Category: Trademark and Copyright
Clear ResultsIntellectual Property
AI Back in Court: MiniMax Studio’s “In your Pocket” Faces Hollywood Studios Copyright Infringement Claims
When an AI company markets its product as a "Hollywood studio in your pocket," it probably shouldn't be surprised when Hollywood lawyers come knocking. Such is the lot of MiniMax, a Shanghai-based tech company whose video and image generation platform, Hailuo AI, became the target of a joint copyright lawsuit filed by Disney, Universal, and Warner Bros. Discovery in a California federal court last fall. The studios' complaint alleges that Hailuo AI was built on a foundation of stolen intellectual property: that MiniMax scraped and trained its model on the studios' copyrighted films without permission, and that the resulting platform can generate eerily accurate, downloadable images and videos of characters like Darth Vader, Wonder Woman, and the Minions, all with MiniMax's own branding slapped on them, at the push of a button. The lawsuit raises two distinct types of copyright infringement claims. The first involves the AI's training: the argument that feeding a model copyrighted films without a license is itself an unauthorized reproduction of those works, regardless of what the model later produces. The second involves the AI's outputs: the finished videos and images that directly replicate protected characters. The studios also pursued a theory of contributory infringement, arguing that MiniMax didn't just passively enable infringement, but actively encouraged it. The company's own promotional materials featured generated clips of the studios' characters, and it sponsored tutorial videos walking users through how to produce content like "Spider-Man and Supergirl kissing in the park." On May 22, 2026, a federal judge denied MiniMax's motion to dismiss, rejecting both the company's claim that a U.S. court lacked authority over a Chinese defendant and its argument that the studios hadn't stated a viable legal claim. On the contributory infringement theory in particular, the court found the studios' allegations sufficient to proceed. The studios have framed the stakes in stark terms, warning that as generative AI advances, it's only a matter of time before these tools can produce full-length unauthorized films. While that outcome remains speculative, the core legal question the case will force courts to answer is concrete: can an AI company build a commercial product on copyrighted works it never licensed, and then profit from an output that reproduces those works on demand? If the studios prevail, the answer will reshape how AI developers approach content licensing and what rights holders can expect in return. For now, MiniMax's motion to dismiss has been denied, the parties are headed toward discovery, and the "Hollywood studio in your pocket" is facing the real Hollywood in court.
June 22, 2026
Intellectual Property
Trademark Office Actions Explained: Why They Feel Random Yet Aren't
For many in-house legal teams, the most frustrating part of the trademark registration process is the Office Action. A trademark application is filed after discussions with marketing, business leaders, and outside counsel. Clearance (hopefully) were conducted. Filing strategies were approved. Then, after months of silence, a letter arrives from the U.S. Patent and Trademark Office raising objections that can feel technical, unexpected, or disconnected from how the brand actually operates in the marketplace. The reaction is often the same: Why is this happening? Why now? Didn't we already do the work to avoid this? From the applicant's perspective, Office Actions can appear arbitrary. Yet from the USPTO's perspective, trademark examination is one of the most structured parts of the registration process. What feels random to applicants is usually the result of a defined review process applied to imperfect information. Understanding that process can help in-house counsel manage expectations, communicate more effectively with business stakeholders, and make better strategic decisions when issues arise. Why Office Actions Feel Arbitrary Part of the frustration stems from timing. Trademark applications often sit for several months before they are assigned to an examining attorney. During that period, the business has usually moved on. Marketing campaigns may already be underway. Product launches may be approaching. Internal teams assume that no news is good news. Then the Office Action arrives. Because of the delay, the refusal often feels disconnected from the decisions that led to the filing. The individuals who selected the mark may no longer remember the details of the clearance process. New stakeholders may question why the issue was not identified earlier. Budget assumptions may have been based on the expectation of a straightforward registration. The substance of the refusal can compound the confusion. A likelihood of confusion refusal may compare two marks that, from a commercial perspective, seem entirely different. A descriptiveness refusal may target a name that the marketing department considers highly creative. Technical objections regarding identifications of goods and services may appear to focus on wording rather than the underlying business reality. To business teams, these objections can seem detached from common sense. In reality, they reflect the fact that trademark examination occurs within a specific legal framework that prioritizes the contents of the application record over marketplace nuance. How Examining Attorneys Actually Review Applications Trademark examiners do not begin with the applicant's business strategy. They do not evaluate whether the mark was expensive to develop or whether substantial resources have already been invested in a launch. Trademark examiners review applications using a structured analytical process. The examining attorney assesses the mark as filed. They review the identified goods and services. They compare the application against existing registrations and pending applications. They evaluate whether the mark is merely descriptive, generic, deceptively misdescriptive, or otherwise barred from registration under the Trademark Act. They also confirm that the application satisfies various procedural and technical requirements. The examination is therefore limited by the record before the USPTO. Examining attorneys generally do not investigate how the applicant actually uses the mark beyond what is reflected in the application and supporting materials. They do not independently explore the applicant's target consumers, brand architecture, or commercial objectives. They do not assess whether business stakeholders believe confusion is unlikely in practice. Their role is narrower. They apply statutory standards and USPTO guidance to the application as presented. They live in the “Trademark Manual of Examining Procedure.” For in-house counsel, this distinction is important because it highlights how early filing decisions can significantly influence later outcomes. Choices regarding the wording of identifications, the breadth of claimed goods and services, the quality of specimens, and the evidence included in the record can all shape the examination process months later. The Most Common Triggers for Office Actions Although Office Actions often feel unpredictable, most fall into a relatively small number of recurring categories. Likelihood of confusion refusals under Section 2(d) remain among the most common. These refusals frequently arise because the trademark register is increasingly crowded. Even marks that appear distinguishable from a branding perspective may encounter issues when similar marks cover overlapping goods or services. Broad identifications can exacerbate this problem. When an application claims expansive categories of goods or services, the examining attorney must assume that the applicant intends to operate throughout the full scope of those descriptions. This can create conflicts that might not exist if the identification more accurately reflected the applicant's actual business activities. Descriptiveness refusals under Section 2(e)(1) also occur regularly. Marketing teams often gravitate toward names that immediately communicate product attributes or benefits. From a branding perspective, these choices can be compelling because they convey information efficiently. From a trademark perspective, however, they may raise concerns regarding whether the proposed mark merely describes the identified goods or services. Specimen refusals represent another common category. These frequently stem from timing pressures associated with filing. Businesses eager to secure rights may submit materials that do not clearly demonstrate trademark use, or that fail to associate the mark with the relevant goods or services in the manner required by the USPTO. In many cases, these Office Actions do not reflect unusual circumstances or examiner idiosyncrasies. Rather, they are predictable outcomes resulting from how the application was prepared and supported. How to Respond Without Overreacting Receiving an Office Action should not automatically trigger an alarm. Some Office Actions are largely procedural. Amendments to identifications of goods and services, disclaimer requirements, and requests for clarification can often be resolved efficiently without materially affecting the scope of protection sought. Others require more substantive analysis. A likelihood of confusion refusal may warrant consideration of arguments distinguishing the marks, amendments narrowing the identification, coexistence discussions with third parties, or reassessment of the filing strategy. Descriptiveness refusals may prompt evaluation of acquired distinctiveness claims, supplemental registration options, or broader branding considerations. The critical task for in-house counsel is distinguishing between issues that genuinely threaten the viability of the brand and those that simply require thoughtful adjustment. Treating every Office Action as a crisis can create unnecessary friction with business stakeholders and increase legal costs. Conversely, minimizing significant refusals may expose the organization to avoidable risk. A measured approach grounded in an understanding of the examination process allows legal teams to calibrate their responses appropriately. What This Means for In-House Oversight Office Actions should not be viewed solely as obstacles or evidence that something has gone wrong. In many respects, they function as feedback mechanisms. They identify areas where the application record can be improved, where filing assumptions may warrant reconsideration, or where the realities of the trademark landscape impose limitations that were not fully appreciated at the outset. For in-house counsel, this perspective shift can be valuable. Understanding how examining attorneys evaluate applications enables legal teams to set more realistic expectations with marketing and executive leadership. It encourages more deliberate decision-making during the application stage. It also facilitates more productive conversations with outside counsel regarding risk tolerance, filing strategies, and response options. Perhaps most importantly, it reduces the perception that the USPTO operates unpredictably. Trademark examination is not random. It is systematic. But it is a system that relies heavily on the quality and precision of the information provided to it. When businesses recognize that dynamic, Office Actions become easier to understand and manage. They cease to be viewed as unexpected disruptions and instead become part of a broader process aimed at defining the scope of protectable rights. That understanding does not eliminate frustration. Delays will still occur. Disagreements with examining attorneys will remain inevitable. Difficult strategic decisions will still arise. But it does replace uncertainty with context. And for in-house teams responsible for guiding brands through increasingly complex trademark portfolios, that context can make all the difference.
June 15, 2026
Intellectual Property
Prelaunch Trademark Risk: What In‑House Counsel Should Address Before Product Launch
Most trademark problems do not begin with a refusal from the USPTO or a cease-and-desist letter from a competitor. They begin much earlier during product development and brand naming, often before legal is meaningfully involved. For in-house counsel, pre-launch trademark risk is less about technical doctrine and more about process. Decisions made under time constraints, reliance on incomplete clearance signals, selection of legally weak brands, and launching without a filing strategy all narrow options later and increase the cost of correction. The companies that encounter the most difficult trademark issues are rarely careless. They move quickly, assume issues can be addressed later and underestimate how much momentum limits flexibility once a product is public. This article outlines the most common pre-launch trademark mistakes and explains how in-house counsel can reduce risk without slowing down the business. Trademark Risk Begins Before Legal Engagement Most trademark issues do not originate with the USPTO. They originate months earlier, often before an application is filed and before legal is formally engaged. From an in-house perspective, this distinction matters. When disputes, launch delays, or rebrands arise, the underlying issue is rarely legal uncertainty. More often, it is the result of early decisions made quickly and without a clear understanding of how difficult it will be to unwind later. Product launches compress timelines and concentrate risk. Naming decisions intersect with marketing, product design, domain strategy, packaging, investor communications, and customer-facing materials. Once those elements begin to align around a particular name, even modest legal concerns can feel disruptive rather than protective. By the time a trademark issue surfaces, legal’s role often shifts from risk management to damage control. The objective of pre-launch trademark oversight is not to prevent launches. It is to ensure that risk is identified early enough that the business still has meaningful choices. Naming Is a Business Decision with Legal Consequences Brand naming is often treated as a creative exercise. Teams generate options under tight timelines. Internal alignment forms quickly around a preferred name. That name begins appearing in materials across the organization. By the time legal is consulted, the decision may feel effectively final. The risk is not creativity. It is commitment before clearance. From an in-house standpoint, the most effective intervention is not controlling the naming process but setting expectations. No name is final until trademark risk has been evaluated. That evaluation does not always need to be exhaustive. In many cases, a high-level assessment is sufficient to identify obvious conflicts or structural weaknesses. When legal review is positioned as a standard step rather than an exception, teams are less likely to treat it as an obstacle. Over time, this reframes trademark review as part of launch planning, not a last-minute hurdle. Superficial Clearance Signals Create False Confidence Teams often rely on informal indicators to assess trademark risk, especially under time limitations: a domain is available, a state entity search is clean, a quick internet search shows no obvious conflicts. These signals can create a strong sense of comfort. The problem is that trademark risk does not turn on identical names or identical industries. It turns on the likelihood of confusion, a fact-specific analysis that considers the relationship between goods or services, channels of trade, and overall commercial impression. Those considerations rarely surface through informal searches. From a general counsel perspective, the issue is not that teams perform preliminary checks. It is when those checks are treated as conclusions rather than inputs. When “nothing obvious came up” becomes “this is safe,” the business begins investing in a name based on assumptions that may not hold. Early legal review recalibrates that assumption. It identifies where uncertainty exists and provides context for evaluating risk before additional resources are committed. Clearance Does Not Equal Strength Even when a name clears existing rights, it may still be a poor trademark. Descriptive or highly suggestive names are often attractive because they communicate product features quickly. From a legal standpoint, however, these marks tend to offer limited exclusivity and are more difficult to enforce. This distinction is often overlooked. Many weak marks can be registered. Registration alone does not ensure meaningful protection. In-house counsel plays an important role in distinguishing between registrability and strength. A mark that technically clears may still leave the company exposed to competitors operating nearby in the market. Over time, that exposure can lead to inconsistent enforcement and frustration when legal remedies do not align with business expectations. Framing trademarks as strategic assets rather than filing exercises helps align naming decisions with long-term differentiation. Launching Without a Filing Strategy Narrows Options Speed to market is a legitimate business priority. So is trademark priority. Companies often launch products without deciding which marks warrant protection, how consistently the brand will be used, or how it may expand across products, services or jurisdictions. In some cases, filing decisions are deferred simply because they have not been considered. Once public use begins, options narrow. Changes become more visible and course correction becomes more difficult. Strategy becomes reactive rather than intentional. From an in-house perspective, early planning does not need to be complex. Even a limited pre-launch discussion can clarify key questions: Which names are central to the business, and which are experimental? Is the mark likely to expand beyond a single product? Are international markets realistically in scope? Addressing these questions early preserves flexibility for enforcement, expansion and future transactions. “We’ll Fix It Later” Is Rarely a Strategy A common assumption is that trademark issues can be addressed after launch. Sometimes they can. Often, they cannot. Rebrands are expensive. Enforcement leverage weakens over time. International expansion frequently exposes conflicts that were not apparent at launch. What initially appears to be a manageable legal issue can become a broader commercial problem. By the time the issue is clear, the available options are typically narrower and more costly. Legal solutions may feel misaligned with business momentum. In-house counsel does not need to control naming decisions. They do need to normalize early involvement, set expectations around clearance, and ensure that trademark decisions align with long-term business objectives. Trademark Risk Is a Process Issue Most preventable trademark risks arise before legal engagement. It stems from timing, assumptions, and informal decision-making, not from misunderstanding the law. For general counsel, the opportunity lies in process. Clear expectations around when legal is consulted, how preliminary clearance is interpreted, and when filing strategy is addressed can significantly reduce risk without slowing the business. When trademark considerations are integrated into launch planning early, legal’s role shifts from reacting to problems to shaping outcomes. That shift preserves flexibility, reduces surprises, and allows trademark protection to support business growth. The objective is not perfection. It is awareness, alignment, and control at the point when decisions are still flexible.
May 14, 2026
Trademark and Copyright
“Alright, Alright, Alright,” — Taylor’s Version. Taylor Swift follows Matthew McConnaughey’s Novel Approach to Using Trademark Rights to Enforce Against AI Impersonation
Ever eager to retain control over her masters and ensure that she “never goes out of style,” Taylor Swift is the latest public figure looking toward registration of sensory trademarks to protect her name and likeness in a roundabout way. On April 24, 2026, Taylor Swift's company, TAS Rights Management, filed three trademark applications with the U.S. Patent and Trademark Office: two "sound marks" capturing her spoken voice (which include the language "Hey, it's Taylor" and "Hey, it's Taylor Swift") and one design mark consisting of a photograph of Swift performing onstage during The Eras Tour. This echoes our prior writing regarding similar applications filed by the actor, Matthew McConnaughey, as Swift’s applications represent the latest in a growing movement of public figures attempting to use trademark rights to protect their names and likenesses — most likely due to the increasing accessibility of AI technology, which can impersonate such figures. While sound marks have historically been used to protect iconic brand audio cues, like Netflix's "tu-dum", the MGM lion roar, or NBC's chimes, these public figures have attempted to apply the same framework for their spoken voices and image. This genuinely novel use of trademark law is as-of-yet untested, and Swift's motivation here is not hard to read, as her likeness has been used without permission in numerous AI-generated fakes, including by Meta's AI chatbots, in non-consensual pornographic images, and in false political endorsements shared during the 2024 presidential election. The legal theory underlying these filings is novel and creative precisely because existing law was never designed for this purpose. Under current U.S. law, a musician's recorded performances are protected by copyright law, while the unauthorized commercial exploitation of a person's name or likeness is addressed by state-level right-of-publicity statutes. Individual states, including New York and California, have right-of-publicity laws that prevent unauthorized commercial use of a person's name, image, and likeness (“NIL”), but trademark infringement claims can be filed in federal court, making them a potentially more powerful deterrent as those cases apply nationwide and are not dependent on individual states’ differing enforceability limitations. Most importantly, trademark enforcement doesn't just stop identical uses as copyright enforcement does. Rather, trademark enforcement is designed to protect a rights owner against anything "confusingly similar" to a registered mark. This is a meaningfully broader standard that could reach AI-generated content that approximates, but doesn't exactly replicate Swift's voice or appearance. Trademark claims also enhance the ability to obtain emergency injunctive relief and to recover damages against AI platforms themselves. However, these applications face an unsure road to registration. Trademark protection traditionally requires that the mark function as a source identifier (i.e., signaling to consumers the origin of a product or service) and it is far from settled whether a person's voice or image satisfies this standard. Historically, trademarks are not designed to protect an individual's general likeness, voice, or persona. Swift's filings may be best understood as a deliberate effort to layer additional federal remedies on top of existing right-of-publicity and copyright protections rather than a “cure-all” to the elusive offense of AI impersonation, the scale and sophistication of which is not subject to a single body of law. Whether these applications ultimately succeed, they reflect a broader and accelerating trend: public figures and their counsel actively searching for any available legal structure to fill the enforcement gap that generative AI has created. It is clear that Swift believes that she will continue to Party Like It's 1989™. image credit SockaGPhoto - stock.adobe.com
May 11, 2026
Trademark and Copyright
AI Copyright Litigation Continues as NVIDIA Training Data Case Moves Forward
A ruling earlier this month by Judge Jon S. Tigar in Nazemian et al. v. NVIDIA Corp., No. 4:24 cv 01454 JST (N.D. Cal. filed Mar. 8, 2024), declining to dismiss key claims in the case following NVIDIA’s motion to throw out portions of the complaint, signals that courts continue to be reluctant to resolve copyright disputes concerning AI training and outputs at the pleading stage. The ongoing class action against NVIDIA demonstrates why disputes over AI training data sourcing will continue to shape copyright doctrine well beyond the first wave of generative AI cases. In Nazemian a class of authors, including Abdi Nazemian, Brian Keene, Stewart O’Nan, Susan Orlean, and Andre Dubus III, allege that Nvidia violated the Copyright Act by copying and storing unauthorized digital copies of their books to train its NeMo Megatron large language models, asserting claims for direct infringement, contributory and vicarious infringement, statutory damages, and injunctive relief. They also make claims under the Digital Millennium Copyright Act, alleging removal of copyright management information. Central to the case are the plaintiffs’ allegations that NVIDIA’s training datasets incorporated pirated works sourced from “shadow libraries,” including Books3 (derived from Bibliotik), The Pile, SlimPajama, and Anna’s Archive, each of which allegedly contain massive numbers of unauthorized copies of copyrighted books. Unlike earlier AI disputes that focused on whether model outputs were substantially similar to copyrighted works, the Nazemian action frames infringement as complete at the point of copying of the inputs into the model when works were allegedly downloaded and retained, regardless of whether subsequent model training is transformative. In allowing the direct infringement and related claims to proceed, the court made clear that fair use presents a mixed question of law and fact not suited for resolution on a Rule 12(b)(6) motion, particularly where the provenance, scope, and scale of the copied materials remain disputed. The ruling ensured that NVIDIA would not obtain an early exit from the litigation and underscored that allegations of unlawful data acquisition alone can carry a complaint past the pleading stage. The Nazemian litigation sits within an expanding ecosystem of AI copyright cases, which at present comprises more than 50 such actions pending in U.S. federal courts, including actions involving Meta Platforms, Anthropic, and OpenAI. While recent fair‑use rulings have not stemmed the AI litigation tide, the legal discussion has shifted from abstract debates about innovation policy to examinations of data sourcing, internal decision‑making, and statutory compliance. Even as courts acknowledge that AI training may satisfy the “transformative use” inquiry, they continue to treat market harm, licensing markets, and unlawful acquisition as fact‑dependent questions. It appears that so long as AI developers rely on massive training data sets and courts remain skeptical of practices involving pirated or unlicensed sources, copyright litigation over AI training models will continue to pervade.
May 4, 2026
Intellectual Property
Knowing Isn’t Enough: The Supreme Court Redefines ISP Liability for Piracy
When users pirate music, movies, or other creative works online, the internet service provider (“ISP”) supplying their connection may know more than you might think. Companies like Cox Communications receive thousands of automated notices identifying exactly which subscriber accounts are associated with illegal downloading — in Cox’s case, such notices accrued over a period of two years. In Cox Communications v. Sony Music Entertainment, decided March 25, 2026, the Supreme Court confronted a deceptively simple question: if an ISP knows a subscriber is using its service to steal copyrighted content and keeps providing that service anyway, is the ISP itself liable? A jury of the lower court said “yes,” issuing relief to the tune of roughly $1 billion. The Supreme Court has now unanimously reversed the jury’s decision, although the Justices aren’t in agreement with respect to their rationale and extent. Writing for the majority, Justice Thomas held that an ISP can only be liable for contributing to its users' infringement if it intended that the provided service be used for infringement, particularly in two narrow circumstances: 1) if the ISP actively encouraged the illegal activity, or 2) if the service itself was essentially designed for piracy. The Court found that Cox never promoted piracy and, in fact, issued warnings to and suspended infringing accounts. The majority made clear that simply knowing about infringement and failing to cut off service to every potential infringing account (and, indeed, the record suggests that Cox did not know with total particularity which accounts engaged in infringement) is not enough. Justice Sotomayor, concurring, agreed Cox was not liable but warned that the majority had gone too far in strictly defining only two theories of “intent.” She argued that the ruling diminishes the DMCA safe harbor, which was specifically designed to give ISPs an incentive to crack down on repeat infringers in exchange for legal protection. If ISPs can't be held liable regardless of the very strictly defined theories of intent, that no longer has material effect. Justice Jackson joined Justice Sotomayor in her concurrence. For technology providers, implementing procedures to warn against infringement, and even taking action such as suspending service, may successfully ward off secondary liability. For copyright holders, particularly in the music, film, and entertainment industries, this decision has the potential to present a significant setback for IP enforcement, as avenues for pressuring ISPs to police their networks have been substantially narrowed. Going forward, rights holders may need to focus enforcement efforts more directly on individual infringers or on platforms that actively facilitate piracy, rather than on the companies providing the underlying internet connections. While the decision is a major win for ISPs, the Sotomayor concurrence reasoning could signal that future litigation (or future legislation) may set new standards.
April 27, 2026
Intellectual Property
Spring Cleaning Your Trademark Portfolio: A Plain-English Guide for In-House Teams
Most companies accumulate trademark assets gradually and unevenly. New products are launched, old brands linger, and registrations are filed opportunistically rather than strategically. Over time, the portfolio reflects history more than the current business. For in-house counsel, this creates a familiar challenge. The company technically owns trademark rights, but it is often unclear which marks still matter, which are vulnerable, and which quietly create risk. A portfolio that appears “complete” on paper can hide gaps, inconsistencies, and inefficiencies that surface at the worst possible moment: during enforcement, diligence, licensing, or an international expansion. Spring provides a useful opportunity to take stock. The goal is not to rebuild the portfolio from scratch; it is to bring it back into alignment with how the business actually operates. This kind of annual review helps ensure that legal protection supports the company’s current operations and future plans rather than merely documenting past decisions. Do Your Core Marks Still Reflect Actual Use Trademark rights are tied to use, not intention. Branding evolves. Logos are refreshed, taglines change, and product names drift. Registrations often lag behind these shifts. The risk is not that branding has evolved. The risk is relying on registrations that no longer reflect what customers actually see in the market. When a registration does not match current usage, enforcement becomes more difficult, and internal teams may assume protection exists where it is uncertain. A basic review should confirm that the most important marks are being used in substantially the same form as registered. It should also check that the listed goods or services accurately describe the current business. Marks that are materially altered, extended beyond their registered scope, or used in ways not captured by the registration require attention. This step turns trademark oversight into a practical, operational exercise rather than a purely administrative task. Which Marks Are Still Worth Keeping Many portfolios contain registrations for discontinued products, legacy brands, or marks that were filed defensively and then forgotten. Every registration carries cost and maintenance obligations. Beyond the expense, unused or marginal marks can complicate enforcement strategy and raise questions during due diligence or audits. Spring cleaning is an opportunity to categorize the portfolio. Identify which marks are core to current business operations, which are legacy or historical, and which can be allowed to lapse without meaningful risk. This process helps focus resources where they matter most and avoids creating confusion for internal teams or third parties. Marks that are no longer strategically relevant can be retired deliberately, reducing administrative burden and clarifying enforcement priorities. Where Are the Coverage Gaps Business growth almost inevitably creates gaps. New products are launched under existing brands, services expand beyond their original scope, and companies enter new jurisdictions without confirming local protection. Gaps often remain invisible until a triggering event, such as a competitor conflict, a transaction, or an international rollout brings them to light. For in-house counsel, the goal is not to eliminate every potential gap. It is to understand where gaps exist, evaluate their significance, and determine whether they matter given near-term business plans. Some gaps may be acceptable if they pose minimal risk in the short term, while others require immediate action to preserve enforceable rights. Early awareness allows counsel to advise the business proactively rather than reacting to surprises later. Is Internal Usage Undermining Your Rights Even strong registrations lose value when internal usage is inconsistent. Teams may shorten, alter, or combine marks with other terms. Brand names are sometimes used as nouns or verbs. Third parties within the company or among partners may be permitted to use marks without clear guidance. None of this creates immediate failure. Over time, however, inconsistent or uncontrolled use can weaken distinctiveness and enforcement posture. Marks lose their legal strength if they are not used deliberately and consistently. A portfolio review should include a high-level assessment of whether the company is applying its most important marks intentionally, across products, marketing materials, packaging, digital channels, and communications. Ensuring consistent internal usage is often as important as confirming the technical legal status of the registration. Would the Portfolio Make Sense to a Third Party A useful thought experiment is to imagine a buyer, lender, or auditor reviewing the portfolio for the first time. Would the portfolio tell a coherent story about the business or raise questions that require explanation? Would the marks, filings, and strategic choices make sense in the context of current operations and future plans? Spring cleaning is less about perfection and more about narrative. A portfolio that clearly reflects current operations and priorities is easier to defend, easier to budget, and easier to explain in high-stakes settings. It signals to third parties that the company manages its brand assets deliberately, maintains consistent internal practices, and aligns legal protection with business strategy. For in-house counsel, this type of review does not require specialized trademark expertise. It requires judgment, prioritization, and coordination with business teams. Done annually, it reduces surprise risk, strengthens enforcement leverage, and makes downstream trademark decisions easier. It also provides a documented rationale for why certain marks are maintained, altered, or allowed to lapse, which can be invaluable during diligence, licensing, or strategic planning. Turning Review into Action The value of a portfolio review lies in translating findings into actionable steps. Examples of typical follow-up actions include: Confirming continued use and alignment of core marks with registrations Retiring or abandoning legacy marks that no longer support the business Flagging gaps that could affect new products, services, or international expansion Providing clear internal guidelines for consistent usage and escalation Prioritizing filings for marks that require additional protection or international coverage This does not need to be complicated. Even a lightweight process ensures that legal and business teams share the same understanding of which marks are critical, which are optional, and which require attention in the coming year. A Strategic Perspective for General Counsel Most general counsel do not need to manage every registration or conduct searches themselves. They do need to understand where risk accumulates quietly and intervene before it becomes material. Annual portfolio reviews place trademark oversight in a strategic context rather than a reactive one. They provide clarity on enforcement priorities, highlight potential risks, and align the portfolio with the company’s current business objectives. A clean, well-aligned portfolio preserves flexibility. It makes enforcement more straightforward, supports licensing and expansion, and provides confidence in transactions or audits. By establishing a structured, annual review process, general counsel will ensure that trademark assets function as living business tools rather than static records of past filings. The Objective of Spring Cleaning The objective is not perfection; it is awareness, alignment, and control. It is ensuring that the portfolio accurately reflects the business, highlights strategic priorities, and allows legal protection to support, not hinder operations and growth. When conducted annually, spring cleaning transforms the trademark portfolio from a collection of filings into a coherent, actionable asset that contributes to the company’s long-term value.
April 13, 2026
Intellectual Property
USPTO Issues Final Rule Requiring U.S.-Registered Patent Practitioner Representation for Foreign Applicants and Patent Owners
The United States Patent and Trademark Office (USPTO) has issued a Final Rule, published March 20, 2026, requiring all foreign-domiciled patent applicants, inventors, and patent owners to be represented by a U.S.-registered patent attorney (a lawyer who has passed the patent bar exam) or patent agent (a non-lawyer who has passed the patent bar exam) for all submissions made to the Office. U.S.-domiciled applicants, inventors, and patent owners may still proceed pro se. Beginning July 20, 2026, the USPTO will enforce a major procedural change that affects any patent application listing even one inventor, applicant, or owner whose domicile is outside the United States. If any named party is foreign-domiciled — even if others are U.S.-based — the entire application will now require representation by a U.S.-registered patent attorney or patent agent. Foreign law firms and companies with global R&D teams, cross-border collaborations, foreign subsidiaries, international research fellows, or joint development partners must ensure that a registered U.S. practitioner is engaged from the start. Many organizations will be surprised to learn that “foreign” is defined not by citizenship, but by where an inventor or entity legally resides or operates their principal place of business. A single foreign-domiciled contributor on a project can trigger the new representation requirement. The rule is designed to curb fraud, increase filing accuracy, and harmonize U.S. practice with nearly all major foreign patent offices — and it represents one of the most significant shifts in U.S. patent procedure in a decade. It parallels (but is distinct from) the USPTO’s 2019 trademark rule requiring U.S. counsel for foreign trademark applicants, reflecting a broader USPTO effort to reduce fraudulent pro se filings and strengthen enforcement. Key Features of the Final Rule Mandatory U.S.-Registered Practitioner Representation Foreign-domiciled applicants and owners, defined by domicile rather than citizenship, must be represented by a registered practitioner in good standing before the USPTO. Domicile includes a natural person’s permanent legal residence and a juristic entity’s principal place of business. The requirement applies broadly to new applications as well as to amendments, Information Disclosure Statement (IDS) submissions, Application Data Sheet (ADS) filings, petitions, priority and benefit claims, and micro-entity certifications. Only registered practitioners who have passed the USPTO examination may represent others in patent matters. Filing Date vs. Substantive Requirements A foreign-domiciled inventor may still obtain a filing date without practitioner representation, but key components of the application, such as priority claims, ADS information, micro-entity filings, and other required papers, will not be accepted until a U.S. practitioner is appointed. This creates an important procedural distinction between patent and trademark practice. Enforcement Mechanisms The USPTO will enforce the rule through several mechanisms. Unsigned or improperly signed filings will not be entered into the record, and the Office may issue Notices of Non-Compliant Representation requiring the applicant to appoint a practitioner within a specified period. Fraud mitigation is a central driver of the rule, as requiring registered practitioners allows the USPTO to pursue misconduct even if an application is later abandoned. Efficiency and Resource Allocation The rule also reflects a focus on efficiency and resource allocation. By reducing the number of procedurally defective filings submitted by foreign pro se applicants, the USPTO aims to decrease the examiner time spent correcting errors and to lessen the burden on the Office of Patent Application Processing. Why the USPTO Implemented This Rule The USPTO has identified several reasons for implementing this change. First, the rule promotes global harmonization, as most major intellectual property offices, including those in Europe, Japan, China, and Korea, already require foreign applicants to be represented by locally authorized practitioners. Second, it addresses a growing trend of fraud and misrepresentation, including false micro-entity certifications, inaccurate inventor or owner listings, and filings submitted through unregulated intermediaries overseas. Because registered practitioners are subject to ethical rules, reporting obligations, and disciplinary oversight, the USPTO gains enforcement leverage that is not available when dealing with foreign pro se filers. Third, the rule is intended to improve accuracy and efficiency, as pro se filings often require correction, clarification, or substantial examiner intervention, and representation at the outset improves application quality and reduces delays. Comparison With the 2019 USPTO Trademark Counsel Rule The USPTO’s 2026 patent rule closely mirrors the 2019 trademark counsel requirement in purpose, as both are designed to reduce fraudulent filings, improve compliance with U.S. legal and procedural standards, ensure accuracy in submissions, and eliminate foreign pro se participation. However, the rules diverge in key ways. The trademark rule requires representation by a U.S.-licensed attorney (though, as a practical matter, it remains advisable to engage counsel with meaningful trademark experience), while the patent rule imposes a more specialized requirement of a USPTO-registered patent attorney or agent. They also differ procedurally: trademark applications generally will not be accepted without proper counsel, whereas patent applications may still receive a filing date but will be considered incomplete until compliant representation is secured. The scope of who qualifies as “foreign” is broader in the patent context, applying if any applicant, inventor, or owner is foreign-domiciled, compared to trademarks, which focus on the domicile of the owner alone. Finally, while both rules address fraud, the patent rule more directly targets specific abuses, such as false micro-entity claims, improper priority assertions, and fraudulent correspondence filings, reflecting a documented rise in these issues in foreign-originating applications. Practical Implications for Foreign Applicants and Patent Owners Foreign-domiciled individuals and entities should take proactive steps to ensure compliance. They should retain a U.S.-registered patent practitioner as early as possible, particularly if they plan to file U.S. patent applications in or after July 2026. They should also review existing portfolios for upcoming deadlines that will require practitioner signatures, ensure that ADS filings, micro-entity certifications, petitions, and follow-on submissions are properly executed by a registered practitioner, and anticipate USPTO notices requiring representation in applications that were filed before the rule’s effective date.
April 6, 2026
Intellectual Property
Beckham v Beckham: The Legal Anatomy of a Very Public Breakdown
If HBO’s writer’s room is looking for its next prestige drama, then they should look no further than the Brooklyn family feud. Brooklyn Beckham, the first son of David and Victoria Beckham, took to his Instagram story to unleash a set of accusations against his family, including allegations of interference with his marriage to Nicola Peltz and “Brand Beckham” priorities. These statements intensified an already rumored family rift dating back to wedding-related disputes. But the most commercially significant feature of this story is not interpersonal conflict; it is that the conflict is playing out inside a high-value brand ecosystem, creating a multijurisdictional intellectual property battle. Once such allegations are made to millions of followers, the situation stops being purely private: it becomes an enterprise risk event that is capable of triggering contractual defaults, insurance notifications, and formal legal positioning, even if nobody wants to ever walk into a courtroom. Viewed through a legal lens, the dispute quickly breaks into several distinct areas of exposure. Defamation Risk (and why wording matters) When accusations are aired on social media, lawyers immediately ask: fact or opinion? Statements framed as verifiable facts that harm reputation can trigger defamation claims, especially when a reputation is also a revenue stream. When endorsements and licensing deals are involved, reputational harm can quickly morph into business tort exposure. “Rights to My Name”: Trademarks as Leverage Brooklyn’s reported complaint that he was pressured to sign away rights to his name pulls the dispute squarely into trademark law. Public reporting suggests the Beckhams registered their children’s names as trademarks while they were minors, with renewals now looming. That matters because whoever controls the mark controls licensing, commercial use, and has negotiation leverage in a family fallout. Contracts, Endorsements, and Morals Clauses Public drama makes brand partners nervous. Endorsement and licensing agreements often include morality clauses, non-disparagement language, and notice requirements. Once a controversy breaks, counterparties will quietly check whether they have termination rights, or at least a reason to renegotiate. Non-Disparagement and Confidentiality in Family Businesses Family empires often run through layers of companies and agreements. If any family members are contractually bound by confidentiality or non-disparagement provisions, public statements can create legal headaches. Enforcement is tricky, though. Injunctions risk free-speech pushback or loss of goodwill, damages are hard to quantify, and over-lawyering can amplify the story instead of burying it. Cease-and-Desist Letters: The First Legal Chess Move Some outlets report that lawyers got involved. From a litigator’s perspective, early correspondence matters: non-privileged pre-litigation letters can become evidence, admissions can haunt later filings, and privilege only protects communications handled carefully. A cease-and-desist letter is more about positioning than the endgame. Media Control, Privacy, and Narrative Wars Complaints about “media manipulation” raise different legal questions depending on jurisdiction. In the UK, privacy and misuse-of-private-information claims loom larger; in the US, privacy torts vary wildly by state. Fame doesn’t erase rights, but it does complicate them. Brand Custodianship and Fiduciary-Adjacent Issues When parents hold intellectual property rights for children, especially through guardian or trust structures, disputes can trigger questions that sound a lot like fiduciary duties: who controlled the asset, who benefited, and whether transitions to adulthood were properly documented. Who’s Authorized to Speak? PR teams, agents, managers, and family members often operate under overlapping authority. When statements fly, lawyers look at who approved what, whether anyone exceeded their mandate, and whether internal PR or confidentiality protocols were breached. In conclusion, Brooklyn’s private grievances should trigger public company-level risk management. The Beckham name is a business after all, and Brooklyn’s public breakdown is risky for the business. Beckham v Beckham is a battle for control. For anyone operating inside a family enterprise or personal brand, the warning is clear: adequate governance, contracts, and IP planning prepare your brand for when that Instagram statement goes live.
February 13, 2026
Trademark and Copyright
Trademarks 101 for In-House Counsel: What Actually Deserves Your Attention Each Year
Most general counsel did not build their careers expecting to spend meaningful time on trademarks. They are rarely the reason a deal closes, a lawsuit settles or a quarter hits its numbers. And yet for many companies, trademarks become one of the most valuable corporate assets while receiving the least structured legal oversight. That disconnect exists because trademark risk behaves differently than other legal risks general counsel manages. Patent disputes, employment claims and regulatory investigations tend to announce themselves clearly and demand immediate attention. Trademark problems usually do not. They accumulate quietly through missed deadlines, casual brand changes, uneven enforcement decisions or international expansion that outpaces legal review. When those issues surface, they often do so at the worst possible moment: during a product launch, an acquisition, a licensing discussion or a dispute that limits available options. This article is an orientation for in-house counsel who do not live in this area every day. The focus is practical: what deserves attention on an annual basis, why those items matter and how to think about trademarks as part of a broader legal risk management function rather than a collection of filings handled in the background. Trademarks Are Living Business Assets One of the most persistent misconceptions about trademarks is that they function like deeds. Once registered, the thinking goes, they sit safely on the shelf until renewed every decade. In reality, trademarks behave more like contracts. Their value depends on ongoing use, consistent presentation and deliberate enforcement choices. A trademark registration is not a certificate of ownership in the abstract. It is a legal recognition that a company is using a specific mark in a specific way for specific goods or services. If the business changes and the registration does not, the legal protection begins to drift away. From an in-house perspective, the right question is rarely “Do we have trademarks?” The better question is “Do our trademarks still reflect how the business actually operates today?” That framing turns trademark oversight into an operational exercise rather than a clerical one. It also explains why annual review matters even when nothing appears to be wrong. The Four Trademark Functions That Matter Each Year Trademark law contains many technical rules, but in-house oversight usually comes down to four recurring functions. These functions are interconnected, and weakness in one area tends to surface later as a problem in another. Portfolio Alignment with the Business Every year, the business evolves in ways that affect brand usage. New product lines are introduced. Services expand beyond their original scope. Marketing refreshes logos, taglines or visual presentation. Legacy brands are retired, modified or absorbed into broader platforms. These changes often occur without legal involvement because they are seen as commercial rather than legal. From a trademark perspective, misalignment creates risk. Registrations protect what is actually used in commerce, not what the company once used or intended to use. Annual portfolio alignment should confirm a few core points: Core brands are still being used in a manner consistent with their registrations New offerings are covered by existing registrations or flagged for new filings Marketing changes have not materially altered the mark without legal review This process does not require deep trademark expertise. It requires awareness of how the business is changing and a mechanism for connecting those changes to legal protection. Without that connection, companies often discover gaps only when enforcement becomes necessary or when diligence exposes inconsistencies between registrations and real-world usage. Maintenance and Renewal Filings Trademark rights can be lost without any adversarial action. In the United States, trademark owners must file specific declarations and renewals at defined intervals, including the year prior to the sixth year after registration, the year prior to the tenth year after registration and every ten years thereafter. Failure to file on time will result in cancellation, even if the mark is actively used. For in-house counsel, the risk here is rarely about understanding statutory deadlines. It is about process discipline and accountability. Annual review should confirm: Deadlines are centrally tracked rather than residing with individual teams Examples of trademark use reflect how the brand is actually presented to customers Someone confirms continued use before legal declarations are signed These filings are often treated as routine administrative tasks. The consequences of error, however, can ripple across the organization. Loss of a registration weakens enforcement leverage, complicates licensing discussions and may require refiling from a position of reduced priority. Monitoring and Policing Trademark rights can vanish if other parties begin using similar brands. That said, these rights do not disappear the moment a third party adopts a similar name. Accordingly, inconsistent enforcement weakens rights over time and creates credibility problems when enforcement becomes unavoidable. Annual oversight should include a high-level assessment of how monitoring and enforcement decisions are made. This is less about volume and more about consistency. Key considerations include: Whether new competitors or products create meaningful risk of confusion Whether internal teams understand when to escalate brand concerns Whether enforcement decisions align with broader business objectives For most companies, the goal is not aggressive enforcement. It is a predictable enforcement that can be explained later to courts, counterparties or acquirers. This predictability helps in at least two ways. First, selective silence often becomes a problem during litigation or diligence when opposing counsel asks why certain uses were tolerated while others triggered action. Second, it is easier to budget your legal spend if you understand what actions you would take in certain situations. Strategic Coverage Gaps Growth frequently outpaces trademark planning. Companies enter new markets, expand internationally or acquire brands with incomplete legal protection. Often, teams assume existing rights will carry forward without evaluating whether that assumption holds. An annual review creates space to identify and prioritize coverage gaps before they become urgent. Useful questions include: Are we operating in new jurisdictions without trademark protection Did we acquire brands that were never properly registered or maintained Are international operations relying on U.S. rights without local analysis These issues are easiest to address proactively. Once a conflict arises or a launch is imminent, the range of available solutions narrows quickly and costs increase accordingly. Why This Belongs on the General Counsel’s Annual Checklist Trademark issues rarely reach the boardroom unless something has already gone wrong. When they do surface, they tend to implicate multiple parts of the organization at once: marketing, sales, licensing, international operations and corporate development. An annual trademark review allows general counsel to move from reactive problem solving to managed risk. It helps to: Reduce surprise issues that disrupt business initiatives Allocate legal budget between maintenance and strategic growth Create internal discipline around brand usage and escalation Preserve flexibility for future transactions, licensing and expansion Viewed this way, trademarks are less about logos and more about optionality. Clean, well-aligned portfolios are easier to enforce, easier to license and easier to value in a transaction. Trademarks as a General Counsel-Level Oversight Function General counsel are not expected to master every specialty area. They are expected to recognize where quiet risks accumulate and intervene before they become material. Trademarks fit squarely into that category. They rarely require daily involvement. They benefit significantly from periodic review by someone who understands the business and can connect legal rights to operational reality. Outside counsel can handle filings, searches and enforcement mechanics. In-house counsel provides strategic oversight to ensure those efforts remain aligned with how the company actually operates. A structured annual check-in, whether internal or with trusted outside counsel, is often sufficient to keep trademark risk proportional, predictable and manageable. The objective is not perfection. It is awareness and control.
February 6, 2026
Intellectual Property
Trademarks 101: What Business Advisors Need to Understand When Guiding Clients
As a business advisor, your role often involves helping clients make strategic decisions that affect their growth and risk profile. One area that frequently intersects with broader advisory issues is trademark law. While business advisors do not typically manage trademark filings or enforcement, understanding the fundamentals helps you identify when trademark considerations should be part of the conversation with your clients and when to involve legal professionals. Why Trademarks Matter in Advisory Contexts Trademarks are critical to brand identity and business value. They influence marketing strategies, product launches, and even transaction structures. For example, if a client is investing heavily in a new brand or entering new markets, trademark clearance and protection should be addressed early. Similarly, during mergers or acquisitions, trademark ownership and registration status can significantly affect valuation and deal terms. Recognizing Existing Rights and Risks Clients often assume they need to “get a trademark” or have formal registration to have trademark rights, but rights can arise through the use of a trademark in commerce – simply by selling products or rendering services under a trademark. Business advisors should be aware of this so they can flag potential issues — such as whether a client may already have rights in a brand name or whether a brand might risk infringing on someone else’s trademark. These are signals to recommend a legal review. Advantages of Trademark Registration Even though your clients have trademark rights from using a trademark, federal registration conveys many benefits, including nationwide rights, presumptive ownership, and easier enforcement on platforms like Amazon or TikTok Shop. It also enables recording with U.S. Customs to block counterfeit imports. Advisors should understand these benefits so they can guide clients to consider trademark registration when investing in brand development, expanding geographically, or entering online marketplaces. Trademark Risks in Broader Business Decisions Trademark conflicts can derail product launches or lead to costly litigation. When advising on branding, domain acquisitions, or marketing campaigns, advisors should ensure that trademark clearance is part of the planning process, typically by recommending a qualified trademark attorney. In M&A transactions, confirming trademark status and chain of custody is a key part of due diligence. Monitoring and Enforcement Trademark owners can lose or weaken their rights if they do not take steps to prevent third parties from infringing (whether willful or innocent) and from cybersquatting. Valuable brands should be monitored for these activities. But advisors should be aware that enforcement strategies can affect brand reputation. While cease-and-desist letters are common, tone matters; overly aggressive enforcement can lead to public backlash or legal counterclaims. This is another area where legal counsel should take the lead, but advisors can help clients weigh business risks and reputational considerations. Key Takeaways for Advisors For advisors, the most important takeaway is that trademarks should be viewed as a strategic asset, not just a legal technicality. Your clients are well-served if you can recognize when trademark issues intersect with business decisions and guide your clients toward qualified trademark counsel when warranted. By doing so, you can help clients protect their brands, avoid costly disputes, and strengthen the long-term value of their businesses.
January 26, 2026
Trademark and Copyright
Actor Matthew McConaughey Registers Sensory Trademark “Alright, Alright, Alright” in Enforcement Effort Against AI Deepfakes
Well-known actor Matthew McConaughey has attracted headlines following the registration of a number of trademarks, not just related to brands with which he may be associated, but also those that address his pop-culture persona. Most interesting among these is McConaughey’s recent registration of the phrase "Alright, alright, alright," first uttered by the actor in the 1993 film Dazed and Confused, which has become strongly associated with the actor’s laid-back, Texas public image. McConaughey, however, has not only registered “Alright, Alright, Alright” as a trademark, but also as less common sensory marks. Sensory marks are trademarks that identify brands through senses other than just text or static logos. Well-known examples include the three-note (G-E-C) NBC Chimes, the MGM lion’s roar accompanying many well-known films, and the specific scent of Play-Doh. According to McConaughey’s legal team, the registration of these sensory marks and other recent registrations represents an attempt to enforce against the ever-increasing problem of AI-generated “deep fake” videos, in which celebrities or other well-known individuals are impersonated, in strikingly authentic fashion. The registration of “Alright, Alright, Alright,” (Reg. Nos. 7995951 and 8070191) as sensory marks, specifically, has the potential to represent a tactical shift in celebrity rights management. By securing federal trademark protection for the specific sound and motion of his delivery of the phrase, McConaughey attempts to move beyond the patchwork of state-level "right of publicity" laws. A federal trademark registration provides nationwide constructive notice of McConaughey’s ownership and creates a legal presumption that his distinct mannerisms and delivery of the phrase serve as source identifiers for the registered Class 09 goods and Class 41 entertainment services, which constitute his on-screen performance. In the context of AI, this allows his legal team to pursue infringement claims under the Lanham Act against entities using AI voice clones or deepfakes to endorse products. Unlike a right of publicity claim, which often requires proving the appropriation of one's "likeness," a trademark claim focuses on consumer confusion; specifically, whether an AI’s use of the catchphrase falsely suggests McConaughey’s sponsorship or approval. However, relying on trademark law to police AI has significant limitations. The primary hurdle is the "commercial use" requirement; trademark laws are designed to prevent consumer confusion in the marketplace, not to protect personal dignity. Consequently, this registration may be ineffective against non-commercial AI generations, such as artistic deepfakes, memes, or satire, which may be protected by the First Amendment or the doctrine of Fair Use. Ultimately, the scope of protection offered by these new registrations may be narrow. While McConaughey can now vigorously enforce against an AI creation saying “alright, alright, alright," this specific registration offers little recourse against an AI model mimicking his voice to say anything else. Infringers could potentially bypass this protection by simply creating AI content that avoids his registered catchphrases while still exploiting his vocal timbre and mannerisms. While this registration adds one weapon to his arsenal, it is likely a specific deterrent rather than a comprehensive shield against unauthorized digital exploitation.
January 26, 2026
Trademark and Copyright
Embedded Videos — Fair Use or Infringement? What the Latest Court Decision Means for Publishers
In early December 2025, the Southern District of New York issued a decision in Level 12 Productions, LLC v. Mediaite, LLC. The holding highlights a growing risk for publishers and businesses that use embedded social media content in their online publications – a widely used practice among a multitude of media companies. This case concerns two videos created by journalist Brendan Gutenschwager, both of which are owned by Plaintiff Level 12 Productions. Defendant Mediaite embedded these videos in articles without obtaining licenses from the plaintiff. The first video showed an anti-immigration rally outside New York City’s Gracie Mansion; the second captured celebrity couple Chrissy Teigen and John Legend walking through a protest at a White House Correspondents’ Dinner. Mediaite’s use of the latter video also included commentary by pundit Megyn Kelly during the playing of the video. Both videos were registered with the U.S. Copyright Office. Mediaite argued that its embedding of these videos did not constitute infringement under the Ninth Circuit’s “server test” and claimed its use was fair use. The Ninth Circuit’s “server test” doctrine holds that a website does not infringe when it embeds protected material hosted on a third-party server, because the site never creates or stores a copy of the work. Instead, a user’s browser is merely directed to retrieve it from its original source. In other words, embedded video is considered to be equivalent to linking to a source rather than a public display as defined by the Copyright Act. The Second Circuit has previously declined to adopt the Ninth Circuit’s server test in prior disputes involving similar uses of embedded video. Judge Vargas followed the Second Circuit’s precedent, rejecting the server test and reaffirming that embedded video constitutes a public display under 17 U.S.C. § 101 even if the content itself is hosted on a third-party server. Regarding fair use, the court reached different conclusions for the two videos. In video one, the court did not overturn the lower court’s holding, which found no fair use. For video two, however, the court held that Mediaite’s use was fair, since Mediaite embedded the copyright-protected video in a manner featuring Megyn Kelly’s commentary on the same, and thus the copyright-protected material was effectively transformed. The fact that media publishers cannot rely on the Ninth Circuit’s server test in the Second Circuit, while not surprising, remains significant, as it limits publishers’ ability to embed media in online publications without a license. On the other hand, this holding does little to affect either Circuit’s application of highly contextual fair use analyses. Courts will still look for a transformative purpose to establish that a use is fair. For publishers and media outlets, the takeaway is clear: audit your embedding practices and treat embedded social media content as you would any other copyrighted material. When in doubt, secure a license, especially if the embedded content is central to your story but not the subject of commentary.
January 9, 2026
Trademark and Copyright
Termination Rights Under Scrutiny in Harper Lee Adaptation Cases as USCO Steps In
It’s said: “you never really understand a person until you consider things from his point of view,” but the Dramatic Publishing Company (“DPC”) is not so interested in considering the point of view of the Harper Lee Estate in the disputes over the rights to produce stage adaptations of Lee’s seminal work, To Kill a Mockingbird. The suits center on the exercise of termination rights under Sections 203 and 304 of the U.S. Copyright Act, invoked by Harper Lee in 2011 to terminate the exclusive right granted to DPC in 1969 to create and license amateur stage adaptations of the novel, and whether a derivative work created prior to such a termination may continue to be licensed by the licensee. The Lee Estate seeks to terminate Lee’s 1969 grant of dramatic rights, however DPC argues that its adaptation constitutes a lawful derivative work created prior to the effective date of termination, thereby preserving its continued exploitation rights under the derivative works exception to Sections 203 and 304. This conflict places the parties at odds, in both the Second and Seventh Circuits, over the scope of the termination right and the durability of licenses which permit the creation of derivative works, pre-termination. The U.S. Copyright Office (“USCO”) weighed in on April 15, 2025, by amicus brief, saying “Terminate all the rights you want, but it’s a sin to expand a derivative post-termination.” Addressing the core legal issue, the USCO supported a narrow reading of the derivative works exception, warning that an expansive interpretation would erode the statutory policy underpinning termination rights. The brief emphasizes that post-termination exploitation of derivative works should be confined to uses that do not alter or expand upon the original derivative work, and that new derivative post-termination uses should remain unauthorized. The brief thus urges the courts to adopt an interpretation that protects the integrity and utility of Sections 203 and 304. This position reinforces the principle that termination rights are intended to give authors and their heirs a meaningful opportunity to renegotiate or reclaim control of their works. Note that Section 203 of the Copyright Act does not cut off the right of a former licensee to exploit lawfully created derivative works. Instead, the law specifically allows the continued use of derivative works prepared before the termination date. The termination only reverts the licensed rights to the original copyright owner and prevents the creation of new derivative works after the termination date. The result of these suits may drastically limit an author’s ability to control the use of derivatives versions of their works, provided such works were created during the original grant period. While we do not know when we can expect the Seventh and Second Circuits to issue their decisions, rest assured we will provide an update at that time. The USCO’s amicus brief echoes the rationale they employed when confirming their final rule regarding termination rights of songwriters under the Music Modernization Act in July 2024, which further reinforces the narrow interpretation of the derivative works exception advocated in the brief. While the rule addresses royalty distributions for, specifically, musical works (as opposed to other copyright-protected works), its underlying principle, that post-termination exploitation must not expand upon pre-existing derivative works, applies in this Harper Lee dispute. Here, DPC’s continued licensing of stage adaptations arguably constitutes an expansion of the original derivative work, especially if new productions introduce changes or reinterpretations. The Office’s rule affirms that termination rights are meant to restore meaningful control to authors and their heirs, and that derivative works created under an original grant should not serve as a perpetual license to innovate or profit post-termination. The principle underlying the USCO’s July 2024 rule lends weight to the Lee Estate’s position and may influence how courts assess the scope of permissible post-termination uses.
December 1, 2025
Intellectual Property
Common Copyright Mistakes That Can Cost Your Business Big
You learned everything you need to know about avoiding copyright infringement in elementary school: don’t copy. And if you do copy, you will be called a copycat. Childish, I know, but it seemed to work. Except copying continues outside of elementary school, and businesses spend time and money resolving claims of unauthorized copying, diverting their attention and resources from their core business. The Problem Although we may learn in elementary school not to copy, the lesson does not always take hold. What harm is there in copying? Who is going to catch us? If it’s online, it’s available for me to use, and I don’t need anyone’s permission. That thinking is one root of the problem. The notion that obtaining permission is too much of a legal slog (too expensive, too time consuming, etc.) is another reason the ‘don’t copy’ rule is ignored (generally seen in tech projects, such as the current use of others’ works to train large language models for AI). More often than not, copiers get caught. This is especially true in the case of parties copying photographs. Photographers are well aware that their photographs are used without permission, and actively police their rights. There have been lawsuits regarding the use of photos of foods used on menus without permission. Creators have received cease and desist letters because they have used, without permission, a photograph as the background for a work they created. Photographers have sued when their images were re-posted on Instagram without permission. Interior design and fashion companies (among others) like to post on their websites and their social media when their items or their work are featured in prominent publications. Such postings are almost always without permission. For example, a wallcovering company could post on its website photos from magazines showing its wallcoverings in houses. The owners of the homes may have consented to the company’s use of the photos, and the magazines may have consented, but that is usually not enough. The photographer must give permission because they generally own the copyright to the photo. Posting photos to social media can also result in claims of copyright infringement if the posts are made without permission. Yes, social media is made for sharing photos. That does not mean that photos can be shared without consent. LeBron James, Gigi Hadid, Versace, Fenty, and Moschino have all been sued for copyright infringement after posting photographs on social media without permission (Gigi Hadid was sued for posting photos of herself taken by paparazzi). News articles, too, present an issue. Reproducing news articles can give rise to copyright infringement claims. Imagine if a company had a news section on its website that reproduced news articles it thought would be of interest to its customers. That would also pose issues. Each article posted would be an infringement. If that posting was a long-running practice (say two or three years), then that company could be in for a significant payment to the owner(s) of the posted articles. If You Copy, Then You Copied Unauthorized reproduction of artistic works is generally known as copyright infringement. The primary defense to copyright infringement is that the original work and the infringing work are not substantially similar, or that one did not have access to the original work. But in the cases we have been discussing, that argument is generally not available, as the copies are usually identical to the original work. Giving credit to the creator of the original work does not avoid a claim of copyright infringement. A photographer or a news organization might decide not to take action if credit is given, but the fact that you gave credit is not a legal defense. In copyright infringement cases, it doesn’t matter that you didn’t intend to infringe. You either infringed or you didn’t. Intent enters the picture, in some situations, when damages are being assessed. Fair use is frequently cited as a defense. While fair use is a defense to a copyright infringement claim, determining whether something constitutes a fair use usually requires determination by a court. Such a determination can take considerable time (a year or more), and it is difficult to predict how a court will decide a fair use question. The fact that the entire work is reproduced will weigh against a finding of fair use, as will the fact that the work has not been transformed into something new — the work has merely been reproduced. If the photograph or news organization has a program for licensing their works, that will also weigh against a finding of fair use. The limited number of defenses works in favor of copyright owners. Copyright Law Favors Copyright Owners If there has been copyright infringement, copyright owners are entitled to recover their actual damages plus the infringers’ profits attributable to the infringement. If the copyright owner timely registered their copyright, they can seek, as an alternative to actual damages, statutory damages, which are generally set by the court and can be up to $30,000 per infringement and up to $150,000 per willful infringement. With timely registration, copyright owners can also seek to recover their reasonable attorney’s fees. That alone is favorable to copyright owners, but recent Supreme Court decisions have decidedly tipped the scales. In one case, the Supreme Court ruled that the Copyright Act’s three-year statute of limitations only applied to when a claim had to be brought, not how far back the copyright owner could reach for damages. In another case the Supreme Court declined to rule on whether the three-year period is calculated from when the copyright owner discovers the infringement or from when the infringement occurs. Most courts calculate it from when the copyright owner discovers the infringement. So take the wallcovering company we discussed above. They have been posting magazine covers and the pages from the magazines featuring their wallcoverings on their website for ten years. One of the photographers used by the magazines to photograph houses learns what the wallcovering company has been doing today. The photographer has three years from the date of discovery to act, and when they do, they can recover damages for every post by the company that infringed the photographer’s rights, even if the post was made ten years ago. That can add up very quickly, and result in payments to copyright owners in the thousands or millions of dollars. What To Do? The penalties for copyright infringement can be steep, making it essential to learn how to avoid copyright infringement exceedingly important. Training employees to ask questions about what they are doing before they do it is a good way to start. Provide users links to images of interest, and do not duplicate them unless you have permission. Linking is not copyright infringement. Ensuring that employees understand the company’s policy against copying and discouraging it is another step. Train employees on what is permissible and what is not. Do not assume that they know — there are many myths and urban legends about what is permissible, and the time to learn what the law actually permits and what it does not permit is before a claim is brought, not after. Hiring your own creators to create photos, images, articles, and the like for your company’s use, is another way to avoid this issue. Yes, there is a cost associated with this. That cost, however, is likely less than the cost of paying to resolve a claim brought by a copyright owner, both in time and in money (and your own attorney’s fees).
November 18, 2025
Commercial Litigation
D.C. District Judge Narrows Case Between E-Commerce Giants, Temu and Shein
In December 2023, Temu (operated by Whaleco Inc.), a general e-commerce platform specializing in drop-shipping resale goods sold at deep discounts, filed suit against Shein, a similarly structured fast-fashion clothing manufacturer. In their suit, Temu alleged that Shein perpetuates a "mafia-style" scheme to monopolize the fast-fashion market through supplier intimidation, trade secret theft, and abuse of the Digital Millennium Copyright Act. Temu claimed that Shein coerced Chinese suppliers, who provide the overwhelming majority of Temu’s inventory, into filing over 33,000 allegedly baseless copyright takedown notices on Temu’s website in order to disrupt Temu's operations. Shein countersued in August 2024, accusing Temu of encouraging sellers to infringe intellectual property rights, stealing Shein's trade secrets and product designs, and operating a counterfeiting-reliant business model. This battle between Shein and Temu reached a critical moment on September 30, 2025 when a district judge in the District of Columbia dismissed key claims of plaintiff Temu, while allowing Temu’s intellectual property claims to proceed. This recent ruling proved a strategic victory for Shein. The court dismissed Temu's antitrust claims under the Sherman and Clayton Acts, ruling that the alleged anticompetitive conduct occurred in China and fell outside U.S. jurisdiction. The court dismissed Temu's trade secret claims for similar reasons, as the alleged theft of trade secrets occurred overseas. However, the court left Temu's intellectual property claims intact, finding that Temu adequately pleaded infringement of its trade dress by Shein, direct copyright infringement related to Temu’s promotional mobile phone games, and violations of DMCA Section 512(f) for knowingly issuing false copyright takedown notices. This case underscores critical challenges for companies operating in global e-commerce markets – especially as international drop shipping business models become increasingly ubiquitous. In particular, U.S. courts have faced increasing difficulty addressing allegedly anticompetitive conduct by overseas entities whose actions may still be felt in the U.S. Meanwhile, such actors continue to misuse DMCA takedown procedure to gain a competitive edge in the market rather than as an IP protection tool. As both companies face broader regulatory scrutiny worldwide (Temu recently paid $2 million to the FTC to settle INFORM Consumers Act violations), this case may influence how courts evaluate jurisdictional questions in international supply chain disputes and assess claims of DMCA abuse in competitive marketplaces.
October 27, 2025
Sports Entertainment and Media
From Cameo to Courtroom: George Santos’ Copyright Claims Fall Flat
Despite the best efforts of the government, George Santos refuses to leave the public eye – for now, at least. On September 15, 2025, the Second Circuit affirmed the dismissal of former Congressman George Santos' copyright infringement and state law claims against late night show host and comedian, Jimmy Kimmel, as well as the Walt Disney Company. The case arose from Kimmel's use of personalized videos on his late-night show, Jimmy Kimmel Live! that Santos created through the Cameo platform. Kimmel and his staff submitted paid requests to George Santos through the popular app, Cameo, in which notable public individuals record and send personalized messages in exchange for money. Kimmel proceeded to air these recordings on his late-night show as part of "Will Santos Say It?" segments, which mocked Santos' willingness to create content for money. The district court dismissed all claims under Rule 12(b)(6), finding that the Fair Use doctrine barred the copyright claims, while the state law claims for breach of contract, breach of implied contract, and fraudulent inducement either failed on the merits or were preempted. On the copyright claims, the Second Circuit conducted a thorough fair use analysis under 17 U.S.C. § 107, focusing primarily on the transformative nature of Kimmel's use of the materials for satirical purposes. The court rejected Santos' argument that the use wasn't transformative because Kimmel had "instigated" the videos' creation, emphasizing that transformativeness is judged by what a reasonable observer would think rather than the subjective intent of either party creating the work at issue. The court found Kimmel's use was clearly transformative commentary and criticism, noting that while Santos claimed Kimmel’s purpose in soliciting the recordings was also to mock Santos and demonstrate Santos’ willingness to say absurd things for money, a reasonable observer would view the videos as conveying "feelings of hope, strength, perseverance, encouragement, and positivity." The court also found no harm to the market, since Kimmel's use didn't usurp Santos' market by offering a competing substitute. As for Santos’ state claims, the court affirmed their dismissal on substantive grounds. Santos' direct breach of contract claim failed because he was not considered a party to Cameo's Terms of Service and could not establish third-party beneficiary status under Illinois state law, which requires implied terms to a contract to be "so strong as to be practically an express declaration." His implied contract claim failed under New York law for not pleading essential contractual terms or demonstrating a meeting of the minds. Finally, his fraudulent inducement claim failed because he could not allege actual out-of-pocket losses as required under New York law. While Kimmel could have relied on commentary under Section 107 of the Copyright Act as a non-infringing use, this case reaffirms the power that satire also has to transform a work under the Fair Use doctrine. While deceit may not endear one to the deceiver, neither will it necessarily endanger them in a court of law (depending on the use, of course).
October 17, 2025
Sports Entertainment and Media
Court Reinstates Jury Finding in Disney Motion Capture Copyright Dispute
The Ninth Circuit recently issued a partial reversal of a grant of summary judgment to Disney in a dispute stemming from the misuse of motion capture software. This case arose when Disney's visual effects contractor, Digital Domain 3.0 “DD3,” allegedly used Rearden's copyrighted MOVA motion capture software without authorization during production of the 2017 Beauty and the Beast film. While a jury found Disney vicariously liable and awarded $250,638 in actual damages plus $345,098 in profits, the district court granted Disney's motion for judgment as a matter of law, concluding that Disney lacked the ability to supervise DD3's directly infringing conduct. The ability of Disney to supervise DD3’s misuse constitutes a necessary element of vicarious liability. The Ninth Circuit disagreed on appeal, holding that sufficient evidence supported the jury's finding that Disney had the practical ability to supervise and control DD3's conduct. The court rejected Disney's arguments that it was impractical to conduct due diligence on every piece of software used by vendors and that it had no way to identify the infringement, finding that the jury could reasonably conclude Disney had the reasonable ability to identify DD3's potentially infringing use of MOVA. However, the court affirmed the district court's decision to treat the jury's profit award as advisory, ruling that there is no jury trial right for profit remedies under the Copyright Act. This decision has the potential to motivate large studios such as Disney to rethink their due diligence obligations in cases involving large-scale productions with multiple vendors and complex technological workflows.
September 25, 2025
Intellectual Property
Voice Actors Clear Early Legal Hurdle in AI Cloning Suit
Voice actors received a rare, if incomplete, victory against alleged AI infringers in a recent opinion from an SDNY judge in Lehrman v. Lovo, Inc. Voice actors Paul Lehrman and Linnea Sage filed an action against AI voiceover company Lovo, alleging the company used artificial intelligence to synthesize and sell unauthorized "clones" of their voices. Plaintiffs discovered their voices being used in YouTube videos and podcasts after they had been hired through the freelancing app, Fiverr, for what they believed were limited voice recording projects used for research purposes. The result is a case of first impression regarding AI voice cloning tech, asserting claims under New York civil rights and consumer protection laws, the Lanham Act, the Copyright Act, and various common law theories, including breach of contract, fraud, conversion, unjust enrichment, and unfair competition. Judge J. Paul Oetken issued a mixed ruling on Lovo's motion to dismiss, concluding that "for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law." The court explained that what plaintiffs sought was essentially "copyright protection for their voices" as abstract concepts rather than specific expressions, and that copyright "must concern the expression of ideas, not the ideas themselves." However, the court did allow the plaintiffs’ breach of contract and right of publicity claims to proceed, finding that communications through Fiverr and the platform's terms of service supported their allegations that the voice recordings were used beyond the agreed scope. The court also moved claims under New York Civil Rights Law Sections 50 and 51 forward, stating that these state laws are "tailored to balance the unique interests at stake" in voice misappropriation cases. While the ruling represents a partial victory for the voice actors, it highlights significant gaps in federal intellectual property protections for AI-generated content and voice cloning technology. The court's decision suggests that voice actors and similar plaintiffs may find more success pursuing state law remedies for unauthorized AI voice cloning rather than relying on federal copyright protections.
August 6, 2025
Intellectual Property
Supreme Court to Hear Cox Communications Case on ISP Copyright Liability
On June 30, 2025, the Supreme Court accepted a petition for certiorari brought by Cox Communications, and denied one brought by Sony in the same matter, following the advice of Solicitor General Sauer. The dispute stems from a massive $1 billion copyright infringement verdict against Cox Communications, in which music publishers (including Sony, Universal, and Warner Music, among others) alleged that Cox was liable for the illegal distribution of 10,017 musical works by the ISPs subscribers. The Fourth Circuit previously affirmed a lower court’s ruling that Cox was liable to the plaintiff publishers for contributory infringement, while overturning the lower court’s finding of vicarious liability. As a result, both Cox and Sony filed competing petitions for certiorari seeking clarification from the Supreme Court regarding different aspects of ISP copyright liability. The Supreme Court will review two critical questions that could reshape how internet service providers handle copyright infringement. First, whether an ISP materially contributes to copyright infringement by continuing to provide internet access to particular subscribers after receiving notice that their accounts have been linked to active and ongoing copyright infringement. The Department of Justice noted this ruling creates "substantial tension" with a recent Supreme Court analysis of contributory liability in Twitter v. Taamneh, where the Court found that mere passive provision of services without active assistance doesn't constitute contributory liability. Second, the Court will examine the "circumstances under which a contributory infringer can be held liable for enhanced statutory damages based on a finding of "willful infringement,"" specifically whether knowledge of subscriber infringement alone suffices for a willfulness finding or if the ISP must have reasonably believed its own conduct violated copyright law. The decision could fundamentally alter how ISPs manage their networks and respond to copyright infringement notices, with Cox arguing that overly broad liability standards could jeopardize internet access for all Americans. Depending on the outcome of this case, American internet users may see ISPs tighten their grip when enforcing against pirate websites or unauthorized distributors of IP, as ISPs aim to minimize any and all liability potential. We will continue to keep this space updated as the case progresses.
July 11, 2025
Intellectual Property
Jimmy Page Accused of Infringing 'Dazed and Confused'
If the ongoing acrimony between Daryl Hall and John Oates wasn’t enough to fill the void of aging rock stars airing their grievances in court, never fear. There’s an endless well where that came from. Jake Holmes, original writer and composer of the song Dazed and Confused, has sued Led Zeppelin’s Jimmy Page, among other musical production and publishing entities, for damages related to a songwriting credit he feels he is owed. Indeed, Holmes wrote the now-iconic hit in 1967, at which time Jimmy Page heard the song and rearranged the composition for his then-outfit, The Yardbirds. Page would later work with Robert Plant to reimagine the song for their upstart band, Led Zeppelin, again neglecting to credit Holmes for his role in the song’s creation. Off the heels of a now-settled 2010 lawsuit regarding the issue, the recently released documentary, Becoming Led Zeppelin, has brought the song, and Holmes’ claims, back into public consciousness. Doubtless, Holmes wanted to strike while the iron is hot. Plaintiff Holmes filed a complaint in the U.S. District Court for the Central District of California, asserting three primary claims: two for copyright infringement and one for breach of contract. Holmes alleges he is the sole copyright owner of Dazed and Confused, originally registered in 1967. He claims that Jimmy Page and associated defendants, willfully infringed on this copyright by exploiting the composition without authorization—first in connection with the Yardbirds’ performances and later through its use in the 2025 documentary Becoming Led Zeppelin. Holmes's complaint alleges that, despite a 2011 settlement agreement (resolving the prior 2010 suit, which affirmed Holmes’s exclusive rights to the composition), Jimmy Page, Succubus Music Ltd., and WC Music Corp. continued to falsely license and monetize recordings of Dazed and Confused as if Page were the sole author. Holmes contends that these recordings include numerous Yardbirds live releases and that the defendants generated revenue from licensing, streaming, and royalties without proper attribution or payment to Holmes. Additionally, Holmes claims that the recent documentary film Becoming Led Zeppelin incorporated unauthorized performances of Dazed and Confused—both by the Yardbirds and by Led Zeppelin—again falsely crediting Page and excluding Holmes. He asserts that multiple defendants, including major production and distribution entities like Sony Pictures Classics and Big Beach LLC, participated in the infringing activity. Holmes seeks actual or statutory damages, injunctive relief, an accounting of profits, and attorneys' fees, alleging willful infringement and breach of the 2011 settlement agreement. This new action has the potential to set a standard for infringement cases regarding works so central to the infringing entity’s identity as to reframe that entity’s success completely. Time will tell whether Page’s Levee will finally Break, or whether Page and Zeppelin will Ramble On as they have for the past 50+ years.
May 28, 2025
