Scott M. Hervey

Shareholder


Experience

Scott Hervey is an entertainment , intellectual property and business attorney who works with companies in a variety of different industries. He represents traditional entertainment and digital media companies, technology companies, early-stage investors and all varieties of brand-driven enterprises, in financings, mergers and acquisitions, licensing and other general business transactions.

Scott’s entertainment practice is primarily in the area of television and digital media. Scott regularly represents studios, television production companies, producers, directors, writer/showrunners in a wide variety of transactions including network negotiations, development deals and all forms of rights acquisitions.  Scott is the co-lead of the firm’s business and legal affairs group which provides outsourced comprehensive business, legal and production affairs to clients requiring either a full service solution or an interim/project based solution.  For more information on the scope of business and legal affairs services provided by Scott please click here.

In the area of emerging media, Scott represents investors, venture capital funds and emerging growth companies in financing transactions. Scott also represents top digital media content creators, digital media studios, YouTube Networks and other new technology companies in a wide variety of matters including acquisitions, production, clearance, and general business matters. Scott previously served as the acting business affairs director for the publicly traded digital content company, Digital Music Group, Inc. (now The Orchard).

Scott was featured in Variety’s 2014 Legal Impact Report and has been listed as a “Super Lawyer”® in Intellectual Property on numerous occasions. Scott was a professor of entertainment law at King Hall law school, U.C, Davis and regularly speaks at various industry events about digital media.  He serves on the board of directors of the Hollywood Radio and Television Society (HRTS) and is the co-chair of HRTS Unscripted Content Group.

Scott has extensive knowledge and experience in trademark law. He has represented clients in domestic and international trademark registration and enforcement in a variety of industries such as legal cannabis, cosmetics and beauty, fitness, gaming, entertainment and hospitality, wine and spirit brands, medical devices, and sports and entertainment.

 

State Bar of California, Business Law, and Intellectual Property Law Sections and Trademark Subcommittee
Member


Awards

Southern California Super Lawyer, 2014, 2015,  2017, and 2018

J.D., with distinction, University of the Pacific, McGeorge School of Law, 1995

B.A., California State University, Northridge, 1992

Raising Capital for Startups

Summary of Program Join a panel of Weintraub Tobin attorneys and Touchdown Ventures venture capitalists to discuss the preliminary work that must be done before looking for investment and the details of seed and A round financing.

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Upcoming Speaking Engagement: Digital DIY: The New Wild West

Intellectual Property/Entertainment attorney Scott Hervey will serve as the moderator for "Digital DIY: The New Wild West" at Westdoc 2013 on Tuesday, September 17. Panel Description Not everyone is using iTunes to sell their content online.

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Upcoming LAVA DMG Event: A Conversation with Ethan Applen

Join us July 23! Weintraub Tobin and LAVA Digital Media Group will host a conversation with Ethan Applen, the executive director of Media Camp, a Turner/Warner Brothers Initiative, on Tuesday, July 23th.

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Panel Discussion: “How Has Digital Media Changed the Way We Interact With Food”

Join Us April 23! Weintraub Tobin and the LAVA Digital Media Group will host a panel discussion: "How Has Digital Media Changed the Way We Interact with Food" on Tuesday, April 23.

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Panel Discussion: “The Role of Digital Media in Influencing Public Perception and Behavior”

Join Us March 26! Weintraub Tobin and the LAVA Digital Media Group will host a panel discussion: "The Role of Digital Media in Influencing Public Perception and Behavior" on Tuesday, March 26.

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“What’s Ahead for Digital Media in 2013” Panel Discussion

Weintraub Tobin and Moss Adams are co-sponsoring the LAVA Digital Media Group’s panel discussion: “What’s Ahead for Digital Media in 2013” on Tuesday, February 26. Making predictions in digital media can be challenging.

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Upcoming Seminars for Wineries

Three Weintraub attorneys will speak to wineries and winemakers about legal challenges for facility development, land management and business operations at two half-day seminars on Wednesday, November 9th and Thursday, November 17th.

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Scott Hervey to Speak at UC Davis Entrepreneurship Academy

On September 15, 2008, intellectual property and new media shareholder Scott Hervey will speak at the annual UC Davis Entrepreneurship Academy. Scott will provide an informative review of intellectual property rights from a legal prospective.

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Scott Hervey in CNN: Making TV Shows During Coronavirus is Taking More Time — and Money

Scott Hervey is quoted in Brian Lowry’s CNN article, Making TV Shows During Coronavirus is Taking More Time — and Money.  Scott moderated a August 5 panel for the Hollywood Radio and Television Society (HRTS),

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WT Deals: Matt Stawski to Make Feature Directorial Debut with Monster Mash by Universal Pictures

Scott Hervey and Todd Stern’s client Matt Stawski will make his feature directorial debut with Universal Pictures’ Monster Mash. The film is set to be an original musical film. Stawski is a Grammy nominated music video director of Side Effects for Awesomeness TV.

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37 Weintraub Tobin Attorneys Named Among 2018 Super Lawyers and Rising Stars

Super Lawyers has released its Northern California, Southern California and San Diego lists of outstanding attorneys for 2018, on which 37 Weintraub Tobin attorneys have been included. Five Weintraub Tobin attorneys received special recognition as a Top 25 Sacramento Super Lawyer.

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Weintraub Tobin Shareholder Scott Hervey to speak at VidCon US 2018

Topic will be – A Creator’s Guide to Fair Use and Rights Management In the ever-changing landscape of digital content, knowing how to navigate the legalities of using video or music you don’t own is tough.

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Weintraub Tobin Shareholder Scott Hervey moderates Hollywood Radio & Television Society’s (HRTS) Unscripted Content Group panel discussion

Weintraub Tobin’s Scott Hervey moderated a Hollywood Radio & Television Society’s (HRTS) Unscripted Content Group panel discussion on Monday, December 4th to discuss the recent sexual harassment  allegations circulating Hollywood. According to Deadline Hollywood,

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22 Weintraub Tobin Attorneys Rated by Martindale-Hubbell®

SACRAMENTO, CA (August 7, 2017) – Weintraub Tobin, a leading California full-service law firm, is pleased to announce that 22 Weintraub Tobin attorneys are Martindale-Hubbell rated. Out of the 22 attorneys,

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36 Weintraub Tobin Attorneys Named Among 2017 Super Lawyers and Rising Stars

Super Lawyers has released its Northern California, Southern California, and San Diego lists of outstanding attorneys for 2017, on which 36 Weintraub Tobin attorneys have been included. Six Weintraub Tobin attorneys received special recognition as a Top 25 Sacramento Super Lawyer.

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Weintraub Tobin Clients, Evan Puschak & James Charles, Named to 2017 Forbes 30 Under 30 list

Weintraub Tobin would like to congratulate clients, Evan Puschak & James Charles, for being recognized by Forbes as some of the brightest in their field. “The Nerdwriter” creator, Evan Puschak, was named to Forbes’ Media 30 under 30 list.

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Fair Use and Youtube – A Creator’s Take

6/25/16-  At the 7th Annual  VidCon in Anaheim, CA , Weintraub Tobin Shareholder Scott M. Hervey and Rian Bosak, Head of Network Operations Full Screen, presented  “Fair Use and Youtube- A Creator’s Take” to a standing room only audience of digital media creators and industry professionals.  

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37 Weintraub Tobin Attorneys Named Among 2015 Super Lawyers and Rising Stars

Super Lawyers has released its Northern California, Southern California, and San Diego lists of outstanding attorneys for 2015, on which 37 Weintraub Tobin attorneys have been included. Eight Weintraub Tobin attorneys received special honors in their respective regions.

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Weintraub Tobin Helps Grant Wishes

On June 13, Weintraub Tobin sponsored an event for Make-A-Wish Northeastern California and Northern Nevada. With over a hundred people in attendance, the event helped to raise funds to grant wishes for kids with life-threatening medical conditions.

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Weintraub Clients and YouTube Sensation, Anthony Padilla and Ian Hecox of Smosh Fame, Will Premiere Movie in July at VidCon

Weintraub Tobin client, Anthony Padilla and Ian Hecox of Smosh fame were featured in a Variety article announcing the premier of, “Smosh: The Movie.”  Shareholder Scott Hervey represented Ian and Anthony and executive producer Barry Blumberg in their deals. 

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Scott Hervey Quoted in International Business Times

Scott Hervey was quoted in an article in the International Business Times on how Fox’s fair use defense in a copyright infringement lawsuit arising over its use of a famous 9/11 image could change the landscape of copyright enforcement online.

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Congratulations to Our Client AudioMicro, Inc. for inclusion in Deloitte’s 2014 Tech Fast 500!

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Scott Hervey Named to Variety’s 2014 Legal Impact Report

Download: Scott Hervey.Variety Legal Impact Report.2014.pdf Los Angeles, California, April 21, 2014 – Weintraub Tobin Chediak Coleman Grodin Law Corporation congratulates its partner, Scott Hervey on being recognized by Variety in its 2014 Legal Impact Report.

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Weintraub Tobin Raises Money for American Heart Association

Heart Walk Logo For a third year in a row, Weintraub Tobin is working to raise funds for cardiovascular diseases and stroke by partaking in the American Heart Association Heart Walk on Saturday,

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Scott Hervey Appointed To Hollywood Radio and Television Society Board

On Tuesday, September 10th at the Beverly Hilton, Scott Hervey was announced as one of the newest board members of The Hollywood Radio and Television Society. Scott had to be vetted and voted on by the existing board,

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Weintraub Tobin Client David Mamet Receives his First Emmy Nod

Mamet Weintraub Tobin is proud to announce that our client David Mamet, who wrote and directed HBO’s “Phil Spector,” recently received two Emmy nominations, including Best Writing and Best Direction. This is the first Emmy nomination for the playwright.

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Weintraub Tobin Client Tracy Letts Wins Tony Award

Weintraub Tobin Chediak Coleman Grodin Law Corporation is proud to announce that our client Tracy Letts has won a 2013 Tony Award for his role in “Who’s Afraid of Virginia Woolf?” Letts took home the award Sunday for best performance by an actor in a play for his portrayal of George in Edward Albee’s famous play.

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Legendary and the Dowdle Brothers to Make Low Budget Thriller (Variety)

Dowdle Brothers Weintraub clients John and Drew Dowdle will co-write the upcoming microbudget thriller: “As Above, So Below” for Legendary Pictures. According to Variety, the film will be set in the catacombs beneath Paris where two archeologists look for hidden treasure.

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Sacramento Firm’s Latest Conquest: Beverly Hills (San Francisco Daily Journal)

The San Francisco Daily Journal addresses the merger between Weintraub Genshlea Chediak and Weissmann Wolff Bergman Coleman Grodin, LLP in this article, dated July 9, 2012.

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3 Cities. Over 70 Lawyers. Now 1 Great Law Firm: Weintraub Merges with LA Entertainment Law Firm

SACRAMENTO / SAN FRANCISCO / LOS ANGELES, July 6, 2012 – Weintraub Genshlea Chediak Tobin & Tobin Law Corporation and Weissmann Wolff Bergman Coleman Grodin LLP have jointly announced the merger of their respective business and entertainment law firms.

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It’s Official – Weintraub Merges with San Francisco Firm Tobin & Tobin

Weintraub Genshlea Chediak Law Corporation and Tobin & Tobin, a professional corporation, jointly announce the merger of their business law and litigation firms. The combined firm will be named Weintraub Genshlea Chediak Tobin &

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Weintraub Genshlea Chediak Announces New Los Angeles Office

Sacramento’s fifth-largest law firm quietly opened a branch in Los Angeles this week. Weintraub Genshlea Chediak Law Corp. has hired two litigators in an office on Wilshire Boulevard to solidify a toehold in the intellectual property,

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Fourteen Weintraub Genshlea Chediak Attorneys Honored As 2009 Nor Cal Super Lawyers and Rising Stars

Fourteen Weintraub Genshlea Chediak Attorneys Honored as 2009 Northern California Super Lawyers and Rising Stars SACRAMENTO, Calif., July 21, 2009 –Weintraub Genshlea Chediak, a Sacramento-based business law and business litigation law firm congratulates its fourteen attorneys who were named as 2009 Northern California Super Lawyers and Rising Stars: Super Lawyers: Dale C.

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Jeans for Justice Event to Support WEAVE

Shareholder Scott Hervey was quoted in Bob Shallit’s column for his generous donations of "walk-on" roles in television and movie productions all in support of Women Escaping a Violent Environment (WEAVE).

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Ebay Negative on Negativland iPod

EBay Negative on Negativland IPod By Katie Dean Wired MagazineDecember 8, 2004 Shareholder Scott Hervey was quoted in a recent Wired Magazine article concerning Ebay’s removal of a modified U2 iPod from its auction site after Apple Computer complained of copyright violations.

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Empire Copyright Litigation

Weintraub Tobin IP attorneys Scott Hervey and Josh Escovedo discuss the copyright dispute over the TV show “Empire,” Jon Astor-White v. Daniel Strong.

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9th Circuit Provides Clear Copyright Guidance for Producers of Bio Pics

In this episode of The Briefing by the IP Law Blog, Weintraub Tobin attorneys Scott Hervey and Josh Escovedo discuss copyright litigation around the “Jersey Boys” — a musical and movie about The Four Seasons–

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Second Circuit Frames Novel Issue of Photographer’s Claim of Copyright Infringement and DMCA Violation

The facts in Mango v. BuzzFeed are fairly straight forward. Mango is a freelance photographer who licensed a photograph to the New York Post.  The Post included the photo in a story and below the photo included Mango’s name – an attribution known in the publishing industry as a “gutter credit”. 

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Sushi Restaurants Battle for Control Over Hand Roll Trademark

Sushi Nozawa, LLC, owner of the popular sushi destination Sugarfish, is challenging the HRB Experience LLC over use of the term “Hand Roll Bar.” IP Attorneys Scott Hervey and Josh Escovedo discuss the lawsuit,

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The “Wolf of Wall Street” Defamation Suit – The Risk of an “Inspired By” Character in Movies and TV

The motion picture Wolf of Wall Street was based on a book of the same title written by Jordan Belmont.  In the book, Andrew Greene, who was director, general counsel, and head of the corporate finance department at Stratton Oakmont between 1993 and 1996,

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Trademark Infringers Beware – Willfulness Not Required for Disgorgement

For some time there has been a split among the Federal circuits as to whether evidence of willfulness is required in order to award disgorgement of profits for trademark infringement under Section 1125(a) of the Lanham Act. 

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Stay Away; No Trademark for Social Distancing and Other Informational Terms

Call me a pessimist, but it was surprising to me when I recently checked the USPTO trademark database that I did not find an application to register “Social Distancing” for some other novelty item. 

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No Trademark Protection In Book or Movie Titles?!?

Generally, the title to a single motion picture is not entitled to trademark protection.  This is the same for the title to single books, songs and other singular creative works.  Most non-trademark attorneys are surprised when I tell them this. 

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Player/Haters May Be Original Afterall

In the early 2000’s, an all-girl band called 3LW performed a song called “Playas Gon’ Play,”  which was written by Sean Hall and Nathan Butler.  “Playas Gon’ Play” was initially released in May,

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Order in Netflix Lawsuit is a Reminder of the Bounds of Copyright Protection

Virginia Vallejo, a well known Colombian journalist and media personality, authored the memoir “Loving Pablo, Hating Escobar”.  The book is a factual account of her romantic relationship with Pablo Escobar and a chronicle of the rise of the Colombian drug cartel.

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Compliance Deadline for California’s New Privacy Act Coming Up Fast; Are You Ready?

The deadline for business to implement compliance with the California Consumer Privacy Act is just around the corner and chances are most businesses are not ready. On June 28, 2018, Governor Brown signed into law the California Consumer Privacy Act of 2018. 

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Supreme Court Ruling In Pirate Ship Copyright Case Could Sink State Immunity

The Supreme Court is set to hear the case of Allen v. Cooper which addresses the constitutionality of the Copyright Remedy Clarification Act (“CRCA”). The purpose of the CRCA is to abrogate sovereign immunity enjoyed by States and State actors under the Eleventh Amendment for claims of copyright infringement.

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Supreme Court Decision Will Have Huge Economic Impact on Trademark Infringement Damages

The Supreme Court has agreed to resolve a circuit split over when a court can order the payment of an infringer’s profits to a successful plaintiff as a measure of damages. 

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Hidden Trademark Landmines in Comparative and Compatibility Advertisements

Nespresso has filed a lawsuit against Jones Brothers Coffee Distribution Company alleging trademark and trade dress infringement. In support of its trademark infringement claim, Nespresso alleges that Jones Brothers’ use of the words “Nespresso Compatible” in connection with its coffee capsules will cause consumers to believe that the Jones Brothers product is endorsed and/or sponsored by Nespresso because “Nespresso Compatible” is used prominently and without a disclaimer nearby.

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Dr. Seuss and Fair Use, What 20+ Years Will Do!

Over twenty years ago, the Ninth Circuit decided the case of Dr. Seuss Enterprises., LP v. Penguin Books USA, Inc.  That case involved a copyright infringement lawsuit brought by Dr. Seuss over a book entitled The Cat NOT in the Hat!

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It’s Not Water under the Bridge – “Fiji Water Girl” Sues Water Company Over Cardboard Cutout

For those of you that watched the red carpet happenings at last year’s Golden Globe Awards, you may have noticed the “Fiji Water Girl”, a model standing ready to keep Hollywood glitterati hydrated with bottles of Fiji water,

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In-Game “Carlton Dance” Routine Triggers Lawsuit From Fresh Prince Actor Alfonso Ribeiro

Actors gain notoriety for different reasons.  For some, it’s due to a physical characteristic or an iconic character portrayal.  For Alfonso Ribeiro, it’s a dance.  The dance, which has become known worldwide as the “Carlton Dance,” is a corny dance number performed by Ribeiro’s character Carlton Banks on the 90’s sitcom “The Fresh Prince of Bel Air.”   That dance is now the center of a copyright infringement lawsuit Ribeiro filed against Epic Games and Take-Two Interactive. 

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TTAB’s Refusal To Register Trademark Reveals Important Lesson For Trademark Attorneys

The Trademark Trial and Appeals Board’s recent ruling in In re Productos Verde Valle, S.A. de C.V. upholding a trademark examiner’s refusal to register the mark SONIA for “sauces; chili sauce;

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The Essential Purpose of the Short Form Copyright Assignment

Recently, a client asked why we included a short form option agreement and a short form assignment agreement as an exhibit to a long form literary option agreement.  I am sure that many a corporate transactional attorney has similarly wondered why a short form copyright assignment agreement is included within the package of numerous M&A transaction documents. 

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Navigating Username Jacking

Have you ever had the experience of attempting to register a social media account in the name of your business only to find that your preferred name is taken? Often, it’s just the case of another business with the same name having registered that account first.

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Right of Publicity Risks For Producers Still Uncertain

Often writers base characters on complete fiction, drawing from their imagination to build a character’s various facets. However, on certain occasions a writer may base a character on a living person.

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May the Lawsuit Be With You

Unless you have been living under a rock (and not a rock on Tatooine), then you have heard of a little film called Star Wars, things called lightsabers, the Millennium Falcon,

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Hall v. Swift: Nothing Original About a Player Hater

“Cause the players gonna play, play, play, play, play And the haters gonna hate, hate, hate, hate, hate Baby I’m just gonna shake, shake, shake, shake, shake Shake it off / Shake it off Heartbreakers gonna break,

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Ruling in Lawsuit Over Fox’s Use of “Empire” Extends Permitted Use of Third-Party Trademarks

Did you ever wonder why some movies use fictional names for companies or sports teams? TV and movie producers intentionally avoid using brand or company names in order to avoid any potential of an entanglement with a trademark owner. 

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Would Glue Maker’s Trademark Claim Stick Against Pot Strain

According to cannabis folklore, cannabis cultivators in 2010, Josey Whales and Lone Watie  created a strain of marijuana that was so sticky, Mr. Whales, during a phone call, commented that the plant made his hands “stick to things like Gorilla Glue.”  From that,

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Wine and Spirits Are not Always Confusingly Similar

Brand litigation can be extreme in the consumer products space and even more so for alcoholic beverages (legal cannabis brand owners take note and start stockpiling your war chest).  It’s not uncommon for litigation to arise whenever an alcoholic beverage brand owner believes that another alcoholic beverage brand infringes. 

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California Finally Rolling Out Its Own Cannabis Trademark Laws

California was the first state to legalize marijuana for medical use.  In 1996, California approved Proposition 215, the California Compassionate Use Act.  Two decades later, California voters approved  Proposition 64, the Control,

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Diddy’s @Infringement Instagram Post

In today’s age of rapid fire social media, posting to feed the ever growing hunger of a digitally connected audience has become second nature to celebrities and other influencers.  In fact,

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The Jury Is Still Out on What “Registration” Means Under Section 411 of the Copyright Act.

The Copyright Act provides that “Registration” of a copyright is a precondition to filing suit for copyright infringement.  17 U.S.C. § 411(a).  We are still trying to figure out exactly when registration occurs.

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Lawsuits are the Inevitable Cost of YouTube Success

Whenever there is a report of a YouTube creator being sued for copyright infringement, the response from the creator and the community seems to be one of shock and surprise.  The truth is,

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What Do California Wine Grapes and California Marijuana Have in Common?

When a winery wants to tell consumers the geographic source of its wine, it includes on the label the wine’s “appellation of origin.”  An appellation of origin tells the consumer where the wine grapes were grown. 

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Tavern on the Green Trademark Battle Round #2

The City of New York has reignited the battle over the trademark TAVERN ON THE GREEN. Last month the City of New York filed a lawsuit for trademark infringement against Tavern on the Green International LLC,

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Star Trek Fan Film Not Fair Use

Paramount and Star Trek Fan Film Producers Settle The copyright infringement lawsuit between Star Trek fan film producer, Axanar Productions, and Paramount Pictures came to an end less than two weeks before trial. 

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Phasers Set to Stun – Star Trek and Fan Film Producers Trade Copyright Shots

Fan films and fan fiction ordinarily don’t end up being the subject of a federal court lawsuit.  Most fan fiction are creative expressions reflecting adoration of a series, film or character and the majority of copyright owners take a permissive view of fan fiction. 

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Branding Buds – Still Illegal Under Federal Law

If voters in California  approve Proposition 64 which would legalize the possession and use of marijuana for recreational purposes, it is without question that the sunshine state will see a huge increase in the number of businesses within the cannabis industry.

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Website Listing of Tequila Client Work Gets PR Firm a Trademark Shot

Can the owner of renowned tequila brand Patrón prevent a former marketing and PR firm from listing it as a client on its website and discussing the services it provided?  Patrón believes it can and has sued its former marketing firm,

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Small Burger Chain Has a Beef With Chipotle

Chipotle’s entry into the burger business has a Boston based small burger chain up in arms.  The Boston burger spot, which has been in operation since 2010 and goes by the name Tasty Burger,

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Fair Use and Youtube – A Creator’s Take

6/25/16-  At the 7th Annual  VidCon in Anaheim, CA , Weintraub Tobin Shareholder Scott M. Hervey and Rian Bosak, Head of Network Operations Full Screen, presented  “Fair Use and Youtube- A Creator’s Take” to a standing room only audience of digital media creators and industry professionals.  

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Ninth Circuit Rejects Current Status of Music Sampling Copyright Infringement And Sets Circuit Split For The Supreme Court

On June 2, 2016 the Ninth Circuit issued an opinion in a music sampling Copyright infringement case that sets up a split between the Ninth Circuit and the Sixth Circuit which will likely send the issue to the Supreme Court.  

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Tattoo Infringement Case Against NBA 2K Game Publisher Shows Misunderstanding of Applicability of Statutory Damages

This isn’t just another tattoo-copyright infringement case.  This case raises an important lesson for all copyright claimants. The backstory: Solid Oak is a licensing firm that represents the go to tattoo artists for NBA royalty,

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Supreme Court Battle Set Over Prohibition of Disparaging Trademarks

Section 2(a) of the Lanham act bars the registration of “scandalous, immoral or disparaging trademarks.” The USPTO has used this applied this provision to refuse the registration of marks such as F**K PROJECT,

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Five IP Pitfalls That Start-Up (and Grown Up) Companies Can Easily Avoid

In business, there are numerous opportunities for pitfalls, mistakes and errors and they come up in all different legal areas – from basic formation issues to labor and employment to intellectual property.

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ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections

Representing copyright owners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works.

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Court Provides Fair Use Guidance On YouTuber’s Use of Viral Video

This copyright case pitted two big YouTube content brands against each other over issues of fair use. On one side is Equals Three, LLC, a YouTube content studio and channel created and owned by Ray William Johnson,

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Will Lenz v. Universal Make Online Copyright Enforcement More Challenging for Copyright Owners

Pending before the 9th Circuit is a case which may change the landscape for online copyright protection. The case, Lenz v. Universal, may make it more difficult for copyright owners to protect against infringement in today’s environment of hyper infringement.

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Richard Prince Once Again Pushes the Limits of Fair Use

By: Scott Hervey Prince is a practitioner of what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes third-party images and photographs,

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That Would .SUCK

By: Scott Hervey The word that comes after the period in a domain name is referred to as a top level domain (“TLD”) and there seems to be a TLD for everything.

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Live Streaming Apps Raise New/Old Copyright Concerns

By: Scott Hervey Periscope (owned by Twitter) and Meerkat are two new “live streaming” apps which allow users to live stream videos from their phones.  These applications could potentially change the way live sporting or music events are broadcast or change the way news footage is gathered.  

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Is Fox News Proposing a New Standard For Determining Fair Use?

By Scott Hervey North Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11,

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The Left Shark, Katy Perry and Copyright Chum

By Scott Hervey What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer?

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Cambridge v. Becker – A Copyright Win For Publishers or an Enlargement of Fair Use?

By Scott Hervey Recently the 11th Circuit addressed on appeal the question of whether fair use insulates from copyright liability a University which offers to its students a digital repository of reading material culled from third party publications without the benefit of a license.   

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Clearing Marks In the Beverage Space Has Become Increasingly Complex

By Scott Hervey In this author’s opinion, I believe that most consumers see wine, beer and mineral water as unrelated products and would not believe that beer, wine or mineral water that share similar trademark elements (e.g.,

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Who Owns Facebook “Likes” on Your Page

By Scott Hervey The answer may surprise you. This dispute over ownership of Facebook ‘likes’ pits the creator of a fan Facebook page for a TV show against the television network that owns the show. 

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Copyright Ownership Claim Of Pictures Taken By Wild Ape is Monkey Business

By Scott Hervey Recently, Wikimedia (the entity behind Wikipedia) has refused repeated requests from professional photographer David Slater to remove from one of his most famous photos from its royalty free photo collection website. 

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The Duke and Duke Duke It Out In Trademark Rowe

By Scott Hervey Clearly there is no love lost between John Wayne Enterprises, LLC (“JWE”), the entity owned by John Wayne’s heirs which controls the intellectual property related to John Wayne,

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Supreme Court Says Raging Bull Copyright Case To Go Another Round

By Scott Hervey In the one corner, Paula Petrella, the daughter of Frank Petrella, co-author of the 1963 Raging Bull screenplays and book.  In the other corner, MGM, the owner of the copyright in the critically acclaimed motion picture Raging Bull,

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Will The Copyright Act be Amended to Include a “Making Available” Right

By Scott Hervey Under the WIPO Internet Treaties, member states are required to recognize in their national laws  the exclusive right of  authors of works to ‘‘make [the works] available’’ and ‘‘communicate [the works] to the public’’,

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Holy Lawsuit Batman

By: Scott Hervey The U.S. District Court for the Central District of California handed a big victory to Warner Bros. when it ruled that Gotham Garage violated Warner Bros.’ intellectual property rights in the iconic Batmobile.

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Did The California Court Of Appeals Transform The Transformative Use Test in Right of Publicity Cases?

By Scott Hervey Every practitioner should teach law school at least once. This year I am teaching Entertainment Law at the University of California at Davis. (Although flying up from and back to L.A.

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What Are You Smoking? Notes on the Increase in State and Local Regulation of E-Cigarettes

By: David Gabor The FDA defines electronic cigarettes, also known as e-cigarettes, “e-cigs” or “vapes” (as in vapors), as “battery operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine,

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Federal Circuit Puts Generic 1800Mattress Trademark to Bed

After four years, the quest to obtain federal trademark protection for the mark MATTRESS.COM by owner 1800Mattress.com IP, LLC, formerly Dial-A-Mattress Operating Corp, has been put to bed. The United States Court of Appeals for the Federal Circuit has finally held that the mark is generic and not entitled to registration.

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7th Circuit Case Should Serve As A Reminder To Business Attorneys

Recently the 7th Circuit in Sunstar, Inc. v. Alberto-Culver Company provided a reminder to attorneys engaging in a business transaction between domestic and a foreign parties. Stated plainly, the 7th Circuit reminded business attorneys that if a term is included in a transaction document – especially if that term is a foreign word – be sure you understand what it means.

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Hallmark Cards Raises Unique Defense to Paris Hilton’s Right of Publicity Claim – That’s Hot

This is about a birthday card. Not just any birthday card mind you. This birthday card, produced by Hallmark Cards, depicts a cartoon waitress, dressed in an apron, serving food to a restaurant customer.

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Wine’s “Full Bodied” Label Not To State Regulator’s Liking

Those in the wine industry regularly traverse a vast array of statutes, rules and regulations in an effort to get their grape from the vine into your glass. One set of regulations all wine producers deal with are those governing wine labeling.

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Jack Bauer to Hunt Down DVD Pirates?

Sometimes a law is passed which tackles incredibly complex issues and causes seismic shifts in entire industries. Unfortunately, nothing like that happened in time for this article. However, early this month President Bush signed into law Senate Bill 3325 –

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Court Couldn’t Give A Quack About Generic Mark

Court Couldn’t Give A Quack About Generic Mark By Scott Hervey The First Circuit recently decided a case that exemplifies the downfall of building a brand around merely generic terms. No matter how long the mark owner may use a mark in commerce,

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Superman and a Super Copyright Battle

By Scott M. Hervey On March 26, 2008, the District Court for the Central District of California issued an order closing one chapter to a long running battle between the heirs of one of the original creators of the iconic comic book superhero,

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Lights, Camera, IP Issues…

Lights, Camera, IP Issues… By Scott Hervey Last October I had the good fortune of being invited to attend my friend’s “man shower” in Las Vegas. What made this trip interesting was the fact that this all guy’s version of a baby shower would be the subject of an episode of the VH1 reality TV show “Scott Baio is 46 and Pregnant.” While there are a number of interesting stories that came out of this first and only man style baby shower,

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A Fresh Look At Managing Intellectual Property

A Fresh Look At Managing Intellectual Property By Scott Hervey As 2008 gets underway, its time for companies to take a fresh look at how they manage intellectual property assets. This applies to companies that have never taken serious steps to protect intellectual property,

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In The 9th Circuit, May Not Be Worth It To Elect Statutory Damages In Trademark Counterfeiting Claim

In The 9th Circuit, May Not Be Worth It To Elect Statutory Damages In Trademark Counterfeiting Claim By Scott Hervey In a trademark counterfeiting claim, the successful plaintiff is entitled to recover actual damages or can statutory damages.

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Fantasy Sports League Hits It Out Of The Park In Challenging MLB’s Ownership Of Player Statistics

Fantasy Sports League Hits It Out Of The Park In Challenging MLB’s Ownership Of Player Statistics By Scott Hervey Just how valuable are baseball statistics? Apparently very valuable. In fact, baseball statistics are so valuable that CBC Distribution and Marketing,

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It’s Hammer Time at The USPTO

It’s Hammer Time at The USPTO By Scott Hervey There is a growing trademark dispute between a small Alaskan museum devoted to a 900 piece display of hammers and the great Los Angeles based Hammer Museum (formerly known as the Armand Hammer Museum).

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Ninth Circuit Holds Modified Terms of Use Unenforceable

By Scott Hervey It’s not uncommon for companies to change or modify the terms under which they provide services to consumers. This is true whether the company is a traditional brick and mortar company or Internet based.

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Host A Website And Get Sued For Trademark Infringement

Host A Website And Get Sued For Trademark Infringement – Possible Under California’s Model Trademark Law By Scott Hervey According to the Department of Commerce, losses to U.S. businesses from the counterfeiting of trademarked consumer products are estimated at $200 billion a year.

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Interactive Websites May Lose Protection Under the Communications Decency Act

By Jeff Pietsch On May 15, 2007, the 9th U.S. Circuit Court of Appeals created a significant exception to the immunity granted to a website operator under 47 U.S.C. § 230 “The Communications Decency Act” (“CDA”).

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The 11th Circuit Reminds All That Copyright Protection For Databases Is Alive And Well

By Scott Hervey Under contemporary Copyright Law, a database is a “compilation.” A compilation is defined under the Copyright Act as “a work formed by the collection and assembling of preexisting materials or of data….” While the inclusion of a compilation as a protectable work was statutorily introduced in The Copyright Act of 1976,

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Over Installing Software May Subject A Company to Liability for Copyright Infringement

By Scott Hervey Its that time again; time to upgrade your computer operating system and associated programs. Microsoft’s new operating system, Vista, is coming pre-installed on new computers and laptops, along with new versions of Microsoft Word,

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The YouTube Question

By Scott Hervey By now, everyone has heard about the One Billion dollar copyright infringement lawsuit Viacom filed against YouTube and its owner, Google. The lawsuit stems from the fact that clips from a number of Viacom’s programs are regularly appearing on the YouTube website.

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The Complexity of Proving Copyright Infringement

By Scott Hervey Last year’s Ninth Circuit’s decision in Funky Films, Inc. v. Time Warner Entertainment is a reminder just how complex and complicated it can be proving copyright infringement. Funky Films involved a claim that the award winning Home Box Office mini-series “Six Feet Under” infringed Funky Films’ screenplay “The Funk Parlor.” At issue on appeal was the district’s court conclusion that “The Funk Parlor” and “Six Feet Under” were not substantially similar.

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Copyright Office Clears the Way for More Ringtones

Copyright Office Clears the way for more Ringtones By Scott Hervey On October 16 the Register of Copyrights issued an interpretation of Section 115 of the Copyright Act that will make it easier for record labels and cellular phone services to offer ringtones to consumers.

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Copyright Problems for the Unwary Real Estate Developer

By Scott Hervey Real estate lawyers take head. Waiting in the tall grass of your client’s real estate development project may be a thorny copyright issue that could cost your client all of the profit it earned on the project,

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Digital Applications of the Compulsory License

By Scott Hervey A class action lawsuit filed this past May by a small group of independent music publishers against major online music services for failing to secure licenses to sell downloadable versions of certain songs brought to light what could be a crack in the way labels,

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The RIAA Goes After XM Satellite Radio for Copyright Infringement

By Scott Hervey XM’s introduction of a new service called XM + MP3 that allows its subscribers to listen to XM’s service on a portable player and record up to fifty hours of programming.

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Learn a Lesson from Puffy – Don’t Ignore a Cease and Desist Letter

By Scott Hervey A Federal district court jury in Nashville levied a $4.3 million dollar verdict against Sean Combs’ (Puffy) Bad Boy Entertainment, Bad Boy, LLC and Universal Records/UMG Recordings for infringing copyright owned by Bridgeport Music and Westbound records.

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Tech Companies, Insure You Choose the Correct E&O Policy!

By Scott Hervey Picking an Errors and Omission policy can be an extremely important undertaking, especially for a technology focused company. When legal costs for defending a complex intellectual property infringement claim can exceed half a million dollars,

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Intend To Infringe = Go To Jail

By Scott Hervey Intend to infringe – go to jail. That’s what the United States Attorney General proposed at a recent anti-piracy summit hosted by the U.S. Chamber of Commerce. United States attorney general Alberto Gonzales said the Department of Justice recently submitted to Congress the Intellectual Property Protection Act of 2005 aimed at toughening up intellectual-property enforcement.

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The Grokster Decision- What Does It Really Mean?

The Grokster Decision- What Does It Really Mean? By Scott Hervey On June 27, 2005, the United States Supreme Court handed down its decision in MGM v. Grokster.#160 That case involved an appeal from the Ninth Circuit by MGM,

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New Laws Attempt To Regulate The Internet

Download: New Laws Attempt to Regulate the Internet.pdf New Laws Attempt To Regulate The Internet Article first appeared in the March / April 2004 issue of Sacramento Lawyer, the bi-monthly publication of the Sacramento County Bar Association.

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What’s the Big Deal About Copyright?

Sacramento News & Review November 14, 2002 http://www.newsreview.com/sacramento/Content?oid=13569By Scott Hervey Sometime a musician will ask me, what’s the big deal about Copyright and why should I care about it? Shouldn’t I just focus on my music rather than worrying about all of this legal mumbo jumbo?

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Music Industry Glossary

Sacramento News & Review November 14, 2002http://www.newsreview.com/sacramento/Content?oid=oid%3A13571 By Patrick Olguin and Scott Hervey Working daily in the music business, as a lawyer, a recording engineer and occasionally as a record producer,

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