The Briefing by Weintraub Tobin

In this episode of The Briefing, Scott Hervey and Richard Buckley dive into Pepperdine University v. Netflix, a trademark showdown over the use of the name “Waves” in the Netflix series Running Point. After Pepperdine’s attempt to block the series’ release was denied under the Rogers test, the university is back—this time arguing that the Jack Daniel’s Supreme Court decision changes everything. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: What happens when a Christian university’s proud athletic legacy collides with the creative freedom of Hollywood? That’s the question at the heart of Pepperdine University versus Netflix, a trademark dispute centered around the name Waves. Pepperdine lost its initial attempt to block the release of Netflix basketball comedy ‘Running Point.’ Very funny television show. But the fight is far from over. Now the court must decide whether Netflix use of the Waves mark is protectable artistic expression or actionable infringement. And it all comes down to a legal test some thought was subtle law until the Supreme Court rocked the waters in Jack Daniels versus VIP Products. I’m Scott Hervey, a partner at Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We are going to unpack this battle over brand identity, free speech, and college sports on this episode of the Briefing. Richard, welcome back to The Briefing. Good to have you. Richard: It’s great to be here again. Scott: Yeah. Did you watch Running Point? Richard: I have not. Scott: Okay, well, you are missing out. You should watch it. It’s quite funny. Richard: I feel like I must now. Scott: All right, let’s get into this. So let’s start with the basics. What’s this case about, Richard? Richard: So Pepperdine’s athletic teams have been known as the Waves since 1937. Netflix and Warner Brothers released a scripted comedy series called Running Point, featuring a fictitious professional basketball team named the Los Angeles Waves. The university sued, claiming trademark infringement and false designation of origin under the Lanham act, among other things. Scott: Pepperdine raised several issues in the complaint. First, they argued that the fictional Los Angeles Waves team, which, by the way, is not a collegiate team. It’s a like an NBA league team, uses the word Waves with a strikingly similar font to Pepperdine’s registered marks. Pepperdine also contended that the colors used by the fictional team were similar to Pepperdine’s and that both marks were used in athletic context. Pepperdine specifically pointed out that an image in the Running Point trailer included a frame jersey with the number 37, which they believe references Pepperdine’s founding year of 1937. Coincidence? I don’t know. But perhaps most importantly, Pepperdine was concerned about reputational harm. They argued that the themes and Running Point, including excessive alcohol and substance use, sexual innuendos in imagery and foul language and other content, didn’t align with Pepperdine’s Christian values and would negatively impact the university’s reputation. Richard: So Pepperdine sought a temporary restraining order, a tro, to block the release of Running Point, which premiered on February 27, 2025. The university argued that the use of Waves, along with similar color schemes in a jersey number 37, would confuse viewers and damage Pepperdine’s reputation. As you previously mentioned, the court denied the TRO for finding that Pepperdine was unlikely to succeed on the merits of its trademark claims because the use of Waves fell under the Rogers test, which protects expressive works unless the use is irrelevant or is explicitly misleading. Scott: Right. We. We previously covered the court’s ruling on the tro, so we’re not going to delve into that too deeply. You can. We’ll include a link to that episode in the show notes here. So. So after the show aired, Pepperdine filed a First Amendment complaint to incorporate new allegations, including claims of widespread use of the Waves mark in marketing. For example, Pepperdine alleged and in the First Amendment complaint included pictures showing Netflix’s use of Waves on tickets for the series premiere. Pepperdine also alleged consumer confusion with regard to third-party sales of Wave merchandise linked to Running Point. Richard: Shortly after Pepperdine filed its First Amendment complaint, Netflix filed a motion to dismiss the first amended complaint based mainly on the argument that the Rogers test still applied and shielded them from liability because Waves, the use of waves, was part of an expressive work and it was not misleading. Scott: Right. And so that brings us here to Pepperdine’s opposition to Netflix’s motion to dismiss. All right, so Pepperdine, in their opposition, argues that Jack Daniels versus VIP products. That decision changed everything. In that case, the Supreme Court ruled that when a trademark is used as a source identifier, Rogers does not apply, even if the use has. Has expressive elements. Pepperdine claims that Netflix used Waves not just expressively, but as branding as a source identifier for the Running Point series. Pepperdine pointed to extensive use of the mark in the series and in marketing of the series, social media, posts, merchandise, and Netflix referring to itself as, quote, home of the Los Angeles Waves. Richard: And Pepperdine argues that that’s enough to knock Rogers out of play, thus triggering the traditional trademark analysis and the likelihood of confusion test under Jack Daniels. Scott: All right, so where does this leave us? So, Richard, what’s your take on how the court might rule? Richard: Hard to say. Pepperdine’s amended complaint is strong on its face. They’ve alleged that Netflix used the WAVES mark pervasively and commercially as a brand identifier, and that could persuade a court not to apply Rogers at this early stage. That said, it’s not a slam dunk. Netflix can argue credibly that Waves is part of the show’s world-building and that viewers aren’t confused about who made. Scott: The show right I agree with you, but I think my prediction here, my prediction is that the court denies the motion to dismiss. At this stage, Pepperdine just needs to plausibly allege source identifying use. And I think based on the use of the WAVES mark outside of the program, I think that Pepperdine may have done just that. Whether Pepperdine will ultimately win on likelihood of confusion, that’s a whole different question. Richard: So with regard to fan made unofficial Waves merchandise that can’t be pinned on Netflix, as you know, Scott, because you’re helping some of your clients with this very issue, that being counterfeit merchandise that includes marks and even images from programs all over sites like Etsy and redbubble. However, I just have to ask, why do you think Netflix printed tickets for the series premiere with the Waves mark on it? And relatedly, why would Mindy Kaling, one of the creators of the show, include as a tag on her Instagram page, home of the Los Angeles Waves this arguably a gift to Pepperdine? Scott: No. Oh, I totally agree with you. I mean, you’re the litigator. You tell me, how would you deal with this situation where you, you defeat, you defeat a tro. Temporary restraining order motion for a temporary restraining order, right? Where, where basically, you know, so goes to tro, usually, so goes the case, but the judge kind of left it open for, for Pepperdine to show use of that mark outside of the program. And, and, and here it is. Now. How do you, as a litigator, if you were handling this case, like how do you deal with that or how would you deal with that? Richard: I think as a general rule, when you have a favorable ruling on a TRO where there is a prediction that’s offered as to likelihood of success on the merits, I think that the, the general advice in all circumstances would be just, you know, hold serve, do, don’t do anything that would, you know, give anybody a chance to revisit these arguments. New ammunition, you know, revisit previously made arguments, just stay cool is generally what I would advise in a situation like that. Scott: Yeah, but I guess according to the timeline in the First Amendment complaint, remember the First Amendment complaint was filed and then Netflix filed its, well, network file this motion to dismiss. Richard: The TRO prior. Scott: Yeah, it was prior. So it’s interesting, right? Netflix, Pepperdine may not have had this additional evidence. They may not have had this evidence of Netflix’s use of the Waves outside of its use in the television program. So let’s. Okay, that, this is an interesting question. Had, had Pepperdigm brought its TRO after filing its first amended complaint with evidence of use of waves outside of the creative context of the program and arguably showing use as a source identifier, where do you, how do you think the court might have ruled? What do you think might have happened? Richard: That’s a great question. It’s very difficult to say, but I think that there would have been some distinction and analysis of, you know, expressive, artistically protected conduct and commercial conduct, which in its opposition to the motion to dismiss, Pepperdine draws a distinction between, you know, know, those two types of conduct. Assuming it had made that argument before and that the cop, that the court had bought into it, then they maybe get a TRO on the commercial activity and, you know, they move forward with their lawsuit in the face of pleading challenges. Scott: Yeah, I think I agree with you. I think what, I think the more likely thing that would have happened had Pepperdine brought TRO after it filed its First Amendment complaint, or if it had this evidence before it filed its initial complaint and brought its tro, I think that the court would probably have found Rogers not applicable, but it would not have enjoyed the airing of the series. I think the court probably could have said, look, you’re, you can, you can recover damages and monetary, you know, you can recover monetary damages. And that’s sufficient because the, you know, the, the weighing of the, the, the, the benefit versus the harm to Netflix, I think the harm would definitely outweigh any benefit that Pepperdine could receive. And plus, I think that it’s, the harm suffered could be covered through economic damages, possibly. I think Pepper and I might argue that his reputational harm couldn’t be covered by economic damages, but I don’t know. I think we find that most things are most, most things can be addressed through money. Richard: Agreed. And I think that if the court had the opportunity to, and it has the opportunity now, I suppose, with the motion to dismiss, but to address the distinction between artistic and commercial activity and to treat them differently, you know, apply Rogers to one and not the other, you know, then you kind of get into like a more realistic look at what is really going on here. I don’t think Pepperdine can credibly argue that when you watch that show, you think that Pepperdine endorses it or has produced it, or this is a Pepperdine production. But I do think that when you go to buy a T shirt in a store and it says waves on it in blue and orange, you know, you might think that’s a Pepperdine shirt, but it could be a, a Netflix produced merchandise. Scott: Yeah, I Mean, I don’t think Netflix. I don’t think it would be wise to produce waves themed merch related to the program. I think they could. I think that’s where you could have some big, big problems. But. But I don’t. But I don’t think that a. A collegiate basketball fan who happens to follow and love Pepperdine Waves, I don’t think that there’s a high degree of overlap between that person and the average viewer of Running Point, because in order to show. In order to show this type of consumer confusion or likelihood of confusion, you have to have. You have to show overlap in the groups of consumers that. That interact with these. With these goods or services. And obviously, this all comes out in expert testimony and survey evidence. And, you know, I’m sure one side will have survey evidence that shows that there is an overlap, and another will have survey evidence that shows that there isn’t an overlap, and it’ll be up to the jury to decide which one they believe. Richard: So, and if the court, you know, accepts everything that’s been alleged as true for purposes of a motion to dismiss, as it is supposed to do, then the lawsuit goes forward. Scott: Right. I think there is one takeaway here for lawyers who do what I do, which is advise studios and production companies on issues just like this, is to make sure that your client kind of understands the risk of. Of running with a brand like this. Because I’m. I’m fairly sure that when they did the script report and they noted that this team was named the Waves, that the script report noted that Pepperdine’s basketball team is also named the Waves. And the lawyer would have gotten a copy of that script report, and the lawyer may probably should have flagged the. The studio and flagged for production. Look, okay, we can use this in the show, but let’s make sure that it’s not used in advertisement or promotions, because that’s when we could have problems. Richard: Right. It’s better to be safe than sorry, and it invites trouble. Scott: Yeah. Richard: To do that. Scott: Oh, yeah. Richard: Especially with all those sort of coalescing factors. Scott: Right. Well, this case certainly has the potential to reshape how expressive works are treated under trademark law, especially in the streaming era, where branding and content kind of bleed together. The Jack Daniels ruling sets the tone, and Pepperdine is testing how far courts are willing to go in reigning in Rogers. Richard: We will certainly be watching this one closely. Scott: Oh, we will. We’ll definitely report back on the court’s ruling. Well, that’s it for today’s episode of the Briefing, thanks to Richard for joining me today, and thank you, the listener or reviewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review and share this episode with your friends and colleagues. If you have any questions about the topics we cover today, please please leave us a comment.

Can a car be a copyrightable character? In Carroll Shelby Licensing v. Halicki, the Ninth Circuit said no — ruling that “Eleanor,” the iconic Mustang from ‘Gone in 60 Seconds,’ lacks the distinctiveness and consistency required for copyright protection. In this episode of The Briefing, Scott Hervey and Richard Buckley break down the history of the Eleanor litigation, review the district court and Ninth Circuit rulings, and explain what it actually takes for a character to qualify for copyright protection. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Can a car be a character? Well, that’s the question at the heart of a long-running legal dispute over Eleanor, the muscle car made famous in the movie Gone in 60 Seconds. For years, the heirs of the original film’s producer claimed Eleanor was a protectable copyright character, and they tried to stop others, including Carroll Shelby licensing, from building or selling versions of that car. But the Ninth Circuit has now weighed in and has definitive shut that claim down. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We’re going to talk about Carroll Shelby Licensing versus Halicki and what it takes for a character to receive copyright protection on today’s installment of The Briefing. Richard, welcome to The Briefing. This is a first for you. So, welcome. Richard: Thank you for having me. It’s a pleasure. Scott: Absolutely. Richard is one of our litigators, so that means we keep him in the back of the firm and chained up, feed him raw meat every once in a while, just to So not often enough. Keep him ready to battle. All right. This is right up your alley, a piece of long-running litigation with steadfast defendants and steadfast plaintiffs arguing their claim all the way up to the Ninth Circuit? Richard: It’s a privilege of being older and experienced, I guess. But yes. Scott: All right. Well, let’s get into this one. So the saga over the car, Eleanor, has been years in the making. It began with the 1974 film, Gone in 60 Seconds, which began as an independent action film written and directed by H. B. Tobi Halicki. In that film, Yellow, 1971, Ford, Mustang Fastback named Eleanor, is the featured car in a climactic 40-minute chase scene. The film became a cult hit, and Eleanor became an underground icon. Richard: Right. In 2000, the movie, Gone in 60 Seconds, was remade by Disney and Jerry Bruckheimer, this time with Nicolas Cage behind the Wheel. Also in the remake, Eleanor is a Silver 1967 Shelby GT 500 Mustang. Very different look and different era. Still nicknamed Eleanor and still featured prominently. Scott: Halecky passed away in 1989, and his widow, Denise Halecky, later acquired certain intellectual property rights associated with the 1947 film, including the original script and footage. Denise Halecky, the widow, also began asserting that Eleanor, the car, was a protectable copyright character. Over the years, she and her company sent legal threats or sued individuals and businesses who built or sold Eleanor replicas, or what she claimed to be Eleanor replicas, including muscle car maker, Carroll Shelby, a former race car driver and car designer who was played by Matt Damon in the 2019 movie, Ford versus Ferrari. Great movie, by the way. Richard: Agreed. Those threats, Scott, culminated in the lawsuit that was filed by Carol Shelby licensing and Classic Recreations in 2020. They sought a declaratory judgment that Eleanor was not entitled to copyright protection and that Hyliki had no enforceable rights to stop them from building replicates. Scott: So this case has been winding its way through the district Court for the Central district of California and the Ninth Circuit. There have been many starts and stops and twists and turns in this case. But a summary of the proceedings is as follows. So originally, the district Court sided with Shelby in Classic Recreations. The Court found that Eleanor, in both the 1974 original and the 2000 remake, lacked the distinctive attributes necessary for copyright protection as a character. Richard: The Court emphasized that in the 1974 film, Eleanor was little more than a car with a name and a role in a chase scene. It had no anthropomorphic qualities, personality traits or development. The court also noted that Eleanor appeared differently in the two films, different models, different colors, different eras, undermining the argument that it was a consistent, protectable character. Scott: Right. Haleke appealed to the Ninth Circuit, where the Ninth Circuit affirmed the lower court, the court reviewed its earlier precedent on character copyright ability, notably the DC comics versus towel case involving the Batmobile, and concluded that Eleanor did not meet the standard. Richard: That, Scott, is a perfect segue for us to talk about what it takes to copyright a character. Scott: Right. Let’s do that. Let’s take a look at DC comics versus towel. That’s a 2011 case involving the Batmobile. In that case, the court noted that the owner of a copyright in a work embodying a character can acquire copyright protection in the character itself. In determining whether a copyright protection protection may be afforded to characters, visually depicted in a television series or in a movie, the Ninth Circuit employed the standard known as the character delineation test. If a character is especially distinctive or constitutes the story being told, the character is entitled to receive protection separate and apart from the work in which that character appears. The court noted that characters that have received copyright protection, like and Rocky Balboa, have displayed consistent, widely identifiable traits. Richard: In that case, the court said that the Batmobile is akin to the Godzilla character, which was the subject of its own copyright lawsuit. Although Godzilla assumed many shapes and personalities in the various Godzilla films, the court found that Godzilla had developed a constant set of traits that distinguished him, him, him, him, him or her or it from other fictional characters, thus meriting copyright protection. Scott: Right. And not every character is entitled to copyright protection. One of the key findings to whether a character is entitled to copyright protection is whether that character is especially distinctive. To meet this standard, a character must be sufficiently delineated and displayed consistently with widely identifiable traits. The Ninth Circuit, in the Batmobile case, a three-part test to help determine whether a character is entitled to copyright protection. First, the character must generally have physical as well as conceptual qualities. Even if the character does not maintain the same physical appearance in every context. I mean, as we know, the Batmobile changed as did Godzilla. Second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears. There’s no mistaken making Dracula when it appears. This means that the character must display consistent identifiable character traits and attributes, although the character need not have a consistent appearance. Third, the character must be especially distinctive and contain some unique elements of expression. Richard: This is obviously a fact-specific and involved test. Scott: Oh, absolutely. This is how the Ninth Circuit applied this test in the Batmobile case. The court found that because the Batmobile has appeared graphically in comic books and as a three-dimensional car in a television series in motion pictures, it has physical as well as conceptual qualities and is thus not a mere literary character, thereby satisfying the first factor. As for the second, the court found that the Batmobile was sufficiently delineated to be recognizable as the same character whenever it appears. Richard: The court also noted that the Batmobile had maintained distinct physical and conceptual quality since its first appearance in the comic books back in 1941. The vehicle is equipped with high-tech gadgets, weaponry used to aid Batman in fighting crime. It’s almost always bat-like in appearance with bat emblems on the vehicle. The bat-like appearance has been a consistent theme throughout the comic books, television series, and motion pictures, even though the specific bat-like characteristics have changed from time to time. Scott: That’s right. In addition to its status as Batman’s loyal bat-themed sidekick, complete with the character traits and physical characteristics you just mentioned, the Batmobile also has its unique and highly recognizable name. It’s not merely a stock character. Thus, the court found that the Batmobile is especially distinctive and contains unique elements of expression. So that’s how the court found the Batmobile to be a protectable character. Richard: So now, let’s look at how the Ninth Circuit applied the toll test to Eleanor. First, the court looked at whether Eleanor is a character with physical and conceptual qualities. Does the character exist beyond a mere literary description? While Eleanor has physical qualities, it lacks any conceptual qualities. Eleanor has no anthropomorphic traits. Scott: Right. Next, the court looked at whether Eleanor’s appearance is consistent. Is it sufficiently delineated to be recognizable as the same character whenever it appears across multiple works or iterations? I think Batman, right? Whether it’s Adam West or Christian Bale, the essential traits are the same. Here, in this case, the court said the answer is no. Eleanor’s physical appearance changed frequently throughout the various films. Richard: Lastly, the court looked at whether Eleanor is distinctive and has a unique expression. The character must be more than a stock figure. It has to be sufficiently distinctive to constitute original expression. This is often the hardest factor to prove, and Eleanor failed here, too. The court said that Eleanor is not especially distinctive. Nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films. Scott: This case reinforces that the threshold for character protection is high, and it prevents copyright from being used to monopolize common concepts like a fast car in a chase scene. It’s a win for fans, builders, and for creativity. It’s also a reminder that copyright isn’t meant to protect every reoccurring object in a film. All right, let’s talk about what this case means for filmmakers who want to create a protectable character. So let’s talk about some key strategies to keep in mind. Richard: Okay, first, develop distinctive personality traits. It’s not enough to just give a character a cool name or a memorable name or a cool look. Courts want to see original expressive qualities like unique speech patterns, emotional depth, or consistent behavior. Think of characters like Jack Sparrow or Walee They stand out because they think, they act, and they respond to the world. Scott: Right. R2d2 and C3PO for sure, or Chuy, Chewbacca. All right. Second, ensure consistency across appearances. If the character appears in multiple works, like R2D2 and C3PO, the core identity must be recognizable. In this case, the fact that Eleanor looked so different in the original film film and the remake undermine the argument that it was the same character. Richard: Third, give nonhuman characters anthropomorphic traits. Courts are more likely to recognize copyright in a robot or a car if it behaves like a person. That might mean giving it a voice, facial expressions, or agency within the story. The Batmobile in DC comics versus toll passed this test, and in contrast, Eleanor didn’t. Scott: Right. Fourth, avoid generic designs and tropes. A muscle car and a car chase isn’t enough. Copyright doesn’t protect ideas, only original expression. So even if your character starts with a familiar trope, you’ll need to add something unique to elevate it beyond just a cliché. Richard: Number five, show, don’t just tell. Giving something a name like Eleanor doesn’t automatically make it a character. You have to show who the character is through storytelling, interactions, and a role in the plot. Scott: Sixth, make the character central to the story. If the character is just a backdrop or a tool, like a vehicle, a weapon, or a setting, it’s harder to argue for copyright protection. Courts want to see that the character drives some portion of the narrative and has a meaningful arc or function. Richard: Finally, my favorite step, document your development process. If protectability ever becomes an issue, being able to point to notes, concept art, character Bibles, or draughts can make a big difference in demonstrating originality. Scott: Richard, spoken like a true litigator. The bottom line, copyright protection for characters is possible, but you have to earn it through distinctive, expressive storytelling. The ruling in Carroll Shelby Licensing versus Halicki reinforces that courts won’t extend protection lightly, and that’s a valuable lesson for every creator. Later. Well, that’s all for today’s episode of The Briefing. Thank you, Richard, for joining me today. And thank you, the listener or a viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe and leave us a review and share this episode with your friends and colleagues. If you have any questions about the topics we cover today, please leave us a comment.

If your company relies on online reviews, influencer partnerships, or digital marketing strategies, it’s important to be aware of FTC Rules and the distinctions between real reviews and paid ads. Scott Hervey and Jessica Marlow discuss the dos and don’ts of consumer reviews on this featured episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: On August 14th, 2024, the Federal Trade Commission announced a final rule that will combat fake reviews and testimonials. All parties involved in influence or marketing or companies that have significant e-commerce businesses need to know about these rules, what they prohibit, and the consequences for violating them. Joining me to break down these new rules is fellow Weintraub partner Jessica Marlow on today’s installment of The Briefing. Jessica, welcome back to The Briefing. It’s been a while. Jessica: It has. Thank you for having me. Scott: Good to have you back. We’re talking about one of your favorite topics, influencer marketing. Jessica: Absolutely. FTC, they’re coming up with new rules all the time, so I’m excited to dig in. Scott: Yeah. Well, so let’s start out with a rule that I think a number of online brands, companies that have significant online businesses, will find maybe problematic. So the FTC says that it’s an unfair or deceptive act or practice and a violation for a business to provide compensation or other incentives in exchange for the writing or creation of consumer reviews expressing a particular sentiment, whether negative or positive, regarding a product, service, or business that is the subject of the review. In other words, no pay-to-play for consumer reviews. Now, according to the FTC notes, this section doesn’t address testimonials such as a blogger or an influencer paid review. This section only applies to consumer reviews. Also, the FTC pointed out that this section doesn’t prohibit paid or incentivized consumer reviews, only those where the compensation is provided in exchange for expressing a specific sentiment. Jessica: What about a campaign where a brand solicits positive feedback on a product in exchange for a discount on a future purchase? Something like, Tell us how much you loved our product, and we’ll give you 10% off your next purchase. Scott: The FTC that just because a business expects a review to be positive doesn’t mean that there is an express or an implied requirement that the review needs to be positive to obtain an incentive. The condition that the review needs to be of a particular sentiment in exchange for the incentive, it needs to be expressed or implied by the circumstances. However, let’s be clear that review gating, where a business only asks for positive reviews for customers while filtering out negative views, is itself illegal. Jessica: The rule also says that companies are prohibited from creating, writing, or selling fake reviews or testimonials. This would prohibit reviews attributed to a person that doesn’t exist. This would include AI-generated fake reviews, but not necessarily AI-generated summaries of actual reviews or reviews by real people who do not have actual experience with the business, its products, or its services, or that maybe misrepresent their experience of the person giving it. The rule also prohibits businesses from buying fake reviews or testimonials or disseminating such reviews or testimonials when the business knew or should have known that the reviews or testimonials were fake or false. Something to think about for brands or agencies that contract directly with influencers. Make sure that your agreement requires actual use of the reviewed product and that the review reflects the reviewer’s actual experience. Scott: Yeah, I agree with that. I think having that rep and warranty in an agreement is a way that a business can say, Well, there’s no way that I should have known that these testimonials given by this person are fake. They had no personal knowledge of the product or these reviews or testimonials did not actually reflect their own personal experience because the contract had these reps and warranties that said that the person giving the testimonial had to use it and that they could only give their personal experience as a testimonial. That’s a really good point. The prohibition on fake reviews also extends the company insiders or their relatives. The rule prohibits procuring or disseminating a review from a company insider or their relative when that review is about the business or one of its products or services, when the business knew or should have known that the reviewer, either materially misrepresented, either expressly or by implication, that the viewer exists. So one, it’s a review by a fake person, or two, that the reviewer did not have actual experience with the business or its product or service, or that the review misrepresents that reviewer’s actual experience. Jessica: The prohibition does not apply to reviews or testimonials that resulted from a business making generalized solicitations to purchasers to pose reviews or testimonials about their experience with the product or service or the business, or that appear on a website or platform as a result of the business merely engaging in consumer review hosting. Scott: We mentioned above that businesses can’t create or sell fake testimonials. But the flip side of that coin is that The rule also says that businesses cannot buy consumer reviews or disseminate reviews or testimonials that are fake, either that they’re from a fake reviewer or that they materially misrepresent the reviewer’s experience with a the product or the service. They also can’t provide compensation or incentives for reviews expressing a particular sentiment. Jessica: The rule also addresses insider reviews. The rule prohibits an officer or a manager of a business from writing or creating a consumer review or consumer testimonial about the business or one of its products or services unless there is a clear and conspicuous disclosure of the officer’s or manager’s material relationship to the business. If the relationship is otherwise clear to the audience, then in the case of consumer testimonials, this disclosure isn’t necessary. Officers, managers, employees, or the relatives must disclose their relationship to the company when writing reviews, and companies must ensure that such disclosures are made when they know about these relationships as well. Scott: It’s quite frequent to see insiders provide some type of product review on TikTok or Instagram. Sometimes, there’s a disclosure about their relationship with the company and their employment status with the company. Other times there isn’t. But companies take note, if your head of social media marketing is also a generator of your TikTok or Instagram content, you need to make sure that you disclose the fact that this person is a company insider. There are some review websites that misrepresent their relationship to a business being reviewed. These rules prohibit a business from materially misrepresenting, either expressly or by implication, that a website, organization, or entity that it controls, owns, or operates provides independent reviews or opinions, other than consumer reviews, about a category of business products or services, including the businesses or one or more of the products or services that it sells. Jessica: The role also prohibits review suppression. So, companies can’t use unfounded legal threats, intimidation, or false accusations to prevent or remove reviews. And they also can’t misrepresent the displayed reviews represent most or all of the submitted reviews if negative reviews are being suppressed. Scott: The rule also includes a prohibition against the use of fake social media influence indicators. Businesses are prohibited from selling, distributing, purchasing, or using fake indicators of social media influence, like number of followers, number of subscribers, likes, etc, for commercial purposes. Jessica: Let’s talk about the impact of this rule on companies and brands that have some online focus. Scott: Sure. The first is review management. Companies need to be extremely cautious about how they manage their online reviews. They can’t artificially inflate positive reviews or suppress the negative ones. Jessica: And how about transparency? There’s an increased need for transparency, especially when employees or affiliates are the ones leaving those reviews. Scott: Right. And that ties into marketing practices. Social media marketing strategies need to be authentic, avoiding the use of fake followers, fake likes, or fake engagement metrics. Jessica: Let’s focus for a second on customer feedback. Companies should really focus on genuine customer feedback rather than incentivized or manipulated reviews. Scott: Then let’s not forget the lawyers. Legal compliance Compliance. Online businesses need to establish clear policies and training to ensure compliance with these rules across all digital platforms. Might I suggest maybe an audit of these practices every year or so because as we know, the FTC is always either changing rules or adopting existing rules to fit current times. Jessica: Absolutely. I think that plays into platform responsibility. If a company hosts reviews on its platform, it needs to ensure representation of all reviews. Scott: Influencer partnerships. When working with influencers or celebrities, companies must ensure proper disclosure of relationships and the authenticity of the testimonials given by those influencers or celebrities. Agreed. Now, these regulations aim to create a more honest and transparent online marketplace. At least that’s the goal of the FTC. This could potentially level the playing field for businesses, but it requires more diligence to in managing a business’s online presence and managing both negative and positive customer feedback. Thank you for joining us for today’s episode of The Briefing. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

Exploring the intriguing legal battle over Jack Nicklaus’s brand rights, experts unravel the complexities of personal branding in the creator economy. They discuss how Nicklaus managed to reclaim control of his name, image, and likeness, shedding light on critical contractual agreements that investors must understand. The implications of the court's ruling serve as a warning for influencers and venture funds alike. Learn about the vital need for clear agreements and the potential pitfalls in branding transactions that can shape the future of personal brands.

After nearly 30 years of litigation, a federal court has canceled General Cigar’s U.S. trademarks for COHIBA cigars — all because of a little-known treaty and a Cuban brand once favored by Fidel Castro. What does this mean for U.S. trademark law and the future of the COHIBA brand? Tune in to this week’s episode of The Briefing as Scott Hervey and Jessica Corpuz unpack this high-stakes decision. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: It’s a battle decades in the making. Two cigar companies, one Cuban and one American, locked in litigation over one of the most iconic cigar trademarks in the world, Cohiba. And in a recent decision, a federal District Court in Virginia upheld a ruling canceling the US trademark registration long held by General Cigar. The reason? A rarely used international treaty and the trademark’s Cuban origin. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Corpuz. We’re going to talk about the Cohiba Trademark decision and what it means for brand owners on today’s installment of The Briefing. Jessica, welcome to The Briefing. It’s been a little while, but it’s good to have you back. Jessica: Thanks for having me, Scott. Scott: So this case isn’t It’s new. In fact, this dispute has been going on for nearly 30 years, and it’s between Cigar General, which is a US company, and Cuba Tobacco, a Cuban state-owned enterprise. Both claim rights to the Cohiba trademark. Have you ever had a Cohiba cigar? Jessica: Not personally, no. Have you? Scott: I have, yes. Outside of the United States, of course. Cigar General in the US, which held the Cohiba trademark, and Cuba Tobacco, which held that trademark in Cuba. Jessica: Yeah, that’s right. So it all started in the late 1990s, when Cuba Tobacco applied to register Cohiba in the United States. The problem was that General Cigar already had registered the Cohiba marks, a wordmark and a stylized version, both used for cigars. Cuba Tobacco asked the USPTO to cancel General Cigar’s registrations, claiming it had prior rights under international law. Scott: Right. Initially, the ETTAp suspended the cancellation case while Cuba Tobacco pursued litigation in federal court. That case made its way all the way up to the Second Circuit, which blocked Cuba Tobacco from getting injunctive relief, saying that any court-ordered transfer of the trademark to a Cuban company would violate US sanctions under the Cuban Assets Control Regulations. Jessica: Exactly. But then things shifted. The federal circuit later said that Cuba Tobacco could still pursue cancellation Installation of General Cigar’s marks at the T tab under a separate theory. Article 8 of the Inter-American Convention, sometimes known as the Pan-American Convention, a treaty both the US and Cuba are parties to. Scott: Okay, so let’s pause here for a second and let’s unpack a few things. First, let’s get some background on the Pan-American Convention. The Pan-American Convention, now you know why they call it the Pan-American Convention, is formerly known as the General Inter-American Convention for Trademarks and Commercial Protection. That’s a long one, was signed in 1929 and entered into force in 1931. It was one of the earliest multinational efforts to create a uniform protection system for trademarks and commercial names across the Americas. And this was at a time when international trademark protection was really still developing. The convention was groundbreaking for expanding reciprocal rights among member nations and recognizing foreign trademark rights that went way beyond traditional territorial principles. Jessica: Yeah. So the convention’s core goal was to protect legitimate business interests and prevent unfair competition across national borders. It sought to establish a framework whereby companies in one signatory country could assert rights against conflicting registrations in another. This included not just registration-based protections, but also protections based on prior use and legal recognition in the country of origin. Article 8, which is the key provision issue in the Coheba litigation, reflects that exact purpose, allowing a trademark owner in one contracting state to cancel conflicting mark registered another if it had prior legal protection and the registrate had knowledge of the original use. Scott: While the Pan-American Convention has often taken a back seat to more prominent treaties like the Paris Convention or the TRIPS Agreement, the Pan-American Convention remains in force and has been recognized by US courts as self-executing, meaning that it becomes US law upon ratification without the need for additional legislation to actually implement the treaty. That status gives it the same force as federal law. And as the Cohiba case shows, it can be a powerful tool in cross-border trademark disputes, especially among countries, well, primarily among countries that are parties to the treaty like the United States and Cuba. Jessica: So, Scott, what other countries are members of the Pan-American Convention? Scott: In addition to US and Cuba, member states include Mexico, Guatemala, Honduras, Nicaragua, Costa Rica, Panama, Colombia, Venezuela, Peru, Brazil, and Paraguay. Jessica: It’s really too bad that China isn’t a member, huh? Scott: Right. Given the problems US brands have in China with Chinese actors filing for Chinese trademarks that belong to a growing brands in the US before those brands file in China, the ability to use Article 8 in China to cancel a trademark would be a wonderful thing. Jessica: It would be great. But here, let’s talk about Article 8. So it allows a trademark owner in one contracting state, in this case, Cuba, to cancel a mark registered another here in the United States if two key elements are met, right? Scott: Right. And the first element is that the foreign mark was protected in the country of origin prior to the US registration. And the second is that the US registrant had knowledge of the foreign mark’s use before the filing in the US. The idea is to prevent companies from racing to the trademark office in another country to grab a brand that they know is being used abroad, exactly like they do in China. In this case, Cuba Tobacco had registered its Cohiba mark in Cuba in the early 1970s and had been selling the cigars since 1970, including diplomatic gifts and retail outlets for foreign nationals in Havana. And yes, Cohiba really was Fidel Castro’s favorite cigar, and he often gave it to dignitaries as gifts. Jessica: Well, the court actually found that General Cigar knew all of this. In fact, internal memos from 1977 referred to Cohiba as, Castro’s Cigar, and noted that it was used in Cuba. Still, General Cigar pushed ahead with its application in March of 1978, apparently deciding that securing a US registration was more important than avoiding a conflict. Scott: So the TTAB ultimately canceled General Cigar’s registration under Article 8, finding both legal protection of the Cuban mark and knowledge on the part of General Cigar. And when General Cigar appealed to the federal court in Virginia, the court upheld the TTAB’s decision. Jessica: So, General Cigar tried to argue that the cancellation itself was a prohibited transfer of property under US embargo laws. But the court disagreed, finding that the Cuban Assets Control Regulations didn’t bar the T-Tab from canceling the registration because a cancellation, unlike a court order transferring a mark, doesn’t hand property over to a Cuban entity. It simply removes the registration. Scott: Right. Now, that’s right. And that’s an important distinction and one that could have broader implications. This ruling reinforces that international treaties, even lesser-known ones like the Pan-American Convention, can create real, enforceable rights in US trademark law. Jessica: Yeah. And it also underscores the importance of good trademark hygiene. If a company knows about an existing foreign brand and still tries to register it here without disclosure, it may be vulnerable under Article 8. Scott: So Jessica, what do you think? Is this the end of the line for General Cigar and its use of Cohiba? Jessica: Not necessarily. The ruling doesn’t actually give Cuba tobacco the US rights yet. It just clears the way. Whether Cuba tobacco can actually register and use the market in the US still remains to be seen, especially since the embargo is still in place and the CACR limits Cuban companies’ ability to acquire US trademarks. Scott: Okay. So let’s talk about what happens now for a General Cigar, given that its trademark registration for Cohiba has been canceled. Cancellation doesn’t automatically mean that General Cigar has to stop using the mark. In the United States, trademark rights are based on use, not just registration. That means that General Cigar could, in theory, continue using the Coheba brand in commerce just without the benefit and legal presumptions that come with federal registration. Jessica: Yeah, but that comes with some serious risk. Without a federal registration, General Cigar loses the legal presumption of ownership, the to enforce the mark in certain venues and keep protections like nationwide constructive notice. More importantly, Cuba Tobacco, now holding a potential priority claim under Article 8 of the Pan-American Convention, may be in a stronger position to argue that general cigars continued use of cohiba actually constitutes infringement. Scott: So could Cuba tobacco sue for trademark infringement in the United States? Possibly, but there’s a catch. The US embargo against Cuba still bars many commercial transactions, including the transfer of trademarks. The Second Circuit, as we know, previously held that giving ownership of the Cohiba mark to Cuba tobacco through a court order would violate the Cuban asset control regulations. So unless Cuba tobacco obtains a specific license from the US Treasury Department’s Office of Foreign Asset Control, it may still be blocked from enforcing or benefiting from trademark rights in the US, even if it technically has priority. Jessica: Yeah. In short, General Cigar is in a complete legal gray zone. It can still sell cigars under the coheban name, but it does so without the protection of a federal registration and with a potential infringement claim looming, if and when US sanction policy changes or if OFAC issues a license. It’s really a stark reminder here that trademark law doesn’t operate in a vacuum and that the geopolitical forces can shape even the most brand-driven legal battles. Scott: I guess one could say that general cigars use of Coheba is somewhat smoky and cloudy right now. That was terrible. Well, thanks for joining me today, Jessica. That’s all for today’s episode of The Briefing. Thanks to Jessica for joining me. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment..

Warner Music Group just sued DSW for using 200+ hit songs in social media ads—without permission. Those TikToks could now cost $30M. On this episode of The Briefing, entertainment and IP attorneys Scott Hervey and Tara Sattler break down the legal firestorm and what every brand needs to know before hitting “post.” Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: A major music label just did the legal equivalent of a mic drop on one of America’s best-known shoe retailers. Warner Music Group has filed a lawsuit against Designer Brands Inc, the parent company behind DSW, accusing them of using more than 200 hit songs by artists like Cardi B, Fleetwood Mac, and Lizzo in TikTok and Instagram videos without a license. And they’re not just suing for direct infringement, they’re going after DSW for contributory and vicarious infringement tied to the influencer content. I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to talk about the DSW lawsuit and the lesson for brands that engage and Influencer Marketing on today’s installment of The Briefing. Tara, welcome back to The Briefing. We’ve got another, I don’t know, A scary piece of influence or marketing gone wrong here on the docket today. Tara: Yeah, we definitely do. I’m looking forward to talking about it with you. Scott: So earlier this month, Warner Music Group filed a federal lawsuit against DSW, claiming that over 200 of its copyrighted songs were used in social media ads on TikTok, Instagram, and other platforms without getting permission. Tara: Yeah, this isn’t about just one rogue post. The complaint alleges that DSW DSW’s marketing team, its influencers, and its in-house content creators, produced and shared branded videos that featured hit songs like Up by Cardi B and Barbi World by Nicki Minaj without securing proper licenses. Scott: The complaint alleges that DSW knows all about licensing music for advertising and that it had previously licensed music for use in its traditional ads. The complaint alleges that DSW knew exactly what it was doing when it skipped the licensing process for its influencer marketing ads. Tara: Right. In the complaint, Warner Music Group states that DSW, like many retailers, has shifted much of its marketing focus from traditional advertising to promoting its products through social media platforms like Instagram and TikTok, as well as through paid partnerships with well-known social media influencers. Scott: And as you and I discussed on a different episode, as we know, more than 50% of advertising spend has moved from traditional TV to social media. From my experience with my own brand clients, it seems that brands find social media advertising more effective and less expensive than traditional advertising. Well, I mean, less expensive when you don’t get named as a defendant in a claim like this. Tara: Right. Here’s what Warner Music Group is doing for. First, direct copyright infringement based on DSW’s posts. Second, contributory copyright infringement based on the content created for DSW by the influencers. And third, vicarious copyright infringement because DSW benefited financially from the infringing influencer content and had the ability to control or remove the content. Scott: Right. So this is where this type of advertising campaign gets more expensive than traditional media. Warner Music Group is asking for statutory damages of up to $150,000 per work. That’s $30 million if they win on the 200 songs. Now, the judge has discretion whether to award up to the full amount of statutory damages. But still, it’s a substantial… This is going to be a substantial bill to pay either way. Tara: Yeah, that definitely is expensive. So let’s take a step back and briefly talk about copyright infringement. Management and the different claims made by a Warner Music here. Scott: Sure. Copyright law protects creative works like music, videos, photos, and more. It gives the copyright owner the exclusive right to reproduce, distribute, publicly perform, and publicly display that work. When a brand or an influencer uses a copyrighted work, whether it’s a song or an image in a post without permission, technically, that’s infringement. And unless the use qualifies as fair use, which is very narrow in a commercial context, the copyright owner has a claim. Tara: And we’ve covered numerous cases of celebrities being sued for posting a photo that wasn’t taken by them, even where that post wasn’t part of an integration. Using a photo or music on TikTok or Instagram may seem casual or informal, but the Copyright Act doesn’t make exceptions for viral marketing or these types of posts. Scott: Right. No, that’s a really good point. All right, so let’s break down the three claims that Warner is making. Let’s start with the claim for direct copyright infringement. This is the most straightforward. Warner says that DSW itself posted videos on its own official social media accounts using the copyrighted music without a license. It’s similar to airing a commercial on TV with a Beyoncé track you didn’t pay for. If you post it, you’re liable. Tara: Yeah. The second claim is a claim for a contributory copyright infringement, and this covers the influencer angle. Warner Music alleges that DSW encouraged, collaborated with, and paid influencers to create videos featuring its products and the copyrighted music. Even if the influencer technically uploaded the video, if DSW helped plan or promote it and knew about the infringement, DSW can also be held viable. Scott: Right. Lastly, Warner Music alleges that DSW engaged in vicarious copyright infringement. This one is all about control and profit. If DSW had the right and ability to supervise the content and directly benefit it from it through increased sales or through brand visibility, it can be held vicariously liable, even if it didn’t know about the infringement at the time. So it’s a serious trifecta of liability here. Tara: That’s exactly right. I think this DSW lawsuit It is definitely a wake-up call for brands relying on social media marketing. Scott: Right, and a lot of brands do. Here’s the bottom line. If you’re using music in a video, and if that video promotes your product or your brand in any way, you need a license. This is true whether you post a video yourself or whether you repost an influencer’s content that was made for your brand. Tara: Also, it doesn’t matter whether the video or photo runs on the brand’s channels or on the influencer’s social channels. If the video is the result of an integration and it just runs on the influencer’s channels, the brand may still be liable for contributory copyright infringement. Scott: It doesn’t matter if the music is only a 15-second clip. I get that a lot, and I’m sure you do, too. The client-client will say, What I only use two seconds? Or my understanding is, If you only use five seconds, it’s fair use. No, there’s no magic number that equals fair use. Fair use is, as you know, if you listen to this podcast, it’s a multifactor test, and it’s much more than the amount and substantiality of the work that’s used. Also, it doesn’t matter if it’s trending, and it definitely doesn’t matter that TikTok or Instagram provided the video or audio unless they state in their license that it is available for use for commercial purposes. It’s your responsibility to make sure that that the work, the music or video, is cleared for commercial use. To help avoid lawsuits like this, here’s a checklist of terms every brand should include in its influencer agreements. Tara: Okay, here we go. First, consider including a music usage clause. Require influencers to use only music that is licensed by the brand, royalty-free, or from a platform’s cleared for Commercial Use Library and require the influencer to show proof of licensing. Also, prohibit use of any commercial tracks without prior written approval. Lastly, have influencers warrant that their content is not infringing of any third-party IP rights. Scott: The brand should also have content review rights, retain the right to review and approve all videos before publication, and have the ability to require the influencer to make changes after the video is posted. Also, disclosure obligations. This one is a pretty basic requirement, but your contract should require compliance with FTC guidelines on sponsored content and make sure that the influencer is required to provide proper disclosure. Tara: Also, influencer agreements should have an indemnification clause. So include provisions requiring that influencers indemnify the brand for any legal claims arising from unlicensed content that they create or post. However, don’t over rely on the indemnification clause. If the influencer is agreeing to indemnify the brand and doesn’t really have the financial capacity to do that, then the brand still has significant exposure. Scott: Right. That’s a great point, Tara. Also, brands should have takedown requirements in their agreements. Require influencers to promptly take down any content if the brand request that it be done, especially if there’s a legal claim that arises. Lastly, licensing education. Now, this is not a bad idea, and I don’t know if it’s regularly done by the brand, but provide influencers with basic education or guidelines about music licensing, especially what not to do. Now, the downside of this is that this type of information could be used against the brand in litigation like this. So maybe, I think in the contract, just having more discussion about the requirement of music licensing and maybe have a phone conversation with the influencer if they’re not quite sure about exactly what this means. Tara: Yeah, and I think one other thing to do is that If an influencer acknowledges to a brand that they have licensed to a music library, the influencer might not appreciate or fully understand that there are different tiers of licensing and that a basic license may not cover certain uses commercial uses. So brand should require influencers to confirm that they understand that platform music libraries are not automatically created for branded content. Scott: Right. I think this is part of a growing trend that shows that labels and other content owners are watching what brands do on social media, especially when it involves popular music or maybe a popular meme or some other type of trend. The fact that something is viral doesn’t mean that it’s legal. And the casual, fast-paced nature of influencer content doesn’t excuse copyright violations. So if you’re a brand working with influencers, take a hard look at your contracts, your approval process, and Most importantly, your understanding of music licensing. Because in this new era of marketing, a 50-second TikTok with one song can come with $150,000 price tag. Tara: Well, I think that’s right, Scott. Scott: Well, that’s all for today’s episode of The Briefing. Thanks to Tara for joining me. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions or any comments about the topics we covered today, please leave us a comment.

A class action lawsuit has hit ALO Yoga and influencers for failing to disclose paid promotions on social media. Legal experts dissect FTC regulations and the critical need for transparency in influencer marketing. They emphasize the consequences of vague disclosures and the shared responsibility between brands and influencers. The discussion also highlights the importance of clear communication to protect consumers and adhere to advertising standards. Tune in for valuable insights on avoiding costly legal issues in marketing!

On this episode of The Briefing, Scott Hervey and James Kachmar break down the Supreme Court’s decision to pass on the McGuckin v. Valnet case—and how it keeps the legal confusion swirling around the “server test” for embedding online content. With courts on opposite coasts taking different stances, what does this mean for publishers, bloggers, and social media managers? They talk about the risks, what you can do to stay safe, and why your location might matter more than you think. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: The Supreme Court rejected a challenge to the Ninth Circuit server test, the test that the Ninth Circuit adopted in 2007 in the case of Perfect Ten versus Amazon, and it’s used for determining copyright liability when photos are embedded online. Because the server test has been rejected by the Southern District of New York, this refusal by the Supreme Court will continue to create a split among circuits and confusion among copyright litigants. I’m Scott Hervey, shareholder with the law firm of Weintraub Tobin, and I’m joined today by my partner, James Kachmar. We’re going to discuss this case and how to best navigate this issue on this installment of the briefing. James, it’s good to have you back on the briefing. It’s been a while. Thank you for coming on today. James: Thanks for having me, Scott. Scott: Okay, so let’s talk really briefly about the case that was up for a petition for cert to the Supreme Court, and it’s the case of McGuckin versus Valnet. And that case arises from Valnet, the operator of the website thattravel. Com, being accused of infringing 36 of McGuckin’s Instagram photos by embedding them in various online articles. A California federal court applied the server test and dismissed McGuckin’s suit, and the Ninth Circuit affirmed that decision in 2024. In affirming the dismissal, the Ninth Circuit referenced its 2023 decision of Hunt versus Instagram. This was a case that we covered here on the briefing in which the Ninth Circuit held that Instagram was not secondarily liable for copyright infringement when websites use Instagram posts to embed photos. James: Right, Scott. Why don’t we start with the basics? The server test is a legal rule used to determine whether embedding an image or video into a website constitutes direct copyright infringement. Embedding is the process of copying unique HTML code assigned to the location of a digital copy of the photo or video published to the internet, and the insertion of that code into a target web page or social media post so that the photo or video is linked for display within the target post. Under this test, a website only infringes a copyright if it hosts the copyrighted file on its own server. If you’re simply embedding a photo or video that is stored on someone else’s server, like linking to a Instagram post, you’re not displaying the content under the Copyright Act. You’re just the HTML code that tells the user’s browser where to go look to get the content. Scott: That’s a really good description, James. The server test arises from the 2007 Ninth Circuit case of Perfect 10 versus Amazon. In that case, Perfect Ten, they were a publisher of adult content. They sued Google for linking to and displaying thumbnail versions of their copyrighted images. Google didn’t host the full size images itself. Instead, it linked to them or embedded them from Perfect Ten’s website. The court held that because Google wasn’t storing the infringing images on its own server, it wasn’t displaying them in the legal sense. See, under the Copyright Act to Violate the Public, display, right? An infringer must, quote, display copies of the copyrighted work. Under the server test, embedding in a website that does not also store an image or video on its own server, does not communicate a copy of the image or video, and thus does not violate the copyright owner’s exclusive display right. Under Perfect10, an alleged infringer displays an image in violation of a copyright holder’s rights only if a copy of the image is stored on the computer’s server, on its hard disk or other storage device. James: That’s right, Scott. The server test is the law of the land, at least in the Ninth Circuit. However, it’s been rejected by a court in the Southern district of New York. There, the seminal case in the Southern district of New York is Goldman versus Breitbart News Network. There, in that case, several media companies embedded a tweet that contained a copyrighted photograph without the photographer’s permission. The defendants tried to get that case dismissed based on the server test. However, the court explicitly rejected the server test, holding that embedding an image, even if hosted on another server, can constitute a display for purposes of finding infringement under the Copyright Act. Scott: Right, that’s right. In that case, the court reasoned that the Copyright Act defines display broadly and makes no mention, the Copyright Act makes no mention, of server location. Therefore, what matters is the end user experience, whether the copyrighted work is perceptible to the user on the site doing the embedding. The judge in the Goldman case stated, When defendants caused the embedded tweets to appear on their website, their actions violated plaintiff’s exclusive display rate. James: Right. Here we are, at least for now, with a split between courts in these two circuits, one on the West Coast, one on the East Coast, that probably deal with the majority of online media cases. Where does that leave online publishers, bloggers, and social media managers? I think one of the key takeaways is that embedding content may not be risk-free, especially outside the Ninth Circuit. Scott: Right. No, I agree with you. I agree with you. That is the key takeaway. All right, so how do we navigate Why don’t we cover some practical advice for online publishers, bloggers, and social media managers? I think the first bit of advice is, when in doubt, seek permission from content owners or use platforms that provide properly licensed media, like content libraries or other sites like that. Another bit of advice would be embedding from services whose terms of use expressly address press embed licensing, where a party posting photos agrees to the platform, granting an embed license to third parties. But even then, I think there’s a risk of challenges to the platform’s terms and the enforceability of those terms. James: That’s right, Scott. I think it’s also important that you avoid embedding images from unknown or untrustworthy sources. If the original source does not have the rights to the image, embedding could still expose you to claims of infringement. Publishers should also weigh the risk of being sued in New York if your content targets readers in that area, or if your company is based outside the Ninth Circuit, you’re more likely to face scrutiny under the Goldman approach than the server test. Scott: Right. If I may add, I think it’s always a good idea to have a written content policy that’s been vetted by counsel. I think media companies Companies and bloggers and media managers should really have established clear internal guidelines for how your organization handles third-party images and embeds, especially in user-generated content marketing. James: That’s right, Scott. Until the Supreme Court takes up this issue or Congress amends the Copyright Act to clarify what display really means, this legal gray area will continue to pose risks for online publishers. Scott: Right, I agree. If you’re embedding content knowing the jurisdiction you operate in and having a smart content strategy, it really could make all the difference. James: That’s right, Scott. Scott: Well, that’s all for today’s episode of The Briefing. Thanks to James for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, believe us or review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

Lady Gaga’s “Mayhem” tour has sparked legal trouble. In this episode of The Briefing, Scott Hervey and James Kachmar analyze a trademark infringement lawsuit filed by surf brand, Lost International, which claims Gaga’s use of “Mayhem” on merchandise violates their long-standing rights. The discussion explores the strength of Lost’s trademark, the likelihood of consumer confusion, and key legal takeaways for brands navigating crowded trademark landscapes. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Lady Gaga brought her Mayhem tour to the 2025 Coachella Music Festival. While her performance was a critical success, there is someone who is not a fan of hers. At a minimum, not a fan of the name she chose for her tour. I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my partner, James Kachmar. We’re going to talk about the trademark lawsuit filed by the surf and lifestyle brand Lost International against Lady Gaga for her use of Mayhem on today’s episode of the Briefing. James, welcome back to the Briefing. It’s been a while. James: Yes, thanks for having me back, Scott. Like you, I’ve been following this Lady Gaga case, and it certainly raises some interesting trademark law questions. Scott: Oh, absolutely, absolutely. So why don’t we start with the basics? So, according to the complaint, Lost International, they’re a California company that was established in 1985 as a surf and lifestyle brand. They claim to have been using the mark mayhem since 1988 in connection with surfboards, surf equipment, accessories, surf videos, and clothing. Lost owns a registered trademark for Mayhem in the United States, and it was issued on August 11, 2015, and it covers various clothing items like beanies, caps, jackets, pants, sandals, shorts, and, you know, other typical beach surf wear. This particular trademark registration is for a wordmark, which means that it covers the word Mayhem without having any particular font, style or color requirements. James: That’s right, Scott. The complaint alleges that Lady Gaga released a music album called mayhem in March 2025 and announced a worldwide concert tour under the same name. Furthermore, Lost claims that prior to the album’s release, Lady Gaga and associated parties began selling T shirts and other clothing items with the Mayhem mark prominently displayed, allegedly with a nearly identical design to Lost’s own Mayhem products. They’ve even included a side by side comparison of the clothing and their Mayhem logos in their complaint. Scott: So LOST is seeking some significant remedies. James: Yes, they are. Lost is asking the court for a judgment that Lady Gaga has infringed their trademark rights. They are seeking monetary damages and also want an accounting of Lady Gaga’s proceeds, which will result in a possible disgorgement of her profits. They want punitive and exemplary damages, interest costs, and attorney’s fees. Lost is also crucially seeking injunctive relief to stop Lady Gaga from using the Mayhem mark in connection with her merchandise and promotions. Scott: Okay, so let’s dive into the legal arguments. So the complaint asserts nine causes of action. Nothing like a big complaint, right? So these. These causes of Action include federal and common law trademark infringement, false designation of origin, and false advertising under the Lanham act, false advertising under California state law, and federal and state trademark dilution, as well as unfair business practices and common law unfair competition. So I think that the federal trademark claim is going to take center stage in this lawsuit, so let’s focus on that. So in California, a court analyzing a trademark infringement claim is going to look at the sleek craft factors, which are the following. The strength of the plaintiff’s mark, the similarity of the marks at issue, the similarity or relatedness of the goods, the similarity of the marketing channels for those goods, the degree of care likely to be exercised by the consumer of those goods, any evidence of actual confusion, the defendant’s intent in selecting the mark, and likelihood of expansion of the product lines. James: Yes, that’s right, Scott. So why don’t we start at the top? Let’s look at the strength of Lost mark. Scott: Great. Yeah. Okay, So I think Lost has a strong mark. Lost as a federal trademark, registration for Mayhem as a word mark in connection with clothing. The registration provides them with certain presumptions of ownership. The right to use the mark nationwide in connection with the goods, and because it’s on the principal register, the fact that the mark is distinctive, the mark has become incontestable, and they seem to have a long history of using the mark since 1988 in connection with clothing. James: Okay, Scott, but let me play devil’s advocate here. There are many other federally registered trademarks for clothing that include mayhem, which suggests that the term mayhem might not be exclusively associated with Lost in the broader marketplace, and this potentially weakens their claim to having exclusive rights to that mark. Scott: Yes, but those other trademarks include Mayhem with some other words like Miami Mayhem or Mayhem on the mat, and that’s significant. James: Yes. Scott: Now, James, you have to agree with me that the next two factors, similarity of the marks and relatedness of the goods, tend to favor a finding of infringement. James: Let’s hear your argument on that, Scott. Scott: Okay, so determining similarity of the marks involves comparing the the appearance, sound, and meaning of the two marks. Lost complaint emphasizes that the mark Mayhem is identical on both Lady Gaga’s merchandise and Lost merchandise, as we saw above, and that the stylized form, as we saw, is substantially similar, if not nearly identical. And as for the goods at issue, Lady Gaga is selling T shirts and other items of clothing with the mark prominently displayed on it, with, as the complaint alleges, and as we saw, a nearly identical design as used by Lost on its own products. The same type of goods for which LOST has a registered trademark. James: I’m not sure I agree with you, Scott, because I went on Lady Gaga’s website and the uses of Mayhem that I see are used as part of a multi word mark such as I am mayhem and mayhem in the desert. And I think that may go into this analysis as well. Now, why don’t we talk about the channels of trade, because I think loss claim has some real problems here. So this factor examines how and where the respective goods and services are advertised and sold. Loss claims their products have been and are likely to be marketed in the same or similar stores, channels or outlets, and advertising similar media, and that both parties use the Internet for marketing. I don’t know how accurate this is given that it’s just alleged in the complaint. The Lady Gaga website specifically says that the Mayhem merchandise was available at the festival. Fans buying Lady Gaga merchandise at Coachella or even through her website are not going to confuse it with Loss or with a surf and lifestyle apparel product. The core of the trademark infringement claim, I think, is really going to come down to demonstrating a likelihood of consumer confusion as to the source of the product. James: And if Loss cannot sufficiently prove this confusion, I think their claim may fail. Scott: It is true that courts do not treat the Internet as a single undifferentiated channel of trade, and they do look at how and and where on the Internet goods and services are sold or marketed and to whom. And I think it’s the to whom where Lost has a good claim. I think it’s fair to assume a significant overlap between consumers of Lost clothing and fans of Lady Gaga. And I’m sure we are going to see evidence of that introduced in this case. James: That’s right, Scott. I mean, proof of this overlap will come out in discovery and usually it’s through competing survey evidence. While Lost alleges, without any support in its complaints, that the use of the mark by Lady Gaga has led to instances of actual confusion in the marketplace among or by members of the consuming public. If survey evidence shows that a LOST consumer is not a Lady Gaga listener, they may have trouble establishing an overlapping consumer base. Scott: Since the last factor expansion of the product lines will probably not play a significant role here. Let’s talk about the intent of the defendant in selecting and using this mark. So this will consider whether the defendant, Lady Gaga, adopted the mark with the intent of trading on Lost goodwill. Lost alleges that Lady Gaga appropriated the name and identifiable logo Mayhem to identify similar products. Even though Lady Gaga, at least LOST is alleging, is well aware of that Lost owns the mark and that this was done to derive benefit from the reputation of Lost Mark. And further, knowing and intending to cause a likelihood of confusion and loss doesn’t. James: Offer any grounds supporting this claim that Lady Gaga was aware of their mark. Scott: Well, you know as well as I do that they don’t have to do that at the complaint stage, James, but I’m sure this will all play out in discovery that Gaga’s team was aware of Lost Mark. I think it’s fairly safe to assume that Gaga’s team ran a trademark search before search report before selecting this mark. And if they did, they certainly would have seen Lost Mark. Let’s briefly touch on some of the other claims. So, regarding false advertising, Right. Lost argues that Lady Gaga’s use of Mayhem falsely suggest an affiliation, connection or sponsorship with Lost for trademark dilution. They contend that Lady Gaga’s use impairs the distinctiveness of their famous Mayhem mark. James: Right. And the success of these claims generally hinges on the strength and fame of the original mark and the likelihood of blurring or tarnishing, which again ties back to the distinctiveness and exclusivity of of Mayhem in the marketplace. Given the number of other Mayhem trademarks, proving their mark is famous and distinctive in the legal sense for dilution purposes might be challenging. Scott: So what’s your overall take on the strength of Lost’s case? James: Well, I think while Lost has a registered trademark and a long history of use, the existence of numerous other Mayhem trademarks and the likely different trade channels for Lady Gaga’s merchandise may present significant hurdles to lust. The strongest part of their argument likely lies in the direct overlap of using a similar logo on clothing. Scott: Right, but that factor may be complicated by the other clothing related mayhem marks and the inability to establish overlapping channels of trade or consumers. James: Yes. So, Scott, are there any practical takeaways from this case for businesses and individuals regarding products like this? Scott: Yeah, that’s a great question, James. There are. So this case shows the importance of trademark registration, right? Lost International’s lawsuit heavily relies on its ownership of a federally registered trademark from Mayhem. This registration provides them with certain legal presumptions and rights. The fact that LOST registered the mark in 2015 and even filed a declaration of incontestability in 2021 highlights the proactive steps a business can take in protecting their brand names. Registering your trademark provides a strong legal basis for infringement claims. James: Yes. And context matters in trademark use. Lost registration for clothing would generally not automatically block Lady Gaga from using Mayhem for her album and tour titles. This indicates that the context in which a mark is used is crucial. Using a similar mark in a completely unrelated industry or for a different type of product or service may not necessarily constitute infringement due to a likelihood or a lower likelihood of consumer confusion. Scott: That’s right. One caveat though, that might constitute trademark dilution depending upon whether or not that first mark is a famous trademark. Here’s another pointer. A crowded trademark landscape can make it more difficult to claim infringement and establish the strength of your mark. The fact that there are other active trademarks involving mayhem for clothing could really weaken lost claim of exclusivity. This underscores the importance of conducting a thorough trademark search before adopting a brand name. James: Those are really good points, Scott. Thanks for having me on this podcast. Scott: Yeah, good to have you, James. And that’s all for today’s episode of the Briefing. Thanks to James for joining me today, and thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable, and if you did, please remember to subscribe. Leave us a review and share this episode with your friends and colleagues. And if you have any questions or comments about the topics we cover today, please leave us a comment.

Is traditional Hollywood facing an existential crisis? Deloitte’s 2025 Digital Media Trends report reveals a massive shift in how Gen Z and millennials consume content. Scott Hervey and Tara Sattler break down the data and explore what this means for studios, creators, and the future of storytelling on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Deloitte released its 2025 digital media Trends earlier in March. It is a comprehensive look at the seismic shift rocking the media and entertainment landscape. Are traditional studios facing an existential crisis against these hyper scale and hyper capitalized tech giants? And with Gen Z and millennials finding social media content more relevant than TV and movies, what does this mean for the future of storytelling and celebrity? I’m Scott Hervey, partner in the entertainment and media Department of Weintraub Tobin. And today, I’m joined by my partner, Tara Sattler. Stick with us as we analyze these trends and what they mean for both the traditional and new media players navigating this rapidly evolving digital world in today’s installment of The Briefing. Tara, welcome back to The Briefing. It’s good to have you back. Tara: Thanks, Scott. Thanks for having me back. It’s always great to be here. Scott: Yeah. I thought this one was going to be particularly relevant for both you and I because Our practice area is we both straddle both traditional media representing studios and production companies. And also we have another foot really squarely set in the creator economy, digital media, YouTube space, podcast. I think you and I have the benefit of seeing both sides of this. That’s why I thought you’d be the perfect co-host for this one. Tara: We do, Scott. I think you’re right. I’ve been looking through this report. It’s really quite eye-opening. The shifts are significant, especially for the traditional media players who you and I both work with a lot. Scott: Yeah, absolutely. This report makes one thing abundantly clear, and I think it’s something both of us have been talking to our clients about for a while. Social video platforms are becoming a dominant force in media and entertainment, and they do present a challenge to the traditional Hollywood model. So today we’re going to summarize the key findings and discuss what opportunities exist for both traditional Hollywood studios and content producers and the content creators on platforms like YouTube. So let’s dive in. So the report itself, the headline here is that social platforms are becoming the new center of gravity for media and entertainment. According to Deloitte, these platforms are drawing more of consumers’ time and more of advertisers’ money away from traditional media. Tara: Yeah, the report found that US consumers are spending about six hours daily on media and entertainment, and that number isn’t growing. What’s changing is how that time is distributed. Younger generations, especially Gen Z, are spending significantly less time watching traditional TV and movies and more time on social media platforms with user-generated content. Scott: Right. And Those numbers are pretty striking. Gen Z respondents are spending about 54% more time, so that’s about 50 minutes more per day on social media platforms and watching user-generated content than the average consumer. They’re spending 26% less time, so that’s about 44 minutes less per day, watching TV and movies than the average person. Tara: It’s not just about time spent. The report found that 56% of Gen Z and 43% of millennials say social media content is more relevant to them than traditional content like television shows and movies. Plus, about half of these generations feel a stronger personal connection to social media creators than they do to TV personalities or actors. Scott: Let’s now talk about the advertising piece of this because it really is quite huge. The report shows that social platforms are winning the ad battle, too. Gen Z and millennials are much more likely to say that ads on social media influence their purchasing decisions. That’s great for some of our clients who run ads on these platforms and also are creators in their creator economy who live off of these ads. That’s a major source of their revenue. For Gen Z, it’s about 63%, while ads on streaming services come in at about 28%. Tara: That’s a big problem for SVOD platforms that are trying to shift to ad-supported streaming models. They’re competing against platforms that have spent years prospecting their ad technology and their algorithms for recommendations. Scott: Exactly. Meanwhile, traditional distributors and studios are caught in a really tough spot. Paid TV subscriptions continue to decline, down to 49% of consumers from 63% three years ago. Streaming services are facing challenges, too, with 41% of consumers saying the content available isn’t worth the price. Not me, though. Up to five percentage points from 2024. Tara: Yeah, I keep paying, too. And those subscription costs, they just keep going up. They do. And then, SBOD subscribers report paying an average of $69 a month for four services, which is up 13% in just one year. For Genzy and Millenials, they have an average of five paid services, and those costs are up about 20%. Scott: You know, with the password sharing crackdown, it’s actually no wonder that you’re seeing a decrease in the younger generation’s usage of SVOD services. And that’s also no I don’t know why we’re seeing this really high churn rate. The report notes that 39 % of consumers canceled at least one paid streaming service in the last six months, with the number jumping above 50 % for Gen Z and millennials. All right. What does this report mean with regard to opportunities for traditional Hollywood? Let’s talk about this. Tara: I think there are several potential paths forward. First, the report Deloitte suggests that studios need to embrace ad technology and AI. They’re moving to the center of content economics, and studios need to invest heavily in these areas to understand them and to be able to compete. Scott: Deloitte suggests that strategic partnerships might be the way to go. Many studios simply don’t have the in-house expertise to build competitive ad tech platforms. Tara: Yeah, so that consolidation is another opportunity. The report suggests that studios should gather larger audiences, potentially through mergers and acquisitions or clever aggregation, to really be able to achieve the scale needed to compete with the social media platform. Scott: We’re already seeing some of that with bundling deals between streaming services, but the report seems to suggest that they might need to go much further than this. Tara: Yeah, technology adoption another opportunity so studios can leverage virtual production and AI to enable cheaper and faster production or use generative AI for dubbing and translation and even implement AI capabilities that automate certain operational functions. Especially this day and age, this doesn’t come without controversy. Scott: Oh, that’s very, very true. The report also highlights an interesting opportunity, engaging with social platforms rather than just competing with them. Traditional studios could learn from social platforms about content, creativity, and advertising capabilities, while platforms can benefit from premium storytelling, which really is the strength of traditional Hollywood studios. Tara: That’s exactly right, Scott. I have really been thinking about that for quite a while. This report notes that 56% of younger generations watch TV shows or movies on streaming services hearing about them from creators online. Marketing efforts really should start to lean in to these social platforms. Scott: I think there’s also a distribution play there, too. I think traditional Hollywood or independent Hollywood, maybe some of the smaller, more independent studios, could be looking at and should be looking at and thinking about multi-platform deals. Because now more than ever, you really need to squeeze every dollar out of it. Your content. I think just committing to one single platform might not really be the answer. I found it interesting that the report challenges the fear that short-form content doesn’t work for premium IP. Studios could get creative and publish the social platforms, as I said, through a multi-platform approach, using social videos not only to help promote their TVs and movies, but also maybe to distribute original short-form content. Tara: There’s also an opportunity to work with content creators. Those content creators can be powerful advocates for studio content, help engage audiences with greater authenticity, and help with the potential to unlock virality. Scott: Right. In essence, traditional Hollywood needs to adapt by embracing technology, considering consolidation, and engaging with rather than just competing against social platforms. It’s about finding new models that work in this changing landscape shape. But what’s in it for the media creators? What’s in it for your traditional YouTube creators? Let’s talk about the opportunities that exist for them looking to grow their business in this environment. Tara: For creators, I think this report really contains some positive news. The influence of creators is growing, especially with younger audiences. According to the report, about 50% of Gen Z and millennials say they feel stronger personal connection to social media creators than to TV personalities and actors. Scott: I think when you say the influence of creators is growing, I think we just need to look back at a couple of the big deals over the last couple of months. Miss Rachel, Mr. Beast, Dude Perfect. They are the next studios, and their influence is really growing. And these creators are now seen as legitimate entertainment competitors to traditional media. The report notes that for younger generations, especially, trending social videos are often like the new hit TV show, and creators are the new stars. Tara: That right there creates several growth opportunities. First, there’s the potential to cross over into traditional media. Some Some creators have made the leap to network television, streaming platforms, films, and this really secures lucrative contacts for them but also grows their audiences. Scott: Though, interestingly, the report found mixed responses to this. While 29% of consumers say they’d be more willing to watch TV shows or movies starring their favorite creators, 30% feel creators lose their authenticity when featured on TV. But it’s interesting. I didn’t see any I think part of that report that talked about when that content creator’s own show that’s on YouTube is also available on a streaming service or a fast channel, what that impact is. Because I think that’s probably correct. When you take the creator out of the environment in which they’re known to the viewer, it’s not authentic any longer. Tara: Yeah, I think that’s right. I think that the production methods and what is entailed with making longer form content is also different. That may be where the viewer perceives that as a loss of authenticity, but it’s really just what’s needed in order to produce the content at hand. But in any event, this all suggests that creators really need to be careful about how they approach these crossover opportunities and really think about maintaining their authenticity. That seems really important. Scott: There may also be a business need to expand beyond that single platform that they have become associated with. With YouTube always rejiggering its algorithm, and this always seems to result in the devaluing of library content, it may be economically necessary to repackage older content into newer long-form episodes and seek out licensing opportunities with SVOD or AVOD platforms or explore the benefit of launching a branded fast channel. The report also highlights the growing role of AI tools for creators. Social platforms are extending generative AI tools to help creators run their businesses, create content, target audience and advertisers, and match with brand sponsors. Tara: Yeah, so all of this AI technology really creates opportunities for creators to scale their opportunities and grow their businesses more efficiently. Scott: Brand partnerships are another significant opportunity, and it’s the lifeblood for a lot of creators. Creators offer credibility and authenticity to brands and advertisers who may be trying to reach millions of followers. The report notes that younger generations are much more likely to say that ads or product reviews on social media influence their purchasing decisions. Specifically, the report found that Gen Z and millennials, so 63% of Gen Z and 49% of millennials, are more likely to say that ads or product reviews on social media are most influential to their purchasing decisions. That’s really quite stunning, and I think quite a boost for our partner, Jessica Marlo, who basically runs creator brand integration business for the firm. Also interesting is the impact social media has on TV viewership. A significant percentage of younger generations, so 56% of Gen Z and 43% of millennials, watch TV shows or movies based on recommendations from social media. And by the way, I think we were all talking about this in a department meeting last week, the traditional movie and television industry has done a really bad job of engaging in social media advertising and using creators to advertise the content. Really, social media should be a central part of TV and movie marketing strategies targeting these demographics. If it works for cosmetics and other goods, it’s going to work for movies and television. Tara: Well, and I think we saw an example of that with the Barbenheimer explosion on social media, which by all accounts, was really to social media and was not planted or instigated at all by the distributors behind those films. I think that that’s a perfect example, and I totally agree with you and with the report in that regard, Scott. Scott: The report also suggests that there’s value in cross-platform presence. We just talked about that a little bit earlier here. Creators who establish themselves across multiple platforms can build more resilient businesses and reach different audience segments. By the way, as we’ve always said, it’s always a risk to rely on a single platform because that platform can change its algorithm as it’s entitled to, and that can have a devastating economic impact on your business. If you are just on a single platform. Tara: Finally, I think there’s an opportunity for creators to leverage their personal connection with audiences. That parasocial relationship, as the report calls it, drives engagement and keeps people coming back. Creators who cultivate those connections can really effectively build a sustainable business. Scott: Let’s wrap up with some final thoughts. The report clearly shows it The media landscape in transition with social platforms gaining ground at the expense of traditional media distribution. Both Hollywood studios and individual creators need to adapt to this new reality. I think the creators are more apt to to adapt quicker and take advantage of this changing landscape. Tara: I definitely agree with that. Another key takeaway is that neither traditional Hollywood nor social media creators can stand still. For Hollywood, it means rethinking business models, embracing technology, and finding ways to engage with rather than just compete against social platforms. Scott: For creators, it means leveraging their authenticity and personal connections with audiences while exploring new revenue and potentially even crossing over into traditional media. Tara: Yeah, the media landscape is being reshaped. Those who adapt most efficiently will be the ones who thrive. It’s a well-tested and long-running concept that we all know a lot about. Scott: You’re right. Adapt or die. Well, a little grim, but that’s it for today’s episode of The Briefing. Thanks, Tara, for joining me today. Thank you, the listener or the viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.