service paid $1 to $2 to view the work with whatever type of objectionable content they chose to omit.  In certain cases, this was well below the price offered by the Studios to view unfiltered copies of the movie or television shows.    Continue reading

ARCHIE MD, INC. V. ELSEVIER, INC.: Court Permits Copyright Claim To Proceed Despite Error In Registration Application

For many copyright owners, especially those attempting to register works of visual arts, determining whether a work is published or unpublished for registration purposes is one of the more challenging issues and an impediment to registration. The U.S. District Court for the Southern District of New York, in Archie MD, Inc. v. Elsevier, Inc., No. 16-CV-6614 (JSR), 2017 WL 3601180 (S.D.N.Y. Aug. 20, 2017) recently clarified the standard by which a copyright registration may be considered valid despite containing inaccurate information.

In 2005, Archie MD, Inc. entered into an Animation License Agreement (“ALA”) with the publisher Elsevier, Inc., under which Elsevier would license Archie’s library of 3-D medical animations for use in its various publications. About two weeks after entering into the ALA, and after Archie had delivered the works to Elsevier, Archie submitted a single copyright registration application for a group of unpublished works. This registration included the work at issue in this case, an animation entitled “Cell Differentiation.” The Copyright Office eventually registered the group of works on August 15, 2005. Continue reading

Update – Ninth Circuit Amends Opinion in Mavrix v. LiveJournal, Clarifying that Websites’ Use of Automatic Content Blocking Software Does Not Weigh Against Eligibility for Copyright Safe Harbor

On August 30, 2017, the Ninth Circuit published an amended opinion in Mavrix Photographs v. LiveJournal, a case which concerns the situations under which social media websites and other internet service providers can be held liable for copyright infringement for content submitted by users. The amended opinion removed language from the original opinion that could have potentially penalized websites that use software to automatically block infringing content by causing them to lose protection under the safe harbor of the Digital Millennium Copyright Act.

The case involved a copyright dispute between a paparazzi photo agency, Mavrix Photographs, and the social media website LiveJournal over twenty photographs posted in the site’s celebrity gossip community, Oh No They Didn’t! (“ONTD”). The photos at issue were submitted by users of the website but were reviewed and approved by moderators before they were publicly posted on the site. The Ninth Circuit’s decision concerned the issue of whether LiveJournal was immune from liability under the safe harbor, which protects internet service providers from being held responsible for infringing content submitted by users if the provider complies with the statute’s requirements.  In its original opinion, the Ninth Circuit remanded the case back to the district court to determine whether the acts of the moderators in screening the photographs and making them publicly accessible can be attributed to LiveJournal under agency principles—an overall result which did not change in the amended opinion.  (CDAS’s blog post on the Court’s original opinion, which was issued April 7, is available here. Continue reading

Discovery Channel Avoids Liability for Reality Star’s Inflammatory Facebook Post (Hawke v. Discovery Communications)

Fans of the Discovery Channel’s survival television programs may be familiar with reality stars Mykel Hawke, previously featured in the channel’s program Man, Woman, Wild, and Mykel’s former military colleague, Joseph Teti, star of Discovery Channel’s Dual Survival. Hawke and Teti were, at one time, friends as well as business partners. The relationship ultimately deteriorated and, in connection with the former friends’ falling-out, Teti took to Facebook, posting inflammatory comments regarding Hawke’s mental health and military service.[1] Hawke responded by e-mailing Discovery Channel executives, stating that Teti had used the channel’s “network, television show, [and] social media page for personal defamation and threats.” While unable to locate any threatening comments posted to the Discovery Channel’s official Dual Survival Facebook page, the channel nonetheless applied a filter preventing any posts to or from the page that referenced Hawke. Continue reading

Sports Humor Site Fends Off Domain Name Claim from “Sports Center” Trademark Owner: ESPN, Inc. v. Will Applebee

Claim No. FA1706001734753 (NAF July 31, 2017)

In a decision highlighting the subtleties of trademark law and claimed “parody” websites, Will Applebee, a lawyer-turned-sports writer, has successfully defended his sports humor website,, against ESPN’s recent efforts to seize its domain name to protect its flagship brand.

ESPN’s SportsCenter is a popular daily sports news television program that offers breaking news, highlights, and in-depth analysis and commentary on all things sports.  It has also been known to employ elements of humor, especially in its advertisements. Continue reading

The Beatles’ Apple Corps Wins Lawsuit over Ownership Rights to Historic Shea Stadium Concert Footage

On July 26, 2017, the U.S. District Court for the Southern District of New York dismissed a copyright infringement claim brought by Sid Bernstein Presents, LLC (“SBP”) (owner by assignment of the intellectual property rights of the late music and event producer, Sid Bernstein, “Bernstein”) against Apple Corps Limited (a company founded by members of The Beatles) and its subsidiary Subafilms Limited (“Subafilms”), related to the raw, unedited, audiovisual footage (the “Master Tapes”) of The Beatles’ famed 1965 concert at Shea Stadium (the “Concert”).

The facts of the case are as follows:  Bernstein created, produced, and promoted the Concert, which featured performances by The Beatles and several other musical acts.  In this capacity, Bernstein undertook the responsibilities of raising the money for the Concert, renting the stadium, designing and building the stage, hiring the musical acts, hiring security, designing the tickets, and promoting the Concert.  Bernstein also arranged for TV personality Ed Sullivan to introduce The Beatles during the Concert.

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