The U.S. Court of Appeals for the Ninth Circuit recently affirmed a lower court’s holding that Fox’s use of the name “Empire” for its hit television series is protected by the First Amendment, leaving record label Empire Distribution without any recourse on its trademark infringement claims. A copy of the full decision is available here. Of most significance is the court’s arguable expansion of the Rogers v. Grimaldi test for expressive use of trademarks into the realm of promotion and merchandise.
Empire Distribution, founded in 2010, records and releases albums in the genres of hip hop, rap, reggae, and R&B under the name “Empire.” Its portfolio of artists includes Snoop Dog, T.I., and Kendrick Lamar. In 2015, Fox premiered its Empire television show, a drama that centers on a fictional New York-based hip hop music and entertainment company called “Empire Entertainment.” The Empire show features songs and original music, which Fox releases through Columbia Records after the episode airs, and packages as soundtrack albums at the end of each season – of which there have been four and counting. Continue reading
Fyre festival, vigorously promoted by “social media influencers” such as Kendall Jenner, Gigi Hadid, and Emily Ratajkowski as a “luxury” music festival with tickets ranging in price from $1,200 to over $100,000 per person, was scheduled to take place over two weekends in April and two weekends in May on the “private” Bahamian island of Great Exuma. Unfortunately, the festival was not nearly what its promoters were touting: it ended up being, what some described as, a “post-apocalyptic nightmare” resembling a chapter out of the “Lord of the Flies.” The story of Fyre Festival blew up in the press this spring, and is now lighting up the federal court system.
Earlier today, the U.S. Copyright Office issued a new release of its electronic system used to designate and search for Digital Millennium Copyright Act (DMCA) agents.
Under the DMCA, a qualified online service provider (OSP) is not liable for copyright infringement with respect to infringing material residing on the OSP’s network if, upon notification of a claimed infringement, the OSP acts expeditiously to remove, or disable access to, the material. One of the prerequisites to receiving this statutory “safe harbor” protection is that OSPs must designate an agent to receive notifications of claimed infringement. The OSP must supply its agent’s contact information to the Copyright Office; in turn, the DMCA instructs the Register of Copyrights to maintain a publicly available, current directory of agents. Continue reading
In an opinion issued last week, the Supreme Court held that a “pictorial, graphic, or sculptural” feature incorporated into the design of a useful article—in this case, a cheerleading uniform—is eligible for copyright protection if it satisfies a two-part test: (1) the element can be perceived as a two- or three-dimensional work of art separate from its underlying useful article; and (2) the element would otherwise be protectable if it were perceived in this manner.
By articulating its own version of the “separability test,” the Court has sought to address and resolve the uncertainty and “widespread disagreement” previously surrounding application of the test by providing a uniform, nationwide standard.
Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) is expanding its litigation, entertainment, and intellectual property practice with the strategic hire of litigator and entertainment attorney Lindsay W. Bowen, who has joined the firm as a partner.
Lindsay’s practice focuses on the interplay between creativity and technology. He represents individuals and companies, from household names to the up-and-coming, across a wide range of creative industries, including advertising, app development, fashion, film, hospitality, music, podcasting, television, and theatre. Prior to joining Cowan, DeBaets, Abrahams & Sheppard LLP, Lindsay was an attorney in the Content, Media & Entertainment practice of Jenner & Block. There, he represented music, film, television, and theatre clients in copyright ownership and enforcement litigation, royalty disputes, and in the negotiation of a variety of traditional and digital media transactions. Continue reading
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.
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:
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
Cowan, DeBaets, Abrahams & Sheppard LLP is pleased to announce that Scott J. Sholder has become a Partner of the Firm
Scott J. Sholder is a partner in the firm’s Litigation Group. Scott represents individuals and companies in the entertainment, traditional and digital media, sports, and consumer products industries. His practice focuses on matters involving copyrights, trademarks, the right of publicity, and contractual and business disputes.
Inside Counsel’s Senior Editor & Community Manager, Rich Steeves, published a five-part series titled “Where Former Entertainment GCs Go Next” last week, which was prominently featured on the Inside Counsel website.
The series, which discussed the so called “third act” for successful general counsel, provided a comprehensive profile of CDAS and the services the firm provides to clients, while also discussing the appeal the firm has had for former GCs in their transition to a new environment.
CDAS Partners Aileen Atkins, Frederick Bimbler, Douglas Jacobs, Eleanor Lackman, Marc Simon and Stephen Sheppard were interviewed for the series. You can find a link to each part of the series below.
PART 1: http://www.insidecounsel.com/2015/04/27/third-act-where-former-entertainment-gcs-go-next-p
PART 2: http://www.insidecounsel.com/2015/04/28/third-act-where-former-entertainment-gcs-go-next-p
PART 3: http://www.insidecounsel.com/2015/04/29/third-act-where-former-entertainment-gcs-go-next-p
PART 4: http://www.insidecounsel.com/2015/04/30/third-act-where-former-entertainment-gcs-go-next-p
PART 5: http://www.insidecounsel.com/2015/05/01/third-act-where-former-entertainment-gcs-go-next-p