The Briefing by the IP Law Blog

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.  

In this discussion, Tara Sattler, a partner at Weintraub Tobin and an expert in intellectual property law, delves into the complexities of title clearance following the Jack Daniels Supreme Court ruling. She and Scott Hervey dissect how this case alters trademark use in media, particularly regarding creative projects inspired by dog toys. They also explore conflicts like the HomeVestors vs. Warner Brothers case, highlighting the new hurdles studios face in securing titles while navigating this evolving legal landscape.

Halloween is here, but beware! That killer costume might come with a lawsuit instead of candy. Scott Hervey and Tara Sattler discuss the legal threats associated with unlicensed costumes on this spooky episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: With Halloween just around the corner, we’re diving into a Spooktacular topic. This is the dark side of Halloween, the side where you get a lawsuit instead of a Kit Kat bar. I’m Scott Hervey from the Entertainment and Media Group at the Law Firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. Today, we’re talking about how the unlicensed use of famous movie characters for Halloween costumes could lead to a copyright and trademark lawsuit. On this installment, the spooky installment of The Briefing. Tara, thank you for joining me today. Oh, look, look, both of us have our Halloween-themed background here. How cute. Tara: Thanks for having me, Scott, and for sharing the background. This is definitely a timely topic. It’s not It’s not all bobbing for apples when it comes to infringement claims.\ Scott: No, it certainly is not bobbing for apples when it comes to infringement claims. Every Halloween, people dress up as characters from their favorite movies or their TV shows, whether it’s superheroes, villains, cartoon characters, you name it. Let’s talk about how costumes, as these characters, could potentially be problematic. Tara: Sure. The issue centers around intellectual property rights, both copyright and trademark. Movie studios and companies often hold copyrights over the characters and their distinctive designs, and they use trademarks to protect the names and logos associated with those characters. If you’re producing or selling costumes based on these characters without permission, you’re infringing on those rights. Scott: Yeah, that’s right. The way a court will determine whether a character from an artistic work, like a movie or a television show or a comic book or a book is deserving of its own copyright protection. This is protection separate and apart from the artistic work in which that character is brought to life is by applying the character delineation test. This test is a legal standard that’s used to determine whether a fictional character is sufficiently developed and distinctive enough to qualify for copyright protection. Over the years, courts have applied this test in a variety of cases involving iconic characters. This includes Godzilla, the Batmobile, James Bond, and Rocky Balboa. This means that if you take elements from these kinds of iconic characters, whether it’s their physical look, a vehicle, or even their specific costume, and start selling them as part of a Halloween costume set without a license, you could be infringing both copyright and trademark rights. Tara: Let’s talk about how this could apply to, let’s say, someone selling a Joker costume without DC comics permission. Scott: Sure. Yeah, absolutely. I mean, the Joker is a heavily protected character under both copyright and trademark law. Anyone selling costumes based on the Joker’s likeness without a proper license would face a copyright infringement lawsuit because that costume would be considered a derivative work derived from the Joker character. The court would apply the character delineation test, and they would certainly find that the Joker character is sufficiently developed and distinctive enough to qualify for its own copyright protection. So aside from the copyright issue, there’s also the trademark issue, and the same goes for the use of the trademarks like the Batman logo or the name Joker. The unlicensed use of these elements could also cause consumer confusion. People might think that the costumes are officially sanctioned by DC comics when they’re not. Tara: So if you’re selling or even just marketing Halloween costumes with logos or designs that are close If it comes enough to the original, a company could claim that you’re infringing their trademark and you might be on the hook for damages. Scott: That’s definitely something for people to think about before grabbing their favorite superhero costume. But time for a reality check. People who just want to dress up as their favorite characters for fun are really not going to be facing a lawsuit. Tara: I think you’re right. In all likelihood, probably not. For personal use, like wearing a costume to a Halloween party or around your neighborhood, you’re generally not not going to get sued. The issue really arises when someone starts selling or mass-producing unlicensed costumes. Personal use falls more within the realm of fair use, where there’s no commercial gain involved. But once he enters the picture, that’s when legal troubles can begin. Scott: No, that’s right, Tara. I agree with you 100%. So thanks for joining me today on this spooktacular episode of The Briefing, Tara. Happy Halloween. Tara: It was my pleasure. Thanks, Scott. Happy Halloween to you and everyone else. Scott: Well, that’s all for this spooky edition of The Briefing. Thanks to Tara Sattler for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. And if you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.

For more than half a century, Marvel Comics and DC Comics have jointly owned the trademark ‘Superhero.’ However, the Trademark Trial and Appeal Board recently granted a petition to cancel that mark because it became generic. Scott Hervey and James Kachmar discuss this case and how marks become generic on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Since as early as 1967, Marvel Comics and DC Comics have jointly owned the trademark ‘Superhero’, covering a variety of goods, including comic books, action figures, and T-shirts. Most people, myself included, didn’t know that Marvel and DC owned this trademark, and their reaction to this tends to be the same. How could Marvel and DC own a trademark for Superhero? Well, that reaction is essentially the reason why the Trademark Trial and Appeal Board granted a petition to cancel that trademark because that mark became generic. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by frequent Briefing contributor James Kachmar. We’re going to talk about this case, what are generic trademarks, and what happens when a trademark becomes generic on today’s installment of The Briefing? James, welcome back to the briefing. It’s good to have you back to talk about generic trademarks. James: Thanks for having me, Scott. I think this is going to be a really interesting discussion, especially since it’s involving heroes. Scott: No, I agree. Let’s get some background on this super dispute. There are a few interesting factual tidbits that I haven’t seen out there in this widely reported case. The case is Super Babies limited versus Marvel Characters, Inc. Super Babies Limited is a comic book publisher, and they petitioned the Trademark Trial and Appeal Board to cancel the trademark superhero. But this isn’t the first time that Super Babies and Marvel or DC have squared off. It seems that since 2021, DC comics had filed numerous petitions with the Trademark Trial and Appeal Board to oppose the registration of the Trademark Super Babies on the grounds that the mark conflicted with with various other DC trademarks, including Superboy, Superman, Supergirl, Super Friends, but interestingly, not superhero. It appears that Super Babies found some kryptonite and decided to go after the SuperHero and Superheroes trademark registrations. In all seriousness, Super Babies legitimately argued that it’s next to impossible to publish comic books about heroes without Baby being able to refer to as Superheros. James: Right, Scott. The key argument in the Super babies petition was that the superhero marks have become generic. The petition alleges that superhero is a generic term used in connection with stories about heroes, their characters and products, and that the term refers to a stock character archetype, Superheros, in a genre of stories that features the archetype and its associated tropes, i. E. The Superheros genre. Super Babies argues that consumers do not associate Superheros with any single brand, company, or character. Instead, consumers understand that the term superheroes refers to a broad category of stories and characters tied together by common themes and conventions, as well as to products that relate to or feature superhero stories or characters. Super Babies introduced evidence showing that superhero, as understood by consumers, refers to a general category of stories and characters rather than a particular or specific source of goods. Scott: Yeah, it was a very well-drafted and interesting petition to read. As a matter of fact, creative, I would say, too, because it included excerpts to certain DC comic issues that that help them make their point. But let’s take a step back and let’s talk about what a generic trademark is. In US trademark law, a generic mark refers to a term that the public primarily understands as the common name for a product or service rather than a name that identifies its source. For example, if I call my brand Apple and I sell apples, well, that’s a generic use. The term is already widely associated with a specific type of product, in that case, the fruit apple. I can’t claim exclusive rights to the trademark apple for apples as a trademark. The USP EBTL will refuse to register a generic trademark on both the principle and the supplemental register. James: Right, Scott. A mark can’t be protected under trademark law if it’s considered generic because generic terms can’t function as trademarks because they don’t distinguish the products or services of one company from another. They simply describe the product itself. On the other hand, if you were to, instead of selling Apple, sold computers or phones and called them Apple, that could be subject to trademark protection because the term is no longer generic. It doesn’t necessarily describe the product you’re selling. Scott: Right. Agreed. That mark would be probably considered a distinctive mark and highly protectable. So let’s talk about what happens if a trademark becomes generic over time because a trademark can start off strong. You and I were talking before we started taping about this superhero’s trademark. And way back in 1967, it probably wasn’t widely used. And at that point in time, maybe it was distinctive of the DC comic books and the products and services that they filed the trademarks for. A trademark that was once strong can lose its protection. This is called genericide. James, you wrote an article about this back in 2017 when you reported on Google successfully fending off a genericide attack against its trademark, Google. James: That’s right. Genericide is one of the biggest risks for a well-known brand. When the public starts using a trademark as the generic name for a product category or service, the brand risks losing its trademark protection. Classic examples of this include the words like aspirin, escalator, or thermos. These started out as trademarks but became generic over time because the public used them to describe the entire category of products rather than a specific company’s product. Could you imagine if Google loses its trademark rights as to its mark Google due to the prolific use of googling as a verb to describe the act of searching the internet? Scott: Yeah, that would be horrific for Google. I guess we can add now superhero to the list of Mark that have become generic over time. Given that the risk of having a trademark become generic is the loss of its trademark rights, the loss of the exclusive right to use the mark in connection with goods or services, and the ability for competitors to use that mark in connection with their goods as describing the function of their goods, it’s a big deal. Once a trademark is deemed generic, it’s no longer enforceable. As I said, competitors can start using that same term to describe their products, and that can dilute a brand’s identity and value. It can be incredibly damaging, especially for companies that have invested millions of dollars in building their brand. James: Yes. Imagine spending years and millions of dollars building brand recognition, only to lose it because your trademark has become so ubiquitous that it becomes generic. Let’s talk about steps that companies can take to prevent this from happening, Scott. Scott: Sure. That’s a good idea. There’s a few key strategies companies can implement to prevent genericide. First, they need to consistently remind the public that their trademark is a brand name and not a product category or a verb. This can be done through proper use in marketing and advertising. For example, you’ll often hear companies say things like, Use Kleenex brand tissues instead of just Kleenex. James: Right. Second, companies should actively monitor how their trademark is being used by consumers, the media, and even competitors. If they notice misuse of their trademarks, like people using the brand name generically, they need to take some type of action, sometimes even just issuing a public correction. Scott: Another important tactic is using trademarks with a generic descriptor. Instead of saying, as I said, use Kleenex alone, you would say, Use Kleenex Tissues. This helps separate the brand name from the product category. James: Right. Companies can also educate consumers through marketing campaigns, in some cases, seeking court orders to enforce the proper use of their trademarks. In extreme cases, some companies even engage in litigation to prevent competitors from using their brand name in a generic sense. It takes a lot of effort to safeguard a trademark, but the downside of losing trademark rights would seem to justify that effort in most cases, especially the amount of money and time companies spend in building their brands. Scott: Yeah, I agree with you on that, James. One last point, in addition to educating the general public, it’s also important to educate your internal team, your marketing department, your customer service reps, and even the legal team. They need to be vigilant about proper trademark usage. James: Totally agree, Scott. Scott: James, thanks for joining me to talk about this super important trademark case and shedding light on the risks of generoside and how to prevent it. I’m sure our listeners will appreciate these insights. James: Thanks for having me, Scott. Scott: That’s all for today’s episode of The Briefing. Thanks to James Kachmar for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. And if you did, please remember to subscribe, leave us a review, and share the episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.

In this discussion, James Kachmar, an intellectual property law expert, dives into California's new AI legislation aimed at protecting individuals' voices and likenesses, especially those of deceased celebrities. He and Scott Hervey explore Assembly Bill 1836, which enhances legal safeguards against unauthorized digital replicas. This conversation reveals the complexities of First Amendment rights, jurisdiction challenges, and the potential confusion arising from overlapping laws as AI technology evolves. Expect engaging insights on this pressing issue!

Donald Trump is facing another lawsuit from a musician who objects to the use of their music at campaign events and rallies. Scott Hervey and Jamie Lincenberg discuss this latest challenge on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Cases Discussed: Isaac Hayes Enters. v. Trump Show Notes: Scott: Donald Trump’s presidential campaign has faced a number of challenges from musical artists that object to the use of their music in connection with his political campaign. We’ve previously covered the copyright infringement case related to the Trump campaign’s use of Isaac Hayes’ song, ‘Hold on, I’m Coming.’ I’m Scott Hervey from Weintraub Tobin, and I’m joined today by Jamie Lincenberg. We’re going to talk about the Court’s order in Eddie Grant’s lawsuit regarding the Trump campaign’s use of Electric Avenue on today’s episode of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thanks for having me back, Scott. I’m excited to dive into this interesting case. Scott: It is interesting. Let’s start with the basics. Can you give us a quick overview of what this case is about? Jamie: Certainly, this case involves a copyright infringement claim by musician Eddie Grant against the former President, Donald Trump, and his campaign. The dispute centers around the use of Grant’s song, Electric Avenue. I think we all know that one in the campaign’s 55-second video posted on Trump’s Twitter account during the 2020 presidential election. The video contains an animation of a high-speed red train bearing the words Trump pence, Keep America Great, 2020, in stark contrast to a slow-moving hand car bearing the words Biden President, your hair smells terrific. The hand car is empowered by an animated likeness of President Biden. Scott: In August 2020, Grant’s lawyer sent the Trump campaign a cease and desist letter. Neither the video nor the tweet were removed. And on September 2020, Grant filed suit. The Trump campaign contended that the use of the song constituted fair use. Now, this recent ruling comes as a result of both parties filing motions for summary judgment. Jamie: There were two key issues here. First, whether the plaintiffs had a valid copyright registration for the sound recording of Electric Avenue. And second, whether the use of the song in the campaign video constituted fair use under copyright law. Scott: So the first issue was, there’s a real interesting one. That’s whether or not Eddie Grant had a valid copyright registration in the sound recording of Electric Avenue. So as you know, a plaintiff is not allowed or able to file a lawsuit for copyright infringement unless the allegedly infringed the work has been registered. Without a valid copyright registration, a plaintiff cannot bring a viable copyright infringement action. So the question was whether the registration of the album, Eddie Grant, The Greatest Hits in 2002, which included Electric Avenue amongst the other Eddie Grant hits, also affected registration of that specific sound recording for Electric Avenue. Jamie: That’s right. And the Court ruled in favor of the plaintiffs on this issue. It found that the registration of the compilation album, Eddie Grant, The Greatest Hits, in 2002, effectively registered the sound recording of Electric Avenue contained within it. The district Court noted that courts in the Second Circuit have held that the registration of a collective or a derivative work covers registration of the constituent parts if the registrant has copyright ownership of those constituent parts as well. Scott: Now, let’s talk about the fair use question, which seems to be the core of the case. So, the Court analyzed the four statutory factors of fair use: the purpose and character of the use, the nature of the copyright-decided work, the amount and substantiality of the portion used, and the effect on the potential market. Ultimately, the Court found that none of these factors favored the defendant. Jamie: Let’s talk about the first fair use factor, which asks us Whether the new work merely supersedes the objects of the original creation, supplanting the original, which would not support fair use, or does the use instead add something new with a further purpose or different character, thereby making that use justified because the copying is reasonably necessary in order to achieve this new purpose. A use that has a further purpose or different character is then said to be transformative. The Trump campaign argued that its use of the song was transformative. The Court was, however, not so receptive to this claim. Scott: No, that’s right. The Court was not receptive to that argument. The Court found that the video has a very low degree of transformativeness, at least as it relates to the song. The Court said that the video is best described as a wholesale copying of music to accompany a political campaign ad. The Court noted that the song plays for more than two-thirds of the animation and that the song itself plays no discernible role in communicating the video’s overarching political commentary. Jamie: In assessing the first fair use factor, the Court must also consider whether the allegedly infringing use is of a commercial nature. The question of whether the work is commercial is not whether the sole motive of the use is monetary gain but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary for it. Scott: And in this case, the Court found that the Trump campaign benefited commercially from using Electric Avenue without paying a license fee. The Court noted that there is a well-established market for music licensing, and the Trump campaign sought to gain an advantage by using Grant’s very popular song without paying Grant the customary licensing fee. Jamie: That’s right. And the second factor favored the plaintiffs because Electric Avenue is a creative work. And looking at the third factor, that also went against the defendants because they used a substantial portion of the song. The fourth and final fair use The Court of Justice, the Court of Justice, asks whether if the challenged use becomes widespread, it will then adversely affect the potential market for the copyrighted work. Analysis of this factor requires the courts to balance the benefit the will derive if the use is permitted, and the personal gain that the copyright owner will receive if the use is denied. Scott: The Court found that this factor favored Eddie Grant because widespread, uncompensated use could harm the potential market for licensing the song, and there would not be any public benefit that is lost from not allowing the use of the song in the Trump campaign video since the campaign, at least the Court said the campaign could have used any song, created a new song, or used no song at all to convey the same political message in the video. Denying the Trump campaign’s fair use defense in this case, the Court said, will not chill legitimate public satire. Jamie: I think that the Court got it right here. Scott, what do you think are the broader implications, though, of this ruling for political campaigns and their use of music? Scott: I think this ruling sends a clear message that a political campaign’s use of a song or other content in a political ad or otherwise as part of political speech does not, without more, automatically transform that original work. At least the Court seemed to say that there needed to be more than just the use of a song as background for a political ad or a work of political satire. The Court seemed to say that in order for the used to be transformative, the work that was used, in this case, the song, needed to somehow help convey the political message or the political satire that was being conveyed by the video or ad itself. Jamie: Right. Yeah, I agree on that reading of what the Court decided here and an analysis of their opinion I also think it’s interesting we didn’t really get into it here in this discussion or what the Court discussed as far as following the different factors. But I think this becomes an issue also with artists then being specifically associated with a certain campaign. If they don’t have any rights of approval, that would come with licensing the song. If there was a licensing agreement, they could choose not to license their song to a specific campaign. I think that’s come up in the past, and it’s also an important piece that’s not really addressed here, but it’s the association of a piece of music with a political campaign, and I think that’s important as well. Scott: Yeah, that was an issue, actually. I was talking to Tara about the Isaac Hayes case, and we mentioned it at the top of the reading here. But that was an issue that was raised by the Court in granting the Isaac Hayes entity a temporary restraining order against the Trump campaign for the use of Hold on, I’m coming in connection with political events. Apparently, the Trump campaign was using Hold on, I’m coming in political campaign events. And BMI grants a blanket license for all of the songs within its library, but it’s allowed to pull a particular song if an artist or publisher objects. And Isaac Hayes had his the entity controlling his rights had objected and then filed suit because the Trump campaign continued to use the song. And in granting Isaac Hayes’ entity the temporary restraining order, or sorry, preliminary injunction, The Court noted that as potential harm, that the continued association with the campaign is a measure of potential harm. It’s definitely something that the courts do take into account. Well, thanks for joining me today, Jamie, as always. I appreciate having the opportunity to banter with you and talk about cases like this. Jamie: Thanks for having me, Scott. Always good to be here. Scott: 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. And 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.   Grant v. Trump Isaac Hayes Enters. v. Trump Show Notes: Scott: Donald Trump’s presidential campaign has faced a number of challenges from musical artists that object to the use of their music in connection with his political campaign. We’ve previously covered the copyright infringement case related to the Trump campaign’s use of Isaac Hayes’ song, ‘Hold on, I’m Coming.’ I’m Scott Hervey from Weintraub Tobin, and I’m joined today by Jamie Lincenberg. We’re going to talk about the Court’s order in Eddie Grant’s lawsuit regarding the Trump campaign’s use of Electric Avenue on today’s episode of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thanks for having me back, Scott. I’m excited to dive into this interesting case. Scott: It is interesting. Let’s start with the basics. Can you give us a quick overview of what this case is about? Jamie: Certainly, this case involves a copyright infringement claim by musician Eddie Grant against the former President, Donald Trump, and his campaign. The dispute centers around the use of Grant’s song, Electric Avenue. I think we all know that one in the campaign’s 55-second video posted on Trump’s Twitter account during the 2020 presidential election. The video contains an animation of a high-speed red train bearing the words Trump pence, Keep America Great, 2020, in stark contrast to a slow-moving hand car bearing the words Biden President, your hair smells terrific. The hand car is empowered by an animated likeness of President Biden. Scott: In August 2020, Grant’s lawyer sent the Trump campaign a cease and desist letter. Neither the video nor the tweet were removed. And on September 2020, Grant filed suit. The Trump campaign contended that the use of the song constituted fair use. Now, this recent ruling comes as a result of both parties filing motions for summary judgment. Jamie: There were two key issues here. First, whether the plaintiffs had a valid copyright registration for the sound recording of Electric Avenue. And second, whether the use of the song in the campaign video constituted fair use under copyright law. Scott: So the first issue was, there’s a real interesting one. That’s whether or not Eddie Grant had a valid copyright registration in the sound recording of Electric Avenue. So as you know, a plaintiff is not allowed or able to file a lawsuit for copyright infringement unless the allegedly infringed the work has been registered. Without a valid copyright registration, a plaintiff cannot bring a viable copyright infringement action. So the question was whether the registration of the album, Eddie Grant, The Greatest Hits in 2002, which included Electric Avenue amongst the other Eddie Grant hits, also affected registration of that specific sound recording for Electric Avenue. Jamie: That’s right. And the Court ruled in favor of the plaintiffs on this issue. It found that the registration of the compilation album, Eddie Grant, The Greatest Hits, in 2002, effectively registered the sound recording of Electric Avenue contained within it. The district Court noted that courts in the Second Circuit have held that the registration of a collective or a derivative work covers registration of the constituent parts if the registrant has copyright ownership of those constituent parts as well. Scott: Now, let’s talk about the fair use question, which seems to be the core of the case. So, the Court analyzed the four statutory factors of fair use: the purpose and character of the use, the nature of the copyright-decided work, the amount and substantiality of the portion used, and the effect on the potential market. Ultimately, the Court found that none of these factors favored the defendant. Jamie: Let’s talk about the first fair use factor, which asks us Whether the new work merely supersedes the objects of the original creation, supplanting the original, which would not support fair use, or does the use instead add something new with a further purpose or different character, thereby making that use justified because the copying is reasonably necessary in order to achieve this new purpose. A use that has a further purpose or different character is then said to be transformative. The Trump campaign argued that its use of the song was transformative. The Court was, however, not so receptive to this claim. Scott: No, that’s right. The Court was not receptive to that argument. The Court found that the video has a very low degree of transformativeness, at least as it relates to the song. The Court said that the video is best described as a wholesale copying of music to accompany a political campaign ad. The Court noted that the song plays for more than two-thirds of the animation and that the song itself plays no discernible role in communicating the video’s overarching political commentary. Jamie: In assessing the first fair use factor, the Court must also consider whether the allegedly infringing use is of a commercial nature. The question of whether the work is commercial is not whether the sole motive of the use is monetary gain but whether the user stands to profit from the exploitation of the copyrighted material without paying the customary for it. Scott: And in this case, the Court found that the Trump campaign benefited commercially from using Electric Avenue without paying a license fee. The Court noted that there is a well-established market for music licensing, and the Trump campaign sought to gain an advantage by using Grant’s very popular song without paying Grant the customary licensing fee. Jamie: That’s right. And the second factor favored the plaintiffs because Electric Avenue is a creative work. And looking at the third factor, that also went against the defendants because they used a substantial portion of the song. The fourth and final fair use The Court of Justice, the Court of Justice, asks whether if the challenged use becomes widespread, it will then adversely affect the potential market for the copyrighted work. Analysis of this factor requires the courts to balance the benefit the will derive if the use is permitted, and the personal gain that the copyright owner will receive if the use is denied. Scott: The Court found that this factor favored Eddie Grant because widespread, uncompensated use could harm the potential market for licensing the song, and there would not be any public benefit that is lost from not allowing the use of the song in the Trump campaign video since the campaign, at least the Court said the campaign could have used any song, created a new song, or used no song at all to convey the same political message in the video. Denying the Trump campaign’s fair use defense in this case, the Court said, will not chill legitimate public satire. Jamie: I think that the Court got it right here. Scott, what do you think are the broader implications, though, of this ruling for political campaigns and their use of music? Scott: I think this ruling sends a clear message that a political campaign’s use of a song or other content in a political ad or otherwise as part of political speech does not, without more, automatically transform that original work. At least the Court seemed to say that there needed to be more than just the use of a song as background for a political ad or a work of political satire. The Court seemed to say that in order for the used to be transformative, the work that was used, in this case, the song, needed to somehow help convey the political message or the political satire that was being conveyed by the video or ad itself. Jamie: Right. Yeah, I agree on that reading of what the Court decided here and an analysis of their opinion I also think it’s interesting we didn’t really get into it here in this discussion or what the Court discussed as far as following the different factors. But I think this becomes an issue also with artists then being specifically associated with a certain campaign. If they don’t have any rights of approval, that would come with licensing the song. If there was a licensing agreement, they could choose not to license their song to a specific campaign. I think that’s come up in the past, and it’s also an important piece that’s not really addressed here, but it’s the association of a piece of music with a political campaign, and I think that’s important as well. Scott: Yeah, that was an issue, actually. I was talking to Tara about the Isaac Hayes case, and we mentioned it at the top of the reading here. But that was an issue that was raised by the Court in granting the Isaac Hayes entity a temporary restraining order against the Trump campaign for the use of Hold on, I’m coming in connection with political events. Apparently, the Trump campaign was using Hold on, I’m coming in political campaign events. And BMI grants a blanket license for all of the songs within its library, but it’s allowed to pull a particular song if an artist or publisher objects. And Isaac Hayes had his the entity controlling his rights had objected and then filed suit because the Trump campaign continued to use the song. And in granting Isaac Hayes’ entity the temporary restraining order, or sorry, preliminary injunction, The Court noted that as potential harm, that the continued association with the campaign is a measure of potential harm. It’s definitely something that the courts do take into account. Well, thanks for joining me today, Jamie, as always. I appreciate having the opportunity to banter with you and talk about cases like this. Jamie: Thanks for having me, Scott. Always good to be here. Scott: 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. And 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.  

The estate of the late singer and songwriter Isaac Hayes sued former President Donald Trump for using one of his songs at campaign events and rallies. Scott Hervey and Tara Sattler discuss this case in this installment of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: In August of this year, the estate of legendary singer and songwriter Isaac Hayes sued former President and current presidential candidate Donald Trump and his campaign for using the song ‘Hold On, I’m Coming’ at political events and rallies. In mid-September, the US District Court for the Northern District of Georgia partially granted Hayes’ estate’s motion for a preliminary injunction. This case raises some interesting issues about the public performance of music, how it’s licensed, and the controls musicians have over its use. I’m Scott Hervey from Weintraub Tobin, and we’re joined today by Tara Sattler as we talk about the recent ruling in Isaac Hayes enterprises versus Donald Trump enterprise on today’s episode of The Briefing. Tara, it’s good to have you back. Tara: Thanks for having me. I’m Glad to be back. Scott: Let’s jump into the case. I must say, combining politics and copyright law might be the only way to make C-Span seem more exciting in comparison. Can you give me a brief breakdown of the facts. Tara: Sure. This case goes back to Trump’s use of the song, Hold on, I’m Coming, since 2020. Apparently, he played the song at political rallies and events more than a hundred times since then. Hayes Enterprises, which owns all of Isaac Hayes’ publishing and music rights, sent the Trump campaign a letter back in 2020, demanding that it stop using the song. Apparently, that never happened. The Trump campaign continued to use the song as part of the campaign, and Hayes Enterprises eventually filed suit in August of 2024 and moved for a preliminary injunction. Scott: So one interesting twist in the case is that the Trump campaign did initially have permission to use the song. The campaign had a public performance license through BMI, which generally allows for the use of a wide range of music in the public performance of that music. Now, that brings up an important point about music licensing in public performance. Public performance rights are a crucial aspect of music copyright. When a song is played in public, such as in a restaurant or a bar, and in this case at a political rally, that use requires a license. Those licenses are obtained in the US from performance rights organizations or PROs, and those are organizations like BMI, ASCAP, and CSAC, and they manage those rights, the performance rights for songwriters and for publishers. Pros offer blanket license that cover a large catalog of songs. Now, blanket license allows the licensee to use any song in the PROs catalog. However, specific songs can be excluded even after the license has been granted. Tara: Right. Paragraph 2A of the BMI Music License for Political Entities states that one or more works or catalogs of works by one or more BMI songwriters may be excluded from this license if notice is received by BMI that such BMI songwriters object to the use of their copyrighted works for the intended uses by the licensee. Scott: On June 6, 2024, Hayes Enterprise exercised this right and excluded the song from the license that was granted by BMI to the Trump campaign. However, the campaign continued to use the song after that date, which the court viewed as likely copyright infringement. The court granted a partial preliminary injunction barring the Trump campaign from using that song at further events without a valid license. Tara: In granting the injunction, the court looked at the following factors: likelihood of success on the merits of the copyright claim, irreparable harm to the copyright owners, balance of hardships between the parties, and also public interest. Interestingly, the court rejected the idea that irreparable harm is automatically presumed in copyright cases. The court cited the 2006 Supreme Court case of eBay Inc. Versus Merck Exchange LLC for the principle that irreparable harm is not to be presumed once a plaintiff establishes a prima facia case of copyright infringement. A plaintiff must prove that the suffered injury will be irreparable without an injunction. An injury is irreparable only if it cannot be undone through monetary remedies, is how the court phrased it. Scott: Yeah, and here the court found that continued use of the song could cause irreparable harm due to the unwanted association with the campaign. Tara: Correct. Scott: Now, the court found that stopping future uses of the song wouldn’t significantly impact the campaign’s political speech rights. It noted that upholding copyright protections serve the public interest while also acknowledging the importance of political expression. The court found no evidence to suggest that the inability to play the song in the future would inhibit the Trump campaign’s political speech, especially considering that the defendants, the Trump campaign, submitted a declaration stating that they do not intend to use the song at future public events while the litigation is pending. Tara: But here’s an interesting plot twist. As part of the motion, Hayes enterprises asked the court to take down any videos that were posted without a license that that contained the song. The Trump campaign argued that the use of the song was fair use. While not ruling on the fair use defense, the court denied the request to take down the videos of past events that used the song. The court found that for now, the risk of harm from the videos of past events remaining online does not pose the same imminent risk as future uses of the song in future campaign events. While plaintiffs showed irreparable harm for the future use of the song, they did not make this showing for the videos of past uses. Scott: Now, this case highlights several interesting legal points. The first is a reminder that political campaigns need to be careful about music licensing, even if they have a blanket license. Tara: We didn’t discuss that portion of the order that addressed Hayes ownership of the song. The Trump organization claimed that Hayes didn’t own right rights in the song and therefore had no right to object to its use. However, the court found that Hayes enterprises had terminated Universal Music Publishing and Warner Chapel’s ownership of the song back in 2022 and regained an ownership interest in the song. The complex ownership history of this song showcases the importance of termination rights in copyright law, which allow creators or their heirs to reclaim rights after a certain period of Had Hayes enterprises not recaptured ownership of a portion of the song, it may not have had the ability to object to the use by the Trump campaign. Scott: Let me add on to that, Tara. So way back when, when I used to be a music lawyer, and we were negotiating either record label deals or publishing deals because the rights that would be obtained by either the record label or the publisher were really broad and allowed for the exploitation of either the sound recording or the publishing rights very, very broadly. There was a limited ability to negotiate for the right to exclude certain uses, certain uses in political campaigns or the use in personal hygiene commercials, et cetera. In the entertainment industry, we’re used to that standard list of terrible excluded uses that you normally see. But that’s an important point that I want to talk about here, at least note, is that remembering to negotiate for that right, because if Hayes hadn’t recaptured his publishing rights, the only thing they would have to rely on is that carve out, that right to exclude that type of use in their publishing deal. And then if they had that, they would then enforce that right with the publisher who then would enforce the opt out right with BMI. Lastly, this case is a good reminder that in copyright cases, plaintiffs need to prove irreparable harm for a preliminary injunction. Scott: This case is far from over. There still remains an open issue about the past use of the song in the videos and whether that use constitutes fair use. There was a very recent ruling against the Donald Trump campaign for a similar use of music in Trump campaign assets where the court did not find fair use, and we’re going to cover that in another episode. But I think what happened in that case, you’re probably going to see that happen here. But we’re going to track this case, and we’re going to report back when there’s a further event by the court. Tara, thanks for joining me today. I appreciate having you on as always. Tara: Absolutely. This is an interesting topic to talk about with you. Thanks, Scott. Scott: Well, that’s all for today’s episode of The Briefing. I’d like to thank Tara Sattler for joining us 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. And if you have any questions about the topics we’ve covered today, please leave us a comment.

Scott Hervey, an FTC regulations expert, joins Jessica Marlow, a pro in influencer marketing, to discuss the FTC's new rule against fake consumer reviews. They explore the ramifications for businesses incentivizing reviews and stress the need for transparency. The conversation highlights ethical considerations in marketing practices and the looming consequences for violating the new regulations. Tune in to learn how these changes will reshape the influencer marketing landscape and promote genuine consumer engagement.

Punchbowl News won the trademark infringement lawsuit filed by greeting card and event planning company, Punch Bowl Inc., despite a previous setback at the Ninth Circuit. Scott Hervey and Jamie Lincenberg discuss this recent development in this installment of The Briefing.     Cases Discussed: Rogers V. Grimaldi Jack Daniels Properties Inc. Versus VIP products Punchbowl, Inc. V. Aj Press, Llc Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Despite a 2022 setback at the Ninth Circuit, Punch Bowl News ultimately came out a winner in a trademark infringement lawsuit bought by a greeting card and event planning company, Punch Bowl Inc. I’m Scott Hervey from Weintraub Tobin, and today I’m joined by Jamie Lincenberg. We are going to talk about this case again and the future of trademark infringement cases in light of the recent changes to the applicability of the Rogers Test on this next installment of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thank you, Scott. It’s nice to join you here again. Scott: Do you remember talking about this case in 2022 when we covered the appeal to the Ninth Circuit? Jamie: I sure do. Yeah. Scott: I think it’s good to give some closure to this case since we already covered it. Why don’t Let me start with the case? Punchbowl Inc. Is an online technology company whose product is online invitations and online greeting cards. It has been using the mark Punchbowl since 2006, and it has a federal trademark registration covering the mark. AJ Press was founded by two journalists who used to write for Politico. AJ Press operates Punch Bull News, a subscription-based online news publication that covers in American government and politics. Given the publication’s focus on federal politics, AJ Press chose Punch Bowl because that’s the nickname the Secret Service uses to refer to the US Capitol. It makes sense if you think about the capital turned upside down. It looks like a Punch Bowl. The title Punch Bowl News was selected to elicit the theme and geographic location of the publication. Punch Bowl, the technology company, sued for trademark infringement, and the district court granted AJ Press’s motion to dismiss on the grounds that their use of punch bowl did not give rise to liability under the Rogers test because it constituted protected expression, and it was not expressly misleading as to its source. Jamie: So, I think we should revisit the Rogers test. Scott: Yeah, let’s do that. Jamie: The Rogers test comes from the 1989 Second Circuit case of Rogers versus Grimaldi. The case involved a lawsuit brought by Ginger Rogers concerning the film entitled Fred and Ginger, which was about two Italian cabaret performers whose act emulated the dance routines of Fred Astaire and Ginger Rogers. In that case, the district Court and the Second Circuit on Appeal both said, the use of a third-party mark in an expressive work does not violate the Lanham Act if the title has artistic relevance to the underlying work, and if it has some artistic relevance, that it’s not explicitly misleading as to the source of the content of the work. This then became known as the Rogers Test. Scott: Applying the Rogers Test, the lower court and the Punch Bowl case dismissed trademark claims, and the Ninth Circuit upheld the lower court’s dismissal. However, in the weeks following the Ninth Circuit’s opinion, the Supreme Court granted cert for Jack Daniels Properties Inc. Versus VIP products, otherwise known as the Squeaky Dog Toy case. The Ninth Circuit stayed its original decision in the Punch Bowl case to wait the Supreme Court’s decision. Now, the Jack Daniels Properties versus VIP Products dispute involved the claim by Jack Daniels that this dog toy, Bad Spaniels, infringed a number of Jack Daniels trademarks. At the district Court and on appeal at the Ninth Circuit, the issue in the Jack Daniels case was framed as to whether the dog toy was an expressive work since trademark claims involving expressive work are analyzed under the Rogers test. On appeal, however, the Supreme Court said that the issue really was not whether the dog toy is an expressive work or not an expressive work, but rather the nature of the use of the Jack Daniels marks. The Supreme Court found that VIP’s use of the marks, while humorous, were for the purpose of serving as a source identifier, so trademark use. The Supreme Court held that the Rogers test does not apply to instances where the mark is used as a source identifier, regardless of whether it is also used to perform some expressive function. Jamie: Subsequent to the Supreme Court’s holding in Jack Daniels, the Ninth Circuit then vacated its original ruling in the Punch Bowl case and then held that the Rogers test doesn’t apply to this case because AJ Press uses Punch Bowl to identify its news product. The Ninth Circuit said, to the extent that any previous cases held that Rogers applies when an expressive mark is used as a mark and that the only threshold for applying Rogers was an attempt to apply the Lanham Act to an expressive work, that those cases are incorrect and are no longer good law. Scott: So, under Jack Daniels because A. J. Press used Punch Bowl as a trademark, regardless of the fact that there is an expressive purpose for the use of Punch Bowl and that its use is not expressly misleading, the Rogers test is not going to be applied here. The Court sent the case back to the district Court, the Ninth Circuit sent the case back to the District Court with instructions to analyze the case under the Ninth Circuit’s Sleekcraft Test. That’s the test that’s used in the Ninth Circuit for determining trademark infringement. The court was going to examine punch bowls, or AJ Press’s use of punch bowl under the Sleekcraft factors, which are the strength of the mark, the proximity or relatedness of the goods, the similarity of the marks, evidence of factual confusion, the marketing channels used by the parties, the degree of consumer care in selecting the products, and the defendant’s intent, and any likelihood of expansion by the plaintiff into the space operated in by the defendant. Those are the tests for determining likelihood of confusion. They’re used in the Ninth Circuit, and similar versions of the Sleekcraft test are used in other districts throughout the United States. Jamie: The District Court, in finding no likelihood of confusion, seem to focus on the second and fifth factors that you just mentioned. Scott: Right, I agree. So, with regard to the second factor, the court found that the goods sold by the parties are not approximate, they’re not related, they’re not complementary, and they don’t function similarly. A platform offering tools for online party planning is not at all related to a news publication that focuses on politics. Also relevant to this point was the court’s finding that the products are not sold to the same class of purchasers. Jamie: The fifth factor is naturally related to the second factor. The more the products are related the more likely they are to have overlapping marketing channels. Now, interestingly, the court rejected the fact that both companies do use the internet as a marketing channel as evidence of overlapping marketing channels. The Court noted that almost all commercial retailers use the internet, and the shared use of a ubiquitous marketing channel is not evidence of the similarity contemplated by Slate Craft. In today’s world, the shared use of online marketing is not enough to constitute overlapping marketing channels, and a more specific level of overlap is going to be required. Scott: The dissimilarity in the goods and the lack of proximity between the goods, along with a failure to point out an overlapping discrete marketing channel, really carried the day. Now, the court called this result an obvious It stated that no reasonable consumer would purchase a subscription to a party planning software platform when they really intended to subscribe to a political news website. Do you agree with that? I agree with that. Jamie: I think that I would agree. I would agree with the court and say that this is an obvious decision. But Scott, what do you think the real takeaway is here? Scott: Yeah. I mean, a couple of takeaways. One is that even though Rogers was not applicable here, just like it’s not applicable in the squeaky dog toy case, the Jack Daniels case versus VIP products case, that’s not the end of the inquiry. We still need to go through the analysis of the sleep craft factors and really determine whether or not there is a likelihood of confusion. So, the fact now that Rogers might not be available to certain defendants really isn’t the end of the inquiry. Also, plaintiffs who know that the Rogers test is not available to a defendant, that’s not a victory either. It’s an interesting case. I’m glad we saw the result of this case, even though there was a loss of the Ninth Circuit. I think the result was one that we all thought should happen. Jamie: Yeah, I’m glad we were able to circle back and close the loop. Get some closure for the audience. Scott: Yeah. Well, thanks for joining me, Jamie. Jamie: Thanks, Scott. Scott: Thank you for joining us for today’s episode of The Briefing. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, please leave us a comment.