The Briefing by Weintraub Tobin

Who really owns your Thanksgiving traditions? In this special holiday edition of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley discuss how intellectual property law intersects with holiday food, recipes, and branding. They explore: Why recipes usually aren’t protected by copyright The surprising trademarks behind holiday favorites like Turducken and Tofurky How brands use trademarks, trade dress, and storytelling to own a piece of the Thanksgiving season The rise of “Friendsgiving” as both a cultural phenomenon and a branding challenge Whether you’re a lawyer, brand owner, or marketing professional, this episode offers valuable insight into how IP shapes the way we celebrate and sell the holidays.

In this episode of The Briefing, Scott Hervey and Richard Buckley break down Campbell Soup Co. v. Campbell for Congress, the lawsuit over a political candidate’s “Soup4Change” slogan and AI-generated soup can design. They cover the backstory, the trademark and First Amendment arguments, and how the Hershey case may influence the court’s view of political campaign branding. Tune in for a clear look at where trademark law meets political speech. Watch this episode on YouTube.

After losing its anti-SLAPP motion, Warner Bros. has appealed in Roadrunner JMTC LLC v. Warner Bros. Television, the lawsuit brought by Michael Crichton’s estate claiming the new series The Pitt is an unauthorized derivative of ER. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss: The background behind the ER “freeze clause” Warner Bros.’ First Amendment arguments under California’s anti-SLAPP statute The battle over what “derivative work” really means How the trial court handled the Katz declaration The broader implications for creative freedom and legacy IP Watch this episode on YouTube.

When artistic identity meets corporate branding, where does copyright law draw the line?   In a new episode of The Briefing, Scott Hervey and Richard Buckley discuss the lawsuit filed by artist Tyrrell Winston against the New Orleans Pelicans. Winston—whose distinctive sculptures of deflated basketballs arranged in grids have been exhibited worldwide and licensed by brands like Nike, Adidas, and even NBA teams—claims the Pelicans copied his signature style in a social media campaign. His lawsuit raises a major question for artists, brands, and IP lawyers alike: Can a distinctive artistic style be protected under copyright law? The conversation compares Winston’s claim to the “vibe copyright” case (Sydney Nicole v. Alyssa Sheil) and examines whether courts are expanding protection from expression into concepts and aesthetics. Watch this episode on YouTube.

A consent agreement can be a powerful tool to overcome a USPTO likelihood-of-confusion refusal—but only if it’s done right. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley discuss the TTAB’s precedential decision in In re Ye Mystic Krewe of Gasparilla, where the Board rejected a one-page consent agreement as a “naked consent” insufficient to overcome a Section 2(d) refusal. They unpack: The history of the GASPARILLA application Why the TTAB said the agreement didn’t “show the work” How to draft a consent agreement that will actually persuade the USPTO Don’t miss this one—it’s a practical guide for anyone working with trademarks or brand portfolios. Watch this episode on YouTube.

Can a car, a superhero, or even a cartoon sidekick be protected by copyright? In this episode of The Briefing, Scott Hervey and Matt Sugarman break down how fictional characters earn legal protection — and when they don’t.   From DC Comics v. Towle (the “Batmobile” case) to Carroll Shelby Licensing v. Halicki (the “Eleanor” case), Scott and Matt explore the three-part test for character copyrightability, how trademark rights can extend protection, and what creators and studios can do to safeguard their most valuable IP assets.   🎧 You’ll learn:   ● What makes a fictional character “especially distinctive” under copyright law   ● Why consistency across stories matters for protection   ● How trademark rights protect character names and merchandise   ● The difference between creative expression and brand identity   Watch this episode on YouTube and learn how to keep your characters safe from copycats.

A federal court has granted summary judgment for Nirvana, dismissing Spencer Elden’s claim that the Nevermind album cover — depicting him as a baby — constituted child pornography. In this episode of The Briefing, Scott Hervey and James Kachmar revisit their earlier coverage of the Ninth Circuit’s decision and unpack how the district court’s final ruling turned on artistic intent and context rather than perception. Tune in to learn how the court applied the Dost factors, what this ruling means for artists and rights holders, and how intent shapes the boundary between art and exploitation. Watch this episode on YouTube. Show Notes:  Scott: In a previous episode, we covered Elden versus Nirvana, the lawsuit brought by Spencer Elden, the Baby, on the cover of Nirvana’s Never Mind album, who claimed that the image amounted to child pornography. The Ninth Circuit revived Elden’s case in late 2023, holding that his claims were not time barred and sent it back to the District Court to decide the big question, was Nirvana’s album cover child pornography? Now that question has been answered. The District Court has granted summary judgment for Nirvana, holding that the cover is not child pornography as a matter of law. I’m Scott Hervey, and I’m joined today by my partner, James Kachmar. We are going to break down the District Court’s ruling and evidence surrounding the artistic intent behind one of the most iconic album covers of all time on today’s installment of The Briefing. James, welcome back to The Briefing. Good to have you. James: Thanks for having me back, Scott. Scott: So, James, when you and I last talked about this case, the Ninth Circuit had just revived Eldon’s lawsuit. Can you remind the listeners how we got here? James: Sure, Scott. The photograph at the heart of this case is on the cover of Nirvana’s Never album. It’s a naked baby swimming underwater, appears to be reaching for a dollar bill that’s on a fishing hook. That baby, Spencer Eldon, was four months old when that photo was taken in 1991. Thirty years later, in 2021, Eldon sued Nirvana, the surviving band members, and their record labels under a federal law that allows victims of child pornography to bring civil claims. He alleged that the photo was sexually exploitive and that Nirvana had knowingly possessed, reproduced, and distributed what he claimed was child pornography. Scott: And that case was originally dismissed on statute of limitations grounds. James: Exactly, Scott. The District Court initially threw it out saying that Eldon had waited too long to sue. He turned 18 around 2009, but waited another 12 years to file his lawsuit. But in December 2023, the Ninth Circuit reversed, holding that because the album had been rereleased in 2021, Eldon could bring claims based on that recent republication. That sent the case back to the district Court to decide the substance of Alden’s claim, whether or not the image itself met the legal definition of child pornography. Scott: And now, the District Court, having heard arguments on both sides, has granted summary judgment for Nirvana. So Let’s dive into the court’s reasoning. James: Sure. The court held at the Never mind cover simply doesn’t meet the definition of child pornography under federal law. Scott: Right. We don’t normally dive into this on these podcasts, but this is a media case, and it is interesting. I think there’s some other interesting aspects of this case that we’re going to talk about later. Okay, so the court applied the DOS factors. That’s a six-part test used to assess whether an image is sexually suggestive. Those factors look at things like whether the child’s pose is sexually suggestive, whether the photographer intended to elicit a sexual response. Here, the court said, obvious, that the photograph is not sexually suggestive. It depicts a baby swimming underwater with no sexualized focus or context. James: That’s right, Scott. The judge went even further, emphasizing that there was no evidence of sexual intent by anyone involved with the album cover. The judge wrote, The undisputed evidence establishes that the creative team intended the image to convey a critique of capitalism, not to sexualize or exploit the child. Scott: The court recognized that the concept behind the image was artistic, not sexual. The court noted that photographer, Kurt Weddell, testified that the shoot was done in a single session at a local pool, and that there was no direction to the baby, meaning that Eldon wasn’t posed or otherwise manipulated. James: Exactly, Scott. The designer, Robert Fischer, who created the album artwork, testified that the goal was to comment on how people are chasing money from birth. The court cited that testimony and wrote, The image was designed to be a satirical commentary on the pursuit of wealth, the baby reaching for the dollar, not to elicit any sexual thought. The court concluded that the artistic and social commentary intent was clear and undisputed, and that in context, the image was wholly inconsistent with a notion of sexual exploitation. Scott: I want to talk a bit about Eldon’s claims that the continued and widespread use of the album and the album cover caused him emotional harm. My opinion, and this is just my opinion, some of the evidence introduced by Nirvana tends to show that this was really an attempted money grab by Eldon, which I think is so ironic given the artistic intent of the album, the album cover. I want to make it clear, again, this is my personal opinion based on the district court’s factual findings and its analysis of the record. While they did not specifically say that Eldon brought the suit solely for monetary gain. The evidence discussed in the order strongly suggested that the suit was motivated by financial or publicity interest rather than genuine claims of exploitation or injury. James: Yes, Scott. The majority of this evidence is discussed in the context of rejecting Elden’s claim that the widespread use of the cover had caused him emotional distress or how his own conduct undermined his claim. Scott: All right. I mean, the court, in its order, it covered the fact that Elden had repeatedly and publicly celebrated his association with the never mind album cover for years before filing the lawsuit. He recreated the photo for various anniversaries of the album, and sometimes did that for paid photoshoots. Again, I’m going to point out the irony here. He also gave numerous media interviews over the years where he expressed pride in being the Nirvana Baby. Also relevant was the fact that the album had been around for 30 years before Elden began to complain of his emotional injuries. James: Yeah, and the court noted that these voluntary and enthusiastic reenactments undermine any claim of long-term psychological injury or exploitation, and instead showed that Elden benefited from and sought to profit from the notoriety of that album image. Scott: Yeah, the order specifically pointed out that Elden derived publicity and potential financial benefit from his identity as the Never mind Baby. This was completely inconsistent with a genuine victim narrative. In the order, the district Court points out that Elden even tattooed the album’s name across his chest. I mean, come on. James: Yeah. So even giving Elden the benefit of the Ninth Circuit Statute of Limitations Ruling, his case still fails on the merits. The court closed with a clear statement that the album cover is an artistic image globally recognized for its social commentary, not for sexual content. And with that, the court granted summary judgment for Nirvana and dismissed the case in full. Scott: Right. So after all these years, Elden versus Nirvana has come to an end. I mean, at least for now, Elden could appeal, but I don’t know. I think the chips are pretty much stacked against him, given his past conduct. James: Well, for what it’s worth, Scott, Eldon’s attorneys have told Rolling Stone magazine that they would likely appeal the ruling back to the Ninth Circuit. We may have to do another one of these episodes in the future. However, this ruling underscores that context and intent are critical when evaluating allegations of sexual exploitation in visual art. Artistic nudity, even in involving a minor, doesn’t automatically amount to child pornography. The court looked carefully at what the image was meant to express and concluded that it was a critique of commercialism, not a depiction of sexual conduct. Scott: Right. But I’m sure you would agree with me, James, in this. Let’s be clear, I don’t think this was a good idea from the outset. I understand the artistic intent behind the photo, but this isn’t the Italian Renaissance, right? I mean, maybe in the ’90s, it was a bit more relaxed, but there was way too much risk of a legal blowback here. The artistic intent could have just as easily been conveyed if the baby was wearing a diaper. I don’t know. I think a word of caution here to all of our creatives and rock bands looking to find the next version of the Never mind album cover. Let’s avoid naked babies, eh? James: Yeah, I agree, Scott. I’m not sure how that album cover would fly in today’s environment. Scott: Well, James, thanks for joining me today. Always great to have you. And thank you to our listeners for joining us on the briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Please leave us a comment or a review and let us know what topics you would like us to cover in future episodes. I’m Scott Herbie. I’ll see you next time on The Briefing.

Disney faced a copyright lawsuit over the use of MOVA facial-capture software in Beauty and the Beast. A jury found Disney vicariously liable, the district court threw out the verdict, but the Ninth Circuit has now reinstated it. In this episode of The Briefing, Scott Hervey and Tara Sattler discuss: ● The facts behind Disney’s use of VFX vendor DD3 and the disputed MOVA software ● Why the district court found no “practical ability” for Disney to control its vendor ● How the Ninth Circuit reversed, emphasizing Disney’s contractual rights, on-set presence, and red-flag evidence ● What this means for studios and production companies managing VFX vendors

Former Congressman George Santos sued Jimmy Kimmel after the late-night host used Cameo videos in a comedy segment called “Will Santos Say It?” Santos claimed copyright infringement and fraud, but both the District Court and the Second Circuit said Kimmel’s use was fair use. In this episode of The Briefing, Scott Hervey and Tara Sattler break down:   ● How Kimmel obtained the videos using fake Cameo accounts   ● Why the District Court dismissed Santos’s case   ● How the Second Circuit reinforced that criticism and satire are protected under fair use   ● Why Santos’s contract and fraud claims also failed Watch this episode on YouTube.

Neil Young vs. Chrome Hearts — What happens when a rock legend collides with a luxury fashion powerhouse? Chrome Hearts has filed suit against Neil Young, claiming his new band “Neil Young and the Chrome Hearts” infringes on their famous trademark   On this episode of The Briefing, Weintraub attorneys Scott Hervey and James Kachmar unpack the lawsuit, analyze the likelihood of confusion, and compare it to the Lady Gaga “Mayhem” case. Plus, they share practical takeaways for musicians to avoid trademark trouble. Show Notes:    Scott:  Neil Young, one of the most influential voices in rock history, has landed in federal court, but not for his music. His new backing band, Neil Young and the Chrome Hearts, has become the center of a trademark infringement lawsuit filed by luxury fashion brand, Chrome Hearts. At issue is whether Neil Young’s use of the Chrome Hearts’ name, and especially the sale of related merchandise, crossed the line into infringement. I’m Scott Hervey, a partner of the I’m a law firm of Weintraub Tobin, and today I’m joined by my partner, James Kachmar. We are going to break down Chrome Hearts versus Neil Young on today’s installment of The Briefing.   James, welcome back to The Briefing. Good to have you.   James:  Thanks for having me, Scott. Anytime you’ve got a clash between a rock legend and a fashion powerhouse, you know it’s going to be an interesting case. Scott:  Oh, absolutely. Well, so let’s set the stage, shall we? So Chrome Hearts filed suit in the Central District of California against Neil Young and his production company, the Other Shoe Productions, and his bandmates. The complaint alleges trademark infringement, false designation of origin, unfair competition, common law trademark infringement, and common law unfair competition. But I think the centerpiece of this case really is the federal trademark infringement claim. I think, really, this case either lives or dies on whether or not Neil Young has violated the Lanham Act. Okay, let’s talk about some background here. Chrome Hearts, for those of you who aren’t aware, Chrome Hearts is not just a boutique clothing line. It’s a billion-dollar brand that’s been around since 1988. They’ve built an empire on jewelry, leather goods, apparel, eyewear, and even furniture. They’ve collaborated with the Rolling Stones, Rihanna, Madonna, Drake, and countless others. Their products are sold in exclusive boutiques worldwide, and they have a loyal following among musicians and celebrities. Now, critically, Chrome Hearts has a very long list of federally-registered trademarks covering Chrome Hearts, both the wordmark and related designs. These registrations span across jewelry, letter goods, clothing, eyewear, retail store services, and even entertainment services in the nature of live performances by a musical band.   Now, that last one is particularly important because I think it directly overlaps with Neil Young’s activities.   James:  I knew about Chrome Hearts as a fashion and jewelry brand, but I had no idea that there was a band associated with it. Did you know that, Scott?   Scott:  No, I didn’t until I read the complaint. I got a little curious, and I found the specific trademark that covered their entertainment services. I mean, it’s listed in the complaint. I looked up its file at the USPTO to see what specimens it submitted. Lo and behold, it’s a photo of a band with the band name Chrome Hearts right there on the stage monitors. I tried to find out more about that band, but when you search Chrome Hearts Band, all you get is references to Neil Young’s new band.   James: Neil Young launched this new band, Neil Young and the Chrome Hearts, last year in 2024. They played shows in New York, branded the outing as the Chrome Hearts Tour, and then released new music earlier this year, including a full studio album this past June. The complaint highlights that they were selling T-shirts and other merchandise, prominently using the Chrome Hearts name as part of that tour.   Scott:  If I had to guess, I would say that’s really the spark. Touring under a band name might have been acceptable, especially since it’s Neil Young and the Chrome Hearts. But I think once Young started selling merchandise, shirts, hoodies, and other items bearing Neil Young and the Chrome Hearts, that’s probably what caused Chrome Hearts to file its lawsuit. According to the complaint, vendors and fans, allegedly, have assumed there’s a collaboration between Young and the Chrome Hearts. That’s exactly the consumer confusion trademark law is designed to prevent.   James:  Yeah, and this isn’t the first time we’ve seen a conflict between a fashion brand and a musical tour.   Scott:  That’s right. Earlier this year, you and I covered the Lady Gaga mayhem case. In that one, the surf and lifestyle brand, Lost International, claimed that Lady Gaga’s use of mayhem as her tour and album title and on her merch conflicted with their registered trademark for clothing.   James: Exactly. Lost had been using mayhem since the late 1980s and owned a federal trademark registration that also covered apparel. Their argument was that Lady Gaga’s tour merchandise created a likelihood of confusion with their surfwear products.   Scott:  That case really highlighted the importance or risk of overlap. Even though Lady Gaga wasn’t in the surf industry, both sides were selling clothing. The court was going to analyze this overlap, the potential of trademark infringement, through the Sleekcraft factors.   James:  Right. That’s the same framework that the court would apply here. Let’s get into it. In trademark law, the core issue is whether there’s a likelihood of confusion. Courts will apply some version of the Sleekcraft factors in determining whether there is a likelihood of confusion with regard to the infringement complaint.   Scott:  Right. So let’s walk through them and let’s make a determination whether they would support Chrome Hearts or Neil Young. Now, obviously, we’re making these calls extremely early in the case before Young has even answered the complaint and before discovery. But I don’t know. I think we know enough about trademark law. Maybe there’s enough facts just from the complaint where we can see where this is going. All right. So just a quick recap. In California, courts analyzing a trademark infringement claim, they’re going to look at the Sleekcraft factors, which are the following: the strength of the plaintiff’s mark, the similarity of the marks at issue, the similarity or the relatedness of the goods covered by of those marks, the similarity of the marketing channels for those goods, both the plaintiffs and the defendants, the degree of care likely to be exercised by the consumer of those goods, whether it’s a sophisticated consumer or not, evidence of actual confusion, the defendant’s intent in selecting the marks, and likelihood of expansion of the product lines.   James:  Scott, let’s start at the top, the strength of Chrome Heart’s mark.   Scott:  All right. Okay, good call. I think Chrome Heart’s Mark is strong. It’s been around for decades, has incontestable registrations, and is pretty widely recognized in both fashion and music circles. Now, the registration provides them with certain presumptions of ownership and certain presumptions of the right to use the mark nationwide, and that mark is distinctive. I think this factor strongly favors Chrome Heart.   James:  Okay, but I’m not sure the next factor favors Chrome Hearts, and that’s a similarity of the marks. Here, Neil Young is using Chrome Hearts as part of his mark, but as his band name, Neil Young and the Chrome Hearts, and his tour name is the Chrome Hearts Tour. So the marks appear to be different in appearance, sound, and meaning. I think this factor may end up favoring Neil Young.   Scott:  I’m having flashbacks of our Lady Gaga conversation. I think I have to agree with you partially. I think the primary focus of Neil Young and the Chrome Hearts is Neil Young. I agree with you there that favors Neil Young. However, the Chrome Hearts Tour is very different. I think that one is more similar than dissimilar to Chrome Hearts, Mark.   James:  Okay, so let’s discuss the relatedness of the goods and services factor. Both parties are offering clothing and live music-related entertainment; it would be hard to see how this factor could not favor Chrome Hearts here.   Scott:  I think I agree, James. However, even though those goods are the same, I think the marketing channels factor show some significant differences in the nature of those goods. So this factor examines how and where the prospective goods or services are advertised and sold. Now, Chrome Hearts markets its products online and in high-end stores. Not quite sure where the Chrome Heart band performs, but I’m going to assume that it’s not in the same type of venues or has the same ticket prices as Neil Young. Now, as for Young’s merch, I couldn’t find any website that sells it. I note that there isn’t a dedicated website for Neil Young and Chrome Hearts. It’s my guess that the tour merch is sold only at tour venues. Now, yes, the Chrome Hearts tour is promoted online. However, courts do not treat the internet as a single undifferentiated channel. When they look at how and where on the internet the goods or services are sold and marketed, and to whom. I think it’s to whom where Chrome Hearts may have issues. I think it’s fair to assume that there’s not really going to be a significant an overlap between consumers of Chrome Hearts clothing and fans of Neil Young.  I’m sure we’re going to see evidence of that introduced in this case.   James: Yeah, I agree on that point. Let’s look at the evidence of actual confusion. The complaint points to vendors and consumers who believe there may be some connection between Neil Young and Chrome Heart, the fashion brand. This factor tends to be a fairly significant one in these types of cases.   Scott:  Right, it does. But I think just looking at the complaint itself, I think I’d have to call this one neutral since we really need to see more facts. If this is just one or two vendors, then I would probably call it a fluke and not convincing. However, if it were a significant number of consumers and vendors, well, that’s different.   James:  Right. Usually, you would see some survey or opinion of experts on that issue. Let’s talk about the defendant’s intent in adopting this mark. This factor considers whether the defendant adopted the mark with the intention of trading on the plaintiff’s goodwill. The complaint alleges that Neil Young was on constructive notice of Chrome Hearts trademark and was on actual notice based on a cease and desist letter that was sent in July 2025.   Scott:  Right. Now, I would assume that Young’s team ran a trademark search before coming up with the band and tour name and if they did, they would certainly have seen the Chrome Hearts trademarks. However, Young’s team may very well have concluded that there isn’t any likelihood of confusion between the two marks.   James:  Okay. Scott, where How did you come out on this? What’s your early assessment of this case?   Scott:  Okay. After I give you mine, you have to give me yours. I think that Chrome Hearts may have a very tough time with preventing the use of Neil Young and the Chrome Hearts. I think this mark is different enough, and the use of Neil Young as the primary focus of that mark pushes it over the top. Plus, the fact that the band and tour merch is sold only at concert venues, I assume that is going to be proven out. I think that really seals the deal. Now, the use of Chrome Hearts’ tour may be different, but in doing my research, I didn’t see any merch using Chrome Hearts Tour. The images included in the complaint, the images of the concert T-shirts, they call the tour, the merch has the tour labeled as the Love Earth Tour. I think we’ll have to wait and see what discovery uncovers with regard to the Chrome Hearts tour. What’s your take?   James:  I largely agree with that, Scott. I think in a lot of these cases, it’s going to come down to battling experts over the likelihood of actual confusion, where you’re going to have surveys to show how consumers may or may not have been confused between the two marks. I think you had mentioned earlier that it’s hard to see how a fan of Neil Young and a patron of Chrome Heart’s luxury brands is going to be much overlap or confusion.   Scott:  Right. I agree. It’ll be interesting to follow up and see if our call, which I think both of us are calling a high chance of success for Neil Young in defending the case, at least with regard to Neil Young and the Chrome Heart.   James:  Right. So, Scott, what’s the lesson here? First, musicians need to recognize that merchandise isn’t just an afterthought. It’s often where the money is made, and it’s where trademark issues frequently arise.   Scott:  Right. And let’s remember that courts wide authority to issue injunctions. If a case doesn’t settle, the agreed party may push hard to stop any further use of the name in connection with the concert and merch. That could be a significant issue for a touring band.   James:  I agree. Scott, what are some of your recommendations for young bands or artists out there?   Scott:  Yeah, good question, James. Okay, there are a few. So first, do a trademark search. Before naming a band or a tour, have a concert run a search to spot conflicts. And if you’re running the search, make sure that you also look at traditional band and tour merch, T-shirts, posters, coffee cups, etc. Avoid famous or established marks. If a name already has significant goodwill in fashion, entertainment, or consumer goods, I would steer clear of that. Consider licensing or collaboration. If you’re set on a name that overlaps with an existing brand, explore a licensing deal. Chrome Hearts has done collaborations before. They’re not a stranger to music tie-ins. I would suggest, though, before you reach out to an existing brand about a potential deal, get counsel from a lawyer experienced in this space. It could be like waving a red cape in front of an angry bull. So just be careful. And then lastly, think beyond music. Remember that trademark rights often extend to merchandise, live events, and online promotions. If your band name touches on those areas, you need clearance.   James:  One more thing, don’t forget to protect your brand. Once you’ve picked a name, consider registering it as a trademark yourself. This will likely give you stronger rights and may deter disputes down the road.   Scott:  That’s a great point, James. Thank you to our listeners for joining us on The Briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Leave us a comment or review and let us know what topics you’d like us to cover in future episodes. I’m Scott Hervey. See you next time on The Briefing.