Advertising, Fair Use and Social Media - Intellectual Property Pulse

Court to Revisit Fair Use in Tattoo Infringement Case

Copyright Lately

AUGUST 14, 2023

Photographer Jeff Sedlik filed the lawsuit in February 2021 , claiming that Von D infringed the copyright in his photo of Miles Davis by tattooing a reproduction of the image on her friend Blake Farmer’s arm and by displaying images of the tattoo on her social media accounts.

Fair Use

Fair Use Social Media Licensing Marketing

Website Advertisements and Copyright Fair Use

IP Intelligence

JULY 15, 2021

For attorneys frequently engaged in copyright infringement litigation, drilling down into the specifics of the four fair use defense factors set forth in 17 U.S.C. § 107(1) asks whether the contested use “is of a commercial nature.” 107 is common practice. Indeed, part of 17 U.S.C. § Acuff-Rose Music, Inc.

Fair Use

Fair Use Advertising Advertising Copyright

Website Advertisements and Copyright Fair Use

LexBlog IP

JULY 15, 2021

For attorneys frequently engaged in copyright infringement litigation, drilling down into the specifics of the four fair use defense factors set forth in 17 U.S.C. § § 107(1) asks whether the contested use “is of a commercial nature.” § 107 is common practice. Indeed, part of 17 U.S.C. §

Fair Use

Fair Use Advertising Advertising Copyright

using competitor's images in comparative advertising is fair use even when appearance isn't being compared

43(B)log

APRIL 26, 2023

Creager sells Montana post drivers (made in China) that compete with the Texas post drivers sold by IDT (advertised as made in the USA). IDT created an ad for its products using two images of Montana post drivers for which Creager later obtained a copyright registration. There’s more, including public disputes on Craigslist.

Fair Use

Fair Use Advertising Advertising False Advertising

Show the pictures to your clients and say “this is descriptive fair use”: Solid 21 v Breitling (2d Circuit RED GOLD)

LexBlog IP

MARCH 15, 2024

Plaintiff has been suing various wristwatch companies over the use of the term RED GOLD. Throughout the twentieth century, many newspapers, advertisements, magazines, textbooks, and other reference materials used the term “red gold” to describe the gold-copper combination.

Fair Use

Fair Use Social Media Trademark Advertising

"TM-compliant" ads not shown to be nominative fair use

43(B)log

MARCH 10, 2023

First, nominative fair use permits only the “truthful use of a mark.” Use of the mark with the words “compliant,” “legal,” and “meets. Toyota, 610 F.3d 3d at 1177. Defendants contended that one axe “meet[s] WATL Regulations” and that another “meets WATL Regulations with a slight modification that is commonly made.”

Fair Use

Fair Use False Advertising Social Media Advertising

5th Cir affirms fair use on a motion to dismiss, fee award to D

43(B)log

MARCH 1, 2022

25, 2022) “The softball team and flag corps at a public high school outside Fort Worth used their Twitter accounts to post a motivational passage from sports psychologist Keith Bell’s book, Winning Isn’t Normal.” He sued; the court of appeals affirms a finding of fair use on a motion to dismiss and an award of attorneys’ fees.

Fair Use

Fair Use Social Media Licensing Marketing

St. Art Foundation v. Acko General Insurance: Decoding Street Art, Fair use and Moral rights

SpicyIP

DECEMBER 6, 2023

2(c), the fair use exemption thereof under Sec. 52(1)(t); and (ii) if yes, whether the proviso of the same or ‘fixation requirement’ excludes it from the scope of fair use. Lastly, I will discuss the argument of moral rights of the author in contending the ‘fair use exemption’ of their work.

Moral Rights

Moral Rights Fair Use Art Artistic Work

State Farm’s Nod to Nostalgia Sparks Copyright Clash With Atari

Copyright Lately

MARCH 31, 2024

Video game publisher Atari Interactive has launched a copyright infringement lawsuit against State Farm, claiming that the insurer improperly appropriated artwork from Atari’s 1983 arcade game “Crystal Castles” for an advertising campaign as part of a “cynical plot” to resonate with fickle millennial and Gen Z consumers.

Copyright

Copyright Fair Use Social Media Artwork

Trademark Infringement in the Digital Age

IP and Legal Filings

MARCH 5, 2024

Trademark infringement has grown more complex and pervasive, ranging from counterfeit goods to digital squatting and keyword advertising. Using trademarks in domain names, linking, framing, meta-tagging, and framing are a few methods that could lead to trademark challenges. Cybersquatting is another type of trademark infringement.

Trademark

Trademark Social Media Advertising Advertising

Can Tattoos Infringe Copyrights, and If So, What Happens Then?–Sedlik v. Kat Von D

Technology & Marketing Law Blog

JUNE 2, 2022

She tattooed the Sedlik photo onto Farmer and promoted the tattoo on social media. Nature of Use. It wasn’t possible to use only a portion of the photo to depict melancholy, so I guess the court is saying Kat Von D should have picked a different image altogether? This factor weighs against fair use.

Copyright

Copyright Social Media Fair Use Licensing

Digitalization And Copyright Law

IP and Legal Filings

FEBRUARY 15, 2023

It has opened wide range of facilities for us like entertainment, education, advertisements, communication etc. However, it is not so and such use will be unauthorized unless and until the permission of the owner has been taken, or he has been referenced or if the information has been made available by the government.

Copyright Law

Copyright Law Copyright Law Social Media

copying/explicit references let Roblox proceed with dubious (c) claim; Lego should be watching

43(B)log

MAY 19, 2023

WowWee’s Vice President of Brand Development & Creative Strategy, Sydney Wiseman, used her WowWee email address to create a Roblox user account and used her Roblox account to promote My Avastars dolls on social media, including videos on her TikTok account.

Copying

Copying False Advertising Social Media Advertising

Earth, Wind & Infringement: TM owner succeeds against overclaiming "reunion" band

43(B)log

MARCH 14, 2024

But with nominative fair use, courts engage in more unfair competition/normative reasoning. When a court finds that a use went beyond identifying to suggesting a connection, it often doesn’t use any of the factors that empirically we might use to figure out if that was true.

Advertising

Advertising Advertising Music Fair Use

ContentCore Aims to Be a ‘Content ID’ Equivalent for Independent Video Platforms

TorrentFreak

APRIL 7, 2024

Errors and Nuance Upload filters are not perfect and generally lack ability to factor-in the nuances of copyright law, such as fair use. This means that platforms that use this service may want to build extra safeguards against overblocking, including fair use.

Copying

Copying Copyright Infringement Fair Use Social Media

My “Summer” 2022 Activities

Technology & Marketing Law Blog

AUGUST 29, 2022

6th Edition of Advertising & Marketing Law: Cases and Materials (with Rebecca Tushnet). Regulation of Political Advertising (2022 Edition). Regulation of Housing Advertising (2022 Edition). How Fair Use Helps Bloggers Publish Their Research , Association of Research Libraries blog, Feb. Blog Posts.

Editing

Editing Social Media Blogging Advertising

Too Rusty For Krusty–Nickelodeon v. Rusty Krab Restaurant (Guest Blog Post)

Technology & Marketing Law Blog

MAY 30, 2022

Judging from the Rusty Krab’s marketing efforts and social media promotion as detailed in Viacom’s complaint, the pop-up was far more focused on providing the backdrop for Instagram-worthy selfies than it was on producing edible food. The court begins with findings of fact, lavishing attention on the show’s plot and popularity.

Blogging

Blogging Social Media Television Fair Use

Trademarks as a Barrier to Free-Speech: An Examination of the MetaBirkins Dispute

SpicyIP

AUGUST 22, 2022

This article seeks to examine how trademark law interacts with the freedom of expression of artists to choose the subject matters they wish to engage with, using the dispute between Hermès, a fashion industry giant and Mason Rothschild, a digital artist, as a contextual backdrop. C) Any non-commercial use of a mark.

Trademark

Trademark Fair Use Registering Trademarks Non-Fungible Tokens

Chanel reseller can't get summary judgment on whether it talked too much about Chanel

43(B)log

MAY 2, 2022

28, 2022) Chanel sued What Goes Around Comes Around (WGACA), alleging trademark infringement, false advertising, false association/endorsement, and related NY GBL claims for deceptive/unfair trade practices and false advertising. Until 2017, it also used the hashtag #WGACACHANEL in its social media posts.

False Advertising

False Advertising Advertising Advertising Social Media

Deadly Dolls and a Forgotten Copyright Exception

Copyright Lately

SEPTEMBER 12, 2022

In the alternative, Vila asserted that his reproduction of Deadly Doll’s copyrighted work in connection with the photograph of Shayk was protected by the fair use doctrine. To be safe, the seller should make sure to take its own photos of the product, as opposed to using images owned by the manufacturer.) 17 U.S.C. §

Copyright

Copyright Derivative Work Artwork Fair Use

The First Amendment Limits Trademark Rights, But How?–Jack Daniel’s v. Bad Spaniels (Guest Blog Post)

Technology & Marketing Law Blog

APRIL 3, 2023

Professor Farley and I propose a trademark fair use defense that would apply to any informational or expressive use of language or designs claimed by another as a mark in connection with any goods or services. Grimaldi , and later adopted and expanded by the Ninth Circuit.

Blogging

Blogging Trademark Fair Use Trademark Law

Second Circuit signals some minimal flexibility on Polaroid analysis in another strip club false endorsement case

43(B)log

MAY 22, 2023

May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the strip club advertising cases might have somewhat broader implications. Several had appeared in magazines, advertising campaigns, television episodes, and films. Exotic Island Enters.,

Social Media

Social Media False Advertising Advertising Advertising

Yearbook Defendants Lose Two More Section 230 Rulings

Technology & Marketing Law Blog

DECEMBER 11, 2021

As another example, when the search results provide the records associated with Mr. Abraham, “adjacent to the list of records containing [his] name, photograph, and likeness” is an advertisement promoting the subscription membership. Section 230. ” (Tautology alert). FWIW, I raised this issue as a possible paper topic in 2008.

Advertising

Advertising Advertising Social Media Blogging

A&E's (c) and TM claims survive against former producer's new version of cop show

43(B)log

JUNE 26, 2023

On Patrol: Live used the same two hosts and also features Curtis Wilson, who previously featured as a contributor on Live PD. REELZ allegedly told advertisers that the “working title” of the show was “PD Live,” and went so far as to announce that “REELZ ADDS #1 TV SHOW TO OUR PROGRAMS LINEUP” with “ALL NEW LIVE EPISODES.” I’m confused.

Social Media

Social Media Copying Fair Use Advertising

WIPIP session 4: ™ & Consumers

43(B)log

FEBRUARY 3, 2024

Mary Katherine Amerine, Reasonably Careless Consumers in TM & False Advertising How do courts treat consumers in TM and false advertising cases? False advertising uses v different framework: consider the challenged ad as a whole, including disclaimers and qualifying language. Beer Nuts, Bulls’ Eye v.

False Advertising

False Advertising Contracts Branding Brands

New Allen Toussaint Legacy Act Creates a Right of Publicity in Louisiana

LexBlog IP

JUNE 28, 2022

Court of Appeals found Vanna White could seek damages from Samsung for an advertisement involving a futuristic female robot turning the letters on a game show board. [3] Ordinary persons captured in videos that later go viral on social media often find their likeness plastered onto commercial products. ” [4].

Advertising

Advertising Advertising Social Media Licensing

TMSR Session 3: Private Actors…and their Machines

43(B)log

FEBRUARY 24, 2024

Can enshrine things like notice & takedown in © law, but that has effects on the ability to assert fair use. We know that automated systems designed to flag infringements get lots of false positives b/c they can’t recognize fair use; may also be false negatives, though that’s not the focus. NYU Press, 2016).

Fair Use

Fair Use Branding Brands Branding

A 512(f) Plaintiff Wins at Trial! ??–Alper Automotive v. Day to Day Imports

Technology & Marketing Law Blog

DECEMBER 15, 2021

The court also credits the self-serving claim by the successor licensee that it considered fair use by comparing the works and evaluating if the works were being sold commercially or for other purposes. Paul Rudolph Heritage Foundation, 2021 WL 4482608 (S.D.N.Y. Benjamin. * How Have Section 512(f) Cases Fared Since 2017?

Registration

Registration Fair Use Copyright Designs

Fair Use Protects High School’s Use of Inspirational Meme–Bell v. Eagle Mountain School District

Technology & Marketing Law Blog

MARCH 3, 2022

The school moved to dismiss on fair use grounds, and the district court granted the motion and awarded attorneys’ fees to the school. (I Bell appealed to the Fifth Circuit, which easily affirms the fair use dismissal and attorneys’ fees. Nature of the Use. ” Bell sued anyways. Nature of the Work.

Fair Use

Fair Use Litigation Marketing Marketing

New Tools, Old Rules: Is The Music Industry Ready To Take On AI?

Copyright Lately

MAY 1, 2023

She would create a dataset of sound files consisting of Drake acapella vocals (stripped from the music tracks using a vocal separator) and run the data through software used to train the voice model. Hit me up in the comments below or on social media @copyrightlately. At least until the computers start touring, that is.

Music

Music Copyright Copying Copyright Law

NFTs: New Frontiers for Trademarks

IP Tech Blog

MARCH 18, 2022

In addition to alleging trademark infringement due to Rothschild’s use of BIRKIN in METABIRKINS as the name for his NFT collection, Hermès complained that Rothschild infringed by using METABIRKINS as a domain name, as a handle on Twitter and other social media platforms, as a brand name on NFT sales platforms, and as a hashtag.

Trademark

Trademark Non-Fungible Tokens Branding Brands

Journey Through “Novembers” on SpicyIP (2005 – Present)

SpicyIP

DECEMBER 20, 2023

In 2014, the Bombay High Court restrained the singer Mika Singh and the recording label OCP Music from publishing an advertisement that impinged Sonu’s personality rights. Around a decade ago, Google was caught in some similar controversy over its Google Books Library Project where its use was held permissible under fair use.

Personality Rights

Personality Rights IP Licensing Copyright

WIPIP 2022, Session 3 (ROP/TM, (c) fair use)

43(B)log

FEBRUARY 18, 2022

Does it work differently in the US where there is a separate ROP? When, how and why would you seek permission to use persona. Influence of law, desire to contract, social norms. Industries: advertising, merchandising, movies/TV, and video games. A: History differs a lot—US foundation for ROP was set much earlier.

Fair Use

Fair Use Contracts Litigation Copying

NFTs: New Frontiers for Trademarks

LexBlog IP

MARCH 18, 2022

In addition to alleging trademark infringement due to Rothschild’s use of BIRKIN in METABIRKINS as the name for his NFT collection, Hermès complained that Rothschild infringed by using METABIRKINS as a domain name, as a handle on Twitter and other social media platforms, as a brand name on NFT sales platforms, and as a hashtag.

Trademark

Trademark Non-Fungible Tokens Intellectual Property Branding

IT’S THE COPYRIGHT INFRINGEMENT FOR ME: WHY CLAIMS AGAINST MEME CONTENT SHOULD NOT MATTER

JIPL Online

APRIL 9, 2021

On one hand, those who view intellectual property rights as a limited monopoly would suggest that even derivative use of the content in a meme is infringement on the rights holder’s interest. Put differently, is it fair for corporations to have their cake and eat it too?

Copyright Infringement

Copyright Infringement Copyright Intellectual Property Blogging

43(B)log

FEBRUARY 18, 2022

Traditional advertising can change firsthand consumer impressions, both pre and post experience—telling consumers coffee isn’t bitter makes their impressions of bitterness change, etc. Expensive to show it by surveys; most show it by circumstantial evidence of advertising and sales.

Copyright

Copyright Business Branding Brands

Takedown Services Under Copyright Law

IP and Legal Filings

APRIL 19, 2022

Temporary or incidental storage of work or performance to provide electronic links, access, or integration, where the owner has not expressly prohibited such links, access, or integration, falls under the ambit of fair use of copyright, according to Section 52(1)(c) of the Indian Copyright Act, 1957.

Copyright Law

Copyright Law Copyright Law Copyright Infringement

1H 2021 Quick Links, Part 1 (IP)

Technology & Marketing Law Blog

JULY 5, 2021

The Counterclaim alleges that Kid Car purchased “KIDMOTO” as keyword on Google and that by using ‘kid car’ in the resulting advertisement there is a likelihood of consumer confusion.” The court holds that the school district qualified for fair use and ordered the plaintiff to pay attorneys’ fees.

IP

IP Social Media Fair Use Branding

YouTube, Facebook, & TikTok Won’t Discuss Bad Takedowns? Get Over It, They’re Busy

TorrentFreak

DECEMBER 7, 2023

Social media platform Facebook also reports huge numbers of takedowns to the EC. Other reasons for content deletion unrelated to copyright, and in some cases seemingly more complicated to determine via automated means, were in abundant supply. Those listed below represent just a small sample.

Business

Business Reporting Social Media Copyright

Copyright Lately

DECEMBER 28, 2022

The company has brought over 300 cases since 2017, often using copyrighted product images as a technical hook to shut down undesired resellers who advertise its products at below retail prices. Let me know your thoughts in the comments below or on your favorite social media platform @copyright lately.

Copyright

Copyright Art Licensing Social Media

NFT Update: 5 Recent Lawsuits Show a Glimpse into Future Legal Battles Involving NFTs

LexBlog IP

APRIL 13, 2022

26] The defendants denied many of the allegations in the complaint, and asserted several affirmative defenses, including that the NFTs fell under the fair use exception to the Copyright Act. [27] by other innovators that also use NFTs to track title to physical goods held in a vault, such as fine art, whiskey, and wine.” [43].

Non-Fungible Tokens

Non-Fungible Tokens Social Media Contracts Branding

SpicyIP Weekly Review (November 13- November 19)

SpicyIP

NOVEMBER 19, 2023

vs Acko General Insurance on 10 November, 2023 (Delhi High Court) The dispute pertains to the use of the plaintiff’s artistic work “Humanity” by the defendant in one of its advertisement hoardings. The defendant argued that since the plaintiff’s work was exhibited in public its reproduction will fall under the ambit of fair use.

Intellectual Property

Intellectual Property Journalism Patent Application Social Media

Former distributor's continuing use of "authorized distributor" leads to TM and false advertising claims

43(B)log

JULY 21, 2023

but also narrows the issues somewhat; the larger infringement, cybersquatting, and false advertising claims can’t be resolved on summary judgment. Even if they were generic uses, two articles and one opinion weren’t sufficient to overcome the “strong presumption” of validity of a registered mark. But is it a nominative fair use?

False Advertising

False Advertising Advertising Advertising Social Media

IPSC breakout session 2: Int'l IP. TM, Antitrust

43(B)log

AUGUST 11, 2022

Comparative advertising is another example of free riding that is actually a very good idea. It’s like using quotes. Might be different than when a company uses TM on a social media post. Jeremy Sheff: skeptical about characterizing all failures of reciprocity as free riding.

IP

IP Copying Marketing Marketing

Court to Revisit Fair Use in Tattoo Infringement Case

Website Advertisements and Copyright Fair Use

Trending Sources

Website Advertisements and Copyright Fair Use

using competitor's images in comparative advertising is fair use even when appearance isn't being compared

Show the pictures to your clients and say “this is descriptive fair use”: Solid 21 v Breitling (2d Circuit RED GOLD)

"TM-compliant" ads not shown to be nominative fair use

5th Cir affirms fair use on a motion to dismiss, fee award to D

St. Art Foundation v. Acko General Insurance: Decoding Street Art, Fair use and Moral rights

State Farm’s Nod to Nostalgia Sparks Copyright Clash With Atari

Trademark Infringement in the Digital Age

Can Tattoos Infringe Copyrights, and If So, What Happens Then?–Sedlik v. Kat Von D

Digitalization And Copyright Law

copying/explicit references let Roblox proceed with dubious (c) claim; Lego should be watching

Earth, Wind & Infringement: TM owner succeeds against overclaiming "reunion" band

ContentCore Aims to Be a ‘Content ID’ Equivalent for Independent Video Platforms

My “Summer” 2022 Activities

Too Rusty For Krusty–Nickelodeon v. Rusty Krab Restaurant (Guest Blog Post)

Trademarks as a Barrier to Free-Speech: An Examination of the MetaBirkins Dispute

Chanel reseller can't get summary judgment on whether it talked too much about Chanel

Deadly Dolls and a Forgotten Copyright Exception

The First Amendment Limits Trademark Rights, But How?–Jack Daniel’s v. Bad Spaniels (Guest Blog Post)

Second Circuit signals some minimal flexibility on Polaroid analysis in another strip club false endorsement case

Yearbook Defendants Lose Two More Section 230 Rulings

A&E's (c) and TM claims survive against former producer's new version of cop show

WIPIP session 4: ™ & Consumers

New Allen Toussaint Legacy Act Creates a Right of Publicity in Louisiana

TMSR Session 3: Private Actors…and their Machines

A 512(f) Plaintiff Wins at Trial! ??–Alper Automotive v. Day to Day Imports

Fair Use Protects High School’s Use of Inspirational Meme–Bell v. Eagle Mountain School District

New Tools, Old Rules: Is The Music Industry Ready To Take On AI?

NFTs: New Frontiers for Trademarks

Journey Through “Novembers” on SpicyIP (2005 – Present)

WIPIP 2022, Session 3 (ROP/TM, (c) fair use)

NFTs: New Frontiers for Trademarks

IT’S THE COPYRIGHT INFRINGEMENT FOR ME: WHY CLAIMS AGAINST MEME CONTENT SHOULD NOT MATTER

WIPIP 2022, Session 2 (TM and a bit of copyright)

Takedown Services Under Copyright Law

1H 2021 Quick Links, Part 1 (IP)

YouTube, Facebook, & TikTok Won’t Discuss Bad Takedowns? Get Over It, They’re Busy

The 5 Worst Copyright Decisions of 2022

NFT Update: 5 Recent Lawsuits Show a Glimpse into Future Legal Battles Involving NFTs

SpicyIP Weekly Review (November 13- November 19)

Former distributor's continuing use of "authorized distributor" leads to TM and false advertising claims

IPSC breakout session 2: Int'l IP. TM, Antitrust

Stay Connected