Still Better to be an Inventor than an Author – Comparing Copyright and Patent for Software Algorithms

With the 2014 decision in Alice, SCOTUS reiterated the two-step Mayo framework applied to method and software patents. A patent application is deemed unpatentable under 35 U.S.C. §101 if (1) the claims are directed to one of the three judicial exceptions (laws of nature, abstract idea, and natural phenomenon); (2) even if a claim falls under a judicial exception, that claim is still deemed patentable if there is an “inventive concept” that transforms.. Read More

Courts Split Over Fourth Circuit’s New False Advertising Standard

This blog post discusses the impact of the Fourth Circuit’s ruling regarding “literally false” advertising claims. The case is In re GNC Corp., 789 F.3d 505 (2015). An earlier blog post describing the facts of the case, as well as the merits of the Fourth Circuit’s decision, can be found here.   Consider the following scenario. Your company has been manufacturing a line of supplements for over a decade, and the bottle lists.. Read More

Welcoming the Marrakesh Treaty into a Consequentialist Framework

  Curing the Book Famine The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities is widely lauded as a miracle. The Treaty aims to cure the global “book famine” that millions of the blind and visually impaired have suffered from due to a lack of access to published knowledge. It is the first copyright treaty to expressly proclaim a foundation based on human rights.. Read More

From the Mailroom to the Courtroom: Glatt v. Fox Searchlight Pictures and its Effects on Entertainment Industry Internships

Unquestionably, the entertainment industry has engendered an almost-mythical culture surrounding unpaid internships. Though highly romanticized, the journey from unpaid intern to Hollywood executive is well-known and has spawned some of Hollywood’s most famous players. Michael Ovitz, David Geffen, Rich Ross, and countless others – the list of Hollywood moguls who began their careers as unpaid interns in the infamous “mailroom” is strikingly impressive. Perhaps these were the career paths envisioned by plaintiffs Eric.. Read More

Copyright Protection Of Designs Incorporated In Apparels And Uncertainty In The Law?

Case Analysis: Varsity Brands, Inc. V. Star Athletica, LLC Facts Varsity Brands Inc., a manufacturer of cheerleading uniforms, brought an action against Star Athletica, LLC, alleging infringement of its copyrighted uniform designs.Regarding thecopyright infringement claims raised by Varsity Brands, the district court concluded that Varsity’s designs were not copyrightable because the graphic elements were not ‘physically or conceptually separable’ from the ‘utilitarian function’ of the cheerleading uniform because the “colors, stripes, chevrons, and.. Read More

Native Advertising: The Blurred Lines between Sponsored and Non-Sponsored Content and the FTC’s Response

In the modern age of social media, companies have increasingly begun to turn to native advertising to promote their products and services. Native advertising is a form of marketing in which an advertisement resembles the form and function of the media platform on which it appears. The goal of native advertising is for a paid advertisement to blend in with the regular content that is usually featured on the platform. Examples of native.. Read More

Is There a Licensing Market for Tattoos?

  Take-Two Interactive Software, publisher of the popular video game series NBA 2K, scored a victory this past summer when it successfully dismissed a claim for statutory damages by Solid Oak Sketches, a tattoo licensing company. Solid Oak had sued over the in-game depictions of tattoos worn by several famous basketball players, including LeBron James, but its claims were dismissed by Judge Laura Swain in the Southern District of New York. In her.. Read More

Final and Unappealable: Federal Circuit Will Not Review PTAB IPR Decisions

What is inter partes review? Inter partes review (IPR) is a new procedure under the America Invents Act (AIA) for challenging the validity of one or more claims of a patent on § 102 (novelty) or § 103 (obviousness) grounds, while considering only prior art existing in patents or printed publications. The review is a trial proceeding before the Patent Trial and Appeal Board (“the Board”). Once the petition is filed, the Board.. Read More

Trademark Law and the Brilliance of “Dumb Starbucks”

A typical comedian would not devote an episode of his TV show to issues of trademark law, but Nathan Fielder is not a typical comedian. Most people in the U.S. familiar with the Canadian comedian’s work know him primarily from his Comedy Central TV show, “Nathan for You.” With his deadpan humor and impeccable delivery, it is hard to understand why Fielder is not more widely known. However, his relative obscurity lends itself.. Read More

California’s Strange New Age Law

Have you ever been watching a television show or movie with characters supposedly of high-school age—think Gossip Girl, Mean Girls, Greece—and then been shocked to discover that the actors portraying these characters were significantly older than their on-screen portrayals? Finding out an actor’s age has become as simple as a brief search on a smartphone, most easily on the Internet Movie Database (“IMDb”). For reference, Leighton Meester was 21 when she started playing.. Read More