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San Francisco California Intellectual Property Law Blog

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Songwriters say "Game On" in copyright infringement lawsuit

On June 19, songwriter Heidi Merrill and three other cowriters filed a copyright infringement suit in U.S. District Court in New York against singer Carrie Underwood, the National Football League, NBCUniversal Media, LLC, and several related defendants. The complaint alleges that the defendants used Merrill's sports-themed song "Game On" as the 2018 theme song for "Sunday Night Football" without the writers' permission and without any compensation to them for its use.

Copyright: Court finds Andy Warhol’s use of Prince photo was fair

The New York federal judge in a high-profile copyright infringement lawsuit found on July 1 that painter Andy Warhol did not infringe on Lynn Goldsmith’s copyrighted photograph of Prince when he based a series of portraits on it. The court concluded that Warhol did not infringe because of the “fair use” defense.

Default judgment in Kardashian trademark, right of publicity suit

Kim Kardashian is in the intellectual property news again. We shared information just last week about her controversial choice of the word “kimono” for branding her new line of lingerie.

On July 2, the U.S. District Court for the Central District of California issued a default judgment in favor of Kardashian in her lawsuit against the American branch of Missguided, a British fashion retailer, after it did not file an answer in the case. According to The Fashion Law, Kardashian alleged willful trademark infringement because Missguided has repeatedly used her image and name to sell fashion copied without permission from Kardashian’s designs.

Another step in the ‘Stairway to Heaven’ copyright trial

In October, we told readers about the high-profile copyright litigation in which the trustee of a trust containing a deceased musician’s copyright interests had sued the iconic band Led Zeppelin. Trustee Michael Skidmore alleged in U.S. District Court in California that the world-famous opening guitar solo of “Stairway to Heaven” was lifted from an obscure song called “Taurus,” written by Randy Wolfe of the band Spirit.

Cultural appropriation and trademark

Kim Kardashian has announced her choice of "kimono" for branding her new line of intimate wear. The choice of kimono has caused some social media stir because of the deep cultural role of the traditional robe called a kimono in Japanese culture.

Rejecting immoral or scandalous trademarks is unconstitutional

On June 24, the U.S. Supreme Court struck down part of federal trademark law in the Lanham Act, finding that its prohibition on registration of immoral or scandalous trademarks violated the right to free speech and expression that the First Amendment to the U.S. Constitution guarantees.

Part 2: Vigorous disputes over Frida Kahlo intellectual property

In our last post, we talked about disputes over the right to use Mexican artist Frida Kahlo’s persona, image and name in 65 years after her untimely death. We introduced the parties involved and the dispute between Kahlo’s surviving relatives and the Frida Kahlo Corporation, or FKC, over ownership of rights to use Frida Kahlo’s image and name in the marketplace.

Part 1: Commercial rights to name and image of artist Frida Kahlo

Her image is unmistakable. Black hair usually pulled away from her face. Dark, thick eyebrows. Serious, unsmiling expression. Iconic Mexican painter Frida Kahlo lived with disability and controversy throughout her short, but dramatic, life. She died at 47 in 1954, leaving behind a legacy of surrealistic paintings sometimes described as folk art.

Several legal issues have arisen regarding the ownership of Kahlo's persona and brand. Matters of trademark, licensing, right of publicity and online infringement takedowns are all coming to a head.

Texas school district owes $9.2 million for copyright violations

Last month, DynaStudy, a small, relatively new Austin, Texas, educational publisher of study guides was victorious in a copyright infringement lawsuit against the Houston school district. According to the Houston Chronicle, the jury found "dozens" of district employees committed "hundreds" of copyright violations that prompted the large damage award.

The Chronicle describes evidence that staff knowingly disregarded the copyrights on multiple study guides when they widely reproduced and distributed copies to students and other staff, sometimes after covering copyright warnings and company logos. Some guides altered in the Houston schools ended up on the Internet, where they spread to out-of-state school districts and others within Texas.

Trademark dispute: Guns N� Roses is not amused over Guns N� Ros�

In another intellectual property dispute involving a rock band, metal group Guns N' Roses sued a Longmont, Colorado, brewery on May 9 over a new craft beer branded as Guns N' Rosé. The complaint for trademark infringement, filed in U.S. District Court for the Central District of California, has been widely covered in the media, with Reuters reporting that the rockers are accusing the famous brewer, Oskar Blues, of "intentionally trading off [the band's] goodwill, prestige and fame."

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