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

The Supreme Court issued a landmark ruling in a trademark-infringement matter on April 23, 2020, holding that willfulness is not a necessary precondition to an award of profits. The unanimous ruling in Romag Fasteners, Inc. v. Fossil, Inc. ends years of uncertainty among the lower courts as to whether willfulness is a prerequisite to awarding

Memes, animated GIFs, and other images online are a crucial part of today’s Internet experience and have undoubtedly prompted many Internet users to laugh out loud in front of their screens. In the fashion industry, such images and animated pictures are frequently used to create an experience for the consumer and to evoke an emotion

Our retail multinational clients often ask if there is an effective way of protecting intellectual property rights (“IPR”) in China. While traditional enforcement remedies in China have been ineffective in the past, customs border protection schemes in recent years have provided a cost effective tool to protect the IPR of brand owners in the retail

On September 12, the Court of Justice of the European Union (CJEU) handed down yet another ruling on the interpretation of EU copyright law. With its Cofemel-decision (C-683/17), the CJEU harmonized the requirements for utilitarian objects, which might also be protected by a (registered or unregistered) design right, to benefit from copyright protection. Provided

Protecting creative endeavors and designs is a core activity of just about all fashion companies. Fashion items (clothing, accessories, handbags, shoes, etc.) can indeed be protected by copyright and design rights within the European Union.

Lesser known is the ‘unregistered community design’ (or: ‘UCD’) established by the European legislator in 2002 for the protection of

Under a new rule that became effective August 3, 2019, the United States Patent and Trademark Office (“USPTO”) requires all foreign-domiciled trademark applicants, registrants, and parties to a trademark proceeding to be represented by an attorney who is licensed to practice law in the United States. This requirement applies to any entity with a principal

On August 12, 2019, a jury in Delaware federal court found L’Oreal USA Inc. liable for misappropriating Olaplex LLC’s trade secrets, infringing two patents relating to hair-coloring, and breaching a nondisclosure agreement between the two parties. The jury awarded $91.3 million to Olaplex. Olaplex’s victory demonstrates the importance of entering into nondisclosure agreements before disclosing

In the third of our series of blog posts on antitrust and e-commerce in Europe, we look at the €40 million fine imposed on clothing company Guess by the European Commission (EC) in December 2018.

The case is the first in which the EC finds that restrictions on the use of a brand name for