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In the classic movie When Harry Met Sally, Harry says, “When I buy a new book, I always read the last page first. That way, in case I die before I finish, I know how it ends. That, my friend, is a dark side.” At the beginning of any licensing relationship, things always seem rosy and full of potential. We talk about royalties, advances, and guarantees with the dream of a relationship that will be enduring and fulfilling for both licensor and licensee. But licensees would do well to heed the advice of young Harry by giving in to their dark side and looking to what lies at the end of the story. Because what may be waiting for them there is an audit for which they are ill prepared.
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How NY Courts Find Copyright Preemption of State Law Right of Publicity Claims
By Stan Soocher
To survive preemption under §301 of the Copyright Act, courts consider whether a state law claim in a lawsuit has an “extra element” that qualitatively distinguishes it from a federal copyright claim. Courts typically find that state law claims, such as breach of contract, have an extra element. Other state law claims, such as conversion, get varying court determinations as to whether they are preempted.
Federal Circuit Provides Guidance on IP Case Transfer Motions
By Darin Snyder, Brad Garcia, Amy Liang, and Daniel Silverman
In the past year, the Federal Circuit has repeatedly required the U.S. District Court for the Western District of Texas to transfer patent infringement suits from that district to more convenient venues, and in doing so it has provided increasingly specific — and often pointed — guidance to courts and litigants on the appropriate analysis for transfer motions.
By Robert W. Clarida and Robert J. Bernstein
The U.S. Supreme Court granted certiorari in Unicolors v. H&M Hennes & Mauritz to address the following question: “Did the Ninth Circuit err in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. §411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration?”
USPTO Looking to Beef Up Its Own Trademark Protection
By Scott Graham
The agency announced that the Department of Commerce has applied to register the USPTO’s marks in a bid to crack down on scammers who are impersonating the agency.
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