Advertising & Product Risk Management

On December 18, 2020, the Ninth Circuit Court of Appeals held that “Oh, the Places You’ll Boldly Go!,” a Dr. Seuss and Star Trek mashup illustrated book, is not a fair use exempted from copyright liability. Under the Copyright Act of 1976, the factors courts assess in determining if there is fair use include:

  1. The

On November 30, 2020, New York Governor Cuomo signed into law a bill that will allow estates and representatives of deceased individuals to defend their names and likenesses from commercial exploitation, allowing their estates to continue to control and protect their likeness after their death. The new law, which establishes a “Right to Publicity” for deceased individuals who were domiciled in New York at their time of death, allows these individuals to that have commercial value, including their name, picture, voice, or signature, against unauthorized use.

In connection with the new post-mortem right to publicity, Governor Cuomo stated, “In the digital age, deceased individuals can often fall victim to bad actors that seek to capitalize on their death and profit off of their likeness after they pass away – that ends today. This legislation is an important step in protecting the rights of deceased individuals while creating a safer, fairer New York for decades to come.” The new post-mortem right of publicity applies up to 40 years after the death of the deceased personality, and it provides certain exceptions, such as for works of art or political interest, parodies and satires, and the use of names and likenesses in the news.

In enacting this law, New York joins the minority of U.S. states which recognize a post-mortem right of publicity, an area of law that has long been controversial and which has resulted in extensive discussion of choice-of-law rules.
Continue Reading ‘Imagine’ This: John Lennon Would Have Received Post-Mortem Right to Publicity in New York

Recently, New York enacted a new law against gendered pricing that was included as a key component of the state’s Fiscal Year 2021 budget and Governor Cuomo’s 2020 Women’s Agenda. In a press release announcing the law, Governor Cuomo states, “By abolishing the pink tax, women and girls will no longer be subject to harmful

Companies in the online marketplace have been paying close attention to Section 230 of the U.S. Communications Decency Act of 1996 (CDA) in recent weeks and months. As noted in our previous client alert, CDA Section 230 “is a powerful law that provides websites, blogs, and social networks that host third-party speech with liability

On June 22, 2020, the Federal Trade Commission (FTC or “Commission”) issued its staff report on the Made in USA workshop, held in 2019, and its long-awaited proposed Made in USA (MUSA) rule (“Rule”). Under the Rule, advertisers would be prohibited from making unqualified Made in USA claims unless:

  • Final assembly or processing of

Stung by repeated criticisms of content moderation decisions in which it either acted or refused to act to remove controversial content such as obviously-doctored political videos, Facebook has developed a new Independent Oversight Board to hear petitions to appeal from those decisions brought by platform users and Facebook itself.  The Oversight Board has been set

Many states have laws forbidding price gouging during an emergency. These laws, which vary significantly by state, seek to avoid predatory pricing behavior that takes advantage of a disaster situation like a hurricane or pandemic.

The economics behind price gouging involves a surge in demand resulting in a temporary monopoly power for the party who

On April 20, 2020, the Federal Trade Commission (FTC) announced a consent order that imposed $9.3 million in consumer refunds to settle allegations that Fashion Nova, Inc. violated the agency’s Mail, Internet, or Telephone Order Merchandise Rule (the “Mail Order Rule”), which applies to merchandise sold to consumers, online, by mail, or by phone. 16

On Tuesday, March 24, the Prime Minister of Japan and the International Olympic Committee (IOC) announced that the 2020 Tokyo Summer Games will be postponed for one year. In a statement, IOC officials said the Games would be “rescheduled to a date beyond 2020 but not later than summer 2021, to safeguard the health of

When diseases become newsworthy, advertisers may be tempted to profit, claiming that their products can help prevent, treat or cure the disease.  Some advertisers did exactly that as the recent COVID-19 pandemic became a regular part of the news cycle.

In January 2020, GOJO Industries, Inc., the makers of hand sanitizer brand Purell, received a