What Happens When the Intellectual Property Laws Clash with the Antitrust Laws?

by Audrey A. Millemann
The IP Law Blog

Should a company be required to license its patents to a competitor?  That’s one question that arises when intellectual property law and antitrust law intersect.

The Sherman Act, section 1, prohibits concerted action (agreements, combinations, or conspiracies) that restrain trade.  Four types of conduct are per se unlawful; i.e., illegal regardless of the reason.  They all involve agreements between competitors, also called horizontal agreements.  It is per se unlawful to agree with a competitor to fix prices,

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

by Scott M. Hervey
The IP Law Blog

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. The CRCA provides as follows:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity,

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Weintraub Tobin Attorneys Selected for Inclusion in San Diego Super Lawyers/Rising Stars® 2019 List

Weintraub is pleased to announce that Jo Dale Carothers has been recognized as a 2019 San Diego Super Lawyer and Eric Caligiuri as a 2019 Rising Star.

Jo Dale Carothers is a shareholder and chair of the firm’s Intellectual Property group. An intellectual property litigator and registered patent attorney, Jo Dale advises clients on a wide range of intellectual property issues including patents and proceedings before the United States Patent and Trademark Office,

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

by Scott M. Hervey
The IP Law Blog

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! A Parody by Dr. Juice.  This book was about the O.J. Simpson trial presented in Seuss style rhyming verse and animation. The work begins:

A happy town

Inside L.A.

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

by Scott M. Hervey
The IP Law Blog

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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Royalties, Preemption and Attorney’s Fees

by James Kachmar
The IP Law Blog

The Ninth Circuit recently was called upon to decide awarding attorney’s fees in a case where artists were suing for unpaid royalties under the California Resale Royalties Act (“CRRA”).  In the case, Close v. Sotheby’s, Inc. (decided December 3, 2018), the Ninth Circuit ordered that the Plaintiff-artists be required to pay attorney’s fees to the defendants (eBay and art auction houses) for successfully defending against claims for unpaid royalties resulting from art sales. 

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Copyright Infringement and Third Party Software Support

by James Kachmar
The IP Law Blog

A recent case out of the Ninth Circuit, Oracle USA, Inc. v. Rimini Street, Inc. (July 13, 2017), illustrates some of the risks third party software vendors run concerning copyright issues.  Oracle develops and licenses proprietary “enterprise software” for business around the world.  A business using Oracle’s enterprise software would pay a one-time licensing fee to download the software and then can elect to buy a license maintenance contract that provides for periodic software updates.

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Call it what you want. Just don’t call it copyright infringement.

by Josiah M. Prendergast
The Litigation Law Blog

A demand letter is a formal way of telling someone, “now we got bad blood.”  Recently, a Northern California blogger received a demand letter in which Taylor Swift threatened to sue the blogger.  In so many words, the blogger responded, “I wish you would.”

The Demand Letter was triggered by the blogger’s September article, the Cliffs Notes to which might read something like: “Blogger characterizes T-Swizzle’s lyrics as ‘dog whistles to white supremacy.’  Alt-right is co-opting Taylor’s songs,

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Say Cheese: Stock Photos, Non-Exclusivity & Copyright Infringement

by James Kachmar
The IP Law Blog

Copyright sign with tip of pen, on white.

The Ninth Circuit recently addressed an issue as to who may pursue claims for copyright infringement concerning stock photos in the case DRK Photo v. McGraw-Hill Global Education Holdings, LLC, et al. (Sept. 12, 2017).  Apparently there has been a rise in copyright infringement claims involving stock photos and the Ninth Circuit was called upon to determine whether the non-exclusive licensing agent for stock photos had standing to pursue a claim for copyright infringement.

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Diddy’s @Infringement Instagram Post

by Scott M. Hervey
The IP Law Blog

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 larger the number of followers, the greater the compulsion to constantly connect.  And that’s where the problems can arise.

The facts underlying the claim seemed innocuous enough.  Hip hop celebrity Sean “Diddy” Combs was delivering an inspirational speech to young students at a new charter school he founded in Harlem. 

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