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Under Section 507(b) of the U.S. Copyright Act, an infringement claim isn’t timely filed “unless it is commenced within three years after the claim accrued.” In its recent decision in Starz Entertainment LLC v. MGM Domestic Television Distribution LLC, 21-55379 (9th Cir. 2022), the U.S. Court of Appeals for the Ninth Circuit noted: “Generally, the claim ‘accrues’ when the infringement or violation of one of the copyright holder’s exclusive rights occurs, known as the ‘incident of injury rule.’ In our circuit, and every other circuit to have reached the question, an exception to that infringement rule has developed. Known as the ‘discovery rule,’ a claim alternatively accrues when the copyright holder knows or reasonably should know that an infringement occurred.”
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By Matthew Siegal
University of Massachusetts v. L’Oréal
Absent an express disclaimer or special definition of how a term is to be interpreted, it can be frustrating to get a court to reject the plain and ordinary meaning of claim language read in a vacuum, based on the subtleties of how a term is used in a patent or its prosecution history.
By Robert W. Clarida and Thomas Kjellberg
On July 7, 2022, the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, which began by posing the following question: “Can a banana taped to a wall be art?”
By Stephen M. Kramarsky and John Millson
In the absence of a federal statutory scheme specifically aimed at digital advertising practices, the courts have focused on consumer-facing issues covered by existing law, such as privacy, transparency, and deceptive or misleading advertising practices. But digital advertising technology can also present new challenges in copyright and trademark protection.
By Howard Shire and Stephanie Remy
Copyright Standing and Fifth Circuit Trade Dress Factors