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

Former Congressman George Santos sued Jimmy Kimmel after the late-night host used Cameo videos in a comedy segment called “Will Santos Say It?” Santos claimed copyright infringement and fraud, but both the District Court and the Second Circuit said Kimmel’s use was fair use. In this episode of The Briefing, Scott Hervey and Tara Sattler break down: ● How Kimmel obtained the videos using fake Cameo accounts ● Why the District Court dismissed Santos’s case ● How the Second Circuit reinforced that criticism and satire are protected under fair use ● Why Santos’s contract and fraud claims also failed Watch this episode on YouTube.

Neil Young vs. Chrome Hearts — What happens when a rock legend collides with a luxury fashion powerhouse? Chrome Hearts has filed suit against Neil Young, claiming his new band “Neil Young and the Chrome Hearts” infringes on their famous trademark On this episode of The Briefing, Weintraub attorneys Scott Hervey and James Kachmar unpack the lawsuit, analyze the likelihood of confusion, and compare it to the Lady Gaga “Mayhem” case. Plus, they share practical takeaways for musicians to avoid trademark trouble. Show Notes:   Scott: Neil Young, one of the most influential voices in rock history, has landed in federal court, but not for his music. His new backing band, Neil Young and the Chrome Hearts, has become the center of a trademark infringement lawsuit filed by luxury fashion brand, Chrome Hearts. At issue is whether Neil Young’s use of the Chrome Hearts’ name, and especially the sale of related merchandise, crossed the line into infringement. I’m Scott Hervey, a partner of the I’m a law firm of Weintraub Tobin, and today I’m joined by my partner, James Kachmar. We are going to break down Chrome Hearts versus Neil Young on today’s installment of The Briefing.   James, welcome back to The Briefing. Good to have you.   James: Thanks for having me, Scott. Anytime you’ve got a clash between a rock legend and a fashion powerhouse, you know it’s going to be an interesting case. Scott: Oh, absolutely. Well, so let’s set the stage, shall we? So Chrome Hearts filed suit in the Central District of California against Neil Young and his production company, the Other Shoe Productions, and his bandmates. The complaint alleges trademark infringement, false designation of origin, unfair competition, common law trademark infringement, and common law unfair competition. But I think the centerpiece of this case really is the federal trademark infringement claim. I think, really, this case either lives or dies on whether or not Neil Young has violated the Lanham Act. Okay, let’s talk about some background here. Chrome Hearts, for those of you who aren’t aware, Chrome Hearts is not just a boutique clothing line. It’s a billion-dollar brand that’s been around since 1988. They’ve built an empire on jewelry, leather goods, apparel, eyewear, and even furniture. They’ve collaborated with the Rolling Stones, Rihanna, Madonna, Drake, and countless others. Their products are sold in exclusive boutiques worldwide, and they have a loyal following among musicians and celebrities. Now, critically, Chrome Hearts has a very long list of federally-registered trademarks covering Chrome Hearts, both the wordmark and related designs. These registrations span across jewelry, letter goods, clothing, eyewear, retail store services, and even entertainment services in the nature of live performances by a musical band.   Now, that last one is particularly important because I think it directly overlaps with Neil Young’s activities.   James: I knew about Chrome Hearts as a fashion and jewelry brand, but I had no idea that there was a band associated with it. Did you know that, Scott?   Scott: No, I didn’t until I read the complaint. I got a little curious, and I found the specific trademark that covered their entertainment services. I mean, it’s listed in the complaint. I looked up its file at the USPTO to see what specimens it submitted. Lo and behold, it’s a photo of a band with the band name Chrome Hearts right there on the stage monitors. I tried to find out more about that band, but when you search Chrome Hearts Band, all you get is references to Neil Young’s new band.   James: Neil Young launched this new band, Neil Young and the Chrome Hearts, last year in 2024. They played shows in New York, branded the outing as the Chrome Hearts Tour, and then released new music earlier this year, including a full studio album this past June. The complaint highlights that they were selling T-shirts and other merchandise, prominently using the Chrome Hearts name as part of that tour.   Scott: If I had to guess, I would say that’s really the spark. Touring under a band name might have been acceptable, especially since it’s Neil Young and the Chrome Hearts. But I think once Young started selling merchandise, shirts, hoodies, and other items bearing Neil Young and the Chrome Hearts, that’s probably what caused Chrome Hearts to file its lawsuit. According to the complaint, vendors and fans, allegedly, have assumed there’s a collaboration between Young and the Chrome Hearts. That’s exactly the consumer confusion trademark law is designed to prevent.   James: Yeah, and this isn’t the first time we’ve seen a conflict between a fashion brand and a musical tour.   Scott: That’s right. Earlier this year, you and I covered the Lady Gaga mayhem case. In th

The Anthropic settlement shows just how costly copyright missteps can be in AI development. Anthropic has agreed to a $1.5B settlement after a court found that keeping a permanent library of pirated books was not fair use—even though training its AI model on those same works was. On this episode of The Briefing, Weintraub attorneys Scott Hervey and Matt Sugarman discuss the ruling, the settlement, and what it means for future copyright claims against AI companies. Show Notes: Scott: In a previous episode, we broke down a key ruling in the Anthropic AI Training case. That one asked, what happens when an AI company trains its model on millions of books? Some purchased, some pirated. In that closely watched decision, a federal judge said, the training itself was fair use, comparing it to how humans learn by reading. But keeping pirated copies of those books in a permanent digital library, that crossed the line. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin. I’m joined today by my partner, Matt Sugarman. Today, we are going to talk about the one big question that ruling left open. What’s the price tag for that mistake? That answer just came in, and it’s a big one on this installment of the briefing. Matt, welcome back to the briefing. It’s good to have you. Matt: Thank you, Scott. It’s good to be here. Scott: Great. Well, this one’s a good one. I know you and I both talk a lot about these AI training cases, and we covered the meta case previously. But why don’t you give us a quick backstory on this case. Matt: Okay, Scott, let’s rewind for a second. In 2021, Anthropic trained its Claude model on a massive data set of books, articles, websites, you name it. But instead of licensing the books, they grabbed millions of copyrighted works straight off the pirate sites. Scott: Right. They did license them by some, but for sure, they pirated millions of books. Like you said, we’re not talking about a few. We’re talking about more than seven million pirated books. And those works include some very notable authors. At the same time, they bought millions of print books, they scanned them, and they built this huge searchable digital library. Matt: That’s correct, Scott. And that’s what set off the lawsuit. The author said that Anthropic infringed their copyrights in three separate ways: downloading the pirated books, using them to train Claude, and keeping digital copies in a permanent internal library. Scott: So when Anthropic moved for summary judgment on fair use, Judge William Alsup, of the Northern District of California, didn’t really give them a clean win. Instead, he carved up their conduct into three categories. Matt: That’s right. Training AI on books, scanning and digitizing legally-purchased print books, and then the big problem, keeping pirated books in a permanent digital library. Scott: And the judge treated each one differently. Matt: Correct. First, training Claude with the books, the court said that was fair use. And not just fair use, he called it spectacularly transformative. Scott: That’s right. He did call it spectacularly transformative. Even if Claude absorbed a lot of the underlying materials, the judge pointed out that the model wasn’t spitting out verbatim chunks of the author’s books. Matt: Well, the second point was digitizing purchased printbooks. The authors argued that converting them into searchable PDFs was also in free trade. Scott: But the court pushed back. Because Anthropic lawfully bought the books and then destroyed the physical copies and only kept one digital version for internal use, that passed muster as fair use. Matt: Scott, the judge even went out of his way to say that this use was more transformative than in Texaco. Google Books and Sony Betamax, and clearly different from the Napster case. Scott: Right, clearly different from the Napster case. That brings us to the third use, which was pirating books and retaining those pirated books. Matt: Correct, Scott. That’s where Anthropic went off the rails. They downloaded millions of books from pirate sites, and they stored them, even when a lot of them weren’t used for trading at all. Scott: The kicker, internal emails show that the founder and other executives really knew of the risk, and they were quite cavalier about this, but they decided that essentially, piracy was easier than licensing. Matt: Yep. And the court said no. This was not transformative. It undercut the market, and it was full verbatim copy. The bottom line, fair use didn’t apply. Scott: So this brings us to the fallout. So just last week, Anthropic agreed to settle the author’s claims for $1. 5 billion. Matt: That sounds like a lot, but when you break it down, Scott, that’s only about $3,000 per copyrighted work. Scott: True, but it doesn’t really stop at $1.5 billion. That $1.5 billion is only floor.

The Yuga Labs v. Ryder Ripps case is shaking up NFTs and trademarks. In this episode of The Briefing, Weintraub attorneys Scott Hervey and Tara Sattler unpack the Ninth Circuit’s ruling on whether NFTs count as “goods,” why the First Amendment defense fell flat, and what it all means for the future of digital asset law. Watch this episode on YouTube. Show Notes: Scott: Was the Ryder Ripps Bored Ape Yacht Club NFT series a social commentary on the popular Board Ape Yacht Club and an exposure of its racist tropes? Or was it just an attempt to capitalize off of Bayes’ popularity for profit? These questions were front and center in the lawsuit between Yuga Labs, the creators of the Board Ape Yacht Club NFT. Boys, say that 10 times fast. Project and Ryder Ripps, a popular visual artist. This case resulted in a bench trial award to Yuga Labs of $8 million in damages. But the appeal of that award to the Ninth Circuit raised some very interesting issues, named Mainly the question of whether NFTs are goods that fall under the Lanham Act. I’m Scott Hervey, a partner with Weintraub Tobin, and today I’m joined by my partner and frequent briefing contributor, Tara Sattler. We are taking a deep dive into the fascinating intersection of digital art, blockchain, and Intellectual Property on today’s installment of The Briefing. Tara, welcome back to the briefing. Tara: Hi, Scott. Great to be here, as always. Scott: It’s good to have you here. Let me ask you a question. Did you ever buy any NFTs? Tara: I did not. Scott: I did not either. But I think we’re still qualified to talk about this case, even though we weren’t suckers, I’m sorry, consumers of NFTs. Tara: Yes, I agree. Scott: Let’s start with a summary of the Yuga Labs case. Why don’t you tell us what exactly happened here? Tara: Sure. Yuga Labs Inc. Created the Bored Ape Yacht Club or B-A-Y-C NFT collection, which is one of the most recognized NFT collections globally. The B-A-Y-C collection was associated with, very early with celebrity owners, including Snoop Dogg, Justin Bieber, and Jimmy Fallon. Each NFT in this collection is associated with a unique cartoon soon, Bored Ape Image, and purchasing an NFT not only grants rights to the ape art, but also membership in what’s been described as a strange combination of gated online community, stock shareholding group, and art appreciation society. Yuga Labs launched BAYC in April of 2021, quickly selling out the collection and generating over $2 million. They also developed various trademarked brand signifiers like Bored Ape Yacht Club and Bayayc. Scott: Now, this was right as NFTs took off, some promoting NFTs as an investment category and some just promoting it as hype. There was a huge rush to the adoption of NFT art, and NFTs gained cultural relevance as status symbols. That’s where Ryder Ripps and Jeremy Cahan, hope I pronounce his last name correctly. Tara: Comment. Prefithely. In late 2021, Ryder Ripps, a visual artist, started criticizing Yuga Labs, alleging they used neo-nazi symbolism, alt-right dog whistles, and racist imagery in the B-A-Y-C NFTs. Scott: That’s right. According to Ripps, the Bayy-C Ape Skull logo resembled the Totenkopf emblem of the Nazi SS Stormtroopers. Ripps compiled his findings on a website and used art to satirize the Bayy-C brand. In May 2022, Ripps and Kehen created their own collection called Ryder Ripps Board Ape Yacht Club, which was linked to the exact same ape images with some slight changes and a corresponding ape ID, as was Yuga’s NFTs. Tara: So surprise, Yuga Labs sued Ripps and Cahin and asserted 11 federal and state causes of action, including claims under the Lanham Act for trademark infringement. Yuga claimed the defendants made counterfeits market, BAYC NFTs that they advertised and sold to the same customers in the same markets using Yuga’s BAYC trademarks. Scott: The defendants argued that their use was protected by normative fair use and the First Amendment. It’s interesting that of the 11 causes of action, Yuga didn’t sue for copyright infringement despite that the BAYC NFTs are associated with original works of art. Tara: That’s true. What’s your thought on why Yuga didn’t sue for copyright infringement? Scott: This is just my hypothetical and my thought. When Bayayay-C NFTs were sold, you have a lab’s granted buyer as a license to use the underlying artwork for personal and commercial purposes. It could be as broad as creating derivative works or merchandise featuring the artwork that corresponds to the NFT that you purchased. This licensing model could potentially complicate a copyright claim because Ripps could argue that his NFTs were permissible under the broad license that was granted to the BAYC NFT holders, or he could have argued that his use was fair use, especially since Ripps claimed that his project was satirical commentary of th

50 Cent’s two-minute cameo in the horror film “Skill House” turned into a full-blown legal battle over credits, contracts, and control. In this episode of The Briefing, Weintraub entertainment and IP attorneys Scott Hervey and Tara Sattler break down what went wrong—and what Hollywood can learn from it. Watch this episode on YouTube. Show Notes: Scott: Picture this, Curtis 50 Cent Jackson, hip hop legend and media mogul, steps on to the set of a new horror flick, Skill House. He films a quick two-minute scene, gets billed as a producer, and then next thing you know, he’s in court, trying to stop the film’s release, claiming his name and likeness were used without his permission. But the producers say, Hold on, wait a minute, we had a deal. Welcome to the Briefing by Weintraub Tobin, where we dissect the legal showdowns Shaking Up Hollywood. I’m Scott Hervey, and I’m joined today by my partner, Tara Sattler. Today, we’re going to unravel this messy dispute on today’s installment of The Briefing. Tara, welcome back to The Briefing. Tara: It’s always great to be here, Scott, and welcome back. I know you’ve been gone for a little bit. Scott: Yeah, that’s right. We pre-filmed about four or five episodes, and they weren’t our standard deep dive into current cases. I’m happy to dig back into this one. This I wrote while I was away on vacation because I found this case from the start to be incredibly interesting. Tara: God, since I work with a lot of studios and production companies, this case is absolutely my worst nightmare. Scott: Oh, mine too. I work with a bunch of studios and production company as well. When I read this case, I broke out in cold sweat. This is the thing that keeps you up at night. Tara: Yeah, it really is. It’s a wild ride. A 50 Cent, a horror film, a missing signed contract. Let’s get into it. Scott: Yeah. So let’s start with the factual history of the dispute, Tara. Why don’t you give our listeners a Some background on what’s going on here. Tara: Yeah, absolutely. So this case revolves around Skill House, a horror film that was released on July 11th, 2025, earlier this summer. Curtis Jackson, also known as 50 Cent, appears in the film for just over two minutes, but is prominently featured as a producer in its marketing. 50 Cent and his company, NYC Viive LLLC, filed a lawsuit against the film’s production company, Skillhouse Movies, LLC, its producer Ryan Cavenagh and GenTV, LLC, alleging unauthorized use of his name, likeness, voice, trademarks, and other intellectual property. 50 Cent then sought a preliminary injunction to stop the film’s release, claiming it would cause irreparable harm to his brand and reputation. The defendants, however, argued that 50 Cent agreed to participate in and promote the film in exchange for a back-end profit share of 10%, among some other terms. Scott: Right. So the core issue, or one of the core issues, is whether there was an agreement. What’s the backstory on that, Tara? Tara: So in the summer of 2022, 50 Cent and Cavenagh started discussing his involvement in Skillhouse, which is Gen TV’s first feature film. On June 26th, 2022, 50 Cent Council, Stephen Sava, emailed Production Council Neil Sacker, confirming they were good to go on the terms, including producer credit, 10% of the back-end profits, social media promotion with approval rights, product placement for 50 Cent Cognac and champagne brands, and a small acting role. Kavanaugh confirmed these terms, and on July second, 2022, Sacker sent a binding term sheet and certificate of employment, which included $100,000 in fixed compensation and a clause barring 50 cent from seeking injunctive relief in relation to the film. The parties exchanged some revisions on those documents, and by July 30th, Sacker sent what he called the final version of the agreement. But here’s the catch. Neither side can produce a signed copy. So Kavanaugh claims that 50 Cent signed it on set on August second, 2022, in front of witnesses. But 50 Cent and his team deny that. Scott: That’s pretty messy. I see how this all plays out because this happens. This just happens. But it’s messy. No signed agreement. But the parties kept working together. Tara: Yeah, they did, even without a signed contract. So 50 Cent filmed his scene, and his team continued discussions about promotion and payment terms. For example, on August 15th, 2022, 50 Cent commented positively about a film flip, and he later discussed product placement with Kavanaugh. But by April of 2025, 50 Cent’s team claimed they hadn’t been paid, and on June 2, 2025, he filed the injunction to block the film’s release, citing federal and state trademark infringement, unfair competition, false advertising, and violations of his right of publicity. Scott: So let’s get to the court’s legal analysis. Le

You came up with a clever brand name in a foreign language—great! But did you know it might be refused by the USPTO? In this episode of The Briefing, Scott Hervey and Richard Buckley break down what a doctrine is, how trademark examiners apply it, and other important considerations for choosing foreign-language marks. Watch this episode on YouTube. Show Notes: Scott: You’ve come up with a great brand. It’s clever, it’s catchy, and it’s in a foreign language. But when you file for a trademark, the USPTO refuses your application. Why? Well, the answer might lie in an obscure but important rule, the doctrine of foreign equivalence. I’m Scott Hervey, a partner with a law firm of Weintraub Tobin, and I’m joined today by my partner Richard Buckley. We are going to unpack the doctrine of foreign equivalence, how it works, when it applies, and what it means for brand owners and their lawyers on today’s installment of the briefing. Richard, welcome back to The Briefing. Richard: Great to be here, Scott. Great topic. Scott: Yeah, I was reminded of this when I was looking at a trademark search for a client, and it happened to be for a consumer brand, and their mark was in Italian. In clearing the brand, I had to think, Okay, what does that word mean? I had to look for that English language word for similar products. I’m jumping ahead of myself, though. Let’s start with the basics. The doctrine of foreign equivalence is a rule in US trademark law used to analyze trademarks that contain foreign words. Under this doctrine, a foreign word used in a trademark mark may be translated into English to determine whether the mark is generic or merely descriptive, and whether it’s confusingly similar to another registered or pending mark. Richard: The doctrine reflects the idea that the average American consumer familiar with the foreign language may translate the word when encountering the mark. It’s not automatic. Translation only happens if it’s likely that the consumer would recognize the term translate it mentally into English. Scott: All right. So let’s talk about how this comes up in practice. So during the trademark examination process, and that happens after an applicant has filed their trademark registration application with the Patent and Trademark Office, the USPTO examining attorneys are required to consider whether a foreign term should be translated under this document. The USPTO even has what’s called a Trademark manual of Examining Procedure, or the TMEP, which directs examiners to apply the doctrine when it is appropriate. Richard: Here’s how they typically analyze it. First, language recognition. Is the word in a common, modern, foreign language that is spoken by a substantial portion of US consumers? Spanish, Italian, French, German, and Mandarin are the usual suspects. Scott: Last Latin, not so much. Okay. Richard: Not anymore. Scott: Translatability. Is the term directly translatable? For example, Lupo, right? It’s Italian for wolf. Richard: Third, relevance of the translation. Does the English translation affect the analysis of the mark? For instance, if the translation is descriptive or generic, that can be grounds for refusal. If the translated the word is confusingly similar to an already registered English language mark, that may lead to a Section 2D likelihood of confusion refusal. Scott: Right. The doctrine of foreign equivalence only applies when an ordinary American purchaser is likely to translate the foreign mark into English. However, the Trademark Trial and Appeal Board has interpreted the phrase ordinary American purchaser as purchasers familiar with the foreign language. This definition of ordinary American purchaser effectively guarantees that the doctrine would be applied in almost every case involving a foreign word, since those familiar with a non-English language would ordinarily be expected to translate the word into English. So the bottom line of that is if your mark is in a foreign language, it’s always best to analyze whether that mark conflicts with its English language counterpart. Richard: Scott, let’s discuss why this matters for brand owners, especially in entertainment and consumer-facing industries. Scott: Sure. That’s a great idea. All right, so let’s say you’re launching a fashion label, and let’s say it’s called Bell Mode, French for beautiful fashion. Even though that sounds elegant, it could be viewed as merely descriptive when translated, making it hard, if not impossible to protect. Richard: Or imagine you name your tequila Toro Azul, a Spanish for a blue bowl. If there’s already a brand called Blue Bull Spirits, you may be blocked, even if your mark is entirely in Spanish. Scott: For entrepreneurs, the key is to avoid assuming that using foreign words gives your brand instant uniqueness. And also recognize that common or transla

Can you use a celebrity’s voice or image in your work? What about AI-generated versions? On this episode of The Briefing, Scott Hervey and Richard Buckley explore the right of publicity—how it protects names, likenesses, voices, and what happens when you cross the line. Watch this episode on YouTube. Show Notes: Scott: Can you use a celebrity’s name or likeness in your film, in your podcast, or in an advertisement? Well, you shouldn’t do that without understanding the right of publicity, because if you don’t, there certainly will be lawsuits or problems that will follow. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I am joined today, again, by my partner, Richard Buckley, and we are going to talk about the right of publicity, an always hot issue in entertainment on today’s installment of The Briefing. Richard, welcome back. This is our fourth installment of the Refresher Series here. And today we’re talking about right of publicity. All right, let’s jump right into it. The right of publicity protects an individual’s name, image, and likeness, and sometimes even voice or signature from being used commercially without their consent. Richard: Unlike copyright or trademark law, the right of publicity is grounded in privacy and property interests. It gives people, especially public figures, control over how their persona is used. Scott: Right. Also, unlike copyright law, it is purely based on state law. There is no federal right of publicity law. All right, let’s talk about key elements. To bring a claim for violation of right of publicity, a person generally must show that their identity was used. It was used for a commercial purpose, so generally in connection with the sale or advertisement of goods or services. It was used without consent, and it resulted in damages or unjust enrichment. This applies both to living individuals and in many states, like California, to deceased personalities whose estates may maintain postmortem publicity rights. There are many notable cases, but one of the classics is White versus Samsung, Banner White. Samsung ran an ad with a robot dressed like Banner White, turning letters on a game show set like Wheel of Fortune. Even though it wasn’t her, the court found that the ad evoked her likeness without permission, and that violated her publicity rights. Richard: Other great examples are two cases that set the framework for soundalike cases. The first was Midler versus Ford, and the second was Tom Waits versus Frito Le. Both cases involved the use of a he sounded like a singer singing a song in the style of those artists in a television commercial or in two TV commercials. Both cases held that when a voice is a significant indicator of a celebrity’s identity, like Arnold Schwarzenegger or Sylvester Stallone, the right of publicity protects against its imitation for commercial purposes without the celebrity’s consent. Scott: So what about biopics or documentaries? Here, the First Amendment comes into play. Richard: Right. If the use is part of an expressive work, that use may be protected, especially if it’s newsworthy or if it’s transformative. Courts often apply the transformative use test that was seen in the case Comedy 3 Productions versus Satarup, where the California Supreme Court said that the First Amendment doesn’t protect literal reproductions of celebrity images used in merchandise. Ai generated voices and faces are raising new issues. If you generate a synthetic version of someone’s voice or what we would call a deep fake of their likeness, you could run into publicity rights and false endorsement claims. Scott: Several states have laws on the books to address this, and other states are updating their laws to address this. We’ll likely see more litigation around digital replicas in advertising, video games, and even virtual performances. All right, let’s talk about some practical guidance. Here’s the bottom line. Always get a release if you’re using a person’s identity for commercial purposes. Don’t assume you can use a lookalike or a soundalike without consequences. For expressive works, evaluate with your lawyer whether the use is permitted. Keep an eye on evolving state law, especially around digital likeness and postmortem rights. Thanks again to my co-host, Richard. Richard, always great to have your insights. And thank you, our listener, for joining us on the briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share with your network. We’d also love to hear from you, so leave a comment or a review and let us know what topics you would like us to cover in future episodes. I’m Scott Hervey. I’ll see you next time on The Briefing.

Who owns the rights when you co-create something? It’s not always as simple as you think. On this episode of The Briefing, Scott Hervey and Richard Buckley dig into: ✔️ Joint authorship ✔️ Work-for-hire rules ✔️ Why every collaboration needs paperwork Avoid disputes before they derail your project. Watch this episode on YouTube. Show Notes: Scott: In a film, a television show, and music— creative projects are almost always collaborative. So, who owns what? And how do you avoid a fight over rights down the line? I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by our partner, Richard Buckley. We are going to talk about copyright ownership in collaborative works and how to avoid using Richard’s services as a litigator on today’s installment of The Briefing. Richard, welcome back to our third installment of, we called it last In the last episode, we called it Refreshers. I think I said I like to call them refreshing. These are our refresher episodes where we’re going to cover basic issues, refresh our audience on some basic issues. Today we’re covering copyright basics, collaborative works, and how to avoid the unfortunate and often painful task of hiring litigator like yourself to deal with disputes. All right, let’s start at the beginning. Copyright basics. A copyright protects original works of authorship that are fixed in a tangible medium. So think, scripts, songs, films, choreography, artwork, photographs, lots more. Ownership automatically vests in the creator unless there is a written agreement stating otherwise. Richard: Scott, this is certainly your world, but in entertainment, collaboration is constant. But how the law treats collaborators depends on how the project is structured. In a joint work, two or more people intend to merge their contributions into a single piece. Think of songwriting duos or co-writers film. Scott: It’s important to note that in a joint work like that, each co-author owns an undivided interest in the whole work. That means each individual can independently exploit that work, license that work, distribute that work without the other’s permission, even though they would have to share profits. You could see that can get a little bit confusing in the marketplace. Where you have a joint work, it’s It’s best to have a writing between the two and define who’s responsible for what. Contrast that with works made for hire. If a creator is your employee or if there is a signed agreement that states that the work is a work made for hire, then the employer or the commissioning party owns all of those rights. Richard: Problems arise when the roles are not clearly defined. Perhaps the composer thinks that he he or she owns the score that they wrote, the production company disagrees, or a freelance editor claims they were not a work for hire because no written agreement exists. These disputes can stop a project from being sold, licensed, or even released. Without a clear chain of title, distributors often walk away. Scott: That’s very, very true. All right, let’s talk about some real-world scenarios. Let’s take an independent film. You might have, and you will have, a director, a writer, a composer, a cinematographer, a graphic designer, or a VFX company that creates visual effects or the title cards. You have a bunch of actors, lots of people that contribute to the creation of an independent film. Richard: Right. And unless all of these contributions are either made by employees or are under a written agreement with either an assignment or a work made for higher provision. You could have multiple rights holders with the power to block distribution or demand royalties later. Scott: That’s right. And that’s not just film where that can happen. In music, co-writers need to agree on splits and ownership early. Same thing with a music producer. In the influence or creator economy space, creator content, video editors or collaborators may claim rights if terms are not clearly spelled out. All right, so let’s talk about some best practices. Here are some takeaways. Always have written agreements. Use work for higher language in all of your agreements, I say, and also have assignment language. For joint works, if you intend to hold the copyright jointly between two authors, clarify, split, and make sure it’s really clear that the agreement is really clear on who has the authority to do what with the work. Also, don’t assume that just paying someone automatically gives you copyright ownership. It does not. While it may give you the right to be deliverable or the end product, it does not vest you with the rights that are vested in a copyright owner. You might find that all you own is the copy what was delivered to you, but all the underlying rights are not yours. Richard: All great advice. I’d add one thing. If you’re hiring freela

From podcast names to iconic sounds, trademarks shape the entertainment world. In this episode of The Briefing, Scott Hervey and Richard Buckley break down what trademarks are, how to get one, and why creators must protect their brand. A must-listen for anyone building a name in entertainment. Watch this episode on YouTube. Scott: From movie titles to podcast logos, trademarks are everywhere in the entertainment industry. But how do you get one and what does it actually protect? I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We are going to talk about the fundamentals of trademark law and why it matters in the entertainment industry on today’s installment of The Briefing. Richard, welcome back. This is our second installment of our, I guess we’ll call it our Basic Series. It’s not basic, but it is a series on basic issues. Richard: It’s a great refresher. Scott: It is. The Refresher Series. I like that. The Refreshing Series. All right. So let’s jump into this here. So let’s start with the definition. What is a trademark? So A trademark is any word, phrase, symbol, or design. It actually even can be a color, and it can also be a noise that identifies and distinguishes the source of goods or services. So think names like Marvel, Pixar, Netflix, or even think the distinctive chime sound from NBC. And let’s not forget the color blue. That is the color of the Tiffany box, right? That’s also a trademark. Richard: So trademarks are fundamentally about branding. You’re telling consumers where a product or service comes from and preventing confusion in the marketplace. Right. Scott: So in entertainment, a trademark covers more than you might think. Show titles, well, series titles, production companies, logos, podcast names, podcast series names, even character names in film franchises, they can also be trademarked. If they function as brand identifiers. Richard: Take, for example, Star Wars. That’s a trademark. So is The Tonight Show. If you’re launching a podcast or a production company, you want to consider protecting your brand as well. Scott: Let’s talk about what goes into obtaining a trademark. Some people are surprised to learn that you really don’t need to register a trademark to have rights in it. Just by using a mark in commerce, you can establish what’s called Common Law Trademark Rights. Richard: But registration with the US Patent and Trademark Office gives you several benefits: nationwide protection, presumed ownership, the ability to use that cool symbol, the circle with the R in it, trademark symbol. Also, you have a clearer path to enforcement. Scott: Yeah. Also, I might add a federal trademark registration is required in order to protect your brand outside of the United States. It is what’s required. Often, also, a federal trademark registration is required if you are dealing with taking down counterfeit merchandise off of B2C sites like Amazon or Etsy or Redbubble. All right, let’s talk about what goes into choosing a trademark and how to avoid choosing a wrong one. One of the biggest mistakes I see is creators falling in love with the name before clearing it. Clearence is about searching to ensure that no one else is already using a confusingly similar mark in your space, your industry, on your same or similar goods or related goods or services. Richard: It’s important to note that a strong trademark is distinctive. It’s not generic or descriptive. The more unique your name or logo is, the easier it is to protect it. Scott: That’s right. All right. So once you have a strong trademark, let’s talk about enforcing your rights and dealing with infringement. So trademark infringement is all about likelihood of confusion. What does that mean? Courts will look at whether consumers are likely to believe your product or service comes from or is affiliated with somebody else. Richard: We’ve seen high-profile disputes like the World wrestling Federation versus the World Wildlife Fund. That’s where the wrestling company, WWF, had to rebrand to WWE, or the Comicon lawsuits between San Diego and Salt Lake over who owns the term. Scott: Ryan, if you own a mark, you have to police it. That means monitoring for infringing uses, and when necessary, sending the cease and desist letters or taking legal action. And I always counsel my clients, don’t just think that just sending a cease and desist letter is the end of it, because if the other side doesn’t stop, well, you’re faced with the choice of really not doing anything and you’re having your trademark rights erode or spending the money to enforce your rights. Richard: Right. If you just send a letter and don’t follow up on it to put any teeth of enforcement behind it, then you can get a reputation for just being full of

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.

In a major win for Meta, a federal court recently dismissed a lawsuit brought by prominent authors who claimed their books were illegally used to train the company’s LLaMA models. But the ruling doesn’t give AI companies a free pass—it reveals the roadmap for how a better-prepared copyright plaintiff could win next time. In this episode of The Briefing, Scott Hervey is joined by his partner Matt Sugarman as they break down: The background of Kadrey v. Meta The court’s detailed fair use analysis A comparison to Bartz v. Anthropic The “third theory” of market harm that could shape future litigation What AI developers must do now to avoid lawsuits Watch this episode on YouTube.

A federal judge has ruled that training Claude AI on copyrighted books—even without a license—was transformative and protected under fair use. But storing millions of pirated books in a permanent internal library? That crossed the line. In this episode of The Briefing, Scott Hervey and Tara Sattler break down this nuanced opinion and what this ruling means for AI developers and copyright owners going forward. Watch this episode on YouTube. Show Notes: Scott: What happens when an artificial intelligence company trains its models on millions of books? Some purchased, some pirated. In a closely watched ruling, a federal judge held that training the AI was fair use, likening the process to how a human learns by reading. But keeping pirated copies of those books in a permanent digital library, well, that crossed the line. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner and frequent Briefing contributor, Tara Sattler. We are going to break down the recent fair use ruling in the lawsuit over Claude AI, that’s Anthropic’s AI, and explore what it means for the future of AI training on today’s installment of the briefing. Tara, welcome back to The Briefing. Good to have you. Tara: Thanks, Scott. I always enjoy being here with you. Scott: Always enjoy having you. This one is a much-awaited decision because we have a number of these cases that are swirling around, challenging the process by which AI companies train their large language models. One of these cases involved the Anthropic AI Claude. Why don’t we jump jump into this one, Tara, maybe you could give us some of the background of this particular case. Tara: Absolutely. In 2021, Anthropic PVC, a startup founded by former OpenAI employees, set out to create a cutting-edge AI system, and that system would eventually become Claude. Like other large language models, Claude was trained on a vast amount of textual data, books, articles, websites, and more. But unlike many of its competitors, Anthropic took a controversial shortcut. Scott: Right. Instead of licensing books or building a clean data set, Anthropic downloaded millions of copyrighted works from pirate sites like Books 3, Library genius, and the pirate, Library Mirror. In total, Anthropic downloaded over seven million pirated books, including works by authors Andrea Barth, Charles Graber, and Kirk Wallace, Johnson. Anthropic also purchased millions of print books, scanned them, and then created a digital central library of searchable files. Tara: So the plaintiff sued, alleging that Anthropic infringed their copyrights by copying their works without permission. First, by downloading them from the pirate sites, and then by using them to train Claude, and finally, by keeping digital copies of the books in its internal library for potential future use. Scott: All right, so let’s now… So as we know, the lawsuit was filed, and Anthropic eventually moved for summary judgment based on fair use only. And in its ruling on Anthropic’s motion, Judge Al up of the Northern District of California issued a very detailed and nuanced opinion. The opinion splits Anthropic’s conduct into three key uses. The first is using the books to train the AI or the large language model, scanning and digitizing legally purchased print books, and thirdly, downloading and keeping pirated books in a permanent digital library. Each of these uses was evaluated under the Copyright Act’s Four-Factor Fair-Use Test. Tara: Right. Let’s walk through how the judge applied the four fair use factors in each use. For anyone who needs a refresher, here are the statutory factors for fair use under Section 107 of the Copyright Act. Scott: If you need a refresher, you’re not listening to this podcast often enough. Go ahead, Tara. Tara: Okay, so we’ll refresh anyway. First is the purpose and character of the use, including whether it is commercial and whether it’s transformative. The second is the nature of the copyrighted work. The third is the amount and substantiality of the portion of the copyrighted work that’s used. And the fourth is the effect the use upon the potential market for the original work, and that’s the economic analysis. Scott: And that one, as we know, has become more persuasive or more focused on since the Supreme Court case, since the Warhol Supreme Court case. All right, let’s focus on the first factor. Let’s focus on the first factor. Or let’s focus on the first use, which was the training of the large language models. So on the first use, the training of the Claude models using books. The court found that to be fair use. So it didn’t matter whether the books were the purchase books or they were the pirated books. The court found that the training on these books to be fair use and focused most heavily on the first factor. The court called this use spectacularly tr

The Supreme Court sidestepped a major copyright showdown—again. What does it mean when infringement claims surface decades later? In this episode of The Briefing, Scott Hervey and Tara Sattler break down the latest in the discovery rule debate, RAD Design’s rejected petition, and how this uncertainty affects creators, businesses, and copyright holders across the country. Watch this episode on YouTube. Show Notes: Scott: In Warner Chapel Music versus Neely, the Supreme Court acknowledged without resolving a major question in copyright law, should plaintiffs be allowed to bring infringement claims years or even decades after the alleged violation happens if they say they just recently found out about it? That question was front and center in Rad Design versus Michael Greckeau Productions. And while many expected the court to finally address it, they declined to take the case. What does this mean for copyright holders, digital content creators, and the businesses defending against those claimed? I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my colleague Tara Sattler. We are diving into the Supreme Court’s decision to leave the discovery rule untouched, at least for now. On in this episode of The Briefing. Tara, welcome back to The Briefing. It’s good to have you back. Tara: Thanks, Scott. Glad to be here, and glad to be getting into some important copyright strategy with you here today. Scott: Right. Yeah. So let’s start by defining what we’re actually talking about, the discovery rule. It’s a judgment doctrine that allows plaintiffs to file a copyright lawsuit within three years of discovering the infringement, even if the infringement happened long before that. Tara: Right. And for years, courts have disagreed on whether the Copyright Act actually allows this. The text of the Copyright Act says that actions must be brought within three years after the claim accrued. But it doesn’t say whether accrual starts at the time of infringement or at the time of discovery. Scott: And that ambiguity is at the heart of the issue. Some courts, like the Second Circuit, have embraced the discovery rule. Others are skeptical. That split was one reason the Supreme Court agreed to hear Neely in the first place. So before we get deeper into the implications of the Supreme Court denying Cert and Rad Design, we should revisit the Warner Chapel Music versus Neely decision because that case really set the stage for all of this. Tara: Absolutely. That case started back in 2018 when music producer Sherman Neely sued Warner Chapel Music and Artist Publishing Group. He claimed that Flowrida’s 2008 song, In the Air, contained an unauthorized sample from a 1984 track Neely co-owned the rights to. Now, that’s a fairly typical copyright infringement claim, but what made this case different was the timing. Scott: Right. So Neely had been incarcerated for a number of years, and apparently, they don’t allow radios in the jail or prison that he was in. And he argued that he only discovered the alleged infringement shortly before his filing of his lawsuit, even though the infringement happened decades earlier. The question that ended up before the Supreme Court was whether under the discovery rule, as applied by some circuit courts, a plaintiff could recover damages for acts of infringement that happened more than three years before the lawsuit was filed. Tara: And that was a hotly contested issue. Some circuits, like the Second Circuit, applied a very strict three-year cap on damages, even when a claim was deemed timely under the discovery rule. That rule came up from the Supreme Court’s prior language in Petrela versus MGM, where Justice Gainsberg wrote that a successful plaintiff can gain retrospective relief only three years back from the time of suit. In contrast, the ninth and 11th circuits had taken the opposite view. They allowed damages to go all the way back to the first act of infringement, so long as the claim itself was timely under the discovery rule. Scott: And in Neely, the Supreme Court resolved that split, writing for the majority, Justice Kagan held that if a plaintiff’s claim is timely under the discovery rule, then there’s no statutory cap on damages. So the court said that the Copyright Act’s remedial provisions, Section 504 and Section 505, do not impose a time-based limit on damages. They simply state that an infringer is liable for either statutory damages or actual damages and profits without any mention of a three-year time limit on those damages. Tara: And the court also criticized the logic of the Second Circuit’s hybrid approach, where a plaintiff could file suit based on discovery but still not recover damages beyond three years. Kagan basically said, That’s incoherent. If a claim is timely, it’s timely, and the plaintiff should be entitled to full relief. Scott: Bu

Who really owns WallStreetBets? The man who created the subreddit, or the platform that hosted it? In this episode of The Briefing, Scott Hervey and Tara Sattler dive into the trademark showdown between Jaime Rogozinski and Reddit, and why both the District Court and the Ninth Circuit said no to Rogozinski’s claim of trademark ownership. This case is a cautionary tale for creators and entrepreneurs about what really counts as “use in commerce” under trademark law. Just coining a catchy name or launching a community isn’t enough. If you’re not the one offering goods or services under the brand, you don’t own the trademark. Watch this episode here. Show Notes: Scott: He created the subreddit. He coined the name. He even filed a trademark application for it. But when Jamie Rogosinski took reddit to court to enforce his claim over the Mark Wall Street bets, both the district Court and the Ninth Circuit told him the same thing. Just because you created the name doesn’t mean you own the trademark. I’m Scott Hervey, a partner with the Law firm of Weintraub Tobin, and I’m joined today by my colleague, Tara Sattler. We are going to talk about Trademark use, ownership, and the Reddit battle over Wall Street bets on this installment of The Briefing. Tara, welcome back to The Briefing. Thanks for being here today. Tara: Thanks for having me. Always glad to be chatting with you, Scott. Scott: So this one’s a real interesting I think almost everybody knows about the subreddit Wall Street Bets. Can you give us some background on this whole dispute? Tara: Yes, absolutely. So the story starts with Jamie Rogosinsky, and I really hope I’m pronouncing that right. So my apologies if I’m not. But Jamie Rogosinsky, the man widely credited with launching the subreddit feed Wall Street Bets back in 2012. And What began as a niche community for high-risk trading chatter exploded into really a cultural phenomenon in 2021 during the Gamestop and AMC Short Squeez. Right. Scott: Sensing an opportunity to commercialize the brand. Rogusinski filed a trademark application for Wall Street Bets in 2020, covering merchandise and other goods. But Reddit, which owned and hosted the subreddit platform, wasn’t on board with that. It removed Rogusinski as a moderator for violating its policies and later filed its own trademark application for the same name, this time for an online forum service. Tara: So Rogusinski sued Reddit in early 2023 in the Northern District of California and asserted claims for trademark infringement, unfair competition, and declaratory relief, arguing that he, not Reddit, owned the Wall Street Beats brand. Scott: Let’s talk about who actually used the mark. So to understand why both the District Court and the Ninth Circuit rejected Jamie Rogosinski’s trademark claim over Wall Street bets, we have to look closely at what each party actually did with the trademark, and more importantly, how the law defines, quote, use in commerce. Tara: Right. So Rowe Kuzinski argued that he was the originator of the mark. He created the subreddit, Wall Street Bets in 2012, moderated it for eight years, and even shaped the visual identity of the community itself. So according to him, he wasn’t just a user, he was the brand in the brand space. Scott: And to bolster that claim, he pointed to several activities movies. First, he published a book in January 2020 that he called Wall Street Bets: How Boomers Made the World’s Biggest Casino for Millennials. He linked it to the subreddit, and he Wall Street Betts’ name directly in the title. Tara: He also announced plans to launch Wall Street Betts’ branded merchandise and even promoted a real money esports trading competition, all under that Wall Street Bets’ name. He highlighted his growing media presence and public persona, and he claimed the public really associated him with the mark and not read it. Scott: But here’s the legal problem. None of Isn’t that moderating a subreddit feed, writing a book, announcing merch ideas, remember, announcing merch ideas, becoming recognizable, counted as trademark use in commerce under the Lanham Act? Tara: Exactly. Courts require that to establish trademark rights, you must be the first in commerce to use the mark in connection with actual goods and services, and that the use needs to be real, public-facing, and commercial, not just conceptual or community-based. Scott: Now, Reddit, on the other hand, didn’t just host the subreddit. It actively operated it. They controlled the platform. They served millions of users and provided forum services under the Wall Street Bet’s name, beginning in 2012. That qualified as commercial use of the mark. Tara: And both the District Court and the Ninth Circuit agreed. Reddit’s provision of online forum services under the Wall Street Betts name constituted a bona fide use in commerce. Owners, long before R

In this episode of The Briefing, Scott Hervey and Richard Buckley dive into Pepperdine University v. Netflix, a trademark showdown over the use of the name “Waves” in the Netflix series Running Point. After Pepperdine’s attempt to block the series’ release was denied under the Rogers test, the university is back—this time arguing that the Jack Daniel’s Supreme Court decision changes everything. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: What happens when a Christian university’s proud athletic legacy collides with the creative freedom of Hollywood? That’s the question at the heart of Pepperdine University versus Netflix, a trademark dispute centered around the name Waves. Pepperdine lost its initial attempt to block the release of Netflix basketball comedy ‘Running Point.’ Very funny television show. But the fight is far from over. Now the court must decide whether Netflix use of the Waves mark is protectable artistic expression or actionable infringement. And it all comes down to a legal test some thought was subtle law until the Supreme Court rocked the waters in Jack Daniels versus VIP Products. I’m Scott Hervey, a partner at Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We are going to unpack this battle over brand identity, free speech, and college sports on this episode of the Briefing. Richard, welcome back to The Briefing. Good to have you. Richard: It’s great to be here again. Scott: Yeah. Did you watch Running Point? Richard: I have not. Scott: Okay, well, you are missing out. You should watch it. It’s quite funny. Richard: I feel like I must now. Scott: All right, let’s get into this. So let’s start with the basics. What’s this case about, Richard? Richard: So Pepperdine’s athletic teams have been known as the Waves since 1937. Netflix and Warner Brothers released a scripted comedy series called Running Point, featuring a fictitious professional basketball team named the Los Angeles Waves. The university sued, claiming trademark infringement and false designation of origin under the Lanham act, among other things. Scott: Pepperdine raised several issues in the complaint. First, they argued that the fictional Los Angeles Waves team, which, by the way, is not a collegiate team. It’s a like an NBA league team, uses the word Waves with a strikingly similar font to Pepperdine’s registered marks. Pepperdine also contended that the colors used by the fictional team were similar to Pepperdine’s and that both marks were used in athletic context. Pepperdine specifically pointed out that an image in the Running Point trailer included a frame jersey with the number 37, which they believe references Pepperdine’s founding year of 1937. Coincidence? I don’t know. But perhaps most importantly, Pepperdine was concerned about reputational harm. They argued that the themes and Running Point, including excessive alcohol and substance use, sexual innuendos in imagery and foul language and other content, didn’t align with Pepperdine’s Christian values and would negatively impact the university’s reputation. Richard: So Pepperdine sought a temporary restraining order, a tro, to block the release of Running Point, which premiered on February 27, 2025. The university argued that the use of Waves, along with similar color schemes in a jersey number 37, would confuse viewers and damage Pepperdine’s reputation. As you previously mentioned, the court denied the TRO for finding that Pepperdine was unlikely to succeed on the merits of its trademark claims because the use of Waves fell under the Rogers test, which protects expressive works unless the use is irrelevant or is explicitly misleading. Scott: Right. We. We previously covered the court’s ruling on the tro, so we’re not going to delve into that too deeply. You can. We’ll include a link to that episode in the show notes here. So. So after the show aired, Pepperdine filed a First Amendment complaint to incorporate new allegations, including claims of widespread use of the Waves mark in marketing. For example, Pepperdine alleged and in the First Amendment complaint included pictures showing Netflix’s use of Waves on tickets for the series premiere. Pepperdine also alleged consumer confusion with regard to third-party sales of Wave merchandise linked to Running Point. Richard: Shortly after Pepperdine filed its First Amendment complaint, Netflix filed a motion to dismiss the first amended complaint based mainly on the argument that the Rogers test still applied and shielded them from liability because Waves, the use of waves, was part of an expressive work and it was not misleading. Scott: Right. And so that brings us here to Pepperdine’s opposition to Netflix’s motion to dismiss. All right, so Pepperdine, in their opposition, argues that Jack Daniels versus VIP products. T

Can a car be a copyrightable character? In Carroll Shelby Licensing v. Halicki, the Ninth Circuit said no — ruling that “Eleanor,” the iconic Mustang from ‘Gone in 60 Seconds,’ lacks the distinctiveness and consistency required for copyright protection. In this episode of The Briefing, Scott Hervey and Richard Buckley break down the history of the Eleanor litigation, review the district court and Ninth Circuit rulings, and explain what it actually takes for a character to qualify for copyright protection. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Can a car be a character? Well, that’s the question at the heart of a long-running legal dispute over Eleanor, the muscle car made famous in the movie Gone in 60 Seconds. For years, the heirs of the original film’s producer claimed Eleanor was a protectable copyright character, and they tried to stop others, including Carroll Shelby licensing, from building or selling versions of that car. But the Ninth Circuit has now weighed in and has definitive shut that claim down. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Richard Buckley. We’re going to talk about Carroll Shelby Licensing versus Halicki and what it takes for a character to receive copyright protection on today’s installment of The Briefing. Richard, welcome to The Briefing. This is a first for you. So, welcome. Richard: Thank you for having me. It’s a pleasure. Scott: Absolutely. Richard is one of our litigators, so that means we keep him in the back of the firm and chained up, feed him raw meat every once in a while, just to So not often enough. Keep him ready to battle. All right. This is right up your alley, a piece of long-running litigation with steadfast defendants and steadfast plaintiffs arguing their claim all the way up to the Ninth Circuit? Richard: It’s a privilege of being older and experienced, I guess. But yes. Scott: All right. Well, let’s get into this one. So the saga over the car, Eleanor, has been years in the making. It began with the 1974 film, Gone in 60 Seconds, which began as an independent action film written and directed by H. B. Tobi Halicki. In that film, Yellow, 1971, Ford, Mustang Fastback named Eleanor, is the featured car in a climactic 40-minute chase scene. The film became a cult hit, and Eleanor became an underground icon. Richard: Right. In 2000, the movie, Gone in 60 Seconds, was remade by Disney and Jerry Bruckheimer, this time with Nicolas Cage behind the Wheel. Also in the remake, Eleanor is a Silver 1967 Shelby GT 500 Mustang. Very different look and different era. Still nicknamed Eleanor and still featured prominently. Scott: Halecky passed away in 1989, and his widow, Denise Halecky, later acquired certain intellectual property rights associated with the 1947 film, including the original script and footage. Denise Halecky, the widow, also began asserting that Eleanor, the car, was a protectable copyright character. Over the years, she and her company sent legal threats or sued individuals and businesses who built or sold Eleanor replicas, or what she claimed to be Eleanor replicas, including muscle car maker, Carroll Shelby, a former race car driver and car designer who was played by Matt Damon in the 2019 movie, Ford versus Ferrari. Great movie, by the way. Richard: Agreed. Those threats, Scott, culminated in the lawsuit that was filed by Carol Shelby licensing and Classic Recreations in 2020. They sought a declaratory judgment that Eleanor was not entitled to copyright protection and that Hyliki had no enforceable rights to stop them from building replicates. Scott: So this case has been winding its way through the district Court for the Central district of California and the Ninth Circuit. There have been many starts and stops and twists and turns in this case. But a summary of the proceedings is as follows. So originally, the district Court sided with Shelby in Classic Recreations. The Court found that Eleanor, in both the 1974 original and the 2000 remake, lacked the distinctive attributes necessary for copyright protection as a character. Richard: The Court emphasized that in the 1974 film, Eleanor was little more than a car with a name and a role in a chase scene. It had no anthropomorphic qualities, personality traits or development. The court also noted that Eleanor appeared differently in the two films, different models, different colors, different eras, undermining the argument that it was a consistent, protectable character. Scott: Right. Haleke appealed to the Ninth Circuit, where the Ninth Circuit affirmed the lower court, the court reviewed its earlier precedent on character copyright ability, notably the DC comics versus towel case involving the Batmobile, and concluded that Eleanor did not meet the standard. Richard: That, Scott, is a perfect segue for us to talk about what it takes to copyright

If your company relies on online reviews, influencer partnerships, or digital marketing strategies, it’s important to be aware of FTC Rules and the distinctions between real reviews and paid ads. Scott Hervey and Jessica Marlow discuss the dos and don’ts of consumer reviews on this featured episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: On August 14th, 2024, the Federal Trade Commission announced a final rule that will combat fake reviews and testimonials. All parties involved in influence or marketing or companies that have significant e-commerce businesses need to know about these rules, what they prohibit, and the consequences for violating them. Joining me to break down these new rules is fellow Weintraub partner Jessica Marlow on today’s installment of The Briefing. Jessica, welcome back to The Briefing. It’s been a while. Jessica: It has. Thank you for having me. Scott: Good to have you back. We’re talking about one of your favorite topics, influencer marketing. Jessica: Absolutely. FTC, they’re coming up with new rules all the time, so I’m excited to dig in. Scott: Yeah. Well, so let’s start out with a rule that I think a number of online brands, companies that have significant online businesses, will find maybe problematic. So the FTC says that it’s an unfair or deceptive act or practice and a violation for a business to provide compensation or other incentives in exchange for the writing or creation of consumer reviews expressing a particular sentiment, whether negative or positive, regarding a product, service, or business that is the subject of the review. In other words, no pay-to-play for consumer reviews. Now, according to the FTC notes, this section doesn’t address testimonials such as a blogger or an influencer paid review. This section only applies to consumer reviews. Also, the FTC pointed out that this section doesn’t prohibit paid or incentivized consumer reviews, only those where the compensation is provided in exchange for expressing a specific sentiment. Jessica: What about a campaign where a brand solicits positive feedback on a product in exchange for a discount on a future purchase? Something like, Tell us how much you loved our product, and we’ll give you 10% off your next purchase. Scott: The FTC that just because a business expects a review to be positive doesn’t mean that there is an express or an implied requirement that the review needs to be positive to obtain an incentive. The condition that the review needs to be of a particular sentiment in exchange for the incentive, it needs to be expressed or implied by the circumstances. However, let’s be clear that review gating, where a business only asks for positive reviews for customers while filtering out negative views, is itself illegal. Jessica: The rule also says that companies are prohibited from creating, writing, or selling fake reviews or testimonials. This would prohibit reviews attributed to a person that doesn’t exist. This would include AI-generated fake reviews, but not necessarily AI-generated summaries of actual reviews or reviews by real people who do not have actual experience with the business, its products, or its services, or that maybe misrepresent their experience of the person giving it. The rule also prohibits businesses from buying fake reviews or testimonials or disseminating such reviews or testimonials when the business knew or should have known that the reviews or testimonials were fake or false. Something to think about for brands or agencies that contract directly with influencers. Make sure that your agreement requires actual use of the reviewed product and that the review reflects the reviewer’s actual experience. Scott: Yeah, I agree with that. I think having that rep and warranty in an agreement is a way that a business can say, Well, there’s no way that I should have known that these testimonials given by this person are fake. They had no personal knowledge of the product or these reviews or testimonials did not actually reflect their own personal experience because the contract had these reps and warranties that said that the person giving the testimonial had to use it and that they could only give their personal experience as a testimonial. That’s a really good point. The prohibition on fake reviews also extends the company insiders or their relatives. The rule prohibits procuring or disseminating a review from a company insider or their relative when that review is about the business or one of its products or services, when the business knew or should have known that the reviewer, either materially misrepresented, either expressly or by implication, that the viewer exists. So one, it’s a review by a fake person, or two, that the reviewer did not have actual experience with the business or its product or service, or that the review misrepresents that reviewer’s actual experience. Jessica: The prohibition does not apply to r

What happens when a business built on a celebrity’s name no longer controls the name itself? In this episode of The Briefing, attorneys Scott Hervey and Jessica Marlow break down the Nicklaus Companies v. GBI decision and what it means for venture funds, PE firms, and brand-driven businesses. They discuss how Jack Nicklaus was able to legally walk away from the company bearing his name—and start competing—because the company failed to secure critical rights to his name, image, and likeness. Scott and Jessica examine the key legal documents that every investor should review when financing a business tied to personal branding, and the structures that can help prevent this kind of brand exodus. Whether you’re a creator behind a growing company, venture financing an influencer, a sports icon, or a lifestyle mogul, this is a must-listen for anyone putting money into a business that leverages a personal brand. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: It’s not unusual for celebrities and influencers to build an empire around their personal brand. But what happens when they sell a piece of that empire and later want back in the game? That’s the question at the heart of a recent New York Supreme Court decision in Nicholas Companies versus GBI Investors and Jack Nicklaus. The court had to determine who owned the commercial rights to the name and image of one of golf’s most iconic figures, and whether he, Jack Nicholas, could compete against the very company he helped create. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Marlow. We are going to talk about branding rights, post-sale competition, and the high-stakes world of influencer-built businesses on today’s installment of The Briefing. Jessica, welcome back to The Briefing. Jessica: Thank you. Thank you for having me. Excited to talk about this very timely topic. Scott: Yeah, I think it is really, really timely with the continued evolution of the creator economy and some of their businesses just getting bigger and bigger and huge financing transactions for a number of them. I think this is a timely lesson, both for influencers and for those that are buying or financing those businesses. Jessica: Absolutely. I don’t I don’t think there’s any slow in this business, so better for everyone to get on the same page and avoid some of the pitfalls that we’re about to talk about. Scott: Right. Well, let’s dive right into it. So in 2007, Jack Nicklaus and GBI Investors, it was a company owned and controlled by Jack Nicklaus, entered into an agreement with Nicklaus Companies, LLC. This was a company that was formed by a real estate magnate, Howard Milstein. And Nicklaus Companies, for $145 million, purchased certain assets of GBI, which included a substantial portfolio of trademarks and applications, wealth registrations and applications related to Jack Nicklaus’s name and his signature and the Golden Bear nickname in the United States and various other countries around the world, more than 600 in the US and 50 other countries. It also included in the purchase was the exclusive right to the golf course design service business that was rendered by GBI and marketing, promotional, and branding businesses of GBI, which included the right to use Jack Nicklaus’s name, image, and likeness. The complaint alleges that Nicklaus Companies became the sole owner of all of the rights to use all of the intellectual property related to Jack Nicklaus. GBI and Mr. Nicklaus became members the company, and Mr. Nicklaus became a manager. Jessica: Fast forward to 2022, Jack Nicklaus retires from his day-to-day involvement with Nicklaus Companies, but then started to pursue deals for the use of his name, likeness, and trademarks, including personal endorsements outside of the Nicklaus Companies, which included Jack Nicklaus being paid to promote a European tour golf tournament and the tournament’s right to use certain Nicklaus IP. Nicholas Companies sued him, alleging breach of contract, among other claims, and seeks to stop him from competing and using his name. Scott: Early in the litigation, Nicklaus Companies filed for a temporary restraining order and argued that the 2007 transaction, the $145 million transaction, resulted in the purchase of all golf course design services branded and identified under Nicklaus, Jack Nicklaus, and Jack Nicklaus’s signature brands, the various marketing, promotional, and branding activities involving the use and licensing of Jack Nicklaus’s persona in endorsements, other commercial rights, publicity rights, and intellectual property rights related to his identity and history as one of the most recognizable public figures in golf. So essentially, they claimed that they owned absolutely everything. Jessica: And in opposition to the temporary restraining order, Jack Nicklaus a

After nearly 30 years of litigation, a federal court has canceled General Cigar’s U.S. trademarks for COHIBA cigars — all because of a little-known treaty and a Cuban brand once favored by Fidel Castro. What does this mean for U.S. trademark law and the future of the COHIBA brand? Tune in to this week’s episode of The Briefing as Scott Hervey and Jessica Corpuz unpack this high-stakes decision. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: It’s a battle decades in the making. Two cigar companies, one Cuban and one American, locked in litigation over one of the most iconic cigar trademarks in the world, Cohiba. And in a recent decision, a federal District Court in Virginia upheld a ruling canceling the US trademark registration long held by General Cigar. The reason? A rarely used international treaty and the trademark’s Cuban origin. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Corpuz. We’re going to talk about the Cohiba Trademark decision and what it means for brand owners on today’s installment of The Briefing. Jessica, welcome to The Briefing. It’s been a little while, but it’s good to have you back. Jessica: Thanks for having me, Scott. Scott: So this case isn’t It’s new. In fact, this dispute has been going on for nearly 30 years, and it’s between Cigar General, which is a US company, and Cuba Tobacco, a Cuban state-owned enterprise. Both claim rights to the Cohiba trademark. Have you ever had a Cohiba cigar? Jessica: Not personally, no. Have you? Scott: I have, yes. Outside of the United States, of course. Cigar General in the US, which held the Cohiba trademark, and Cuba Tobacco, which held that trademark in Cuba. Jessica: Yeah, that’s right. So it all started in the late 1990s, when Cuba Tobacco applied to register Cohiba in the United States. The problem was that General Cigar already had registered the Cohiba marks, a wordmark and a stylized version, both used for cigars. Cuba Tobacco asked the USPTO to cancel General Cigar’s registrations, claiming it had prior rights under international law. Scott: Right. Initially, the ETTAp suspended the cancellation case while Cuba Tobacco pursued litigation in federal court. That case made its way all the way up to the Second Circuit, which blocked Cuba Tobacco from getting injunctive relief, saying that any court-ordered transfer of the trademark to a Cuban company would violate US sanctions under the Cuban Assets Control Regulations. Jessica: Exactly. But then things shifted. The federal circuit later said that Cuba Tobacco could still pursue cancellation Installation of General Cigar’s marks at the T tab under a separate theory. Article 8 of the Inter-American Convention, sometimes known as the Pan-American Convention, a treaty both the US and Cuba are parties to. Scott: Okay, so let’s pause here for a second and let’s unpack a few things. First, let’s get some background on the Pan-American Convention. The Pan-American Convention, now you know why they call it the Pan-American Convention, is formerly known as the General Inter-American Convention for Trademarks and Commercial Protection. That’s a long one, was signed in 1929 and entered into force in 1931. It was one of the earliest multinational efforts to create a uniform protection system for trademarks and commercial names across the Americas. And this was at a time when international trademark protection was really still developing. The convention was groundbreaking for expanding reciprocal rights among member nations and recognizing foreign trademark rights that went way beyond traditional territorial principles. Jessica: Yeah. So the convention’s core goal was to protect legitimate business interests and prevent unfair competition across national borders. It sought to establish a framework whereby companies in one signatory country could assert rights against conflicting registrations in another. This included not just registration-based protections, but also protections based on prior use and legal recognition in the country of origin. Article 8, which is the key provision issue in the Coheba litigation, reflects that exact purpose, allowing a trademark owner in one contracting state to cancel conflicting mark registered another if it had prior legal protection and the registrate had knowledge of the original use. Scott: While the Pan-American Convention has often taken a back seat to more prominent treaties like the Paris Convention or the TRIPS Agreement, the Pan-American Convention remains in force and has been recognized by US courts as self-executing, meaning that it becomes US law upon ratification without the need for additional legislation to actually implement the treaty. That status gives it the same force as federal law. And as the Cohiba case shows, it can be a powerful tool in cros

Warner Music Group just sued DSW for using 200+ hit songs in social media ads—without permission. Those TikToks could now cost $30M. On this episode of The Briefing, entertainment and IP attorneys Scott Hervey and Tara Sattler break down the legal firestorm and what every brand needs to know before hitting “post.” Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: A major music label just did the legal equivalent of a mic drop on one of America’s best-known shoe retailers. Warner Music Group has filed a lawsuit against Designer Brands Inc, the parent company behind DSW, accusing them of using more than 200 hit songs by artists like Cardi B, Fleetwood Mac, and Lizzo in TikTok and Instagram videos without a license. And they’re not just suing for direct infringement, they’re going after DSW for contributory and vicarious infringement tied to the influencer content. I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to talk about the DSW lawsuit and the lesson for brands that engage and Influencer Marketing on today’s installment of The Briefing. Tara, welcome back to The Briefing. We’ve got another, I don’t know, A scary piece of influence or marketing gone wrong here on the docket today. Tara: Yeah, we definitely do. I’m looking forward to talking about it with you. Scott: So earlier this month, Warner Music Group filed a federal lawsuit against DSW, claiming that over 200 of its copyrighted songs were used in social media ads on TikTok, Instagram, and other platforms without getting permission. Tara: Yeah, this isn’t about just one rogue post. The complaint alleges that DSW DSW’s marketing team, its influencers, and its in-house content creators, produced and shared branded videos that featured hit songs like Up by Cardi B and Barbi World by Nicki Minaj without securing proper licenses. Scott: The complaint alleges that DSW knows all about licensing music for advertising and that it had previously licensed music for use in its traditional ads. The complaint alleges that DSW knew exactly what it was doing when it skipped the licensing process for its influencer marketing ads. Tara: Right. In the complaint, Warner Music Group states that DSW, like many retailers, has shifted much of its marketing focus from traditional advertising to promoting its products through social media platforms like Instagram and TikTok, as well as through paid partnerships with well-known social media influencers. Scott: And as you and I discussed on a different episode, as we know, more than 50% of advertising spend has moved from traditional TV to social media. From my experience with my own brand clients, it seems that brands find social media advertising more effective and less expensive than traditional advertising. Well, I mean, less expensive when you don’t get named as a defendant in a claim like this. Tara: Right. Here’s what Warner Music Group is doing for. First, direct copyright infringement based on DSW’s posts. Second, contributory copyright infringement based on the content created for DSW by the influencers. And third, vicarious copyright infringement because DSW benefited financially from the infringing influencer content and had the ability to control or remove the content. Scott: Right. So this is where this type of advertising campaign gets more expensive than traditional media. Warner Music Group is asking for statutory damages of up to $150,000 per work. That’s $30 million if they win on the 200 songs. Now, the judge has discretion whether to award up to the full amount of statutory damages. But still, it’s a substantial… This is going to be a substantial bill to pay either way. Tara: Yeah, that definitely is expensive. So let’s take a step back and briefly talk about copyright infringement. Management and the different claims made by a Warner Music here. Scott: Sure. Copyright law protects creative works like music, videos, photos, and more. It gives the copyright owner the exclusive right to reproduce, distribute, publicly perform, and publicly display that work. When a brand or an influencer uses a copyrighted work, whether it’s a song or an image in a post without permission, technically, that’s infringement. And unless the use qualifies as fair use, which is very narrow in a commercial context, the copyright owner has a claim. Tara: And we’ve covered numerous cases of celebrities being sued for posting a photo that wasn’t taken by them, even where that post wasn’t part of an integration. Using a photo or music on TikTok or Instagram may seem casual or informal, but the Copyright Act doesn’t make exceptions for viral marketing or these types of posts. Scott: Right. No, that’s a really good point. All right, so let’s break down the three claims that Warne