Warhol and Prince: Redefining Fair Use

In a highly consequential decision involving signature works of renowned artist Andy Warhol and photographs of music legend Prince, the U.S. Supreme Court has clarified the long-standing fair use defense to copyright infringement and narrowed the scope of transformative works that qualify as fair use. The decision in Andy Warhol Foundation for the Visual Arts,…

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Supreme Court Nixes First Amendment Defense To Trademark Infringement

The U.S. Supreme Court has practically nixed a longstanding and widely adopted First Amendment defense co trademark infringement that exempted certain unauthorized but “artistically expressive~ usages of trademarks from the reach of the Lanham Act. The specific issue decided in Jack Daniel’s, was application of the “Rogers test”, a decades old standard, which aimed to…

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Copyright Protection for Public Performances of Pre-1972 Music

A 2021 decision by the Ninth U.S. Circuit Court of Appeals has renewed focus on the scope and extent of copyright protection for public performances of pre-1972 sound recordings. The issue decided by the three-judge panel for the Ninth Circuit was whether California state copyright law protects rights to public performances of music created before…

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The Subject Was Patent Eligibility

Section 101 of the patent act sets the foundational requirements an invention must meet to be eligible for patent protection. A recent en banc decision of the federal Circuit Court of Appeals highlights the deadlock, division, and confusion over the proper standard and correct application of the standard for subject matter eligibility under 35 USC…

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Uncertain fate of AB 51 and PAGA arbitration prohibition

Judge William A. Fletcher, one of the judges in the original 2-1 panel majority upholding AB 51, switched sides on Appellant’s en bane rehearing petition and voted for a panel rehearing. In a stunning act of backtracking, a panel of the Ninth Circuit Court of Appeals has vacated its earlier decision upholding the validity of…

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Defenses to Performance of COVID-19 Impacted Contracts

A recent decision by an Orange County Superior Court judge confirms the viability of the defenses of impossibility or impracticability of performance of certain COVID-19 impacted contracts, and finds a remedy is reformation of such contracts in accordance with the equities of a particular case. Balboa Capital Corporation v. Ederra Plastic Surgery, PC, Case No.…

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Subject matter eligibility for obtaining patent protection

The U.S. Supreme Court has strongly indicated that it intends to grant a writ of certiorari to review a ruling by the Federal Circuit court of appeal, dealing with subject matter eligibility for obtaining patent protection. Patent subject matter eligibility is covered under 35 U.S.C. § 101, which provides that “[w]hoever invents or discovers any…

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Controversy Over Overriding Intellectual Property Protections for COVID-19 Vaccines, Diagnostics and Treatments

A recent proposal by the U.S. government to the World Trade Organization (WTO) to direct its member states to override patent protections for COVID-19 vaccines, and a competing proposal by several countries, including India and South Africa to waive all Intellectual property (IP) rights to COVID-19 vaccines, treatment drugs and diagnostics, has gained world-wide attention…

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