Author: gmarkin

Beasley. v. Howard is a tale of two musicians fighting over the rights to their band name. 14 F.4th 226 (3d Cir. 2021). In 1969, David Beasley (“Beasley”) founded the Camden, New Jersey-based band “The Ebonys.” Throughout the 1970s, the Ebonys achieved some commercial success and have continued to perform through the decades. In the mid-1990s, William Howard (“Howard”) joined the band, and, in 1997, Beasley obtained a New Jersey state service mark registration for THE EBONYS. After several years of performing together as The Ebonys, Beasley and Howard parted ways, and in 2012, Howard applied for and obtained a federal trademark registration for THE EBONYS. Afterward, Beasley claimed that Howard used the registered trademark to interfere with Beasley’s band and business by preventing him from registering a website domain name containing the words “the Ebonys,” convincing concert venues not to book Beasley, attempting to collect royalties from Beasley’s music, and claiming to be the true founder of The Ebonys.

Read More about The Trademark Blues: TTAB Proceedings Do Not Preclude Subsequent Infringement Lawsuits

Intellectual property is a right enshrined in our very Constitution, which grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] Congress has made use of that power by legislating a wide birth of laws defining what is a copyright, how to get one, and what it protects.[2] Surprising to many lay observers, architectural works are specifically protected copyrights.[3]

Read More about Architectural Copyrights: No Need to Pay the Troll Toll

Recently, the Ninth Circuit Court of Appeals affirmed the decision of Judge Thomas S. Zilly of the District Court of the Western District of Washington in favor of defendant John Doe, a retired police officer accused of illegally downloading and distributing adult content produced by Strike 3 Holdings LLC. [1] Agreeing with the district court’s finding that Strike 3 failed to prove its claim that the defendant pirated its adult films, the Court of Appeals upheld the lower court’s order requiring Strike 3 to pay defendant John Doe $47,777 in costs and fees.

Read More about Retired Police Officer Prevails Against Adult Film Studio Strike 3 Holdings in Proving His Innocence in Copyright Infringement Suit

In our overstimulated environment with a plethora of brands, names, and marks, it is difficult for products to stand out. Some businesses, however, have managed to break through the noise by creating marks with lasting impressions on consumers. But there are limits, even for the most well-known brands such as Starbucks.

Read More about Survey Evidence Not Enough to Show Acquired Distinctiveness of Starbuck’s Green Dot on Coffee Cup

After the release of the hit animated motion picture Inside Out, Denise Daniels and The Moodsters Company sued the Walt Disney Company for copyright infringement and alleged that the Inside Out characters impermissibly resembled Daniels’ Moodsters characters. See Daniels v. Walt Disney Co., No. 17-CV-4527 PSG (SKx), 2018 U.S. Dist. LEXIS 117569 (C.D. Cal. May 9, 2018). After the district court granted Disney’s motion to dismiss based upon its finding that The Moodsters characters were not protectable by copyright, Daniels appealed. On March 16, 2020, the Ninth Circuit affirmed the lower court’s dismissal agreeing The Moodsters did not qualify for copyright protection. See Daniels v. Walt Disney Co., 952 F.3d 1149 (9^th Cir. 2020).

Read More about Copyrightability of Fictional Characters – the Difference Between Superman and Chessmen

Shape of Water, the winner of Best Picture, Best Director, and other Oscars, captivating audiences around the world, has come under fire for plagiarism. The 2017 film has been accused of borrowing heavily from a 1969 play called Let Me Hear You Whisper. The infringement claims were originally dismissed by the district court based on finding the two works shared merely a “basic premise” and “minor similarities.” Zindel v. Fox Searchlight Pictures, Inc., No. CV 18-1435 PA, 2018 U.S. Dist. LEXIS 123872 (C.D. Cal. July 23, 2018). On appeal, however, the Ninth Circuit reversed noting the district court judge was too quick to dismiss the case – reasonable minds could differ on whether the two works are substantially similar. Zindel v. Fox Searchlight Pictures, Inc., No. 18-56087, 2020 U.S. App. LEXIS 19444 (9th Cir. June 22, 2020).

Read More about The Oscar-Winning Film Shape of Water Must Defend Copyright Infringement Claims From Playwright

In 2017, a New Orleans Jazz Musician, Paul Batiste’s (“Batiste”), sued the world-renowned duo Macklemore and Ryan Lewis (“Macklemore”) alleging the duo copied eleven of his songs. Batiste v. Lewis, 2019 U.S. Dist. LEXIS 69130, 2019 WL 1790454 (E.D. La., Apr. 23, 2019). Batiste claimed Macklemore had, without permission, digitally sampled Batiste’s songs, and as a result, Macklemore’s hits, “Can’t Hold Us,” “Thrift Shop,” “Neon Cathedral,” “Same Love,” and “Need to Know” were based on or derivatives of Batiste’s copyrighted musical works. The district court disagreed after finding Batiste failed to sufficiently prove Macklemore had “access” to Batiste’s music and that Macklemore’s songs were strikingly similar to Batiste’s. Additionally, the district court held Batiste liable to pay Macklemore’s attorney fees pursuant to 17 U.S.C. § 505.

Read More about Can’t Hold Macklemore and Ryan Lewis Liable for Copyright Infringement Says Fifth Circuit