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Perhaps no other area in the technology sector — save perhaps the recent explosion of generative AI models — has raised as many thorny intellectual property issues as the proliferation of Non-Fungible Tokens, or NFTs, many of which are based on, refer to, or even incorporate, expressive works. Leading the charge have been cases addressing whether NFT makers who utilize other parties’ trademarks can turn to the First Amendment as a defense to trademark infringement. This inquiry turns on the now decades-old test established by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). The Rogers test allows defendants to raise a free speech defense if their use of a mark is artistically relevant to their work and does not explicitly mislead consumers as to its source.
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Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
By Thomas Kjellberg and Robert W. Clarida
In Philpot v. Independent Journal Review, the Fourth Circuit found no fair use or copyright validity for a concert photographer's use of a photo of Ted Nugent as part of a collection.
USPTO Issues New Guidance On Rejecting Patent Claims for Obviousness
By Rob Maier
The United States Patent and Trademark Office recently published new guidance explaining the requirements for patent examiners to reject patent claims for obviousness in view of what was already known in the prior art.
“Holy Fair Use, Batman”: Copyright, Fair Use and the Dark Knight
By David G. Kim and Michael K. Friedland
The copyright for the original versions of Winnie the Pooh and Mickey Mouse have expired. Now, members of the public can create — and are busy creating — their own works based on these beloved characters. Suppose, though, we want to tell stories using Batman for which the copyright does not expire until 2035. We’ll review five hypothetical works inspired by the original Batman comic and analyze them under fair use.
Intellectual Property In Legal Tech: Lessons from Recent Cases
By Brian Mack, Kevin Keller and Olga V. Mack
As technology continues to permeate the legal industry, the significance of IP in safeguarding innovations, ensuring fair competition, and fostering a culture of creative legal solutions becomes paramount.
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