SAG-AFTRA Welcomes InfluencersBy Beverly A. BernemanIntellectual Property, December 2021“Influencers” are a growing group of performers who use social media to affect purchasing decisions of others through their knowledge, position, or relationship with their audience. Influencers often create content that is unique and attention-grabbing. SAG-AFTRA is the union for movie, television and radio performers. Membership in SAG-AFTRA comes with attractive benefits for performers. SAG-AFTRA is now allowing influencers to become members of the union. An influencer’s on-camera (audio and/or video) performances in the content they create for an advertiser will now be considered union-covered services and allow union pension and health contributions to be made.
Vietnam: Evidence on Ownership & Damage in Copyright & Related Rights LitigationBy Yen Vu & Trung TranInternational and Immigration Law, December 2021For many years, questions have been asked on the role of the court in IP disputes in Vietnam. Although setting up an IP court is still a long-term plan, an increasing number of copyright and related rights lawsuits have initiated in Vietnam. Vietnam (Economic) Courts have gradually gained more experience in handling IP disputes, with their resolution of complicated cases that may be beyond the capacity of administrative authorities. Two recent notable court rulings on the proof of ownership and damages are discussed.
Expedited Changes Coming to the Canadian Trademark Office: A Comparative Overview With the U.S. SystemBy Alice DenenbergIntellectual Property, September 2021In summer 2019 Canada updated its trademark laws, adopted the Nice Classification System, and joined the Madrid Protocol, enabling Canada to be designated in an international registration. However, even before these changes, the Canadian Intellectual Property Office was plagued with examination delays exasperating both attorneys and IP owners.
Google v. Oracle: U.S. Supreme Court Whiffs on a Chance to Declare Code’s StatusBy Phillip R. Van NessIntellectual Property, September 2021In its April 5, 2021 decision in Google LLC v. Oracle America Inc., the Supreme Court overwhelmingly sided with Google in its long-running copyright dispute with Oracle. The decision generally pleased tech companies but upset the movie and recording industries as well as publishers and authors, not to mention the Trump administration, which sided with Oracle in this battle of heavyweights, although Google is obviously the larger of the two combatants. After the extended process inflicted on the litigants, some issues remain unresolved.
Intellectual Improbabilities™By Daniel KeganIntellectual Property, September 2021An eclectic gathering of recent intellectual property developments.
Is Your Ink Protected by Copyright?By Teresa SegalmanIntellectual Property, September 2021Copyright law has not caught up with the increasing popularity of tattoos in mainstream U.S. culture. A handful of tattoo copyright infringement claims have been brought recently, most settling before a court ruling. The lack of caselaw and absence of specific mention of tattoos in copyright statutes contribute to the ambiguity in tattoo copyright law, with some guidance provided in the context of video games and athlete’s tattoos.
Mindgeek to Settle Copyright Claims by Martha’s Vineyard HomeownerBy Mark KernesIntellectual Property, September 2021Adult entertainment industry intellectual property disputes usually attempt to stanch video piracy. Rare is Bassett v. Jensen, claiming copyright infringement of background art in a rented Martha’s Vineyard house used to film videos. House owner Leah Bassett did not know renter Joshua Darling was videographer for the adult videos.
Vietnam: Evidence on Ownership & Damage in Copyright & Related Rights LitigationBy Yen Vu & Trung TranIntellectual Property, September 2021For many years, questions have been asked on the role of the court in IP disputes in Vietnam. Although setting up an IP court is still a long-term plan, an increasing number of copyright and related rights lawsuits have initiated in Vietnam. Vietnam (Economic) Courts have gradually gained more experience in handling IP disputes, with their resolution of complicated cases that may be beyond the capacity of administrative authorities. Two recent notable court rulings on the proof of ownership and damages are discussed.
Copyright Trolls in the Construction BusinessBy Margo Lynn HablutzelCommercial Banking, Collections, and Bankruptcy, June 2021There are two main lessons to take from this article. First, copyright trolls will thrive as long as their targets are unfamiliar with decisions such as Lexington Homes and Signature Construction, and decide it is easier to pay a fee to avoid litigation. Second, in an industry where design elements are limited and certain combinations are expected, copyright infringement requires direct and unquestionable copying for liability. Merely echoing certain elements is insufficient to sustain a claim.
Copyright Trolls in the Construction BusinessBy Margo Lynn HablutzelIntellectual Property, May 2021There are two main lessons to take from this article. First, copyright trolls will thrive as long as their targets are unfamiliar with decisions such as Lexington Homes and Signature Construction, and decide it is easier to pay a fee to avoid litigation. Second, in an industry where design elements are limited and certain combinations are expected, copyright infringement requires direct and unquestionable copying for liability. Merely echoing certain elements is insufficient to sustain a claim.
Fair Use Myths and Realities for Nonprofit OrganizationsBy Nathan BreenIntellectual Property, May 2021Nonprofits and others who repurpose online content need to take care in assessing whether: 1) the use rises to the level of infringement, 2) fair use would serve as a defense, and 3) applicable terms and conditions provide additional usage rights or limitations. As illustrated by the various cases addressing these issues, assumptions and generalizations are dangerous in this area.
Intellectual Improbabilities™By Daniel KeganIntellectual Property, May 2021An eclectic gathering of recent intellectual property developments.
Luck of the IP AttorneyBy Peggy HerrmannIntellectual Property, May 2021For the edification of the ISBA IP Counsel, and St Patrick celebrations, council member Peggy Herrmann compiled a seven-factor quiz with answers.
Who Has Skin in the Patent Translation Game?By Maria EliseevaIntellectual Property, May 2021The art of translation is a specific professional skill that transforms information in one language environment into another language and its language traditions. The ultimate quality of the translation is determined by how well it preserves and conveys the meaning and unique features of the original text. Machine translation systems and tools aid an experienced translator in various ways; however, machine translation and post machine translation editing are at best an imitation of preparing a translation. In a legal document such as a patent or patent application, even the 99 percent accuracy of the translation very often might mean that it is 100 percent incorrect. It also means that whatever the entire investment was in protecting an applicant’s patent rights in that jurisdiction was possibly wasted.
A Flurry of Precedential Designations by the POPBy Margaret HerrmannIntellectual Property, March 2021Thumbnail summaries of recent precedential designations by the OTAB Precedential Opinion Panel.
Generic.com Trademarks: USPTO v. Booking.comBy Kristen D. BrooksIntellectual Property, March 2021Generic terms coupled with generic top-level domains, such as .com, .net, or .org, are not per se generic, the Supreme Court holds in USPTO v. Booking.com. What is determinative is the perception of the prospective purchaser, an empirical question.
Important Changes to Copyright and Trademark LawBy Beverly A. BernemanIntellectual Property, March 2021When the Consolidated Appropriations Act of 2021 was signed into law, it included the Copyright Alternative in Small Claims Enforcement Act and the Trademark Modernization Act, which made significant changes to our intellectual property law.
Intellectual Improbabilities™By Daniel KeganIntellectual Property, March 2021An eclectic gathering of recent intellectual property developments.
A Seventh Amendment Right to Fair Use Determinations?By Justin HughesIntellectual Property, March 2021Is there a Seventh Amendment right to jury determinations of fair use for copyright claims? Consider the Statute of Anne and other pre-1791 copyright history.
Reflections From the Trenches of a New Law FirmBy Steven L. BaronInternational and Immigration Law, January 2021A lawyer reflects on why and how to start a law firm after practicing law for 30 years with other law firms.
Trademark Searching and Freedom to Operate Advice – Balancing Legal and Commercial RiskBy Blake KnowlesInternational and Immigration Law, January 2021Trademark clearance searching is essential for any business looking to launch a new brand. Failure to conduct a proper clearance search can lead to adoption of a brand that infringes pre-existing rights of another trader in an identical or very similar trademark. Unfortunately, trade mark clearance searching has become increasingly complicated. This means that any professional providing trademark clearance advice needs to be able to balance commercial and legal factors in order to provide commercially practical and pragmatic advice.
California Voters Approve the California Privacy Rights Act of 2020By Aaron W. BrooksIntellectual Property, December 2020On November 3, 2020 California voters approved Proposition 24, causing the California Privacy Rights Act of 2020 to become law when the California Secretary of State has certified the election results. The new law is a significant expansion of the already enacted California Consumer Privacy Act. While much of CPRA will not become operative until 2023, several key provisions become effective right away. Perhaps most importantly, California now has the funding and mechanics available to create the new California Privacy Protection Agency. The new agency will have the power to interpret the California Consumer Privacy Act and to enforce its requirements.
Copyright WorriesBy David ShayerIntellectual Property, December 2020Apple doesn’t want to waste time and money fighting copyright infringement lawsuits over watch faces. Vintage faces were also designed before smartwatches existed, so licensing such faces for digital use means negotiating with a copyright owner that may not understand the issues involved in digital licenses. Worse, the App Store supports dozens of countries, and the copyright owner could be different in each country. It’s a legal nightmare.
Machine Versus the Tax Man: AI Inventors and the Research Tax CreditBy Robert J. KovacevIntellectual Property, December 2020Artificial intelligence is now involved in the invention process. The U.S. Patent and Trademark Office doesn’t want to grant patents for an invention by AI. What happens when the owner of the owner of an AI algorithm attempts to claim a research and development tax credit? Issues raised for AI-generated inventions under the current requirements for the R&D credit.
Reflections From the Trenches of a New Law FirmBy Steven L. BaronIntellectual Property, December 2020A lawyer reflects on why and how to start a law firm after practicing law for 30 years with other law firms.
Trademark Searching and Freedom to Operate Advice – Balancing Legal and Commercial RiskBy Blake KnowlesIntellectual Property, December 2020Trademark clearance searching is essential for any business looking to launch a new brand. Failure to conduct a proper clearance search can lead to adoption of a brand that infringes pre-existing rights of another trader in an identical or very similar trademark. Unfortunately, trade mark clearance searching has become increasingly complicated. This means that any professional providing trademark clearance advice needs to be able to balance commercial and legal factors in order to provide commercially practical and pragmatic advice.
When the Mandatory Initial Pilot Program Is No Longer MandatoryBy Kenneth MatuszewskiIntellectual Property, December 2020From June 2017 to June 2020 the Northern District of Illinois assigned new non-patent intellectual property civil cases to the Mandatory Initial Discovery Pilot Program (MIDP). The pilot’s goal was to evaluate whether cost and delay of civil litigation would be reduced. That pilot program has now ended.
