Scott M. Hervey
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 television production companies in network negotiations and has served as production and clearance counsel on television programming for Netflix, History, Go90, TheCW, E!, VH1, NatGeo, WGN, CMT, WEtv, TruTV, Discovery, and A&E.
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 is a 2017 Super Lawyer®. Scott is a professor of entertainment law at King Hall law school, U.C, Davis and he serves on the board of directors of the Hollywood Radio and Television Society (HRTS).
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 gaming (i.e., slot machine manufacturer Aristocrat Technologies), entertainment and hospitality (i.e., the Palms Casino and Resort in Las Vegas), wine and spirit brands (i.e., Popcorn Sutton’s Tennessee White Whiskey and Oak Ridge Winery), medical devices (i.e., Cesca Therapeutics) and sports and entertainment.
Representation of game studio, MX Digital, in early-stage financings, game development, and distribution transactions.
Investor’s counsel for seed investment round in Oculus VR, Inc.
Representation of the creators behind the top YouTube channel “Smosh” in financing, sponsorship and endorsement transactions.
Representation of STX Entertainment in connection with various emerging media transactions
Fund counsel for VR accelerator, Green Screen Institute.
Representation of Pharrell Williams’ ” I am Other” YouTube channel.
- Representation of DreamWorks Animation Television in connection with the production of its daily, YouTube program, “YouTube Nation.”
Served as acting director of business affairs for publicly traded digital content aggregator and represented company in the acquisition of over $40 million dollars of music and video content; negotiated over 50 distribution agreements with mobile and Internet retailers, including iTunes, Napster, YouTube, Revver, Lycos, Yahoo music, Zingy, and Cingular;
- Representation of production companies in all aspects of production of scripted and non-scripted television programming, including acquisition and development and negotiation of network production service agreements
- Representation of companies in all industries in domestic and foreign trademark registration, maintenance and rights enforcement actions.
- Representation of brands in sponsorship, endorsement and licensing transactions.
- Representation of new media company in complex copyright infringement action.
- Representation of new media technology company in a series of multi-million dollar content acquisition transactions.
- Representation of software development company in multi-million dollar sale of company and international software development and technology transfer agreement with German technology university.
Independent Film Industry
- Served as acting business counsel director for independent film production company Redwood Palms Pictures in structuring film slate financing transactions, theatrical and home video distribution agreements for numerous pictures.
- Structured a $6 million multi-film syndication financing transaction for six direct-to-video motion pictures.
- Served as production counsel for numerous independent film projects.
Scott is the editor-in-chief and frequent contributor to the IP Law Blog and has published a law review article entitled “The Future of Online Music: Labels and Artists.” Scott is a frequent lecturer for the California State Bar and the American Corporate Counsel Association.
State Bar of California, Business Law, and Intellectual Property Law Sections and Trademark Subcommittee
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.
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.
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.
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.
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.
“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.
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.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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.
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.
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.
Congratulations to Our Client AudioMicro, Inc. for inclusion in Deloitte’s 2014 Tech Fast 500!
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.
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,
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,
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.
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.
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.
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.
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.
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 &
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,
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.
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).
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.
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.
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.
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,
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.
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.
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.
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.
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.
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!
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,
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.
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;
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.
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.
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.
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,
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,
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.
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,
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.
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,
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,
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.
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,
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.
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,
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.
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.
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.
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,
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,
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.
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.
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,
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,
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.
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.
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,
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.
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,
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.
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.
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,
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?
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.
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.,
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.
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.
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,
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,
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’’,
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.
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.
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,
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.
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.
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.
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.
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 –
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,
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,
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,
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,
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.
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,
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).
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.
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.
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”).
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,
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,
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.
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.
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.
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,
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,
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.
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.
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,
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.
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,
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.
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?
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,