As star marks abound, are they too ordinary?

With billions of dollars at stake, celebrities’ lawyers have been beating down the door at a surprising government office in hopes of advancing clients’ economic interests by staking exclusivity claims on everything from dolls to dresses to perfumes. That gold rush-style boom, not in copyright requests but rather in mark applications to the U.S. Patent and Trademarks Office, (shown right) also keeps bumping against some hard realities that may make some female stars, especially, and their counsel rethink the supposed advantages of marks versus copyrights.

Although conventional wisdom among barristers may hold that marks may be the better way to build a brand because they permit legal protections for phrases that aren’t exactly unique, it may be that some names, words, sayings, and coinages are just too common or close to material that Uncle Sam already has allowed to be stamped with the signature TM.

This legal speed bump may be especially timely and pertinent for Entertainment Law practitioners to ponder in the wake of the recent decision by a federal court in Manhattan, asking if the intellectual property rights of screen legend Marilyn Monroe, for her estate, may be too generic for protection. Other celebs also have hit some TM woes worth noting.    (more…)

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Shooter’s infringement claim fails to develop

Art student, school find fair-use shield for photo used in class assignment and posted on Flickr

Andy Warhol, Jeff Koons, Damien Hirst. These artists, and many others, have famously exploited existing images in their own works. While such “appropriation” operates in a gray area of copyright law, iconoclastic pop-artists remain undeterred.  And as aspirants follow their role models, it’s unsurprising that challenges arise—notably and recently in an an art class at the Watkins Institute.

Students at the Nashville school were given photos and asked to create a mock product ad. So, très, Warhol, right, and are legal eagles already seeing the court case brewing?

Fortunately for the school and the student, both of whom ended up as defendants in the recently decided copyright infringement case Reiner v. Nishimori, some sorta ivy tower defenses came to their rescue. Let’s focus on academic fair use and its role in this visual controversy, shall we?

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Q-&-A: Prof. Kane on fashion and copyright

With the U.S. Supreme Court recently deciding in the Star Athletica v. Varsity Brands case that graphic elements on cheerleading uniforms can be protected under Section 101 of the Copyright Act, a conversation has emerged among designers and fashion experts, wondering how the ruling may impact the ever-growing industry. Hillary Kane, an adjunct associate professor of law at Southwestern Law School and Of Counsel at altView Law Group LLP,  discusses the concerns of many about this case and its connection to Entertainment Law in this Q-&-A:

Question—Based on your expert knowledge, which segments of the fashion industry do you believe will be most affected by this ruling? What are the positive and negative effects of the decision?

Answer—I am very resistant to lumping cheerleading uniforms into what most of us consider fashion. Fashion at its finest involves high levels of training, creativity, innovation, and passion. A cheerleading uniform? Not so much. It is very likely that the designs in questions will not be sufficiently original to qualify for copyright protection after they are “imaginatively separated” from the uniform using the new test.

The many attempts to expand copyright protection to fashion design have failed.  The Supreme Court was very careful to emphasize that its ruling was not extending copyright protection to clothing. Maybe we should just accept this and move on? All the Varsity ruling does is establish the test all courts should apply to determine if the design elements on a uniform are copyright worthy independent from the garment.

Next fall, I will be substituting Conceptual Separability with Imagined Separability and working through the new test in my Fashion Law course. I am not sure the result in this case would be different applying another one of the prior nine to 12 tests, now superseded.

The fashion industry segment most likely to be affected is cheerleading uniforms, and perhaps other types of uniforms.  Now, instead, of being well-settled that there is no copyright protection for any uniform elements, companies have a new basis on which to sue each other. It may get incredibly complicated. What happens when a university claims it has trademark rights in a design Varsity tries to copyright? (There is a U.S. Fifth Circuit Court of Appeals trademark case that speaks to this: Louisiana State University v. Smack Apparel Co.)

It is great material for a law school exam, but not likely to lead to anything other than lawsuits in real life. (more…)

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Behind a fun festival season, legal lines in sand

For Coachella and other lucrative live music events, there’s no fiddling around in enforcing protections for brands, merchandise

Summer’s quickly approaching, and that means the music festival season soon will be rocking and rolling in its full glory. But there’s more than meets the eye in staging successful—read that highly lucrative—events, besides getting throngs out in Mother Nature’s splendor for a splendid series of hot performances by top artists of the moment.

For Entertainment Law counsel, protecting a festival’s name, brand, intellectual property, and associated merchandise can require a lot of non-musical movements, year-round overtures in copyright and trademark enforcement. They’re playing a big score, with events and goods representing a sizable part of pop music’s revenues these days.

That’s the prelude for this post, now on to seeing some of how it’s done, with a sampling of the legal fugues performed by a major player, the Coachella Music Festival LLC:

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Justices zip up a fashion copyright case

High court, in novel 6-2 ruling, extends legal protection to stripes, chevrons, zig-zags that adorn a major makers’ cheerleader uniforms

The three women donned dapper black for the colorful discussion. Their four male colleagues also appeared in sober, knee-length, noir-dominated attire. After weeks of chatter no doubt about stripes, chevrons, zig-zags, the sculpture of Marcel Duchamp, and multi-dimensionality in design, justices of the highest court in the land recently had their final hurrah in a battle over cheerleader gear, copyright, and fashion.

The U.S. Supreme Court has ruled 6-2 that graphics elements on uniforms designed by Varsity Brand Inc. (“Varsity”) can be protected under section 101 of the Copyright Act. Sis, boom, bah: That means Varsity now gets to pursue its infringement claim against Star Athletica, Inc., (“Star”). But who else might be cheering or jeering (in Bronx fashion) this decision, unusual even at a court that this term also has pondered the rights of kids and Wonder dogs. (more…)

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RIP, to a celebrated force in Entertainment Law

 

Let there be no doubt: the Purple Reign, which has ended tragically all too soon, affected Entertainment Law and many of its practitioners.

Prince Rogers Nelson, 57, not only played the role of path-breaking artist, musician, fashionista, and trend-setter, he also was, as various media have noted, an innovator deeply concerned about intellectual property and the legal protection of creative works.

He rocked the recording industry with his willingness to contest its talent representation practices and contracts, which he saw as creative constraints that kept him from controlling his own works. He fought, perhaps to excess, to ensure that his copyrights were enforced. He took a principled stand about the creator’s sovereignty, even in the face of rapidly changing technological advance, becoming one of the prominent hold-outs against what he saw as the penurious payments by online streaming services to musicians, lyricists, and composers.

In doing all this and much, much more, he generated lots of work for Entertainment lawyers in Los Angeles, New York, Minneapolis, and elsewhere. As he a client, just as he was a giant of his craft, he was sui generis, and he will be much missed, practitioners have recalled. RIP, sweet Prince.

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Privacy event to address celebrity issues, rights

Neville_L_Johnson_JJLLPLAW_2015DroozDeborahGary_BostwickProminent scholars, lawyers and government officials will gather on April 17 at Southwestern for the Second Annual Online Privacy Conference, presented by the law school’s Donald E. Biederman Entertainment and Media Law Institute. Participants will explore a spectrum of privacy issues, including, notably for Entertainment Law practitioners, a session on  Celebrity and Privacy/Publicity Rights. (more…)

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A high legal kick for less than model conduct

Ever since a most-likely-to-succeed aspirant named Paula Abdul thrust herself from leaping about courtside with the Los Angeles Laker Girls into a considerable entertainment career, sneers have abated about the talent on professional sports teams’ cheerleader squads, be they the women who rah-rah-rah for the Dallas Cowboys, the Florida Marlins or whomever. But once cheerleaders also got into the 21st century business of promoting themselves and their entertainment endeavors online, was it inevitable, as recently occurred in Miami, that there would be instances of less than model behavior?

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Twilight Fashion? Not so fast B.B. Dakota

Summit Entertainment, creators of the Twilight movie series, has prevailed on its motion for summary judgment in a lawsuit filed in 2010 for copyright and trademark infringement, false designation of origin, trademark dilution and unfair competition. The action involved B.B. Dakota, a retailer that sought to promote sales of a blue cotton canvas jacket by stating in its advertising copy:  “Bella Swann wears this jacket in Twilight and scores the hottest vampire in high school, and so can you!” (see full decision here) (more…)

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Tiffany’s blue in clash over Louboutin’s red

Tiffany’s, the top-end bangles-retailer, apparently feels blue enough to think out of and about its signature box and how it might be crushed in the trademark clash with Yves Saint Laurent over Christian Louboutin and his red-soled footwear. Yes, of course, this is intellectual property combat of more than passing interest to entertainment law practitioners — not just because their clients cache and adore these upscale baubles but also because the same big-spending crowd increasingly has ambitions to cash in, in the celebrity-named luxe goods markets. (more…)

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