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Entertainment Law & Finance
The Other Recent Infringement Lawsuit Judgment Over Ed Sheeran’s ‘Thinking Out Loud’
Stan Soocher
The lion’s share of attention to copyright-infringement claims against Ed Sheeran over his 2016 Grammy-winning Song of the Year “Thinking Out Loud” recently focused on the trial in New York federal court. But in September 2022, a related infringement suit over the same songs’ matching chord progression and harmonic rhythm was allowed to proceed.
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Entertainment Law & Finance
Current Landscape of NIL Contracts Under NCAA Policy
Phil Petrina
As we wait to see if Congress does indeed adopt a preemptive federal standard on NIL, the question becomes: What do business owners, interested investors and attorneys need to know prior to signing a college athlete to a NIL contract under the current landscape?
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Entertainment Law & Finance
IP Experts Discuss AI Art Copyright Litigation
Isha Marathe
IP experts weigh in on a case involving AI-created images based on an original work. The outcome of the case may have a significant impact on AI development and generative art.
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The Intellectual Property Strategist
All Is Not Fair In Love and Warhol
Jonathan Moskin
A new balance must be struck between the new use and the exclusive right of authors to make derivative works, and part of that balance includes a clearer focus on the statutory fair use factors as well as the commercial nature or not of the new work. As a practical matter, how much the decision changes in this “troublesome” area remains to be seen.
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Business Crimes Bulletin
ITC General Exclusion Orders Targeting All Importers Are On the Rise
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For importers of products potentially implicated by a requested GEO, the GEO can be a major threat even if the importer is not a respondent in the case.
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The Intellectual Property Strategist
Generative AI and Patent Considerations
James W. Soong
A patent strategy informed by the unique considerations raised by generative AI will optimize protections for innovations in the field. Patent strategies should reflect the current legal landscape as well as anticipate potential future legal developments.
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The Intellectual Property Strategist
IP Considerations for ITC General Exclusion Orders
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For IP owners facing infringing imported products from numerous elusive sources, a GEO can be a powerful remedy to tackle all infringing products at once.
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The Intellectual Property Strategist
Securing License for Internet Artificial Intelligence
Jonathan Bick
As AI increasingly interpenetrates internet transactions, licensing interest expands. The licensing of internet AI intellectual property is stymied because legal difficulties such as the proper assessment of the jurisdiction for the licensing agreement and the nature of the internet including the proper identification of the parties for the licensing agreement.
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Cybersecurity Law & Strategy
Why Your Managed Service Provider Should Be Using Automated SIEM Logs to Manage Data Security Threats to Your Firm
Mike Paul and Robert Padilla
To effectively safeguard their data and networks, law firms need to deploy advanced security tools that can help detect and respond to threats in real time. One such tool is security information and event management (SIEM) software.
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Cybersecurity Law & Strategy
Securing License for Internet Artificial Intelligence
Jonathan Bick
The licensing of internet AI intellectual property is stymied because legal difficulties such as the proper assessment of the jurisdiction for the licensing agreement and the proper identification of the parties for the licensing agreement. However, the primary issue is that normally the licensor is a computer program, hence not a legal person.
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The Intellectual Property Strategist
The First Amendment and the Lanham Act At the Supreme Court
Conor Tucker
In March, the Supreme Court heard a blockbuster trademark case with significant implications for trademark law. After argument, reversal seems likely as questioning from the justices suggests that a long-standing precedent is unlikely to survive unscathed. But the Court also indicated concern over the broader implications of this case in the arts, entertainment, and publishing. Here’s what you need to know about Jack Daniel’s v. VIP Products.
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The Intellectual Property Strategist
ChatGPT, Generative AI and IP Considerations
Dan Felz, Wim Nauwelaerts, Paul Greaves and Josh Fox
Part Two of a Two-Part Article
Part One of this article briefly detailed what “generative AI” tools like ChatGPT are and provided an overview of key legal considerations. Part Two looks at upcoming AI-specific legislation and the path forward for firms wanting to use AI in practice.
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The Intellectual Property Strategist
Music Rates and Royalties In 2023
Jeff Brabec and Todd Brabec
Part Two of a Two-Part Article
Part One of this article discussed mechanical licenses and interactive streaming services. Part Two covers songwriters and music publishers, and record labels.
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Entertainment Law & Finance
Licensing AI Content
Jonathan Bick
The primary issue associated with securing a licensor’s consent for Internet AI intellectual property is that normally the licensor is a computer program, hence not a legal person.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Zhiqiang Liu
Federal Circuit Affirms the Board’s Finding of Anticipation Because Prior Art Patent and References Incorporated Therein Inherently Meet the Disputed Claim Limitations
Federal Circuit Affirms a Finding of Infringement Because the District Court Correctly Construed “a” and “said” and Rejects Anticipation Argument on Waiver Grounds
Federal Circuit Vacates Judgment of Non-Infringement Because the Underlying Stipulation Failed to Provide Sufficient Detail for the Court to Resolve Certain Claim Construction Issues
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The Intellectual Property Strategist
ChatGPT, Generative AI and IP
Dan Felz, Wim Nauwelaerts, Paul Greaves and Josh Fox
Part One of a Two-Part Article
Corporate legal departments are increasingly receiving requests from business clients to use ChatGPT or similar AI-powered tools in their operations. These requests can be urgent, with business clients demanding enablement from legal. This article is in two parts: Part One briefly details what “generative AI” tools like ChatGPT are and provides an overview of key legal and IP considerations, including by looking forward to upcoming AI-specific legislation in the EU and the U.S.
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The Intellectual Property Strategist
Authorship and Copyright In Hybrid AI-Human Collaborative Works
Aaron Dunn and Chris King
The United States Copyright Office recently issued a letter ruling on the copyrightability of Kristina Kashtanova’s comic book-like work, Zarya of the Dawn. The Kashtanova ruling indicates that the Copyright Office’s determination of copyrightability of works involving use of AI will rely on whether the author is able to control and foresee with some measure of predictability the output of the authorial process
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The Intellectual Property Strategist
Innovative Uses and IP Considerations of 3D Printing
Brian A. R. Raddatz and Kate Nuehring Su
Companies involved in 3D printing must be cognizant of the patent rights obtained by their competitors in this space and must be proactive in identifying and securing their own patent rights to effectively compete in this continually developing field.
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The Intellectual Property Strategist
IP News
Howard Shire and Alicia Ginsberg
Proving Damages for Trademark Infringement In the Eleventh Circuit
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Entertainment Law & Finance
Handling IP Ownership Issues In Remote Work
Sarah Schaedler and Jennifer T. Criss
Even with legal assumptions that certain intellectual property rights in works created by employees are owned by the employer, these should not be relied upon exclusively. A well-drafted employee-agreement form is increasingly essential in light of the explosive growth of remote and flexible work arrangements.
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The Intellectual Property Strategist
New York Federal Jury Rejects First Amendment Defense In ‘MetaBirkins’ NFT Standoff
Todd Larson and Yonatan Shefa
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. 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.
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The Intellectual Property Strategist
How to Diversify the Pool of Inventors — and Improve Innovation
Christine E. Hollis, Jonathan C. Hughley and David C. Read
Efforts to diversify the inventive population will not only foster innovation across a wide range of businesses and industries but will also help greatly expand the pool of inventors across racial, gender and ethnic categories, and the country as a whole will realize numerous benefits.
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The Intellectual Property Strategist
Music Rates and Royalties In 2023
Jeff Brabec and Todd Brabec
Part One of a Two Part Article
A look at the most important music rate and royalty areas, both past, present and future and how and by whom they are set or determined as well as the effect that legislation, litigation, the Copyright Royalty Board and the Department of Justice have had on the process.
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The Intellectual Property Strategist
IP News
Matthew Weiss
Federal Circuit: Prosecution Laches Applies to Patent Claiming 1987 Priority Date
Federal Circuit: Appellate Court Lacks Jurisdiction Over Interlocutory Appeal of Protective Order Dispute
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The Intellectual Property Strategist
Podcast: Crypto’s Rocky IP Future
IPS Staff
Listen in on a post-webinar chat on “The Crypto Landscape: Post-FTX,” with Blockchain Legal LLP partner Aaron Krowne and counsel Ali Derie, along with veteran entertainment industry lawyer Eric S. Goldman, about cryptocurrency's rocky recent past (and present) as well as its still-promising, if uncertain, future.
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The Intellectual Property Strategist
Impersonation on Social Media: The Increasing Challenges of Verification
Christine Au-Yeung and Chidera Dawodu
The recent flurry of online impersonators, ranging from accounts posing as President Joe Biden to the pharmaceutical company Eli Lilly, exposes the challenges of social media platforms’ verification and authentication processes.
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The Intellectual Property Strategist
The Difference Between ‘Covenant’ and ‘Condition Precedent’ In Song Licensing Agreements
Stan Soocher
A question of law arose for a District Judge when a songwriter sued YouTube, claiming she never approved licensing her works to YouTube — whether the administration agreement’s notice-and-consent clause was a condition precedent to the administrator’s ability to license the songwriter's songs.
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The Intellectual Property Strategist
Fair Use of Embedded Content on Social Media
Stephen M. Kramarsky and John Millson
The change in character of social media, from purely social communication to a mixture of the social and commercial, has had knock-on effects for courts applying traditional legal principles, notably, the application of copyright law.
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The Intellectual Property Strategist
How the Changing Concept of ‘Work’ May Jeopardize Employers’ IP Ownership
Sarah Schaedler and Jennifer T. Criss
A key step to ensure that employers own their intellectual property is having employees sign agreements which assign to the employer all intellectual property created in the course of employment.
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The Intellectual Property Strategist
IP News
Howard Shire and Stephanie Remy
Patent Infringement and Trade Dress In the Ninth Circuit
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The Intellectual Property Strategist
Live Webinar: The Crypto Landscape Post-FTX
IPS Staff
“The Crypto Landscape Post-FTX,” Feb. 15 at 4 p.m. ET, NY Cyber CLE credits available.
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The Intellectual Property Strategist
Is Trademark Protection Going to the Dogs?
Jonathan Moskin
The Ninth Circuit held in VIP Prods. LLC v. Jack Daniel’s Properties that VIP’s “Bad Spaniels” dog toy mimicking the appearance of a Jack Daniels whisky bottle was protected expression under the First Amendment. The Supreme Court granted cert in November 2022 to consider the principal question whether humorous use of another’s mark on a commercial product should be assessed under Rogers or the traditional multipart test of likelihood of confusion.
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The Intellectual Property Strategist
Are You Ready for Europe’s New Patent System?
Marianne Schaffner and Thierry Lautier
In Europe, the patent system is changing and will offer to companies a new patent protection and a new patent court. It should start in April 2023, with a sunrise period starting in January 2023.
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The Intellectual Property Strategist
A Secondment Can Help Grow Your IP Practice
By Dan Ovanezian, Blake L. Holt, Azie Aziz and John Whetzel
Although your company may have an in-house IP attorney, your company may still need temporary help from an outside law firm to develop your company’s patent portfolio and to solve your company’s need for temporary help with minimal need for training and financial investment. If you do not have the budget to hire an in-house IP attorney, the solution is to try a secondment — an attorney from an outside law firm temporarily joins your in-house legal team as a “secondee” on a part-time or full-time basis.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Ryan J. Sheehan
Federal Circuit: Unpatentability Ruling In First IPR Estops Patentee In Second IPR of Related Patent
Federal Circuit: A Disclaimer Made In a Pending IPR Is Not Binding In That Proceeding, But Is Binding In a Subsequent One
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The Intellectual Property Strategist
Copyright Claims Board: A New Stage for Copyright Infringement Claims
Robert E. Browne and Michael D. Hobbs
Copyright holders would be well advised to familiarize themselves with the Copyright Claims Board for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.
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The Intellectual Property Strategist
Criminal Considerations and Federal Authorities In Trade Secrets Disputes
Jeffrey A. Pade and Anand B. Patel
Part One of this article discussed the passing of the Economic Espionage Act to combat the growing concerns surrounding trade secret theft and the criminal components of trade secret theft. Part Two covers considerations in favor of approaching federal authorities on trade secrets theft. Part Three concludes the series with a look at the potential consequences in approaching federal authorities on trade secrets theft.
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The Intellectual Property Strategist
Recent Trademark In Titles Cases Show ‘High Bar’ for Proving Public Was ‘Explicitly Misled’
Stan Soocher
When it comes to expressive content, disputes over trademark rights in titles of creative works are commonly fought under the federal Lanham Act. Many of these battles play out in courts in the U.S. Circuit Court of Appeals for the Ninth Circuit, which has well-developed legal guidelines on the subject
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The Intellectual Property Strategist
Can Consumer Products Be ‘Expressive Works’?
Eric Alan Stone and Catherine Nyarady
In a case that may have significant implications for the ability of mark holders to enforce their marks against many types of products, the U.S. Court of Appeals for the Second Circuit is now considering whether consumer products such as sneakers can be considered “expressive works” to which First Amendment protections can apply.
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The Intellectual Property Strategist
IP News
Howard Shire and Stephanie Remy
Trademarks and Free Expression In the Ninth Circuit
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The Intellectual Property Strategist
Upcoming Webinar
Join Board of Editors member Kyle-Beth Hilfer, Editor-in-Chief Howard Shire, Aaron Krowne and Wenew GC Christine Lawton for Counseling the NFT Client: A Practical Guide to Legal and Business Issues.
Read More ›
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The Intellectual Property Strategist
WTF? The Board Weighs In on Failure to Function Refusals
Christopher P. Bussert
Many trademark practitioners have noted the USPTO’s recent penchant for issuing refusals to register trademarks on the ground of failure to function as a trademark. The Trademark Trial and Appeal Board picked a colorful case to set precedent and provide some initial guidance on how it will evaluate failure-to-function refusals going forward.
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The Intellectual Property Strategist
Criminal Considerations and Federal Authorities In Trade Secrets Disputes
Jeffrey A. Pade and Anand B. Patel
Part Two of a Three-Part Series
Part One of this article discussed the passing of the Economic Espionage Act to combat the growing concerns surrounding trade secret theft and the criminal components of trade secret theft. Part Two covers considerations in favor of approaching federal authorities on trade secrets theft.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and George Soussou
Federal Circuit: No Patent Term Adjustments When Claims Change
Federal Circuit: Proceeding Need Not Be Terminated Upon Request
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The Intellectual Property Strategist
Criminal Considerations In Trade Secrets Disputes
Jeffrey A. Pade and Anand B. Patel
Part One of a Three-Part Series
When the international theft of U.S. trade secrets escalated and became a higher priority for domestic entities, trade secrets owners faced difficult challenges in collecting evidence, pursuing civil actions against overseas actors, and successfully obtaining worthwhile and meaningful relief from civil actions alone. These challenges ultimately resulted in increased referrals, investigations, and prosecutions of trade secrets theft under the EEA by federal authorities.
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Entertainment Law & Finance
Pondering AI Machine Learning and Copyright Fair Use
Cassandre Coyer
By feeding machine-learning models hundreds of copyrighted pictures to train them to identify and “read” certain concepts, companies could face violating copyright laws.
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The Intellectual Property Strategist
Duty of Candor and Good Faith With the USPTO Covers Non-Inventors and Non-Practitioners
George Chen, Cory Smith and Ryan Fitzpatrick
Practitioners and non-practitioners that are associated with the examination of patents and patent applications should be vigilant about information that may be material to patentability to avoid having an issued patent be deemed unenforceable.
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The Intellectual Property Strategist
Supreme Court Set to Hear Transformativeness Fair Use 'Warhol' Case
Eric Alan Stone and Catherine Nyarady
In the October 2022 Term, the Supreme Court is set to decide whether courts assessing transformativeness under the first fair-use factor of the Copyright Act may consider “the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material.” The case may profoundly affect the fair use analysis, and in turn, the scope of copyright protection for many works.
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The Intellectual Property Strategist
IP News
Howard Shire and Stephanie Remy
Federal Circuit: Trade Dress Imitation In the Ninth Circuit
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The Intellectual Property Strategist
Protecting a Trademark Licensor’s Rights In Its Licensee’s Bankruptcy Case
Alfred S. Lurey
A recent bankruptcy case from the District of Delaware underscores the need for a trademark licensor to be alert to filings made in its licensee’s bankruptcy case that may require prompt action by the licensor to protect its valuable rights under a license agreement.
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