Kick off 2025 by reviewing your company’s IP assets! Whether you’re new to IP protection or a seasoned pro, it’s crucial to keep track of your valuable intellectual property. Scott Hervey & Tara Sattler break down key steps in safeguarding your trademarks, copyrights, and patents on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: As 2025 kicks off, it’s time for companies to review and take stock of their intellectual property assets. This applies to every company, whether you are new to IP protection or an old pro. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to break down how to review and safeguard your company’s most valuable intellectual property assets on this installment of The Briefing. Tara, welcome back to the briefing. Happy New Year to you. Happy New Year to you, too, Scott. Great to be here again. Tara: Great to have you. Let’s jump right into this. As you know, intellectual property is a company asset, just like inventory. No CEO or CFO would think of running a company where they didn’t know the extent of company inventory. Likewise, it makes no sense for a company to not have a firm understanding of all of its potential intellectual property assets. Even companies that regularly take steps to protect intellectual property through, for example, registering trademarks or registering copyrights, should yearly review their IP assets, and this can prove to be very beneficial. Scott: Understanding the extent of a company’s IP holdings usually starts with what’s known to the company, such as all registered copyrights, trademarks, or patents, both domestic and foreign. After compiling a list of those IP assets, the next step would be to review what the company is using and compare that to the list of registered or pending marks for registration. Let’s discuss with trademarks since every business has at least one trademark. Outside of any registered trademarks, check your marketing and promotional materials, website, mobile app, and social media. If these materials show use of trademarks, logos, or slogans that are not already the subject of a trademark registration or application, then these marks should be cleared for use to prevent unintended liabilities, and they should be considered for possible registration. Tara: Don’t overlook company social media accounts, as mentioned, domain names and toll-free numbers, which may also serve as potential trademarks. Does anybody use toll-free numbers anymore? I don’t know. They’re not as popular as they used to be. Be sure to confirm that all domain names and social media accounts are registered to the company. You’d be surprised at how many times a domain name or a social media account is registered to to an individual company employee or to the marketing company that created, let’s say, the company website or is doing social media engagement and not the company itself. Also, if the company has changed the graphic user interface to any of its technology products or has changed product packaging, point of sale displays, or product designs, these may also be protectable trade dress. Scott: That’s right. Next up would be assets that are subject to copyright laws. In reviewing for copyrightable content, check the company’s website, marketing materials, manuals, YouTube videos, podcasts, posted content on Instagram, TikTok, social media, and other social media, photos, software, blog posts, articles, white paper, and all things like that. While the cost of registering every piece of content may not be economical, companies should at least maintain inventory of all copyrightable works and then make a decision from there. Tara: Right, I agree. Let’s talk about patents. On the patent front, a company should always be aware of any new inventions under development, and it’s good practice to investigate the status of any inventions developed by company employees during the past year. Such inventions may be protectable under federal patent laws. Now, an inventor must secure a patent application within a very short period of in order to prevent the work from falling into the public domain. And that’s even shorter internationally. Companies that routinely produce new inventions should put to place a process which enables inventors to disclose a potential invention to a responsible executive well prior to the invention being disclosed to the general public in order to protect international patent rights and watch the clock for US patent rights. Scott: Trade secrets are a category of proprietary assets that companies may not truly understand or appreciate. This is probably because something can either be a trade secret or not a trade secret, depending on the manner in which the company treats it. Trade secrets are items not generally known by the public, but have economical value and are the subject of reasonable precautions to maintain their secrecy. Tara: Trade secrets can lose their protected status if they’re no longer kept secret. Specifically, if a company’s trade secret or a bit of information or items like a customer list or vendor list that a company considers to be proprietary and trade secret, if that becomes generally known to the public, then it loses its trade secret status. Also, if the company does not take steps to keep that information secret, it can also lose its protected status. Now, this includes physical security measures, also contractual security measures, and internal policies regarding data sharing. Scott: It’s worth noting that unlike patents or copyrights, trade secrets have no set duration of protectability. However, this protection depends entirely on maintaining the secrecy like you were talking about. Scott, Scott. If the information becomes public or the owner fails to take reasonable precautions to keep it secret, the trade secret then loses its protection. Tara: Trade secrets, as you said, they have no saturation of protectability. Some companies choose instead of filing a patent, for example, the the formula for Coca-Cola. My understanding of that is that it is a trade secret. It’s It’s not subject to a patent. It could be, but it’s not subject to a patent because patents have a duration. After that, the invention itself becomes available to the public. But as long as a company keeps something secret, like the formula to make Coca-Cola, that can live on forever. Let’s talk about items that can be protected by state trade secret laws. It includes source code and related documentation, customer lists, employee knowledge, training and experience, proprietary technologies, definitions and formulas, specifically developed customer information, sales practices, negative information, such as negative results from research and development projects, and customer and consumer surveys. Each of the above could constitute proprietary trade secrets depending on whether its owner took reasonable steps to maintain its trade secret status. Scott: A special note about customer data. In addition to regularly reviewing IP assets, a company should regularly make sure that its privacy and data use policies comply with the manner in which it collects and uses customer and employee data. In the US, privacy laws are generally driven by state law, but there may be applicable federal law depending on the nature of the information collected. Tara: That’s a great point. Data security and customer data laws are changing rapidly and continue to change yearly. Also, like you said, if a company conducts business internationally, it may have to adhere to the privacy laws of foreign countries. What company that’s providing either goods or services online is not doing business internationally. Almost every consumer product company that sells online is doing business internationally. Scott: Yeah, that’s right, Scott. Now I think we’ve talked about IP assets that are known to a company. The other thing the company should do is to look into what may not be known. Sometimes, marketing departments and independent divisions spin out valuable intellectual property assets that, for one reason or another, never made it past the desk of general counsel or a responsible executive. Tara: Now, that’s a good point, Tara. Also, intellectual property rights acquired by way of contractual agreements may sometimes be overlooked. Items that were developed or created through the use of independent contractors, such as consultants, photographers, website and application developers, other software developers, advertising agencies, media firms, graphic artists, etc. They may be company assets depending upon contract terms. If the company intends to own all of the rights including any intellectual property rights in these types of works, works created by these independent contractors, then the agreements with these independent contractors should have proper intellectual property vesting language, such as work made for higher language or/and an assignment provision, or both. If the agreements with these independent contractors were only verbal or were written and didn’t contain proper IP transfer language, then the company needs to make another resolution, make sure that it actually owns the intellectual property it paid for because it doesn’t. Sticking to this resolution would include a review of standard independent contractor and employment agreements to confirm that they have proper assignment language and proper confidentiality provisions. Scott: Unintended liabilities can also result from a company’s interaction with independent contractors who have been hired to create something for the company. Whether it’s a website designer hired to redesign a company website, a software developer hired to work on a company’s app, a graphic artist hired to create a new logo or artwork, or a marketing professional hired to create social media assets. We’ve seen countless instances of these types of vendors taking shortcuts and borrowing assets from existing sources. Unless the company executive is closely managing these vendors when they do their work, it would be difficult to determine whether or not they engage in acts that may be considered infringement until the time that the company receives a cease and desist letter or something even stronger than that potentially. Tara: Right. Our podcast audience couldn’t really see you include the air quotes around borrowing. I can’t tell you. We see a few of those letters every year. Our clients are always very like, How did this happen? We hired this company to create this new logo or to create this white paper or to do X, Y, or Z. This always comes up. There are precautionary steps a company can take to prevent these types of unintended liabilities. A company should always have a written agreement with vendors, which unconditionally requires them to indemnify the company for any claims of infringement resulting from the works that the vendors were hired to create and did, in fact, create. Additionally, a company should require these vendors to carry insurance that would provide coverage for such a claim It’s either errors and omissions insurance or some type of professional liability insurance, and the company should be named as an additional insured on these policies. Scott: Those are really good points, Scott. Lastly, and most importantly, the company should have a general understanding of who they’re doing business with. A little time spent researching whether the vendor has negative claims with the Better Business Bureau, has any licensing issues, if there are generally satisfied customers, if there are any pending lawsuits, all those sorts of things can really tell a company quite a bit about the work habits and the ethics of any potential vendor they’re going to use. Tara: Right. And That little ounce of prevention is really, it’s worth the time because the aggravation of dealing with a claim by a third party when you then can’t find the vendor or the vendor doesn’t engage with you or despite the fact that you have an indemnification provision, now you have to go after the vendor for indemnity. It’s well worth the time spent doing that investigation. After you have your IP inventory, the next step is to identify which items have protection and which do not. The company, along with counsel, should then determine which of the unprotected intellectual property assets makes sense to protect. Sometimes the cost to secure protection outweighs the potential value, or the protection is simply duplicative. It’s probably best to always do a cost-benefit analysis. Scott: Yeah, that’s right. I think that’s why we’re talking about all of these steps and suggesting a new review each year because something that may not be worth protecting last year may actually be worth protecting this year. It’s always good to stay current with your review of all intellectual property. Tara: No, fully agree. Companies may have new services, new service offerings, new goods that they’re selling. They may develop a new line of goods. They may have a spinoff company. Companies should always be looking at their IP assets. Those IP assets become very important when a company is sold or when you are the purchaser of another company, it’s quite a good thing, and it saves a bunch of time to have the list of IP assets in hand because it’s In the event of an M&A transaction, you’re going to have to put that all together. If you haven’t already started, it’s going to take quite a bit of time to put that entire list together. Scott: But time well spent. Tara: Right. Thanks, Tara, for joining me today. Scott: Thanks, Scott. Tara: That’s all for today’s episode of The Briefing. Thanks to Tara for joining me today. 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 your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

The Ninth Circuit recently upheld a ruling allowing a class action against NeoCortex, the creators of the Reface app, over the unauthorized use of content creator Kyland Young’s likeness. This case highlights the growing tension between AI innovation and individual rights. Scott Hervey and Jamie Lincenber discuss the lawsuit and what it means for AI companies using digital likenesses on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Recently, the Ninth Circuit upheld the District Court’s refusal to throw out a proposed class action brought by a one-time reality star based on the use of his face by an AI-based face-swapping application. The tech company, NeoCortex, argued that its use of the TV star’s face didn’t violate his publicity rights and moved to dismiss the case under California’s anti-slap laws. Both the District Court and the Ninth Circuit on appeal rejected NeoCortex’s This is Motion to dismiss. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. We are going to talk about this case and its broader implications for AI companies whose business playbook involves exploiting the likeness of others on today’s installment of the Briefing. Jamie, welcome back to the briefing. Jamie: Thanks, Scott. It’s always good to be here. Scott: Yes, this one, I think, is going to be a real fun one, Jamie. How about we get into this one? Kylin Young brought this suit against Neocortex. Neocortex is the creator of the Reface app. Jamie, have you used the Reface app? Jamie: I haven’t. No, but it sounds fun. Scott: It does sound fun. I haven’t used it either. I’m going to have to give it a shot here. Okay, so Mr. Young alleged that Neocortex used his likeness without consent to promote the Reface app. Reface, it’s an app that allows users to superimpose their faces onto celebrities and images and videos. Kyla Dylan was a cast member of a few reality shows, including Big Brother. The Reface preset catalog contains videos and images of Young from his appearance on Big Brother. Jamie: Young claimed that Neocortex used Young’s likeness in promotional watermarked clips to advertise their subscription service. He argued that the watermarked images created with the free version of Reface were teasers and that the watermarks incentivized users to pay to remove them. They serve as free advertising to attract new downloads of the Reface application. He also alleges that the images generated with the pro-version of Reface are paid products that would then constitute commercial use and purpose. Scott: He alleged that this all violated California’s right of publicity statute, specifically, Section 3344 of the Civil Code. We’re all very familiar with 3344, and anybody who listens to this podcast knows we talk a lot about 3344. So Section 3344 prohibits the use of another person’s name, voice, signature, photograph, or likeness in any manner on or in products, merchandise, or goods, or for the purpose of advertising or selling such products, merchandise or goods without such person’s prior consent. Young brought a class action on behalf of all other individuals whose name, voice, and likeness were used to promote the Reface app without their consent. Jamie: So on the surface, this case probably seems rather cut and dry, but we all know that’s rarely the case. At the district Court level, Neocortex filed a motion to dismiss under California’s anti-slap statute. Scott: Right. So procedurally, the district Court denied Neocortex’ motion to dismiss. Neocortex appealed, and the Ninth Circuit upheld the district Court’s decision. So I I thought it would be good to look at where the district Court and the Ninth Circuit were aligned, because that’s going to be very informative for both AI companies whose playbook involved using individuals likenesses, and also maybe for potentially future aggrieved individuals. Jamie: Right. Yeah. To set the stage, California’s anti-slap statute is designed protect defendants from lawsuits that might stifle their right to free speech or petition. California’s anti-slap statute is a two-step process. The first step, the defendant must show that the plaintiff’s claims arise from an act in furtherance of their right to free speech or petition. Step two, if the defendant makes that showing, the burden shifts to the plaintiff to demonstrate a likelihood of prevailing on the merits their claim. Scott: In this case, Neocortex argued that its use of Young’s likeness and promotional watermarked clips was part of its constitutionally protected commercial speech aimed at promoting its app. Thus, it contends ended the claims fell within the scope of the anti-slap statute. The District Court essentially agreed. It said, wrongful or not, Neocortex use of Jung’s image as a tool to provide users with a mode of creative expression is conduct in furtherance of a user’s free speech rights. Jamie: On appeal, the Ninth Circuit assumed, without really deciding, that Neocortex satisfied the first step of the anti-slap test. Scott: Right. I think that’s really because all the action is really in the second part of the analysis, determining whether Jung demonstrated a probability of prevailing on the merits of his claim. Jamie: So The Neocortex argued that Jung failed to show that Neocortex violated his right of publicity on three grounds. The first is copyright preemption. The second was that Neocortex used was First Amendment transformative use. And thirdly, that Neocortex lacked knowledge that it was specifically using Jung’s likeness. Scott: So let’s take those one step at a time. As to copyright preemption, the district Court found that Young’s claim was not preempted. The reasoning is rooted in the nature of publicity rights. Unlike copyrights, which protect creative works, publicity rights protect a person’s name and likeness. The Court emphasized that the claim targeted the misuse of Young’s likeness in advertising, not the distribution of a creative work. Because Young’s allegations center on how his name and likeness are used in Neocortex products and not on the ownership rights to the image itself, Young’s claim in the complaint does not fall under the subject matter of copyright, and his claim is, therefore not preempted under the Copyright Act. Jamie: Right. The Ninth Circuit agreed with the district Court on this. Scott: Right. That’s correct. Jamie: Let’s now talk about the transformative use argument. The transformative use defense assesses whether a person’s likeness is merely a raw material for creating something new or if it’s the core substance of the work. Neocortex argued that the refaced generated clips were transformative, but the District Court didn’t quite buy that. Scott: Right, it didn’t. The District Court noted that the clips still portrayed Jung in roles that aligned with his public persona, not as something distinct or creatively altered. Neocortex would only be entitled to the defense as a matter of law if no trial or fact could reasonably conclude that the resulting clips or images were not transformative. However, a trial of fact could reasonably conclude that the neocortex’s use of Jung’s likeness was not sufficiently transformative, given Jung’s allegation that the resulting clips and images featured Jung in the roles for which he is known. Jamie: Right. And so the Ninth Circuit upheld the District Court’s conclusion. Scott: Right. And I think this is an important takeaway for establishing transformative use of an individual’s likeness. Using a likeness in a way that doesn’t significantly alter its context or meaning likely won’t qualify as transformative under California law, and therefore, that use probably still could be actionable under 3344. Jamie: Lastly, both the District Court and the Ninth Circuit addressed Neocortex’s contention that Young failed to show that Neocortex had knowingly used Young’s identity in the re-face application. The court highlighted that Neocortex made its database searchable, potentially allowing users to identify specific individuals, including Jung. This level of customization really suggests Neocortex likely knew they were using Young’s likeness, even if not explicitly stated. Scott: Yeah, that makes a lot of sense, the court’s conclusion here, when you think about it. Somebody at Neocortex needed to include a meta tag on the video or images that Young appeared in, and they needed to include Jung’s name in that meta tag. Otherwise, the images that included Jung would not be searchable. Someone needs to enter the data that allows users to search for those individuals or other things. I think the court’s finding that knowledge was essentially imputed in the neocortex makes a lot of sense. However, let’s take a step back. This It’s the contention that knowledge is required under a right of publicity claim under 3344, it’s a very interesting contention when you think about it. Usually in a right of publicity case, the issue of knowledge, it’s not really an issue. Generally, the defendant knows whose image, whose likeness it was using. Jamie:  Right. Yeah. The district Court doesn’t really address whether this is an actual requirement. It said, even assuming that 3344A requires a defendant to affirmatively know that it’s using a specific plaintiff’s likeness likeness. Young’s allegations support a reasonable inference that Neocortex knew that it was using Young’s likeness. The court may have to go deeper into this later on if the case persist. Scott: Right. But I think there might be a danger in this. There might be a danger in this opinion and the court leaving it open, whether or not 3344(A), a claim requires knowledge, because I think what you’re going to start to see then is where claims are brought, right? A publicity claims are brought under 3344A. A defendant is going to allege, or not allege, a defendant will begin to try to defend that claim by saying that the plaintiff hasn’t established knowing use by the defendant. So we’re going to see this requirement or an allegation that knowledge is a requirement of 3344(A), I think we’re going to start to see it start to proliferate right of felicity cases. So I think not nipping this in the bud might present a problem down the road, because if I was representing a defendant in a 3344A case, I certainly would defend the case on every ground that’s reasonably possible, including the lack of knowledge by the defendant. Jamie: Right. Yeah, I agree. Scott: Yeah. But let’s talk about what this case means for AI developers and evolving landscape of digital likeness rights. Jamie: Well, the case definitely underscores the tension between innovation and individual rights. Scott: It does. We know that there is a hodgepodge of state laws that address this type of tension. This type of activity is prohibited Probably prohibited in Tennessee under the new Elvis Act. It would probably also be in violation of the proposed federal No Fakes Act. Jamie: Yeah, it’s a cautionary tale for AI developers. We all know that tech companies like to move fast, but in dealing with publicity rights, AI developers really need to carefully navigate how they’re using identifiable personal features in their products, and especially for marketing purposes. Scott: Agreed, completely. At the state level, as we mentioned, there are already laws on the books that specifically target the use of famous individuals likeness is both dead and alive within an AI product. At the federal level, like I said, while it would probably be a violation under the proposed federal No Fakes Act, It’s a bit unclear which way the winds may blow as a result of the election. But I think that this is a non-partisan issue, and it probably deserves federal review, but we’ll see. As of this week, there’s a new AI czar, so we will see what happens here. Jamie: Yeah. One more thing It also seems relevant to point out that there are ways that Neocortex may have been able to secure these rights without having to go directly to the user. Scott: I agree. It’s not clear to me whether Neocortex actually licensed these clips from the broadcast networks. As we know, working in this space, the producers and broadcasters of programming programs like this, specifically, non-scripted television programs, generally obtain pretty broad use rights for the content. I would suspect that the be right granted by Young to the producers of Big Brother would probably include this type of use had Neocortex licensed this content from the producers of Big Brother. I don’t know whether they did or didn’t. That’s not part of this case. Maybe we’ll know as this case goes forward. I guess we’ll see, right? Jamie: Yeah, we’ll see. I think a common thread that I’m finding with a lot of these AI cases is that at the moment, there’s really no great way of monitoring all of this use. It’s so widespread that I think that becomes a major concern. Scott: Yeah, I agree. Jamie: I don’t know the fix there. Scott: Well, I guess there’s a business there for somebody who wants to be in the business of monitoring new AI platforms’ use of potentially infringing content, because you’re right. There’s a lot of platforms and a lot of content and a lot A lot of new uses of GAI type of content, and it’s challenging to keep abreast of everything that’s out there. There’s a business for somebody there for sure. Jamie: Definitely. Scott: Yeah. Well, that’s all for today’s episode of The Briefing. Thanks to Jamie for joining me today. And 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.

The discussion dives into the legal risks brands encounter in social media marketing. Key topics include FTC compliance and the need for transparency in influencer partnerships. Legal implications of copyright infringement are highlighted, especially in user-generated content cases. The importance of licensing agreements and permission reviews is emphasized to avoid liabilities. As social media ad spending surges, understanding these legal intricacies is crucial for brands to protect themselves in the digital landscape.

While influencer marketing has become popular in the creator space, it doesn’t come without risks. From IP infringement to FTC compliance, Scott Hervey and Jessica Marlow discuss the key issues surrounding brand endorsement deals in this archive two-part episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Influencer social media marketing is big business, whether it’s a brand integration on Instagram by an influencer or a long-term brand endorsement deal by an A-list movie star. Each deal is different, but there are similar issues that are apparent in all brand deals. I’m Scott Hervey with Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. Today is part one of our profile on understanding and navigating risks in brand marketing deals on today’s installment of “The Briefing” by Weintraub Tobin. Jessica, welcome back to “The Briefing.” Jessica: Thank you. Happy to be back. Scott: This is something we both deal with frequently from both the brand and the talent side. There are certain risks that celebrities and brands have to navigate in these types of deals. Making these risks more prevalent is the fact that we’re talking about digital marketing, where things tend to move quicker. And for whatever reason, people, even marketing professionals, may sometimes believe that the laws applicable to terrestrial or regular advertising don’t apply to the Internet. Let’s talk about our top general risks from a talent perspective and how to deal with them. Now, we have a bunch of lawyers that listen to our podcast, and you might have a different list, and we would love to hear from you if you think we should have covered something that we didn’t. But this is what we think are the top legal issues in a talent brand deal. Jessica: One of the major risks is IP infringement. Now, this is multifaceted, and the risk of infringement comes from a few different places. First, there is infringement risks that the celebrity or influencer imposes on themselves, which can happen in a few ways. The first way is by using content where the copyright is owned by a third party, for example, where a celebrity or influencer posts an image that they don’t own. You’ve covered a few cases on “The Briefing” about this. Scott: That’s right. One of the more well-known case is what is O’Neill versus Ratajkowski. While that case didn’t necessarily involve brand marketing, it’s a perfect example of this type of risk. In 2009, O’Neill, who was a professional paparazzi, took a photo of Ratajkowski outside of a flower shop in downtown Manhattan. Now, the photo showed Ratajkowski with her face covered by this bouquet of flowers. O’Neill subsequently registered his photograph with the Copyright Office. Now, shortly after O’Neill posted the photo online, Ratajkowski posted the photo on her own Instagram account. The photo she posted was the same, except that she added the words “Mood Forever” to the bottom of the Instagram post. Now, O’Neill, of course, sued Ratajkowski and her loan-out company for copyright infringement. Jessica: Right. And Ratajkowski tried to get out of the case on a fair use defense on a motion to dismiss, but she was unsuccessful. And this case was before the Supreme Court ruling in Warhol versus Goldsmith. Under the new fair use analysis, it’s almost certain that Ratajkowski would not have had a fair use defense. Scott: Yeah, that’s true. And this type of liability isn’t just limited to cases where the photo that is used makes up the entire post. This type of potential liability can exist where the third-party photo only makes up a portion of the poster video. Jessica: Right. It’s just not limited to photos. This could be a video or other similarly copyrighted, protected material like music or logos. Scott: Yeah, and music can be a bit tricky. You would think that almost everyone would understand that you can’t just use your favorite band sound recording in a YouTube video or Instagram story. Unless, of course, it’s offered as music library content from the platform. But you still see that happening. Jessica: True. But where there tend to be more problems with music is not in the use of the sound recording, but in the use of the composition. As you know, there are two copyrights in music. One copyright covers the actual sound recording, and those rights are generally owned by the record company. The other copyright is in the composition, meaning the actual music and the lyrics. The copyright in the composition is generally owned by either a music publisher if the song have a publishing deal, or by the songwriters themselves. When you normally see issues of publishing is where the celebrity or influencer performs as in sings the song. Scott: Now, normally, if you are a celebrity or influencer and you want to record the performance of a song, you have to get what is called a synchronization license from whoever holds the publishing rights in the music, whether that be the publisher or the songwriters. Without obtaining a sync license, your recording and subsequent broadcast of the performance of the song is copyright infringement. Jessica: So not only is this a potential issue for the endorser with the owner of the copyright, but this also could result in a big issue for the brand. First, it’s likely to constitute a breach of the agreement with the brand and result in the endorser not getting paid. Also, if there’s any action by the copyright holder, then the endorser will likely have to indemnify the brand. Scott: Yeah, that’s right. Now, there is another type of infringement risk that an endorser potentially faces. And this one usually comes as a big surprise to endorsers and, frankly, their agents. That’s the endorser’s exposure to either a trademark or a copyright infringement claim based on something the brand does. Now, we previously talked about a trademark case where Molly Sims was sued for trademark infringement, all because of a of a sponsored post she did for a beauty product, which another cosmetic company claimed infringed its trademark. Jessica: I remember that case well. Sims’ involvement in the matter was no different than any other influence or marketing campaign. As part of a product launch, the defendant cosmetic company hired Sims to post a review of its product on her blog. Sims’ blog post acknowledged that the review was sponsored, as she’s required to for the FTC, and included a link to the defendant’s website. The plaintiff, a competing cosmetic company, sued the defendant cosmetic company and Sims for trademark infringement and other related claims. Scott: So, Sims tried to get out of the case early, but the court denied her motion to dismiss. In order to establish direct trademark infringement, the plaintiff must establish the use of its mark by the defendant in commerce and the likelihood of confusion. The judge found that the plaintiff had adequately pled that the blog post was likely to cause confusion as to the source of the product and that Sims’ post was essentially advertising, thereby satisfying the use and commerce requirement. Sims raised some arguments why her use should not constantly trademark infringement as a matter of law, including that the blog post was non-commercial editorial speech. The court said that because this was paid content, it crossed the line from editorial or consumer commentary to commercial use. Jessica: Most endorsers don’t appreciate that a one-off integration for a brand could land that endorser right in the middle of a trademark infringement case. This is why we always fight hard to get indemnity from the brand in every deal we do. But as mentioned in your coverage of the Sims case, indemnity is only as good as the solvency or the corporation of the indemnitor. Scott: Speaking of solvency of the indemnitor, this brings to mind the rash of promoter liability lawsuits against the celebrity endorsers from the fallout over FTX’s bankruptcy. If I told Tom Brady, Giselle Bündchen, Steph Curry, and Shaquille O’Neal that they could face potentially millions in civil liability all because they just appear in a TV ad for FTX, they and their agents probably would have laughed me out of the room. But that’s what’s happening now. Tom Brady, Giselle Bündchen, Steph Curry, Shaquille O’Neal, and others are all defendants in massive lawsuits seeking to hold these celebrities liable for the money’s lost by FTX customers. The customers claim that the celebrities were promoting unregistered securities which fall under the Regulatory Authority of the Securities and Exchange Commission. Under federal law and securities law, anyone who promotes a securities offering has a legal duty to ensure that the information they publish is complete, accurate, and not misleading. Jessica: And not only is there potential civil liability, but there’s also potential liability from the SEC. In March 2023, the SEC announced charges against multiple celebrities who were accused of participating in a fraudulent scheme to promote TRX and BitTorrent cryptocurrency securities. The SEC alleged that the celebrities violated federal law by illegally touting the TRX and the cryptocurrency without disclosing that they were compensated for doing so and the amount of compensation. And these penalties can be substantial. In October 2022, Kim Kardashian entered into a $1.26 million settlement with the SEC following its investigation of her online promotion of EMAX tokens. According to the SEC, Kardashian failed to disclose the payment that she received when promoting the crypto asset security on social media. Scott: And your example is a perfect lead in for the next potential legal landmine, and that’s an endorser’s failure to comply with the FTC disclosure guidelines. Jessica: Right. That is a big issue. We did an entire episode on that and the recent changes to the FTC guidelines, so our audience should certainly listen to that episode. Scott, I think we should cover on an additional episode sort of the risks related to product liability and when an endorser is promoting a product, particularly if we’re talking about food or skincare or makeup, ingestible, vitamins, those sorts of products, and where the liability could ultimately lead for our celebrities and our influencer clients. Scott: Yeah, absolutely. That’s a huge topic and certainly would need its own episode. Jessica: Absolutely. But next week, we’re going to cover the company side of the legal risk coin. Scott: Yes, we are. I’m looking forward to that. Jessica, thanks for joining me today. Jessica: Thank you for listening to this episode of “The Briefing.” We hope you enjoyed the episode. If you did, please remember to subscribe, leave us a review, and share the episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: Welcome to a special holiday edition of The Briefing. Today, we are decking the Halls with a look at some of the most unique Christmas-related patents ever filed, at least in my opinion. That’s right, the spirit of invention doesn’t take a break during the holiday season. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. We are going to examine these festive follies of intellectual property. So grab your eggnog, snuggle up, and let’s dive into five truly unique Christmas-themed patents on today’s installment of The Briefing. Jamie, welcome back. Are you ready for this? Do you have your Santa hat nearby? Jamie: I’ll grab it in a minute, but you have to put yours on, too. Okay. Scott: Well, I don’t happen to have one nearby, unfortunately. That was really a mistake in prepping for this episode. I really should have brought my Santa hat. Oh, well. Okay. First, let’s just point out, neither of us are patent lawyers. This is really more for humor than anything else. Second, I want to point out in doing my research for this episode, there are a lot of Christmas patents out there. Jamie: Well, that makes sense. Scott, Christmas is a big business. Scott: It is. It This is a big business. All right, so kicking things off, let’s talk about the Santa detector. Every kid wants to try to spot Santa, and this device purports to give kids an edge on the elusive elf. This patent, filed in 1996, is for a device designed to detect Santa Claus entering your home. I mean, isn’t that what the ring camera and ADT is all about, too? This patent application says, In the minds of young children, Santa Claus’s arrival is denoted by the presence of Christmas presents under the tree and/or Christmas stockings filled with treats or cold, depending upon whether you’re good or bad. That was not in the patent application. That was my ad lib. The patent continues on. However, none of these customary practices nor any prior art arrangements known to the applicant provides a Christmas stocking that is capable of being selectively illuminated to signal the arrival of Santa Claus. This ingenious gadget uses motion detectors, sound sensors, and even a Christmas tree light to trigger to alert an eager kids when the big man makes himself available. It’s like a ring, doorbell for Santa, only much less practical. Jamie: Imagine the chaos if it went off every time Uncle Bob wandered into the living room for another round of Christmas cheer. Scott: Oh, yes, I’m sure everybody has an Uncle Bob. Unfortunately, though, Jamie, it seems that kids will have to use a less high-tech mechanism for spying on Santa. This patent expired in 2014 due to failure to pay maintenance fees. Jamie: Well, maybe the inventor was on the naughty list. Scott: Oh, maybe he was. Jamie: This next one seems very practical. For people that If you don’t live in California and Arizona, where it tends to be in the mid ’70s all December long, this patent application is for a Christmas tree watering system, which aims to solve the age-old problem of crawling under your tree to add water. It’s a simple setup, a water reservoir in the shape of Santa with a water hose that extends from it to another hidden reservoir under the tree. Functional? Sure. Festive? Absolutely. Creepy? 100%. No one wants to see a water hose extending from Santa’s rear end that doubles as a tripping hazard at 2 AM after the office holiday party. Scott: That’s right. I love that. The picture that’s in the patent application here. They’ll put it up on screen. It’s hilarious. Okay. Now, this patent probably ended up being big business for the inventor and probably also a ton of business for the lawyer employers, tasked with patent enforcement. Now, on the non-legal side, it also brings some serious holiday cheer to your daily commute. It’s the Antler Vehicle Ornament. This 2014 design patent protects a festive adornment for your car, a set of Reindear antlers to transform your vehicle into comet on wheels. Now, I know what you’re thinking. Isn’t this just another way to embarrass my car? Well, hold on. This patent adds flair to the functional. With sturdy clips for the antlers, it ensures your car can spread holiday joy while cruising down the highway without losing its festive accessories. Jamie: Let’s face it: who wouldn’t smile at a minivan decked out as one of Santa’s reindeer? Unless, of course, it’s cutting you off in traffic. In that case, you probably wouldn’t be so jolly. Scott: That’s right. This invention turns the most mundane aspect of your life, your daily commute, into a holiday spectacle. Even more of a spectacle if one of those antlers goes flying off on the 405. Children, avert your eyes from the run-over antlers on the side of the road. Jamie: All right, next up on our list of holiday innovations, the invertible, artificial Christmas tree. That’s right. Someone out there thought, what if we turned Christmas Christmas upside down, literally. This genius or possibly diabolical idea flips the traditional tree on its head, creating a design that’s narrower at the bottom and wider at the top. Now, picture a tree that defies gravity or perhaps just confuses everyone at your holiday party. Scott: All right, so what is the point of this topsy-turvy Tanenbaum? Jamie: It’s meant to save space and make stories. Garage easier. However, might it be more fun to actually decorate this tree upside down? After all, with the wide end at the top, you’ve got more room for presents underneath. Or, depending on how you look at it, you’ve created a holiday vortex where gifts might get sucked into the void. Scott: It actually might make people think they’ve consumed a little too much holiday cheer at a holiday party, as well as seeing an upside-down Christmas tree. All right, so practicality aside, it certainly would be a conversation starter. Imagine the debates this tree could spark. Is it a symbol of holiday innovation or just a sign that we’ve gone too far with Christmas decor? If you’re looking to turn tradition on its head and have a sense of humor about your holiday decor, this might just be the tree for you. Jamie: It’s perfect for those who may have been on the naughtyy list. What better way to say, I’ll celebrate Christmas, but I will do it my way? Scott: All right, last Last up. Let’s dive into a holiday invention that brings a whole new level of accountability to your Christmas celebrations, the Naughty or Nice Meter. This patent application proposes a device that can scientifically determine whether someone has been naughty or nice. Because why rely on Santa’s mysterious list when you can quantify morality with a machine? Here’s how it works, or it’s supposed to work. The meter includes sensors to measure biometric data like heart rate or skin conductivity, combined with algorithms to assess behavioral inputs. The result? A definitive score labeling you as either naughty or nice. It’s basically a lie detector that meets Santa’s workshop. Jamie: Imagine the chaos that this could cause at holiday office parties. Want to raise? Let’s attach you to the meter. Scott: I could see that. However, I think for our industry, I think there might be a direct correlation between a high or naughty reading and a bigger bonus. Of course, I’m kidding, lawyers. Save your emails. Don’t take offense. Jamie: The patent also mentions a version for kid. Now, that is a parenting game changer. Forget empty threats of Santa’s watching. Now, you’ve got a blinking gadget that will call them out in real-time. It is fun and it’s festive until your child spends the rest of December trying to hack the system. Scott: But let’s not ignore the potential for holiday drama. Who decides the criteria for naughty versus nice? Is skipping the gym naughty? Not necessarily. Is saving the last cookie for yourself a nice act of self-care? Absolutely. These are philosophical questions I think that no gadget can answer. Jamie: Still, you’ve got to hand it to the inventors. They have found a to mix holiday magic with a bit of tech-savvy mischief. Whether it’s a hit or a hilarious flop, the Naughty or Nice meter is sure to add some high-stakes fun to your Christmas traditions. Scott: I really like it, though, as a parenting tool for the month of December. I really think it’s a way to bring kids in line for December. You’ve got to add that with the elf on the shelf, right? And you’ve got it locked down. You’ve got the kids locked down. Jamie: Perfect combo. Scott: Yeah. There’s There you have it. Five festive patents that prove inventors don’t take the holiday off; whether it’s catching Santa, watering your tree from Santa’s bum, dressing up your car, or using a behavior compliance machine, these patents add a dash of humor to the holiday season. Jamie: While most of these inventions may never end up under your tree, they remind us that creativity knows no bounds, even during Christmas. Scott: Jamie, happy holidays. Jamie: Thanks. You too, Scott. Scott: Well, that’s all for today’s holiday-themed episode of The Briefing. Thanks to Jamie for joining me on this Mary Jaunt through some funny holiday patents. 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.

Can an influencer sue another for having a similar aesthetic? Scott Hervey and Jessica Marlow dive into a Texas case that could reshape creator marketing on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: Can a natural beige and cream aesthetic be protected? There’s a case pending in Texas, a lawsuit brought by one social media influencer against another social media influencer in which the plaintiff claims that the defendant copied her look. Can you protect a look? I don’t think so. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. We’re going to discuss the case of Sydney Nicole versus Alyssa Shell and its potential implications on the creator marketing industry on this installment of The Briefing. Welcome back, Jessica. It’s been a while. Jessica: Well, thank you for having me. I’m very interested in this case and looking forward to talking it through. Scott: Yeah, this one is just right up your alley for sure. Can you give us some background on the case? Jessica: Absolutely. This case involves two influencers who both operate in the same niche, promoting Amazon products. Sydney Nicole Gifford, the plaintiff, filed a lawsuit against Alyssa Shell and her company, alleging that Shell copied Gifford’s entire online persona, including her Instagram and TikTok posts, Amazon storefront layout, and even the designs of apparel Gifford created through Amazon. Gifford claimed that Shell replicated her esthetic, described in the lawsuit as a neutral beige and cream brand identity to mislead followers and increase her own earnings from sales commissions. Scott: So Gifford’s complaint included a wide range of claims, totaling eight. Copyright infringement, vicarious copyright infringement, trade dress infringement, misappropriation of likeness under Texas law, tortuous interference, unfair trade practices, and unfair competition, unjust enrichment, and violations of the Digital Millennium Copyright Act or DMCA. Shale moved to dismiss the complaint or parts of the complaint, arguing essentially that she has not broken any laws by making social media posts like Gifford’s. In ruling on Shale’s motion to dismiss, the magistrate judge noted that this appears to be the first time a court has looked at whether one influencer can sue another for copyright infringement and other claims based on the similarities in their social media posts promoting the same products. Jessica: Of the six claims, the court dismissed three: tortuous interference, unfair competition, and unjust enrichment. Let’s talk about the claims that the court didn’t dismiss. The first is claims for vicarious copyright infringement. Scott: And we should be clear, the reason why the court didn’t address the copyright infringement and trade dress infringement claims is because Shell did not move to dismiss those. So to establish vicarious copyright infringement, a Plaintiff Must Plead, Direct Infringement by a third party, the defendant’s right and ability to supervise the infringing conduct, and the defendant’s direct financial interest in the infringing activity. The last element that Shell had a direct financial interest in the infringing activity would easily be established if Gifford could prove the first two elements. That’s what both the court and Shell focused on. As to the first element, Shell argued that Gifford failed to allege any act of infringement by a third party since Gifford accuses both Shell and her entity of direct infringement. Gifford clarified that the vicarious infringement claim was not an attempt to hold Shell liable for the direct infringement committed by Shell’s company and vice versa. Rather, the claim was an attempt to hold both of them liable for the vicarious copyright infringement of Shell ‘s followers. Jessica: And the court was satisfied with this allegation. Scott: That’s right. The court, or the magistrate judge in our case, determined that Gifford successfully pleaded direct infringement by third parties, the followers, by alleging that these third-party, Shell ‘s followers, accessed, downloaded, interacted with, and/or viewed the allegedly infringing content, which was Shell ‘s posts. Jessica: And next, the court addressed the element of a defendant’s right inability to supervise. Shell argued that while she may control her own social media platform, she does not have control over the viewers and followers. Scott: In responding to that, the court pointed out that while it does not appear that any The E. Court has addressed whether a social media user has the right and ability to supervise their viewers or followers, other courts have found that the ability to block infringers’ access to a platform to be sufficient to establish the right and ability to supervise. In this case, Gifford alleged that Shell controlled what content was posted and which users could follow Shell’s various social media accounts. The court reasoned that similar to a case where a defendant could block access to an online bulletin board preventing infringement, Shell could police her accounts to control third-party access to allegedly infringing content. In other words, Shell could control which of her followers could access the content that she was posting, which was allegedly infringing Gifford’s copyright. Jessica: Interesting. The court determined that construing the facts in the light most favorable to Gifford, as is required when evaluating a motion to dismiss, she sufficiently pleaded Shell’s right inability to control the alleged third-party infringement by exercising control over the allegedly infringing content on her platforms and the third party’s ability to access that content. Scott: Yeah. I mean, to me, I think it’s circular. But okay, let’s get on to the next one. The next claim that was not dismissed was for a violation of the copyright management information provisions of the DMCA. Now, to properly state a claim, Gifford had to allege that the copyright management information or CMI, existed in connection with with the copyrighted work, that Shell distributed copies of the copyrighted work, and that Shell knew that the CMI was removed or altered, and that Shell l knew this would lead to infringement. Jessica: Giffred alleged that Shell violated the DMCA by intentionally creating posts indistinguishable from Giffred’s post without reference to Giffred’s name or username. With regard to photos, these types of claims are normally brought when a defendant is either displaying or distributing of the plaintiff’s photos without any copyright information that the plaintiff affixed to the original work. Here, the posts Shell had posted were not Gifford’s posts. They were Shell’s own posts. Scott: Right. And Shell brought this up. She said that Gifford could not bring a claim of the DMCA where there is no copy and paste of identical images with copyright croppings. However, the magistrate The judge found that courts in this particular circuit have found that the DMCA may properly apply even when the allegedly infringing work is not identical to the original. Jessica: The case the magistrate judge sites involved the use of plaintiff’s exact training material while making some changes to colors of graphs and chart sizes. I don’t think that’s really an analogous case here. Scott: Yeah, I agree. I don’t think it was an analogous case either. In that case, that specific case, the defendant distributed basically the exact same work, but just made some changes, as you said, to the colors of the graphs and the chart sizes. Now, granted, I haven’t surveyed all of the CMI cases. However, it does seem that this portion of the DMCA is focused on the plaintiff’s actual work, the original copyrighted work. However, the court found that although Shell’s posts were not identical to Gifford’s, they still used Gifford’s copyrighted material in her allegedly infringing post, the esthetic, without including Gifford’s name or username, which constitutes CMI. Jessica: So I think there are a few interesting takeaways from the court’s ruling on that specific claim. Scott: I agree. I think there’s two takeaway points here. The first is that social media usernames can constitute CMI. And the second, at least with this magistrate, is that a plaintiff can bring a CMI claim where the infringing work is clearly not the plaintiff’s work. I’d be curious to see how other circuits addressed a claim like this. Jessica: The last claim that the court allowed to proceed was misappropriation of likeness under Texas law. This statute requires the following elements, that the defendant use a plaintiff’s name or likeness for its value rather than incidentally or for newsworthy purposes, that the plaintiff can be identified from the publication, and lastly, that the defendant games some advantage or benefit from using the plaintiff’s name or likeness. Scott: So let’s break down the first two elements since the last one would be easily established under the circumstances if the first two are satisfied. So with regard to the first element, the appropriation of name or likeness for value, Shell argued that Gifford failed to allege that Shell used Gifford’s actual image, name, or voice because it was photos of Shell, not of Gifford. The court found that Gifford satisfied this element by alleging that Shell created a, quote, virtually indistinguishable replica, close quote, of Gifford’s likeness by imitating her outfits, poses, hairstyle, makeup, and voice. This imitation, the court noted, could be seen as appropriating, quote, an aspect of that person’s persona in a manner that symbolizes or identifies the person, close quote. Jessica: As for the second element, Shell argued that Gifford’s likeness was not identifiable in her post, which makes sense because the posts were actually images of Shell, not Gifford. However, the court stated that this was a factual issue that could not be resolved at the motion to dismiss stage. Scott: Let’s quickly discuss us two of the claims that the court actually dismissed, the unfair competition claim and the unjust enrichment claim. The court dismissed both of these claims because they were preempted by federal copyright law. Both claims were based on Shell’s publishing and promoting infringing works, including product lists similar to compilations of facts or pictorial or graphic works protected under copyright law, and both claims lacked any unique element to distinguish it from claims under federal copyright law. Jessica: So the claims that go forward from here are claims for direct copyright infringement and trade dress infringement, since those claims were not the subject of Shell ‘s motion to dismiss. Also going forward are the claims for vicarious copyright infringement, the DMCA claim, and the misappropriation of likeness under Texas law. Yeah. Scott: And I will state that I was just reading this morning that she’ll… So this magistrate judge, this is recommendation, I guess, I’m not a litigator, but my understanding of how this works is this magistrate judge makes a recommendation to the district court, and the district court has basically can adopt the magistrate’s opinion or make changes to it, and she’ll file the motion objecting to the magistrate judge’s ruling and basically challenging the, I believe it is the vicarious liability in the DMCA portion of the Magistrate Judges’ opinion. And we’re going to talk about, I think, really what Shell ‘s lawyer should have done in a bit. But here we are with this case. So let’s now talk about what effect this case could actually have on the influence or marketing industry? Because we now have this case that says potentially that an aesthetic is protectable or that one One creator may sue another for violating a look. My understanding is there’s categories of types or looks in the creator marketing space, just like there’s categories of actors, and a casting director who’s casting a movie or a television show might be looking for a particular category or type, role type, when casting for that role, right? Jessica: Absolutely. Gifford and Shell have this, quote, Clean Girl look. It’s a fashion and beauty trend characterized by minimalist, effortless, polished look. You’re focusing on neutral colors and classic silhouettes, natural makeup. The person appears well-kept with a focus on dewy skin and slick hair, subtle accessories, essentially aiming for a refined yet casual appearance without looking overly done up. This is a very popular look among the creator marketing community, and Adopters of this look are some big names: Haley Bieber, Bella Hadid, Selena Gomez, Kim Kardashian. There are a lot of women and creators that fit this clean-girl vibe. Scott: There are a few ways that creators like Gifford and Shell make money. One is by being directly hired by a brand to promote a product or a service. The other is through affiliate marketing programs or platforms like LTK or Amazon’s Influencer program. Now, if you are a brand that fits into or is demographic, fits into the clean girl esthetic, it would be understandable and probably common practice for that brand to contract with multiple clean girl creators to create posts promoting the brand’s products. And because the look of those posts would be dictated by the brand’s creative brief, It wouldn’t really be unthinkable if each post was somewhat similar. With regard to the Amazon Influencer program, it’s my understanding that Amazon sends out lists of products that creators are encouraged to promote. I think it would be natural for two creators with a similar look to focus on the same products or same type of products that fit that look. Do you agree? Jessica: Absolutely. I mean, that’s why that creator was selected to partner with that brand and to create that content because of their esthetic and their take on the product and how they want to feature it. Scott: This is why I think this case is problematic. It seems to me that Guilford… No, Guilford, sorry. I think we’ve been mispronouncing her name the entire time. It’s Guilford. My bad. It seems to me that Guilford is trying to prevent Shell from posting content that reflects this clean girl esthetic. The clean girl esthetic, as you pointed out, is an esthetic which is defined in the dictionary as, a particular theory or conception of beauty or art, often emphasizing personal taste. From a practical standpoint, should Guilford have a monopoly on the ability to post content reflecting the clean girl aesthetic? Jessica: Absolutely not. Scott: I mean, what would happen if she was able to have this monopoly over the clean girl aesthetic? It could grind creator marketing and influencer marketing to a halt. Jessica: Yeah, Absolutely. If you’re starting to block out entire categories, vibes, esthetics, creative approaches, I mean, at what point does the whole creator influencer marketing world run into a road trip? Blog. Scott: Well, with regard to Guilford’s attempt to try to prevent Shell from posting content that reflects this clean girl aesthetic, copyright law agrees with you. Section 102(b) of the Copyright Act expressly excludes protection for any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied. This section codifies what’s known as the idea-expression dichotomy, and it’s also called the merger doctrine, which means that every idea, theory, and fact in a copyrighted work becomes available for public exploitation or is generally available for public exploitation. From the moment of publication, this strikes a balance in protecting the interest of the copyright clause with first amendment rights by permitting free communication of facts and unprotectible elements while still protecting an author’s means of expressing those facts. I think there’s an argument to be made here that Guilford is basing her claims on an unprotectible idea or concept, that she’s trying to protect the copying of something that isn’t protectable, trying to prevent Shell l from posting content that is Shell ‘s own expression of the clean girl esthetic, which itself is an unprotectible idea. Jessica: So Scott, Are you saying that Gifford would not, under any circumstances, be protected against Shell copying her posts? Scott: Well, if the idea was simply promoting Amazon products with a neutral beige and cream esthetic, that idea itself would not be protectable. However, if Shell copied specific original elements from Gifford’s post, like unique arrangements of products, particular phrases, or original photography, those elements could potentially be protected by copyright. Now, what I think is that the magistrate judge… First of all, I think that Shell’s lawyer should have moved to dismiss the copyright claim. And then I think that the magistrate judge, maybe on their own, or definitely the district court, should have dug into or should dig into the merger doctrine and separate out the unprotectable elements from the protectable elements and then analyze whether or not the content is substantially similar. This would have had a substantial impact on the court’s analysis, not only of the copyright claim, but also of the DMCA claim and the vicarious infringement claim. Jessica: And what about the Trade Dress infringement and misappropriation of likeness claims? Scott: So similar to copyright, Trade Dress protection does not extend the general ideas or concepts. So if Shell successfully argued that Guilford’s claimed trade dress, this neutral beige and cream esthetic, was either too broad or too generic to function as a source identifier, the court may have dismissed the a trade dress infringement claim. Now, the court allowed the misappropriation of likeness claimed to proceed, suggesting that imitating someone’s outfit, poses, hairstyles, makeup, and voice could constitute appropriation of their likeness. However, if Shell argued that the plaintiff was merely trying to protect this general style or persona rather than her specific identifiable likeness. And think about it. These were pictures of Shell. These were not pictures of Guilford. So Guilford’s actual likeness, and her obvious her voice wasn’t there, but her actual likeness were not reflected in those images. And I think a court may have viewed those claims differently. We talked a little bit, Jessica, about this case and if Guilford’s copyright and trade-risk claims are allowed to stand how this case could affect the creative marketing industry. But let’s assume even if these claims are dismissed, you still have this deterrent effect of an influencer bringing a lawsuit against another influencer merely because they share a similar esthetic. Jessica: I mean, there may be some other detailed elements that were not not visible to us yet or not clear to us yet. But to me, it seemed as if this was broadly based upon this shared vibe and look. How do you think this case Do you think this case may act as a deterrent in the way that other clean girl creators express their look? I do. I think this is a very challenging case if it does end up standing because every creator certainly has their own vision, their own style, their own tone, their voice, and how they create, produce, and ultimately upload their content. But if there’s a creator who does have this similar vibe or aesthetic, and they inadvertently have a similar style or tone, what are we talking about? Is there liability in that instance? At the very least, is a case going to be brought and these creators are going to be defend themselves over their vibe, over having similar types of content, promoting similar types of products? I think it walks us down the wrong road and could be really dangerous. Scott: Yeah. I mean, I think I tend to agree. I think that I hope that the district court, on its own accord, looks at the copyright infringement claims and makes a determination as to what aspects of of Guilford’s claims cover protectable or unprotectible elements and really, really parts what Guilford’s claims. And then I think we’ll be, we’ll have a clearer picture as to what she may or may have not infringed. But I I also think that it’s incumbent on the court to be clear here that an esthetic is not protectable. And to the extent that Guilford’s claims are based solely on this shared esthetic, then I think the court should dismiss the case in its entirety. Maybe the court might consider this to be one of those exceptional cases and allow Shell to recover her attorney’s fees. And that would maybe send a deterrent message to other creators. Don’t bring cases like this where you’re trying to protect an unprotectible esthetic. Jessica: I agree. I mean, an esthetic is not protectable under law, despite what we’ve discussed. Scott: All right, Jess, thanks for joining me today. Jessica: Thank you for having me. Scott: So that’s all for today’s episode of The Briefing. Thanks to Jessica for joining me today. 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. If you have any questions about the topics we covered today, please leave us a comment.    

Oakland’s attempt to rename its airport didn’t take off. On this episode of The Briefing, Scott Hervey and Jamie Lincenberg discuss the trademark dispute between San Francisco and Oakland over airport naming rights. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: When Tony Bennett sang about leaving his heart in San Francisco, he wasn’t singing about Oakland. There are no little cable cars climbing halfway to the stars in Jack London Square, as charming as it is. Essentially, that’s why the City and County of San Francisco sued the city of Oakland and the operator of the Oakland International Airport, the Port of Oakland, to stop Oakland from renaming its airport to San Francisco Bay Oakland International Airport. I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my colleague Jamie Lincenberg. Fasten your seat belts and put your seats in the upright and locked position. It’s SFO versus OAK in today’s installment of The Briefing. Jamie welcome back. Thank you for joining me today. Jamie: Thanks, thanks. Thanks for having me, Scott. Scott: Let’s let’s see how many airline airport puns and bits of humor we can spontaneously include in this story here. Jamie: Sounds good. Scott: Okay, so, are you ready for takeoff? Jamie: I’m ready. Scott: Okay, so this case is about the Port of Oakland’s attempt to rename its airport and include San Francisco in its name. And this is also about the city of San Francisco’s claim that such use would create consumer confusion and constitute trademark infringement. But the reason Oakland wanted to include San Francisco, at least it claims, isn’t just about the desire to trade off of San Francisco’s goodwill. Jamie: Okay, so please tell us, why did Oakland want to include San Francisco in the new name of its airport? Scott: Well, as you know, whether we have to travel into our office in San Francisco, which is right in the heart of the financial district or otherwise fly into downtown San Francisco. We don’t always fly into SFO. Those who have to fly into San Francisco know that flying into Oakland is most often the better bet. It’s fairly common to have weather delays in San Francisco, but that’s not the case in Oakland. And also, you can catch the Bart right into San Francisco, right from the Oakland airport. And if you need a car. Oakland Airport is just right across the Bay bridge from downtown San Francisco. And apparently this was not well known to people outside of the Bay area or travelers who travel regularly in the San Francisco. Jamie: That’s true. Scott: So, you know, apparently the Port of Oakland conducted some studies that concluded that Oakland’s Oakland’s proximity to San Francisco isn’t really well known outside of the Bay area and completely unknown outside of California. And the port believed that this lack of awareness, this lack of awareness of the, you know, geographical proximity created challenges from the port in serving travelers. Jamie: Yeah. And I can understand why Oakland would want to do this, but I’m sure that San Francisco was not on board, so. Scott: True. Very true. San Francisco claimed that this would cause consumer confusion, and a few airlines also objected to the purported name change, saying that it would cause confusion for their travelers. The port went through with its internal requirements to implement the name change, and then the city of San Francisco sued, claiming trademark infringement. San Francisco claimed that consumers would believe that there was some association or affiliation between the two airports, and San Francisco also argued that consumers would buy tickets to the wrong airport or go to the wrong airport. Jamie: And so I guess this brings us to the heart of the case. Did Oakland’s use of San Francisco constitute trademark infringement. Scott: So in determining that, the court applied the standard likelihood of confusion test, which considers factors such as the strength of the mark, the similarities between the marks, evidence of actual confusion, and the defendant’s intent in selecting the mark. The court said that San Francisco’s Mark San Francisco International Airport, although it is descriptive, it’s commercially strong due to its long standing use and recognition right. Jamie: And the court also found that the two marks are similar in appearance and sound and meaning. Although Oakland’s mark includes other elements, San Francisco’s mark is entirely subsumed in Oakland’s mark. The court said that because the two airports offer identical services, the near identity of the marks then makes them confusingly similar. Scott: The court then looked at evidence of actual consumer confusion that was presented by San Francisco. So SFO presented evidence of instances where travelers and even businesses mistook Oakland Airport for SFO because of the name change. For example, there were reports of flight bookings and shipments intended for SFO that ended up at okay. However, the court found this showing of actual confusion was de minimis or trivial when it considered that 19 million travelers flew in and out of San Francisco between the applicable time frame. Jamie: As to the theories of confusion advanced by SFO, the court looked at the degree of care exercised by a typical consumer, and found that consumers exercise a high degree of care when purchasing online tickets, which, along with other factors, made the point of sale confusion unlikely. Scott: That’s true. But the court also found that consumers exercise a low degree of consumer care over whether neighboring airports are affiliated with each other, according to the court. Travelers rarely research airport ownership or management. Jamie: Yeah, and I think that’s right. I don’t think I’ve ever looked up the airport owners or management. Scott: I certainly haven’t. Jamie: No. Um, but Scott, did Oakland advance any defenses against its use of San Francisco? It seems that Oakland, you know, may have had a fairly good argument that it was using the words just descriptively. Scott: That’s a good point, Jamie. Uh, Oakland argued that San Francisco Bay is a descriptive term, and that Oakland used that term fairly and in good faith to describe the geographic nature of its airport services, namely its proximity to San Francisco. This argument relies on a provision in the Lanham Act, which allows the use of a term otherwise than as a mark if it is used descriptively and used fairly and in good faith to describe the goods or services or their geographic origin. Jamie: But the court rejected Oakland’s fair use defense. Right. Yeah. Scott: That’s correct. So the court reasoned that the defense only applies if the term is used otherwise than as a mark. The court noted that the Lanham Act defines a trademark as something used to identify goods and indicate their origin or their source. The court considered the port’s prior trademark registration for Oakland International Airport, which had been initially rejected for being primarily geographically descriptive, but later accepted after the port argued that it had acquired secondary meaning in that mark through exclusive and continuous use. The court believed that the port was using the new name in the same way that it had used the old name to acquire secondary meaning and function as a trademark. The court saw the new name as a direct replacement for the old one, and predicted that the court would continue to use the new name exclusively and continuously in order to establish secondary meaning. This, the court decided, is using the term as a trademark and does not meet the requirements for the fair use defense under the Lanham Act. Jamie: So what did the court ultimately decide here? Scott: Well, the court ended up siding with SFO, finding that Oakland’s use of San Francisco in the name of its airport was likely to cause confusion. The ruling prohibits Oakland from adopting or otherwise using the name San Francisco Bay Oakland International Airport. Jamie: That’s a pretty significant decision, Scott. So what does this now mean for Oakland and for other regional airports? Scott: Well, for. Jamie: Oakland, it’s a major setback in their marketing efforts, they’re going to need to find another way to compete and informing travelers about their geographic proximity to San Francisco without infringing on established trademarks for other regional airports. And I’m thinking primarily of Burbank and Long Beach here in Los Angeles. It’s a cautionary tale about the risks of adopting names closely tied to more prominent neighbors. While the Port of Oakland intended to use San Francisco Bay descriptively to clarify the airport’s location, the court found that this use created a false impression or affiliation with SFO and its established trademarks. This case underscores the importance of careful consideration of trademark implications when choosing names and brands for businesses and organizations, especially when leveraging geographically descriptive terms. Scott: Yeah, I, I think I agree with the court’s finding here. Um, you know, I’m thinking about Burbank trying to change their name to Burbank Los Angeles International Airport. I don’t think that that would fly with LAX. Jamie: Could you imagine it would be the John Wayne Burbank Los Angeles International Airport? That what a mouthful. Scott: People are already confused with all of the different with the different airports. Like. Jamie: Right, right. Scott: Thanks for joining me today, Jamie. Jamie: Thanks for having me. Scott: Well, thank you for flying. Today’s episode of The Briefing. Thanks to Jamie for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative, enjoyable, and maybe just a touch humorous, but I mean, there’s really nothing funny about trademark infringement, but 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.

This Thanksgiving, we’re diving into the world of intellectual property and recipes. Can chefs own their culinary creations? Can a recipe be copyrighted? From Turducken trademarks to creative cookbooks, we’re discussing the legal side of your favorite holiday dishes. Tune in to The Briefing’s milestone 200th episode with Scott Hervey and Tara Sattler for all the tasty legal details. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: There are numerous ways to cook a turkey and thousands and thousands of recipes for turkey. Some are old fashioned like roasting with stuffing, some are newer like Tandoori Style, and some, well, I still just don’t get like the turducken. But who exactly owns all of these turkey recipes, not to mention all the recipes for stuffing and cranberry sauce. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin. And today I am joined by my partner, Tara Sattler. We’re going to talk about IP protection for recipes on this special Thanksgiving episode of the Briefing. Tara, welcome back to the Briefing. Happy Thanksgiving to you. Tara: Thanks, Scott. Thanks for having me. And this is an exciting topic to dig into. Scott: Yes, I see we both have our like, fall themed backgrounds up, despite the fact that it’s 71 degrees here today in Los Angeles. Tara: Well, not for much longer. Scott: Yeah. Well, so today we’re diving into the fascinating and often murky world of intellectual property protection for recipe recipes. So can a chef actually own their culinary creation? And what about their cookbooks? And what happens when recipes are copied and shared? Tara: All great questions. So let’s start with the basics. Protection of a recipe. So some famous chef creates a dish that is huge and a really big hit. But legally, how much protection does a recipe actually get? Scott: Well, that’s a great question. So U.S. copyright law protects any original work of authorship that’s fixed in a tangible medium of expression. So one would think that an original recipe that a chef creates and writes down and may include in the cookbook or online is protected by copyright. However, that is not necessarily the case. In the United States, recipes generally don’t receive strong intellectual property protection. Copyright law does not cover lists of ingredients or basic instructions on how to use setting ingredients. In 1996, the SEC, the Seventh Circuit case of Publications International Limited versus Meredith Corporation involved claims of copyright infringement of a number of recipes. And in that case, the court said that recipes that were involved in that case comprised merely of the list of required ingredients and the directions for combining those ingredients to achieve the final product. The recipes contained no expressive elaboration upon either the functional components or how to create the end result. And as a result, the court found the recipes to be not protectable. Now, this is as opposed to recipes that might spice up functional derivatives by weaving in creative narrative. Tara: But digging into what the court said, if a recipe included expressive elaboration, then that may be protectable. This probably explains why some cookbooks and food bloggers weave personal stories into Their recipes. Scott: That is true, and probably the case. But regardless how creatively a cookbook may lay out a recipe filled with stories from the chef’s childhood pictures, et cetera, the ingredients and the process for making the dish itself are not protectable. Tara: Okay, so this probably accounts for the thousands of Turducken recipes that we can find on the Internet. Scott: It probably does. But speaking of Turducken, let’s talk about what can be protected. And that’s a trademark. So, Tara, did you know that Turducken is a registered trademark? Tara: I did not know that. Scott: Yes, it is. So that mark was registered in 1986, and it covers the combination of turkey, duck, and chicken entree for consumption on or off the premises. And it was originally registered by Chef Paul Prudhomme and his his company entity. Now, I couldn’t find any evidence of the chef suing over the use of Turducken, but that trademark is still registered. It’s on the principal register. And it has prevented other potential registrants from registering similar trademarks covering similar food items. Tara: So if a chef comes up with a unique and distinctive name for a dish, that can be protected as a trademark. And the chef can, if he or she wants to prevent others from using that mark in a competitive manner. Scott: That’s true. Think of the Big Mac and how much strength that trademark has. However, if a trademark begins to be used by the public at large to describe the food product like Turducken, I think that mark runs the risk of becoming generic. Tara: But just because the chef owns a trademark doesn’t mean that he or she can stop others from making the dish. Trademarks are more about branding. A chef can trademark the name of a dish, like Traducan or Big Mac or the Bloomin Onion, as long as it’s distinctive and tied to their business. But trademarking won’t stop someone from recreating the dish and just using a different name. Scott: That’s right, Tara. Since we’re talking about what can be protected now, let’s talk about cookbooks. A cookbook can be protectable as a compilation if the selection, arrangement, and the coordination of the included recipes is creative. Also, everything other than the list of ingredients and the instructions on how to create the dish are protectable. So all the photographs are protectable under copyright law, as well as all of the other text content. Tara: So with the lack of protection around recipes themselves, it is a bit odd that chefs so readily share recipes. However, I can see that by doing so, it may raise the profile of. Scott: The chef that’s true. I mean, it’s also a great way to sell cookbooks. Right. And I know from my own experience, while I might go to a website and print out a specific recipe from a specific chef to try if it’s a chef that I know and if it’s a recipe I like, and even if it isn’t a chef that I know and it turns out to be a recipe that I love, I’m more likely to seek out more of those recipes from that chef and buy a cookbook or two from that chef. Tara: Yeah, I think that’s right. And I also like to buy cookbooks that have a particular theme, so from notable restaurants or acclaimed restaurants around Los Angeles. And that is all very chef-driven as well. Scott: Right. And I think, I don’t know, chefs have kind of become the new celebrity, so to speak. So you may buy a cookbook or two that actually might sit on your coffee table and you may open it maybe once or twice in the entire time that you own it, but you might not even use it for any of the recipes, lest you get the book itself messy. At least you would if you cook the way I cook with stuff all over the place. Tara: Yeah. Cookbooks as a form of art. Scott: Yeah. So I guess we can close out this Thanksgiving episode by being thankful that copyright law allows for the sharing of recipes, because where would we be if it didn’t? And that we’re lucky enough to have a culture where chefs share their recipes, including Paul Prudhomme’s famous Cajun recipe, a turducken, so we can try making them at home. So with that, Happy Thanksgiving, Tara. Tara: Happy Thanksgiving, Scott. And good luck with cooking your turducken. Scott: Well, yes, my I won’t be cooking at Turducken because, as you know, we’re pescatarian. How very California of us. So we’ll find some other thing to shove inside of a fish. So Happy Thanksgiving, everybody. Tara: Happy Thanksgiving. Scott: Well, that’s all for today’s Thanksgiving episode of the Briefing. Thanks to Tara for joining me today and thank you, the listener, for viewing or 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 about the topics we covered today, please leave us a comment.

Discover the swirling chaos when docudramas collide with defamation claims. The discussion dives into the ongoing lawsuit by Fiona Harvey against Netflix over 'Baby Reindeer,' questioning the thin line between truth and fiction. Learn how anti-SLAPP laws play a critical role in these situations, and explore what makes a defamation lawsuit tick in California. The talk also highlights the tricky landscape of public versus private figures and the implications of portraying real-life events in a dramatized format.

The 90s hip-hop group 2 Live Crew won big in their copyright case against Lil’ Joe Records. Scott Hervey and Jamie Lincenberg break down termination rights, bankruptcy, and what it means for artists reclaiming their work on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: In mid-October, a Miami federal jury handed a win to Luther Luke Campbell and the heirs of Mark Ross and Christopher Wong Won of the 2 Live Crew in their long-running copyright reclamation lawsuit against Lil’ Joe Records. The Master Sound recordings were transferred in 1990 to Skywalker Records, the label that once released the iconic 2 Live Crew albums.   The court case had its twists and turns, including a ruling earlier this month that copyright termination rights survive bankruptcy. I’m Scott Hervey with the Entertainment and Media Group at Weintraub Tobin, and I’m joined today by Jamie Lincenberg, and we’re going to talk about this case on this installment of The Briefing. Jamie, welcome back to the briefing. It’s been a little while. Jamie: Yeah, thanks for having me. Scott: Jamie, before we get into this, I don’t know. I thought we’d chat about what’s on your desk. Is there anything interesting that you’re working on? Jamie: There’s a lot on my desk, always. But let’s see. Lately, I’ve been working on some production legal for a feature film that is going to start principal photography on Sunday. So, it’s been tying up all the loose ends, making sure that we have all of the financing in place, and getting ready to roll camera. Scott: It’s always busy right before the start of principal photography, for sure. Yeah. All right. Well, let’s get into this. Just some quick background. So, Skywalker Records was formed by Luther Luke Campbell, and it was the record label that owned the master recordings to all five. I didn’t know they had that many, but all five of the 2 Live Crew albums. Now, the name Campbell and Skywalker should ring a bell with those of you that follow copyright law, because Campbell was one of the name parties in a case that transformed copyright law, literally. Campbell versus A Cuff Rose, which introduced the concept of transformative use into the lexicon of copyright law and fair use. Skywalker later changed its name to Luke Records. Jamie: In 1995, Luke Records then filed for bankruptcy. Joseph Weinberger, a tax lawyer that served as Luke Records’ CFO and In-House Counsel, bought the rights to 2 Live Crew’s master recordings out of bankruptcy for $800,000, and he then formed his own label, Lil Joe Records, to distribute them. Scott: In 2020, Luke Campbell, Mark Ross, and the heirs of Chris Juan, served a notice of termination on Little Joe Records and others purporting to terminate the transfer of the rights to the various 2 Live Crew albums that were transferred to Skywalker Records via a 1987 recording agreement, and then the subsequent transfer from Skywalker/Luke records to Little Joe records pursuing to a bankruptcy court purchase. Jamie: Scott, as we know, Section 203 of the Copyright Act permits authors, or if the authors are not alive, their surviving spouses, spouses, children or grandchildren, or executors, administrators, personal representatives or trustees, to terminate grants of copyright assignments and licenses that were made on or after January first, 1978, when certain conditions have been met. Scott: On the effective date of termination, all rights in the work that were conveyed by the terminated grant revert to the author. Jamie: Copyright termination rights were created by Congress in the 1976 Copyright Act. They allow authors or their heirs to terminate or cancel a prior grant of copyright, even if they previously sold or licensed it. This gives them a chance to recapitulate capture control over their work after a set period. The idea behind this really is simple. The initial value of a work is often really hard to determine, and artists can therefore be at a disadvantage. These rights are considered inaliable, which means they really can’t be signed away or contracted out. Scott: So the 2 Live Crew argued that the Section 203 termination terminated the initial transfer from the band to Skywalker Records/Luke Records, and that the recapture effected a termination of Little Joe’s ownership of the master. Little Joe, who filed the lawsuit challenging the recapture, argued that, one, all five albums were created as a work for hire for Luke Records, and two, that Luke Records’ bankruptcy proceeding terminated the band’s recapture rights under Section 203. Jamie: The work for hire argument is a viable defense to a recapture claim. Scott: Yeah, that’s correct. Copyrighted works that are works made for hire or works for hire are specifically excluded from Section 203. But that argument from Little Joe Records didn’t fly. The jury ultimately found that the albums were not works for hire, but the bankruptcy argument was something new. Jamie: It is. So in addition to Luke Records’ bankruptcy filing, Campbell, individual individually filed for personal bankruptcy protection. As part of that reorg plan, all copyright rights to 2 Live Crew’s music and compositions were transferred to Little Joe, free and clear of any and all lean’s claims, encumbrances, charges, set offs, or recoupments of any kind. As part of the reorg plan, Luke Records and Campbell agreed to receive no royalties, whether as an artist, producer, writer, publisher, or in any other capacity on any of those masters or compositions. Scott: The reorganization plan did not mention future termination rights, and neither of the remaining members of the 2 Live Crew filed any claims in bankruptcy, asserting that they owned any rights or were entitled to any rights appurtenant to any of the 2 Live Crew copyrights that were transferred to Little Joe. However, subsequent to the bankruptcy filing, Ross filed for bankruptcy, and he settled a claim brought by Little Joe in the Bankrupt Matter, whereby Ross acknowledged that other than the writer’s performance rights, Ross had no rights, master or publishing rights, to any previous recording’s owned by Little Joe records. Jamie: Lil’ Joe also sued Wong Won. In settling that claim, Won agreed that Little Joe owns all right title and interests to all copyrights in the albums conveyed to Little Joe in the bankruptcy of Luke Records and Luther Campbell. So it seems that Lil Joe has tied up all ownership rights to the albums with all of the band members. Why then did the court find that the Campbell bankruptcy and the settlement agreements entered into by Ross and Juan did not prevent the band members from bringing a termination claim? Scott: Yeah, that’s an interesting question. So in bankruptcy, a debtor’s property is generally transferred into an estate that creditors can access. Little Joe argued that a copyright termination right could fall under, quote, property of the estate in bankruptcy, meaning that those rights could be used to satisfy creditors. But the question of whether a copyright termination right could constitute, quote, property of the estate, close quote, which typically includes most of the debtor’s legal and equitable interest at the time of filing hadn’t been decided before. So the big question was, whether copyright termination rights, being personal and inalienable, fit that definition? Jamie: In order to answer that question, the court had to look at the intent of Section 203. The Court said that Congress established termination rights specifically to protect artists, not to create assets for creditors. The House report that accompanied the 1976 Copyright Act made it clear termination rights are designed to protect authors from unremunerative deals due to unequal bargaining positions. So under federal law, these rights are more of a personal safeguard for the author rather than a traditional property interest. So the court finds that the termination rights aren’t property in the traditional sense because they’re personal to the author and generally non-transferable in bankruptcy. But what about the settlement agreements by Juan and Ross, which memorialized Lil Joe’s ownership of the copyright in the albums. Scott: Section 203 of the Copyright Act mentions that termination rights exist, notwithstanding handing any agreement to the contrary. In other words, even if an author signs something in bankruptcy court or a settlement agreement or other type of agreement waiving these rights, that waiver wouldn’t likely hold up. Jamie: So, Scott, is the takeaway here that termination rights are resilient against bankruptcy claims? Scott: To an extent. The court does leave open that a termination right can be relinquished during a bankruptcy. The court notes that there is no evidence in the record to support a finding that Campbell, Ross, or Juan relinquished their termination rights to the two Little Joe during the bankruptcies or as part of the settlement agreements. Neither the bankruptcy filings nor the settlement agreements mention a transfer of these termination rights. So there’s no indication that either Ross, Campbell, or used their termination rights as leverage during negotiation. And the court found that there’s no evidence that they were even aware of these termination rights during the bankruptcy proceeding and during the settlement proceeding. The court notes that even if a copyright termination right can be divested, it was not done properly here. So that leaves it open to the possibility that termination rights can be transferred if they are are specifically transferred and specifically mentioned and referenced in whatever document the parties are entering into to affect a transfer of those termination rights. Jamie: Right. This is really interesting, Scott. I’ve never really looked too far into the transfer of termination right, but I think this is definitely interesting and good to bring to everyone’s attention. Scott: Yeah, I Jamie. Thanks for joining me today. That’s all for today’s episode of The Briefing. Thanks to Jamie 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, 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.