Copyrights and Trademarks

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On February 25, 2025, the United States Supreme Court held that plaintiffs who obtain a preliminary injunction are not eligible for attorney’s fees under 42 U.S.C. § 1988(b) because they do not qualify as “prevailing parties.” See Lackey v. Stinnie, 604 U.S. ___ (2025). Chief Justice Roberts, writing for the Court, explained that obtaining a preliminary injunction does not confer “prevailing party” status under § 1988. The Court reasoned that preliminary injunctions do not provide “enduring judicial relief on the merits.”

This case began in late 2018 when a group of Virginia drivers challenged a Virginia statute that permitted the Virginia Department of Motor Vehicles to suspend the licenses of individuals who failed to pay court fines. The drivers asserted that this statute violated both the Equal Protection Clause and the Due Process Clause “as applied to people who cannot afford to pay due to their modest financial circumstances.” The United States District Court for the District of Virginia granted the drivers a preliminary injunction in December 2018, thereby prohibiting the Virginia Department of Motor Vehicles from suspending licenses for failure to pay court fines.Continue Reading U.S. Supreme Court Decision Prohibits Plaintiff Recovery of Attorney’s Fees After a Preliminary Injunction Win

A recent en banc Federal Circuit decision overruled the unique test for obviousness of design patents and advised that the same analysis should apply to both utility patents and design patents. LKQ Corporation v. GM Global Technology Operations (LKQ). Courts had previously used the Rosen-Durling test in determining invalidity due to obviousness of design patents. The Federal Circuit’s decision overruled the Rosen-Durling test and instructs courts to instead apply the Supreme Court’s analysis in its KSR decision and utilize the Graham factors as they would with a utility patent when evaluating the obviousness of a design patent. This important en banc decision may cause uncertainty surrounding the application of the Graham factors to design patents and the enforcement of design patents generally.Continue Reading Federal Circuit Overrules Obviousness Test for Design Patents and Decades of Precedent

On February 6, 2024, in Philpot v. Independent Journal Review, the U.S. Court of Appeals for the Fourth Circuit issued a copyright fair use decision in a photograph infringement case that is noteworthy for a number of reasons. Those who plan to use photos based on a fair use defense should take heed of this decision.

In this case, photographer Larry Philpot sued news website Independent Journal Review for using Philpot’s photo of singer Ted Nugent in an online article. One of the more interesting facts here was that Philpot uploaded his photo to Wikimedia Commons, which is governed by a Creative Commons license requiring attribution. In other words, he simply required that users of his photo give him attribution, not pay him. Users could use Philpot’s photo free of charge, provided they included the following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.” Instead, Independent Journal Review hyperlinked to Mr. Nugent’s Wikipedia page, where the photo was featured.

Yet another noteworthy fact is that the photo apparently generated only approximately $2 or $3 in revenue for the Independent Journal Review.Continue Reading Fourth Circuit Hands Photographer a Clean Sweep Victory in Copyright Fair Use Appeal Over News Website’s Use of Free of Charge Photo

The U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is unlikely to shed much light on whether the use of copyrighted material in artificial intelligence (AI) content will lead to liability. The Court’s decision mandates that courts look to the “specific use” of the copyrighted material at issue when evaluating fair use under the Copyright Act. So, what specific factors should AI developers and users consider when using copyrighted content in the AI space post-Warhol?

The Copyright Act and Generative AI

Under the Copyright Act, copyright holders have the exclusive right to reproduce their work, prepare derivative works, distribute copies of the work, perform the work, and display the work publicly. In developing an AI system, programmers and companies can violate exclusive rights of copyright holders at two distinct points:

  • By using copyrighted material as an input to teach the AI software
  • By creating an unauthorized derivative output of the copyrighted work because of the AI application. The distinctions between inputs and outputs involving this space are detailed here and here.

Continue Reading How Will Use of Copyrighted Content in Artificial Intelligence Be Evaluated After the Supreme Court’s Warhol Decision?

Last week, the Supreme Court issued a long-awaited copyright fair use decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. In short, the Supreme Court looked at whether it was fair use under the copyright law for the Andy Warhol Foundation to license a print (known as Orange Prince) to Condé Nast when such print was based on a 1981 photo that photographer Lynn Goldsmith took of Prince in 1981. The 7-2 decision, featuring extremely sharp and contrasting views from common allies, Justice Sotomayor in the majority and Justice Kagan in the dissent, illustrates the complexities and murkiness of copyright fair use precedent. In the end, the majority held that Warhol’s Orange Prince did not constitute fair use of Goldsmith’s copyrighted photograph of Prince, based upon “the purpose and character of the use,” which is the first factor in the four-factor fair use test.

In sum, the fair use defense is a defense to a copyright infringement claim. There are four factors courts must consider, and each of the four need not be given equal weight, something that can make analyzing risk challenging. For years, relying on a fair use defense has been and, after this recent decision, will continue to be, very risky, and likely even more so than in the past. The factors are:Continue Reading The Supreme Court’s Warhol Ruling Makes Fair Use Defense Seem Even Riskier

The recent explosion in popularity of generative artificial intelligence (AI), such as ChatGPT, has sparked a legal debate over whether the works created by this technology should be afforded copyright protections. Despite that several lawsuits on the subject have been filed, and the U.S. Copyright Office has recently issued guidance clarifying its position, that the bounds of copyright protections for works created using AI are not yet clearly defined and many questions remain unanswered. For now, it appears that copyright eligibility for such works depends on the extent of human involvement in the creative process and whether any use of copyrighted work to generate a new work falls within the purview of the fair use doctrine.

The analysis of this issue has been framed around two key aspects of the technology itself: input data and output data. Input data are the pre-existing data that human users introduce into the AI system that the system then uses to generate new works. Output data are the works ultimately created by the system—the finished product. Thus, copyright eligibility for AI-generated or AI-assisted works depends on whether the AI system’s use of copyrighted works as input data is permissible and whether the output data is itself copyrightable.Continue Reading ChatGPT and the Rise of Generative Artificial Intelligence Spark Debate on Copyright Protections of AI-Generated Works

This article was also published in The Daily Journal.

The United States Court of Appeals for the Eleventh Circuit recently affirmed dismissal of a trademark infringement lawsuit against the producers of MTV Floribama Shore in MGFB Properties, Inc. v. Viacom Inc., 54 F.4th 670 (11th Cir. 2022) (the “Order”). The Court’s Order sought to strike a balance between the trademark protections of the Lanham Act and the artistic freedoms guaranteed by the First Amendment.

At the heart of the MGFB dispute were two words, “Flora-Bama” and “Floribama.” They refer to a popular beach area that borders the states of Florida and Alabama. “Flora-Bama” is a federal trademark registered by MGFB Properties, Inc. (MGFB). Order at 673. Together with Flora-Bama Management LLC and Flora-Bama Old S.A.L.T.S. Inc. (collectively, “Trademark Owners”), MGFB owns and operates a relatively well-known lounge on the Florida-Alabama border, the Flora-Bama Lounge, Package and Oyster Bar (“Lounge”). Id. at 672. “Floribama” is included in the title of a reality series, MTV Floribama Shore, developed and produced by 495 Productions Holdings LLC, 495 Productions Services LLC, and ViacomCBS Inc. (“Viacom”) (collectively, “Producers”) as a spin-off of their reality series, Jersey Shore. Id. In the spin-off, the Producers wanted to feature a subculture of “young [S]outhern folks” who spend time on the Gulf of Mexico, “extending from the Florida panhandle into Alabama and Mississippi.” Id. at 674.”Flora-Bama” Trademark Owners sued Floribama Shore Producers for trademark infringement and unfair competition under the Lanham Act and Florida statutory and common law. Id. at 676. The trial court granted summary judgment for the Producers on all claims, and Trademark Owners appealed. Id. at 677. The Eleventh Circuit affirmed the finding that MTV Floribama Shore passes the Rogers test. Id. at 683–84.Continue Reading Eleventh Circuit Affirms MTV Floribama Shore Does Not Infringe Flora-Bama Trademark

A federal district court judge in the Central District of California recently dismissed a choreographer’s claims against Epic Games Inc. (“Epic Games”) arising out of Epic Games’ alleged use of his dance moves in its Fortnite video game. See Kyle Hanagami v. Epic Games Inc., No. 22-cv-02063-SVW-MRW (C.D. Cal. Aug. 24, 2022) (Dkt. 45) (“the Order”).

As the Order explains, Fortnite features a virtual reality world where players can choose an avatar to represent them as they explore, build, and destroy structures, and battle each other in player-to-player combat. Fortnite players can customize their avatars by utilizing a variety of features, including “emotes,” which are dances that avatars perform while attending concerts or to celebrate a victory in a battle royale game, among other things. Choreographer Kyle Hanagami brought copyright infringement and unfair competition claims against Epic Games based on his allegations that one of Fortnite‘s nearly 500emotes incorporated a handful of dance moves from a five-minute routine he posted to YouTube in 2017 and obtained a copyright for in 2021.Continue Reading California District Court Holds Dance Moves in Fortnite Did Not Infringe Copyright

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

There is more demand for content than ever, and media and entertainment companies face a wide variety of challenges that come along with the increase in production and distribution of content. In-house and outside counsel for media and entertainment companies need a working knowledge of how to deal with insurance issues that arise in their business, including the types of insurance policies that may cover the legal risks they face, and how to navigate the issues that arise when dealing with insurers, such as selection of counsel, allocation between covered and uncovered claims, and who controls the settlement of a claim.
Continue Reading Join Us on July 14 for a Discussion on Entertainment and Media Liability Claims