Category Archives: Uncategorized

Ninth Circuit Court Ruling in Taylor Swift “Shake It Off” Case May Portend a “Shake Down” of Defendant Copyright Holders and the Lessening of the “Originality” Requirement for Copyright Protection

By Graham Matherne

The Copyright Act protects original works of authorship fixed in tangible form.  17 U.S.C. §102(a).  To be “original,” the expression must have originated with the author and contain a creative element – “a spark that goes beyond the banal or trivial.”  Nimmer on Copyright § 2.05[B](2017).  “Although the amount of creative input by the author required to meet the originality requirement is low, it is not negligible.”  Satava v. Lowery, 323 F. 3d 805, 810 (9th Cir. 2003) (citing Feist Pubs, Inc. v. Rural Tel. Service. Co., 499 U.S. 340, 362 (1991)).

In 2001, Sean Hall and Nathan Butler (“Hall”) composed a song “Playas Gon’ Play,” which contained the lyrics “Playas, they gonna play / And haters, they gonna hate . . .”  In 2014, Taylor Swift co-authored the song “Shake It Off,” which contained the lyrics “Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate . . .” Continue reading

The F-Word on Trial: The Supreme Court Invalidates the Ban on Registration of “Immoral or Scandalous” Trademarks

By Meghan Cox and Michelle Browning Coughlin

In a 6-3 ruling announced last Monday, the Supreme Court struck down the Lanham Act’s longstanding prohibition on registering “immoral or scandalous” trademarks. The decision in Iancu v. Brunetti is the culmination of Erik Brunetti’s 8-year battle to register the name of his edgy streetwear brand, FUCT. Billed as an acronym for “Friends You Can’t Trust,” pronouncing the brand name out loud is “the equivalent of [the] past participle form of a well-known word of profanity.” In what may have been a first for the Supreme Court, both attorneys and Justices refrained from even saying the contested trademark on oral argument, opting to use “safe-for-work” references to “Mr. Brunetti’s mark” instead.

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Swagway, LLC v. International Trade Commission: A Circuit Split in the Preclusive Effect of Non-Patent ITC Rulings

By Matt Williams and Bobby Whitmer, Wyatt Summer Associate

Overview

Historically, the U.S. Court of Appeals for the Federal Circuit(“Federal Circuit”) has held that International Trade Commission (“ITC”) rulings on patent infringement issues do not have a preclusive effect on future district court proceedings. The Federal Circuit, however, had not decided whether a trademark or other non-patent ruling by the ITC would fail to preclude later district court cases as well.  In an issue of first impression in the Federal Circuit, Swagway, LLC v. International Trade Commission and Segway, Inc., DEKA Products Limited Partnership, Ninebot (Tianjin) Technology Co., Ltd., held that, like a patent infringement ruling, a ruling by the ITC concerning trademark infringement will not have a preclusive effect on later district court cases. This holding effectively created a circuit split regarding the preclusive effect of ITC rulings between the Federal Circuit and the other Circuits that have addressed the issue. Continue reading

Unanimous Music Modernization Act Passage and Enactment Positively Impacts the Music Industry

audio-black-and-white-close-up-185030By Graham Matherne

On October 11, 2018, President Trump signed into law the Orrin G. Hatch – Bob Goodlatte Music Modernization Act (“Act”), which had unanimously passed both the House of Representatives and the Senate.  The Act has been praised by often-times divergent groups in the music industry – e.g. songwriters, publishers, digital streaming services, performance rights organizations – as being a “truly historic moment for the music industry.”  See e.g. Variety, Oct. 11, 2018 “Trump Signs Sweeping New Music Licensing Legislation,” quoting BMI President and CEO Mike O’Neil.

The Act actually is comprised of three separate pieces of legislation:

  1. The Music Licensing Modernization Act (“MLMA”) (Title I of the Act);
  2. Compensating Legacy Artists for Their Songs, Service and Important Contributions to Society Act (“CLASSICS Act”) (Title II of the Act); and
  3. Allocation for Music Producers Act (“AMP Act”) (Title III of the Act).

Changes Under the MLMA

The MLMA makes significant changes with regard to Continue reading

Recent Case Highlights the High Price of Trade Secret Misappropriation

By Julie A. Laemmle

In 2015, BladeRoom Group, Ltd. (“BRG”) and Bripco (UK) Limited (“Bripco”) filed suit in the United States District Court, Northern District of California, alleging that Facebook as well as Emerson Electric Co., Emerson Network Power Solutions, and Liebert (collectively “Emerson”), stole its designs for pre-fabricated modular facilities to build the Facebook data center in Lulea, Sweden. The lawsuit also contended that Facebook published the data center ideas on an Open Compute Project blog in violation of the Open Compute rules, which stipulate that members can only share intellectual property with the owner’s consent. BRG ultimately sought $365 million in damages from its claims for trade secret misappropriation, breach of contract and violation of California’s Unfair Competition Law.

BRG claims it met with the Facebook and Emerson executives in the summer of 2011 and discussed BRG’s technology shortly thereafter. Subsequent to this meeting, Facebook asked BRG for Continue reading

Blocked: Knight Institute Fractures Trump’s Twitter Shield

By Meghan Cox; Jake Smith, Wyatt Summer Associate 2018

 Knight First Amendment Institute at Columbia University v. Trump

Most Americans would agree that Donald Trump has no greater platform than Twitter. The self-proclaimed “Ernest Hemingway of 140 characters” understands that he can maximize his influence through the @realDonaldTrump account because tweeting provides the most direct interaction with constituents.  But unlike Hemingway, who is renowned for his “iceberg theory” of writing—in which a story’s deeper meaning is veiled under simple innuendos and symbolism—President Trump leaves little to a reader’s imagination.  His direct, and often abrasive, rhetoric has led many readers to reply in disagreement, and, in turn, Trump has developed a propensity for blocking these readers on Twitter.  Now that Trump is blocking people in his capacity as President, his so-called “haters and losers” may have recourse under the Constitution. Continue reading