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David E. Fink

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David Fink is an experienced and proven commercial litigator at both the trial and appellate court levels. With more than two decades of experience in state and federal litigation and in alternative dispute resolution, David has prosecuted and defended complex claims involving hundreds of millions of dollars. His vast experience in the media and entertainment industry includes defamation and privacy claims, right of likeness, copyright, trademark, guild-related issues, and profits participation.

David has been listed as a Recognized Practitioner in Chambers USA, featured in The Best Lawyers in America, and acknowledged as a Local Litigation Star in Benchmark Litigation.

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A United Kingdom High Court recently ruled in favor of singer-songwriter Ed Sheeran (Sheeran) in a contentious copyright infringement case over his 2017 song, Shape of You (“Shape”). The Court granted Sheeran’s claim for declaratory relief, ruling that Shape did not infringe the copyrights of UK artist Sami Chokri’s (Chokri) song Oh Why.

Sheeran’s popularity extends far beyond the United Kingdom; he is an internationally known artist. Shape topped the charts worldwide and, with over 3 billion streams, is the most-streamed song on Spotify.Continue Reading STEMMING THE TIDE: Ed Sheeran’s Copyright Victory Brings Changes to Copyright Evidentiary Burden

Two Illinois state courts recently dismissed defamation claims related to an online article and a disciplinary proceeding conducted by the Champaign Illinois Kennel Club.  Both courts found that the defendants were immunized because the statements in dispute were unactionable opinions and were protected under the innocent construction rule.  See Law Office of John S. Xydakis, P.C. v. Reiland, No. 2020 L 3990 (Ill. Cir. Ct. May 18, 2021); Boyd v. Crumpler, No. 2020-L-000201 (Ill. Cir. Ct. May 20, 2021).

The first suit, Law Office of John S. Xydakis, P.C. v. Reiland, arose from an article written by Jordyn Reiland and published by the. Reiland, slip op. at 1.  The report outlined Judge Margaret Ann Brennan’s remarkable imposition of a $1 million sanction against Marshall Spiegel and his lawyer, John Xydakis.  Id.  Judge Brennan issued the sanction pursuant to Illinois Supreme Court Rule 137, which is designed to prevent and discourage the filing of frivolous and false lawsuits.  Id. at 1-2.  The Circuit Court of Cook County found that the legal news website could not be sued for allegedly defamatory statements that are reasonably interpreted as opinions.  Id. at 1.Continue Reading Opinion Defense Dashes Two Recent Illinois State Court Defamation Decisions

On June 10, 2021, the Texas Court of Appeals held that a trial court had erred in denying motions to dismiss brought by KHOU-TV and the Houston Chronicle under the Texas Citizens Participation Act (the TCPA), the Texas anti-SLAPP statute.  The three-justice panel held that the plaintiff, Status Lounge, failed to show that the news outlets’ reports on a shooting at its bar were not substantially true. See KHOU-TV, Inc. v. Status Lounge Inc., No. 14-19-00393-CV, 2021 Tex. App. LEXIS 4584 (Tex. App. June 10, 2021).

Police reports of the 2016 shooting described an altercation between the “owner” of the bar and a band member over the duration of the band’s performance. The police reports went on to say that the “manager” of the bar shot the band member and fled the scene. Both KHOU-TV and the Houston Chronicle published articles stating that the owner shot the band member. The KHOU-TV article also stated that the owner was taken into custody, while the police reports were silent on this matter. Status Lounge sued the media defendants for libel and business disparagement. Both outlets filed motions to dismiss under the TCPA.Continue Reading You Can’t Handle the (Substantial) Truth: Texas Court Sides with Media Defendants in Libel Case

New York has protected the rights of living persons to control the use of their name and likeness in commerce for over one hundred years. The existing right to privacy gives any person the right to sue for an injunction or damages if their name or likeness is used within New York for advertising or trade purposes without their written consent. See NY CRL § 51. These privacy rights dissipate at death. But starting in May of this year, New York’s new right of publicity statute will grant successors of certain individuals a right of publicity after death. This brings New York’s statute closer to that of California, which has recognized postmortem rights since 1985. The statute also grants new rights concerning the use of deepfakes in sexually manipulated content. More on that below.

The postmortem part of the statute protects only certain individuals who die as New York domiciles and only if they die after the statute goes into effect on May 29, 2021 (i.e., no retroactive effect). The rights that are granted last for 40 years after death and can be transferred by contract, license, trust, will, or another instrument. The bill differentiates between “performers” and “personalities.”Continue Reading New Yorkers Receive Postmortem Rights and Protection Against Digitization of Sexually Manipulated Content in New Right of Publicity Statute

A recent decision from a United States District Court in New York dismissing a defamation claim against cable television host and national correspondent Joy Reid provides a mixed bag of findings in the world of defamation lawsuits. The central issue in Roslyn La Liberte v. Joy Reid was whether the defendant, Reid, had defamed the plaintiff when she re-posted content about La Liberte on social media. Although the decision is generally a garden variety dismissal of defamation claims, the court also rejected the defendant’s Section 230 of the Communications Decency Act (CDA) defense and applied California’s anti-SLAPP statute to award Reid her attorneys’ fees and costs.

The posts at issue concerned a photograph of La Liberte, in which she appears to be shouting at a teenage boy. The photograph was taken at a city council meeting for a highly politicized senate bill, intended to limit local law enforcement’s cooperation with federal immigration authorities. A few days after the photo was taken, an activist named Alan Vargas tweeted the image and suggested that La Liberte was yelling: “You are going to be the first deported . . . dirty Mexican.” Reid re-tweeted the photograph on two separate occasions, first on social media along with the caption:

He showed up to rally to defend immigrants . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.

Continue Reading Take More Than a New York Minute Before You Re-Tweet

Lettuce Turnip the Beet: When puns are “functional”

In LTTB LLC v. Redbubble, Inc., plaintiff LTTB, an online apparel company, contended its success was “largely due to public fascination with its Lettuce Turnip the Beet trademark,” and alleged that defendant Redbubble’s sale of products featuring the phrase “Lettuce Turnip the Beet” infringed its mark, 18-cv-00509-RS. Redbubble, an online marketplace selling products made by independent artists, argued that LTTB was not entitled to preclude others from using the “Lettuce Turnip the Beet” pun absent any evidence of source confusion. On July 12, 2019, the Northern District of California issued its decision granting summary judgment in favor of defendant Redbubble, finding that LTTB did not have an exclusive right to sell products displaying the pun “Lettuce Turnip the Beet,” and that LTTB therefore did not have a viable trademark infringement claim.

The court’s decision turned on its application of the “aesthetic functionality doctrine,” a controversial trademark law principle unevenly applied by federal courts. See McCarthy on Trademarks and Unfair Competition § 7:80 (5th ed.). Under the aesthetic functionality doctrine, when goods are bought largely for their aesthetic value, their features may be functional – if a feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. See Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952). The issue in LTTB was whether LTTB had a viable infringement claim where the alleged infringing products merely displayed the pun “Lettuce Turnip the Beet” and did not otherwise include any indication that they were produced by LTTB. In other words, was the pun “Lettuce Turnip the Beet” a functional feature permitting imitation? The LTTB court explained that while the Ninth Circuit’s modern application of the “aesthetic functionality” doctrine has been more limited, the circumstances of the LTTB case “undeniably” called for the application of the aesthetic functionality doctrine.Continue Reading That’s So Punny! Trademark Rights in Puns and Wordplay

On June 24, 2019, the U.S. Supreme Court issued its highly anticipated opinion in Iancu v. Brunetti, holding that the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.

In 1990, Erik Brunetti, an artist and entrepreneur, founded the streetwear clothing line, FUCT (pronounced as four letters, one after the other: F-U-C-T).  Brunetti attempted to register the FUCT trademark in order to protect its value.  The U.S. Patent and Trademark Office (PTO) denied his application for registration, concluding that because it was phonetically equivalent to the “past participle” of “a well-known” vulgarity, registering the FUCT trademark would violate Section 1052(a) of the Lanham Act, which prohibits trademark protection for immoral, shocking, offensive, and scandalous marks.  After exhausting his remedies in the PTO, Brunetti brought a First Amendment challenge to Section 1052(a) in the Court of Appeals for the Federal Circuit.  That court invalidated the “immoral or scandalous” clause.  In a 6-3 opinion, the Supreme Court affirmed the Federal Circuit’s decision, holding that the prohibition of immoral or scandalous trademarks infringes the First Amendment because it disfavors certain ideas.  The Court’s majority opinion, joined by both liberal and conservative justices, made clear that the government cannot discriminate against “ideas that offend.” 
Continue Reading Supreme Court Strikes Down Prohibition of Registration of Immoral or Scandalous Trademarks on First Amendment Grounds