Earlier this month, New York’s governor, Andrew Cuomo, signed a bill[1] that makes significant amendments to New York’s Civil Rights Law, which codifies rights of publicity and privacy in the State. In addition to adding a long anticipated post-mortem right of publicity, the bill also prohibits unauthorized use of digital replicas of deceased celebrities and

While the Copyright Act has a three-year statute of limitations, most courts follow the “discovery rule,” pursuant to which “an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.” See, e.g., Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 124  (2d

As we have previously advised, the Trump Administration is targeting the sale of counterfeit goods on e-commerce platforms. Early this year, the Department of Homeland Security issued its report to the White House on “Combating Trafficking in Counterfeit and Pirated Goods,” in response to which the White House entered its Executive Order aimed at blocking

The overall design (such as the shape and cut) of a garment, bag or shoe is not protectable under current U.S. Copyright law because such items are considered “useful articles.” However, Section 101 of the Copyright Act provides protection for the “pictorial, graphic or sculptural features [of a useful article] that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article.”[1]

In the fashion world, this provision of the Copyright Act allows companies to protect original pictorial, graphic or sculptural features that are applied to garments, bags and other accessories.  Examples include: fabric designs like a floral pattern; graphic art like an artistic rendition of a snake or tiger; and sculptural 3-D hardware adornments like belt buckles or buttons.  Copyright protection only covers the artwork itself, not the overall configuration of the garment or other product to which it is applied.[2]

For decades, courts and commentators have struggled to fashion a suitable test to determine when a pictorial, graphic or sculptural feature of a useful article (such as a garment) is protectable under § 101 of the U.S. Copyright Act.  On March 22, 2017, in a 6-2 decision written by Justice Thomas, the Supreme Court provided long-awaited clarificationMuch to the relief of the fashion industry, the Court adopted a test that preserves copyright protection for applied art to apparel and fashion accessories.

Continue Reading V-I-C-T-O-R-Y for the Fashion Industry: SCOTUS Establishes Uniform Test for Protection of Artistic Works Applied to Apparel

Facebook has agreed to pay $10 million and make various changes to its terms in order to settle a lawsuit alleging that the company’s Sponsored Stories violates members’ rights of publicity.

With Sponsored Stories, when a Facebook member "likes" a company, checks-in at one of its stores, or performs certain other actions, that member’s profile

In working with brand owners large and small, I find a surprising number of instances where independent contractors are hired to create content without a proper work for hire or other agreement to protect the company. In the rush to complete projects, get product to market and move on to the next task, even sophisticated

Last week, President Obama’s campaign committee filed a trademark infringement lawsuit against a company for allegedly using the campaign’s trademarked “Rising Sun” logo without permission. According to the complaint, the company is “using the Rising Sun Trademarks on merchandise in a deliberate and willful attempt to draw on the goodwill and commercial magnetism of the

Just when you thought domain name enforcement couldn’t get more expensive, ICANN presents: the New gTLDs! Starting January 12, 2012, ICANN began accepting applications for new generic top level domain ("gTLD") names, only now some will not be so "generic." In addition to the gTLDs we are familiar with, such as .com, .org, .net, and .mobi, available gTLDs may include brand names such as ."kelleydrye. " or ".yourbrand," or community or industry identifiers such as ".beauty" or ".basketball."

Even if your company decided not to apply for a new gTLD, there are important steps you should take to protect your company’s brands.

  • On June 13, 2012, ICANN is scheduled to publish information regarding the new gTLD applications, including who filed applications and which .brand or .generic strings each seeks to register.
  • Brand owners and other potentially affected parties have a limited time to raise concerns and objections regarding a gTLD application after the publication date via ICANN’s dispute resolution procedures and Public Comment Period.

All brand owners should prepare themselves accordingly:

Continue Reading Brand Owners Take Note: New Domain Names Mean Big Changes