New York Bill Creating Post-Mortem Right of Publicity Passes Legislature and Awaits Cuomo Signature
For many years, New York based celebrities, performers'' unions and other advocacy groups have pushed to expand New York''s Right of Publicity law so that it covers people after death, and much of the New York based media has opposed this expansion. Now both houses of the New York State Legislature have passed such a bill, which awaits signature by Governor Andrew Cuomo. The new law also provides additional protections against the use of "digital replicas" by such means as the use of computer generated images and includes new protections against so-called revenge porn. Read more.
Porn Company Strikes Back
In two recent decisions, the District of New Jersey overturned a Magistrate Judge''s sweeping order denying expedited discovery in several pending cases and the D.C. Circuit Court of Appeals reversed a D.C. district court''s similar dismissal and denial of discovery. With these decisions, Strike 3 is back in the copyright infringement lawsuit business, and illegal downloaders and streamers of pornography -- or any other copyrighted materials -- beware. Read more.
Helpless No More? Neil Young Sues Trump Campaign for Use of His Songs
Legendary rocker Neil Young sued Donald Trump''s presidential campaign (the "Campaign") for copyright infringement for using two of his songs, Rockin'' in the Free World and Devil''s Sidewalk, at numerous rallies and political events, including the July 20, 2020 rally in Tulsa, Oklahoma. Young claims that the Campaign used his songs without a license and in spite of the fact that he has "continuously and publicly" objected to the use of his songs by Trump since Trump played Rockin'' in the Free World" when he launched his 2016 Presidential bid in June 2015. Young seeks statutory damages for what he describes as the willful infringement of his copyrights as well as an injunction barring the Campaign for using these two songs, "or any other musical compositions" that he owns. Read more.
S.D. Florida Refuses To Toss Artist’s Claims Over Alleged Knock-off Art Installation
We previously blogged about a copyright infringement lawsuit filed by U.K. artist Bruce Munro, most known for his light-based installation artwork, against the Fairchild Tropical Botanic Garden (“Fairchild”) in Coral Gables, Florida, alleging that the botanical garden imported, installed, and publicly displayed “indistinguishable copies” of Munro’s original sculptural artwork for an annual winter event called the NightGarden. In March 2020, Fairchild moved to dismiss the artist’s lawsuit. By its motion, Fairchild claimed that it cannot be liable for copyright infringement because Munro’s artworks are comprised of light fixtures that are mere useful articles containing no conceptually separable artistic design features and are thus not subject to copyright protection. Read more.
Maker of VAMPIRE-Branded Alcoholic Beverages Alleges Grocery Chain Is Taking a Bite Out of Its Trademark Rights
Vampire Family Brands, LLC ("VFB") sued HEB Grocery Company, LP ("HEB") in federal court in Texas, alleging that the grocery chain is infringing VFB''s rights in the term VAMPIRE for canned alcoholic beverages. As this complaint includes all of my favorite blog topics (alcohol, corny beverage names, and trademark infringement allegations), I couldn''t resist writing about it for your reading enjoyment. VFB has been marketing wine, alcoholic beverages, olive oil, vinegar, chocolate, and tacos (yes, tacos) under the marks VAMPIRE, DRACULA, VAMPYRE, etc. for years. VFB has also been selling a canned gourmet Bloody Mary cocktail since 2017 under the VAMPIRE name. Read more.
If You Coexist, You Need Not Desist (Part One): TTAB Grants Laches Defense After 4 Years Coexistence
In a Precedential Decision recently released last week, the TTAB upheld Defendant Brooklyn Brew Shop’s Section 18 amendment to its goods identification and its laches and acquiescence defenses, ultimately finding against Plaintiff Brooklyn Brewery Corporation’s confusion claims for most of the Brew Shop’s goods. This is an important case because it highlights how allowing a word mark (or other) application to register can come back and prevent a brand owner from objecting to a third party''s expansion of its portfolio, sometimes years later. Read more.
Word To Politicians: "Please [Do] Stop The Music"
With less than 70 days until the 2020 U.S. Presidential Election, we are seeing a proliferation of ads, conventions and rallies (COVID-19 style) as the presidential candidates work to connect with voters and get them excited about their platforms. One of the ways politicians engage with voters is through music. Songs evoke emotions by resonating with American ideals, such as John Mellencamp''s "Our Country", and invigorating the masses à la Rihanna''s catchy number, "Don''t Stop the Music". In return, the artists behind these beloved tunes get to have their songs played to millions of people across a vast range of demographics. That sounds like a win-win, right? In reality, many artists have spoken out against politicians using their songs without seeking their permission. One of the main reasons for this is because it can signal endorsement or support for a candidate by having their song(s) associated with a particular politician. Read more.
KFC Presses Pause on IT''S FINGER LICKIN'' GOOD Slogan
Pandemic Rule Number One: don’t touch your face. Or, more specifically for purposes of this post, keep your fingers out of your mouth. In 1952, when Kentucky Fried Chicken adopted its IT’S FINGER LICKIN’ GOOD slogan, there was no public health crisis and people weren’t being told to wear masks, sanitize everything, and keep their hands away from their faces. Of course, all that changed earlier this year, and brands have been adapting ever since. KFC is no different. Read more.
If You Coexist, You Need Not Desist (Part Two): TTAB Finds No Inevitable or Likely Confusion for Beer Making Kits and Sanitizing Preparations
Part one discussed the TTAB’s analysis of laches and acquiescence defenses in The Brooklyn Brewery Corporation v. Brooklyn Brew Shop, LLC, noting that the Board found the defenses to be established for the Brew Shop’s beer making kits, but not for its sanitizing preparations and drinkware. Part two discusses the Board’s likelihood of confusion analysis in light of these findings, and spend a little time at the end on the Board’s refusal to consider the Brewery’s geographic descriptiveness claim. Read more.
The Terrible Towel Is A Formidable Foe: Steelers'' Licensor Sues Maker of Terrible Masks
The Terrible Towel was created by sports broadcaster Myron Cope, who registered the trademark THE TERRIBLE TOWEL as well as other marks containing THE TERRIBLE or TERRIBLE. Through a series of assignments after Mr. Cope''s death, the marks are now owned by The Eamon Foundation, a non-profit that licenses its trademark rights exclusively to the Steelers. Recently, The Eamon Foundation sued Time In Apparel in Federal Court for trademark infringement, alleging that TIA infringed its rights in THE TERRIBLE TOWEL and other TERRIBLE marks by offering face masks bearing the phrase THE TERRIBLE MASK. TIA''s face masks featured the Steelers'' team colors and stylized letters identical to those sported by The Terrible Towel for many decades. Read more.
For information about other topics, check out our Advertising Law blog, Focus on the Data blog, and Professional Responsibility blog.