The Briefing by Weintraub Tobin

Can you use “March Madness” without getting sued? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica Corpuz break down the NCAA’s lawsuit against DraftKings and the high stakes fight over one of the most recognizable trademarks in sports. In this episode, they cover: What nominative fair use actually means and how courts apply it Why DraftKings says its use of “March Madness” is necessary for bettors How the NCAA argues the use creates false association and brand harm Tune in for a clear look at where trademark law meets sports betting. Watch this episode on our YouTube or listen to the podcast here.

What happens when a failed police raid turns into a music video about lemon poundcake and a $3.9 million lawsuit? In this episode of The Briefing, Scott Hervey and Richard Buckley, Jr. break down the Afroman defamation case, where surveillance footage, satire, and public officials collide under First Amendment law. In this episode, they cover: Why the deputies’ defamation claims failed under the “actual malice” standard How satire and parody shape what counts as a statement of fact Why the lack of an anti-SLAPP law in Ohio changed the entire case strategy Tune in for a clear look at where defamation law meets satire and the First Amendment.

What happens when two fantasy stories share the same DNA? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down a major copyright decision involving the Crave series and what it means for substantial similarity in fiction. In this episode, they cover: – Why common genre tropes like love triangles, supernatural powers, and chosen one narratives are not protectable – How courts filter out unprotectable elements using the “more discerning ordinary observer” test – Why combining familiar elements is not enough to prove copyright infringement Tune in for a clear look at where copyright law draws the line between inspiration and infringement.

When does an AI voice become your voice? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley break down the lawsuit filed by longtime broadcaster David Greene against Google over its NotebookLM tool and its eerily familiar AI-generated voice. In this episode, they cover: What Greene must prove to win a Right of Publicity claim How Midler and Waits shape the legal standard for voice imitation Why Google’s training data and “knowing use” will be key to the case From forensic voice analysis to AI training practices, this case raises major questions about identity, ownership, and emerging technology. Tune in for a clear look at where the right of publicity meets artificial intelligence

What happens when artists agree to transfer rights to a musical composition but never put that transfer in writing? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica R. Corpuz break down a federal court decision arising from a copyright dispute tied to Ye’s Donda album. The case turned on a simple but unforgiving rule of copyright law: without a written assignment, you do not own the copyright and you cannot enforce it. In this episode, they cover: Why Section 204(a) of the Copyright Act requires copyright transfers to be in writing The legal difference between composition copyrights and sound recording copyrights How the lack of a written assignment wiped out most of the plaintiff’s infringement claims Tune in for a clear reminder that in copyright law, if it is not in writing, it may as well not exist.

What happens when an artist terminates a decades-old copyright grant under U.S. law, but the work is still being exploited around the world? In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Matt Sugarman break down the Fifth Circuit’s decision in Vetter v. Resnik and what it means for worldwide copyright grants. In this episode, they discuss: Whether termination under 17 U.S.C. § 304(c) can recapture foreign exploitation rights Why the Fifth Circuit parted ways with California cases like Siegel v. Warner Bros. The difference between ownership disputes and extraterritorial infringement claims How this ruling impacts publishers, studios, catalog buyers, and global licensing strategies If termination can unwind a worldwide grant, the leverage shift for authors and heirs could be significant. Tune in for a clear look at how copyright termination.

Can an arbitration provider force someone into arbitration who never signed the contract? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the high-profile dispute involving Skechers, global influencer Khaby Lame, his management company KBL Services, and talent manager Barrett Wissman. At the center of the fight is a critical question of arbitration law: does the American Arbitration Association have jurisdiction over a non-signatory? In this episode, they discuss: When non-signatories can be compelled to arbitrate Alter ego and veil piercing theories Agency law and representative capacity Whether the AAA can administer arbitration against someone who never agreed to it Strategic litigation choices when challenging arbitrability If you handle contracts, endorsement agreements, arbitration clauses, or business disputes, this episode offers important insight into the limits of consent in arbitration.

When a jury says two works are not substantially similar, is that the end of the story? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the Ninth Circuit’s decision arising from the Kat Von D tattoo of an iconic Miles Davis photograph and why it may signal the beginning of the end for the intrinsic test in copyright law. In this episode, they cover: How the Ninth Circuit’s two-part substantial similarity test works Why the jury’s finding was nearly impossible to overturn on appeal The concurring opinions calling the intrinsic test legally incoherent How other circuits analyze substantial similarity differently What a reworked test could look like going forward Whether you are a creator, lawyer, or rights holder, this case highlights a potential turning point in how courts evaluate copyright infringement.

California privacy law has entered a new phase. In Part Two of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley break down the CCPA’s new requirements for Risk Assessments and Cybersecurity Audits. In this episode, they cover: When Risk Assessments are required and what they must evaluate How businesses must weigh operational benefits against privacy risks Who must be involved in conducting Risk Assessments and when When Cybersecurity Audits are triggered and what they must include What businesses must submit to the California Privacy Protection Agency Tune in for part two on how a clear look at how California privacy law is turning AI compliance into an operational requirement.

California privacy law has entered a new phase. In Part 1 of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley breaks down California’s new CCPA regulations governing Automated Decision making Technology, or ADMT. This episode explains how the amended rules go beyond data collection and sharing to regulate how businesses use algorithms, artificial intelligence, and automated tools to make decisions about people. In this episode, they cover: What qualifies as Automated Decision making Technology under the CCPA Which automated decisions are considered “significant decisions” When a business is subject to the ADMT rules New notice, opt-out, and access rights for consumers, including employees and job applicants Key compliance deadlines businesses need to prepare for now Tune in for a clear look at how California privacy law is reshaping automated decision making and AI governance.

We previously covered the trademark lawsuit filed by Lost International against Lady Gaga over her use of “Mayhem” in connection with her album, tour, and related merchandise. Now the court has ruled, denying Lost’s motion for a preliminary injunction. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler break down the court’s order and what it signals about the Rogers test after the Supreme Court’s Jack Daniel’s decision. In this episode, they cover: Why the court applied the Rogers test instead of the traditional Sleekcraft likelihood of confusion analysis How the court treated tour merchandise tied to an expressive work under Ninth Circuit precedent What “artistic relevance” means and why that prong was easily met here Why “use of the mark alone” was not enough to show the use was explicitly misleading How this ruling fits into the broader post Jack Daniel’s landscape, including recent Ninth Circuit developments Tune in for a clear look at where trademark law meets tour merchandising and First Amendment protections.

The Ninth Circuit kicked off 2026 with a major copyright decision in the long-running Top Gun dispute, affirming summary judgment for Paramount in the lawsuit over Top Gun: Maverick. In this episode of The Briefing, Weintraub Tobin shareholders Scott Hervey and Tara Sattler break down the Ninth Circuit’s reasoning and why it matters for studios, writers, and anyone adapting real-world stories.   In this episode, they cover: The background of the claim tied to the 1983 magazine article “Top Guns” How the Ninth Circuit applied the extrinsic and intrinsic tests for substantial similarity Why historical facts and real events remain free for all to use, even when dramatic The court’s focus on “protected expression” versus unprotectable ideas, facts, and genre conventions Key takeaways for nonfiction adaptations, biopics, and projects inspired by true stories Tune in for a clear look at where copyright law draws the line between protected expression and real-world facts.

As 2025 fades into the rearview mirror, many of the entertainment and media industry’s biggest legal questions remain unresolved. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler take a forward-looking approach to the cases and doctrines that could shape 2026.   In this episode, they cover: The unsettled future of fair use in AI training and copyright infringement How courts are approaching lawful versus unlawful acquisition of training data The growing split in AI cases involving market substitution and fair use The narrowing application of the Rogers Test following the Jack Daniel’s decision What pending cases could mean for filmmakers, studios, and content creators Tune in for a clear look at the legal issues that could define entertainment and media in 2026.

Your intellectual property is one of your company’s most valuable assets. Are you keeping track of it? In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Tara Sattler walk through why an IP checkup is a smart way to kick off the year and how businesses can safeguard their intellectual property assets. In this episode, they cover: Why regular IP audits matter for growing businesses How to track and manage trademarks, copyrights, and patents Common gaps companies overlook in their IP portfolios – Practical steps to protect and strengthen your IP strategy Tune in for a practical guide to protecting the ideas and assets that drive your business forward.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down The New York Times v. Perplexity AI, a lawsuit that goes beyond copyright and into largely untested trademark territory. They discuss the Times’ allegations that Perplexity copied its journalism at both the input and output stages and, more significantly, that the AI attributed fabricated or inaccurate content to the Times using its trademarks. The case raises new questions about false designation of origin, trademark dilution, and how AI hallucinations could expose platforms to liability. In this episode, they cover: Alleged large-scale scraping and output copying of Times content How RAG systems complicate traditional copyright defenses The novel use of trademark law to challenge AI hallucinations False designation of origin and dilution by tarnishment claims What this lawsuit could mean for AI companies that cite or brand sources Tune in for a clear look at where trademark law meets AI-generated misinformation.

Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.

The Terrifier franchise is one of the most unlikely independent horror success stories of the last 25 years. But a new lawsuit challenges how the first film was made and raises serious questions about performer consent and on-set protections. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down actress Catherine Corcoran’s lawsuit against the film’s producers and what it reveals about SAG-AFTRA requirements for nudity and simulated sex scenes. In this episode, they cover: What a SAG nudity rider is and why it is legally required How consent must be disclosed, documented, and respected on set Why filming nudity without a signed rider can be deemed nonconsensual The risks producers face when still images or footage are reused without permission How intimacy coordinators and detailed riders protect both performers and productions This case is a reminder that nudity riders are not a formality. They are a core safeguard in film and television production. Tune in here for a clear look at how SAG protections, performer consent, and production liability intersect.  

Did Coca-Cola cross the line by using a Johnny Cash soundalike in its nationwide “Fan Work is Thirsty Work” campaign? In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley unpack the Cash estate’s lawsuit and what it reveals about the evolving law of soundalikes. In this episode, they cover: How Tennessee’s new Elvis Act expands protection for voices and vocal imitation Why the Cash estate is also asserting a Lanham Act false endorsement claim How Midler v. Ford and Waits v. Frito-Lay continue to shape soundalike disputes The line between imitating a musical “style” and misappropriating a distinctive voice What brands and agencies should consider before using tribute artists or AI vocals Tune in here for a clear look at where right of publicity, soundalike law, and advertising practice collide.

Creators, beware: just because it’s online doesn’t mean it’s fair game. In this episode of The Briefing, Scott Hervey and Richard Buckley break down one of the most misunderstood areas of copyright law—fair use. In this episode, they cover: What makes a use “transformative”? Why credit alone doesn’t protect you How recent court rulings (Warhol v. Goldsmith) are changing the game Tips to stay on the right side of the law Watch this episode on YouTube or listen to this podcast episode here.

Who really owns your Thanksgiving traditions? In this special holiday edition of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley discuss how intellectual property law intersects with holiday food, recipes, and branding. They explore: Why recipes usually aren’t protected by copyright The surprising trademarks behind holiday favorites like Turducken and Tofurky How brands use trademarks, trade dress, and storytelling to own a piece of the Thanksgiving season The rise of “Friendsgiving” as both a cultural phenomenon and a branding challenge Whether you’re a lawyer, brand owner, or marketing professional, this episode offers valuable insight into how IP shapes the way we celebrate and sell the holidays.

In this episode of The Briefing, Scott Hervey and Richard Buckley break down Campbell Soup Co. v. Campbell for Congress, the lawsuit over a political candidate’s “Soup4Change” slogan and AI-generated soup can design. They cover the backstory, the trademark and First Amendment arguments, and how the Hershey case may influence the court’s view of political campaign branding. Tune in for a clear look at where trademark law meets political speech. Watch this episode on YouTube.

After losing its anti-SLAPP motion, Warner Bros. has appealed in Roadrunner JMTC LLC v. Warner Bros. Television, the lawsuit brought by Michael Crichton’s estate claiming the new series The Pitt is an unauthorized derivative of ER. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss: The background behind the ER “freeze clause” Warner Bros.’ First Amendment arguments under California’s anti-SLAPP statute The battle over what “derivative work” really means How the trial court handled the Katz declaration The broader implications for creative freedom and legacy IP Watch this episode on YouTube.

When artistic identity meets corporate branding, where does copyright law draw the line? In a new episode of The Briefing, Scott Hervey and Richard Buckley discuss the lawsuit filed by artist Tyrrell Winston against the New Orleans Pelicans. Winston—whose distinctive sculptures of deflated basketballs arranged in grids have been exhibited worldwide and licensed by brands like Nike, Adidas, and even NBA teams—claims the Pelicans copied his signature style in a social media campaign. His lawsuit raises a major question for artists, brands, and IP lawyers alike: Can a distinctive artistic style be protected under copyright law? The conversation compares Winston’s claim to the “vibe copyright” case (Sydney Nicole v. Alyssa Sheil) and examines whether courts are expanding protection from expression into concepts and aesthetics. Watch this episode on YouTube.

A consent agreement can be a powerful tool to overcome a USPTO likelihood-of-confusion refusal—but only if it’s done right. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley discuss the TTAB’s precedential decision in In re Ye Mystic Krewe of Gasparilla, where the Board rejected a one-page consent agreement as a “naked consent” insufficient to overcome a Section 2(d) refusal. They unpack: The history of the GASPARILLA application Why the TTAB said the agreement didn’t “show the work” How to draft a consent agreement that will actually persuade the USPTO Don’t miss this one—it’s a practical guide for anyone working with trademarks or brand portfolios. Watch this episode on YouTube.

Can a car, a superhero, or even a cartoon sidekick be protected by copyright? In this episode of The Briefing, Scott Hervey and Matt Sugarman break down how fictional characters earn legal protection — and when they don’t. From DC Comics v. Towle (the “Batmobile” case) to Carroll Shelby Licensing v. Halicki (the “Eleanor” case), Scott and Matt explore the three-part test for character copyrightability, how trademark rights can extend protection, and what creators and studios can do to safeguard their most valuable IP assets. 🎧 You’ll learn: ● What makes a fictional character “especially distinctive” under copyright law ● Why consistency across stories matters for protection ● How trademark rights protect character names and merchandise ● The difference between creative expression and brand identity Watch this episode on YouTube and learn how to keep your characters safe from copycats.

A federal court has granted summary judgment for Nirvana, dismissing Spencer Elden’s claim that the Nevermind album cover — depicting him as a baby — constituted child pornography. In this episode of The Briefing, Scott Hervey and James Kachmar revisit their earlier coverage of the Ninth Circuit’s decision and unpack how the district court’s final ruling turned on artistic intent and context rather than perception. Tune in to learn how the court applied the Dost factors, what this ruling means for artists and rights holders, and how intent shapes the boundary between art and exploitation. Watch this episode on YouTube. Show Notes: Scott: In a previous episode, we covered Elden versus Nirvana, the lawsuit brought by Spencer Elden, the Baby, on the cover of Nirvana’s Never Mind album, who claimed that the image amounted to child pornography. The Ninth Circuit revived Elden’s case in late 2023, holding that his claims were not time barred and sent it back to the District Court to decide the big question, was Nirvana’s album cover child pornography? Now that question has been answered. The District Court has granted summary judgment for Nirvana, holding that the cover is not child pornography as a matter of law. I’m Scott Hervey, and I’m joined today by my partner, James Kachmar. We are going to break down the District Court’s ruling and evidence surrounding the artistic intent behind one of the most iconic album covers of all time on today’s installment of The Briefing. James, welcome back to The Briefing. Good to have you. James: Thanks for having me back, Scott. Scott: So, James, when you and I last talked about this case, the Ninth Circuit had just revived Eldon’s lawsuit. Can you remind the listeners how we got here? James: Sure, Scott. The photograph at the heart of this case is on the cover of Nirvana’s Never album. It’s a naked baby swimming underwater, appears to be reaching for a dollar bill that’s on a fishing hook. That baby, Spencer Eldon, was four months old when that photo was taken in 1991. Thirty years later, in 2021, Eldon sued Nirvana, the surviving band members, and their record labels under a federal law that allows victims of child pornography to bring civil claims. He alleged that the photo was sexually exploitive and that Nirvana had knowingly possessed, reproduced, and distributed what he claimed was child pornography. Scott: And that case was originally dismissed on statute of limitations grounds. James: Exactly, Scott. The District Court initially threw it out saying that Eldon had waited too long to sue. He turned 18 around 2009, but waited another 12 years to file his lawsuit. But in December 2023, the Ninth Circuit reversed, holding that because the album had been rereleased in 2021, Eldon could bring claims based on that recent republication. That sent the case back to the district Court to decide the substance of Alden’s claim, whether or not the image itself met the legal definition of child pornography. Scott: And now, the District Court, having heard arguments on both sides, has granted summary judgment for Nirvana. So Let’s dive into the court’s reasoning. James: Sure. The court held at the Never mind cover simply doesn’t meet the definition of child pornography under federal law. Scott: Right. We don’t normally dive into this on these podcasts, but this is a media case, and it is interesting. I think there’s some other interesting aspects of this case that we’re going to talk about later. Okay, so the court applied the DOS factors. That’s a six-part test used to assess whether an image is sexually suggestive. Those factors look at things like whether the child’s pose is sexually suggestive, whether the photographer intended to elicit a sexual response. Here, the court said, obvious, that the photograph is not sexually suggestive. It depicts a baby swimming underwater with no sexualized focus or context. James: That’s right, Scott. The judge went even further, emphasizing that there was no evidence of sexual intent by anyone involved with the album cover. The judge wrote, The undisputed evidence establishes that the creative team intended the image to convey a critique of capitalism, not to sexualize or exploit the child. Scott: The court recognized that the concept behind the image was artistic, not sexual. The court noted that photographer, Kurt Weddell, testified that the shoot was done in a single session at a local pool, and that there was no direction to the baby, meaning that Eldon wasn’t posed or otherwise manipulated. James: Exactly, Scott. The designer, Robert Fischer, who created the album artwork, testified that the goal was to comment on how people are chasing money from birth. The court cited that testimony and wrote, The image was designed to be a satirical commentary on the pursuit of wealth, the baby reaching for the dollar, not

Disney faced a copyright lawsuit over the use of MOVA facial-capture software in Beauty and the Beast. A jury found Disney vicariously liable, the district court threw out the verdict, but the Ninth Circuit has now reinstated it. In this episode of The Briefing, Scott Hervey and Tara Sattler discuss: ● The facts behind Disney’s use of VFX vendor DD3 and the disputed MOVA software ● Why the district court found no “practical ability” for Disney to control its vendor ● How the Ninth Circuit reversed, emphasizing Disney’s contractual rights, on-set presence, and red-flag evidence ● What this means for studios and production companies managing VFX vendors