Legal Blog

Supreme Court Determines Objective Reasonableness Should Receive Substantial Weight in Assessing Fee Awards under the Copyright Act, But Not to Exclusion of Other Factors (Kirtsaeng v. Wiley)

For the first time in twenty-two years, the U.S. Supreme Court, in an opinion issued yesterday, addressed the question of when an award of attorney’s fees is appropriate under the U.S. Copyright Act. According to the Court, the objective reasonableness of a losing party’s legal positions should be given substantial weight within a broader analysis that considers all factors relevant to granting fees.

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#TRADEMARKS: Registration of Hashtag Marks

The #hashtag, once confined to Twitter, has become ubiquitous across virtually all social media platforms.  The hashtag (formerly known as the “pound” sign) has revolutionized the way information is organized, discovered, and shared online.  Social media users use hashtags – i.e., a keyword or phrase preceded by the hashtag symbol (#) – to identify social media posts or messages on a specific topic.  The hashtag functions as a searchable link, which can be clicked on to find other posts related to that specific topic.  The phenomenon is not just for millennials; brand owners have embraced the hashtag as a way to boost brand recognition, generate buzz around new products, engage with their consumers, and attract new ones.

It is no wonder that brand owners look to trademark law to protect their valuable hashtags.  The United States Patent and Trademark Office (“USPTO”) has recognized the registrability of “hashtag marks,” but the legal community is still grappling with the legal nuances of this trend-turned-staple.

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CDAS Client Alert: Federal Trade Secrets Law Provides Potent New Tool For Businesses In Online & Digital Media Space

Yesterday President Obama signed the Defend Trade Secrets Act of 2016 (“DTSA”), the culmination of several years of bipartisan efforts to federalize trade secret protection, placing it alongside the federal copyright, trademark, and patent statutes.  The DTSA – an extension of the Economic Espionage Act of 1996 – should be significant, generally, to businesses concerned about protecting competitively sensitive information from misappropriation by former employees, industrial spies, and foreign nationals.  It should prove particularly useful to those in the online and digital media space as an important tool in the prevention and remedying of the theft of software-based products.  The DTSA has strong support from the software industry, including from Microsoft, IBM, Adobe, Micron, and the Software Information Industry Association.  Here are three key takeaways from the passage of the DTSA:

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CDAS Files Amicus Brief in Kirtsaeng v. John Wiley & Sons (“Kirtsaeng II”)

Yesterday, CDAS submitted an amicus brief in the U.S. Supreme Court in support of the respondent in the case captioned Kirtsaeng v. John Wiley & Sons (“Kirtsaeng II”), which will examine the proper standard for fee awards under the Copyright Act. The brief, filed on behalf of the Copyright Alliance, argues that when determining whether to award attorneys fees to a prevailing party, courts should duly consider each of the interrelated Fogerty factors without placing dispositive weight on any single factor.

To view the full brief, please see the PDF below.

CDAS Files Amicus Brief in Kirtsaeng v. John Wiley & Sons

Ninth Circuit Affirms Dismissal of The Hurt Locker Right of Publicity Claim

The Ninth Circuit, applying California’ anti-SLAPP statute, affirmed the dismissal on First Amendment grounds of Master Sgt. Jeffrey Sarver’s right of publicity lawsuit, in which Sarver claimed that the Oscar®-winning film The Hurt Locker misappropriated his life story. According to Sarver, the film’s main character, Will James, was based on Sarver’s own life and experiences when he served as a U.S. Army explosive ordnance disposal technician in Iraq and was lifted from a previously published article about Sarver’s experiences.

Defendants—a group that  included the film’s screenwriter, director, and several corporate entities involved in the film’s production—filed a motion to strike Sarver’s complaint relying on California’s anti-SLAPP statute, which permits the early dismissal of lawsuits aimed at limiting expression and free speech. To succeed, the defendants must satisfy both prongs of a two-part analysis:

  • A defendant must first demonstrate that he or she was engaged in the exercise of free speech in connection with a public issue; and
  • Once a defendant has made such showing, the court must evaluate whether a plaintiff has established a reasonable probability of prevailing on his or her claims.

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EU-US Safe Harbor Status

I. Introduction

In light of the decision of October 15, 2015 invalidating the US/EU Safe Harbor (the “October Decision”), there is uncertainty surrounding compliance with EU Directive 95/46 (the “Directive”), which prohibits “the transfer of personal data to a third country which does not ensure an adequate level of protection.”  Although the United States Department of Commerce (“Commerce”) continues to issue Safe Harbor certificates, those certificates can no longer be relied upon.

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Moving the Needle: Solid Oak Sketches, LLC v. Visual Concepts, LLC and the Copyright Quagmire of Tattoos in Video Games

In a complaint filed in the U.S. District Court for the Southern District of New York this month, a group of tattoo artists (through a licensing entity) sued the developer, publisher, and marketer of the immensely popular NBA 2K16 video game over digital depictions of tattoos the artists had inked on the real-life basketball players appearing in the game, including LeBron James and Kobe Bryant.  Claiming violation of their exclusive right of public display under 17 U.S.C. § 106(5), the artist collective in Solid Oak Sketches, LLC v. Visual Concepts, LLC seeks monetary damages, costs and fees, and injunctive relief against production of the game and any further “public displays” of the tattoos.  While it may seem outlandish at first blush, cases like Solid Oak Sketches are becoming more common.

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CDAS Files Amicus Brief in Fox Television Stations Inc. v. FilmOn X

Yesterday, CDAS submitted an amicus brief in a high-profile case involving the distribution of television programming over the Internet.  The brief, on behalf of the Copyright Alliance, was filed in the Ninth Circuit Court of Appeals in support of the appellants in the case captioned Fox Television Stations Inc. v. FilmOn X.  This is the second amicus brief that CDAS’s litigation team has submitted this week, with the other coming two days prior in support of a petition to the U.S. Supreme Court for certiorari in the Google Books case.

To view the full brief, please see the PDF below.

CDAS Files Amicus Brief in Fox Television Stations Inc. v. FilmOn X



CDAS attorneys Nancy E. Wolff, Eleanor M. Lackman, Alex Gigante, and Brittany L. Kaplan filed an Amicus Curiae brief on behalf of the Text and Academic Authors Association; Western Writers of America, Inc.; The National Association of Science Writers, Inc.; and The Dramatists Guild in The Authors Guild et al. v. Google, Inc.

The brief supports the position of Petitioners The Authors Guild, arguing that the Second Circuit erred in holding that the Google Books project constitutes fair use. To view the full brief, please see the PDF below.