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Intellectual Property

Jul 2023

“Server Test” Is Reaffirmed (For Now) in Hunley v. Instagram

Jim Rosenfeld and Raphael Holoszyc-Pimentel

The server test has been the law in the Ninth Circuit since 2007, but in recent years it has come under attack in lower courts in other jurisdictions.

Jul 2023

Warhol Foundation v. Goldsmith Roundtable Discussion

Caren Decter, David Korzenik and Mickey Osterreicher

The decision has been controversial and has received mixed reviews within the copyright bar, so MLRC convened an expert roundtable to weigh-in.

May 2023

“Metabirkins” NFT Trial Tests Multiple Legal Theories

Toby Butterfield and Stephanie Smith

Hermes International sought legal remedies against Los Angeles artist Mason Rothschild for his creation and sale of NFTs, without obtaining Hermes’ authorization, depicting digital images of revised versions of Hermes’ iconic “Birkin” handbag.

Apr 2023

Internet Archive Slammed in Decision Rejecting Mass Distribution of Unlicensed Ebooks Under ‘Controlled Digital Lending’ Theory

Jack Browning, Linda Steinman and Liz McNamara

Judge Koeltl delivered a decision definitively characterizing Internet Archive’s actions as brazen copyright infringement.

Mar 2023

Agent of “Notorious RBG” Photographer Lacks Statutory Copyright Standing

Amanda Barkin

The art world’s obsession with using RBG as its muse, lives on. As does legal controversy that surrounds that art and its reproduction.

Feb 2023

Do AI Generators Infringe? Three New Lawsuits Consider This Mega Question

Jeremy Goldman

Do content creators have the right to authorize or block AI systems from collecting and using their content as training data?

Nov 2022

Wyoming Federal Court Applies Rogers Test and “Genuine Artistic Motive” Test

Alan Friedman and Joshua Bornstein

The case highlights the fact that a national standard as to when First Amendment interests take precedence over trademark infringement and unfair competition claims does not yet exist.

Aug 2022

Court Dismisses Trademark & Related Claims Over Product Reference in Fictional TV Show

Kelli L. Sager, Dan Laidman, and Sarah Burns

Reinforcing the strong First Amendment protections for the use of real-life products and brands in expressive works, a Los Angeles federal court rejected a trademark and trade libel suit over an episode of “Evil.”

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Jun 2022

A New World of Intangible Property: NFTs and IP Rights

Milton Springut and Stephanie M. Smith

An exploration of some of the potential intellectual property challenges, strategies, and controversies that may arise around NFTs.

May 2022

Second Circuit Affirms That Screenshot of Photograph Is Fair Use

Eleanor M. Lackman and Lindsay R. Edelstein

The court affirmed that Mic’s use of a composite screenshot from a New York Post article to report, criticize, and comment on the article, its subject, and the resulting backlash, was a fair use.