The Briefing by Weintraub Tobin

Can a car, a superhero, or even a cartoon sidekick be protected by copyright? In this episode of The Briefing, Scott Hervey and Matt Sugarman break down how fictional characters earn legal protection — and when they don’t.   From DC Comics v. Towle (the “Batmobile” case) to Carroll Shelby Licensing v. Halicki (the “Eleanor” case), Scott and Matt explore the three-part test for character copyrightability, how trademark rights can extend protection, and what creators and studios can do to safeguard their most valuable IP assets.   🎧 You’ll learn:   ● What makes a fictional character “especially distinctive” under copyright law   ● Why consistency across stories matters for protection   ● How trademark rights protect character names and merchandise   ● The difference between creative expression and brand identity   Watch this episode on YouTube and learn how to keep your characters safe from copycats.

The Supreme Court sidestepped a major copyright showdown—again. What does it mean when infringement claims surface decades later? In this episode of The Briefing, Scott Hervey and Tara Sattler break down the latest in the discovery rule debate, RAD Design’s rejected petition, and how this uncertainty affects creators, businesses, and copyright holders across the country. Watch this episode on YouTube. Show Notes: Scott: In Warner Chapel Music versus Neely, the Supreme Court acknowledged without resolving a major question in copyright law, should plaintiffs be allowed to bring infringement claims years or even decades after the alleged violation happens if they say they just recently found out about it? That question was front and center in Rad Design versus Michael Greckeau Productions. And while many expected the court to finally address it, they declined to take the case. What does this mean for copyright holders, digital content creators, and the businesses defending against those claimed? I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my colleague Tara Sattler. We are diving into the Supreme Court's decision to leave the discovery rule untouched, at least for now. On in this episode of The Briefing. Tara, welcome back to The Briefing. It's good to have you back. Tara: Thanks, Scott. Glad to be here, and glad to be getting into some important copyright strategy with you here today. Scott: Right. Yeah. So let's start by defining what we're actually talking about, the discovery rule. It's a judgment doctrine that allows plaintiffs to file a copyright lawsuit within three years of discovering the infringement, even if the infringement happened long before that. Tara: Right. And for years, courts have disagreed on whether the Copyright Act actually allows this. The text of the Copyright Act says that actions must be brought within three years after the claim accrued. But it doesn't say whether accrual starts at the time of infringement or at the time of discovery. Scott: And that ambiguity is at the heart of the issue. Some courts, like the Second Circuit, have embraced the discovery rule. Others are skeptical. That split was one reason the Supreme Court agreed to hear Neely in the first place. So before we get deeper into the implications of the Supreme Court denying Cert and Rad Design, we should revisit the Warner Chapel Music versus Neely decision because that case really set the stage for all of this. Tara: Absolutely. That case started back in 2018 when music producer Sherman Neely sued Warner Chapel Music and Artist Publishing Group. He claimed that Flowrida's 2008 song, In the Air, contained an unauthorized sample from a 1984 track Neely co-owned the rights to. Now, that's a fairly typical copyright infringement claim, but what made this case different was the timing. Scott: Right. So Neely had been incarcerated for a number of years, and apparently, they don't allow radios in the jail or prison that he was in. And he argued that he only discovered the alleged infringement shortly before his filing of his lawsuit, even though the infringement happened decades earlier. The question that ended up before the Supreme Court was whether under the discovery rule, as applied by some circuit courts, a plaintiff could recover damages for acts of infringement that happened more than three years before the lawsuit was filed. Tara: And that was a hotly contested issue. Some circuits, like the Second Circuit, applied a very strict three-year cap on damages, even when a claim was deemed timely under the discovery rule. That rule came up from the Supreme Court's prior language in Petrela versus MGM, where Justice Gainsberg wrote that a successful plaintiff can gain retrospective relief only three years back from the time of suit. In contrast, the ninth and 11th circuits had taken the opposite view. They allowed damages to go all the way back to the first act of infringement,

Warner Music Group just sued DSW for using 200+ hit songs in social media ads—without permission. Those TikToks could now cost $30M. On this episode of The Briefing, entertainment and IP attorneys Scott Hervey and Tara Sattler break down the legal firestorm and what every brand needs to know before hitting “post.” Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: A major music label just did the legal equivalent of a mic drop on one of America's best-known shoe retailers. Warner Music Group has filed a lawsuit against Designer Brands Inc, the parent company behind DSW, accusing them of using more than 200 hit songs by artists like Cardi B, Fleetwood Mac, and Lizzo in TikTok and Instagram videos without a license. And they're not just suing for direct infringement, they're going after DSW for contributory and vicarious infringement tied to the influencer content. I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my partner, Tara Sattler. We're going to talk about the DSW lawsuit and the lesson for brands that engage and Influencer Marketing on today's installment of The Briefing. Tara, welcome back to The Briefing. We've got another, I don't know, A scary piece of influence or marketing gone wrong here on the docket today. Tara: Yeah, we definitely do. I'm looking forward to talking about it with you. Scott: So earlier this month, Warner Music Group filed a federal lawsuit against DSW, claiming that over 200 of its copyrighted songs were used in social media ads on TikTok, Instagram, and other platforms without getting permission. Tara: Yeah, this isn't about just one rogue post. The complaint alleges that DSW DSW's marketing team, its influencers, and its in-house content creators, produced and shared branded videos that featured hit songs like Up by Cardi B and Barbi World by Nicki Minaj without securing proper licenses. Scott: The complaint alleges that DSW knows all about licensing music for advertising and that it had previously licensed music for use in its traditional ads. The complaint alleges that DSW knew exactly what it was doing when it skipped the licensing process for its influencer marketing ads. Tara: Right. In the complaint, Warner Music Group states that DSW, like many retailers, has shifted much of its marketing focus from traditional advertising to promoting its products through social media platforms like Instagram and TikTok, as well as through paid partnerships with well-known social media influencers. Scott: And as you and I discussed on a different episode, as we know, more than 50% of advertising spend has moved from traditional TV to social media. From my experience with my own brand clients, it seems that brands find social media advertising more effective and less expensive than traditional advertising. Well, I mean, less expensive when you don't get named as a defendant in a claim like this. Tara: Right. Here's what Warner Music Group is doing for. First, direct copyright infringement based on DSW's posts. Second, contributory copyright infringement based on the content created for DSW by the influencers. And third, vicarious copyright infringement because DSW benefited financially from the infringing influencer content and had the ability to control or remove the content. Scott: Right. So this is where this type of advertising campaign gets more expensive than traditional media. Warner Music Group is asking for statutory damages of up to $150,000 per work. That's $30 million if they win on the 200 songs. Now, the judge has discretion whether to award up to the full amount of statutory damages. But still, it's a substantial... This is going to be a substantial bill to pay either way. Tara: Yeah, that definitely is expensive. So let's take a step back and briefly talk about copyright infringement. Management and the different claims made by a Warner Music here. Scott: Sure.

Former Congressman George Santos sued Jimmy Kimmel after the late-night host used Cameo videos in a comedy segment called “Will Santos Say It?” Santos claimed copyright infringement and fraud, but both the District Court and the Second Circuit said Kimmel’s use was fair use. In this episode of The Briefing, Scott Hervey and Tara Sattler break down:   ● How Kimmel obtained the videos using fake Cameo accounts   ● Why the District Court dismissed Santos’s case   ● How the Second Circuit reinforced that criticism and satire are protected under fair use   ● Why Santos’s contract and fraud claims also failed Watch this episode on YouTube.

Can you use a celebrity’s voice or image in your work? What about AI-generated versions? On this episode of The Briefing, Scott Hervey and Richard Buckley explore the right of publicity—how it protects names, likenesses, voices, and what happens when you cross the line. Watch this episode on YouTube. Show Notes: Scott: Can you use a celebrity's name or likeness in your film, in your podcast, or in an advertisement? Well, you shouldn't do that without understanding the right of publicity, because if you don't, there certainly will be lawsuits or problems that will follow. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I am joined today, again, by my partner, Richard Buckley, and we are going to talk about the right of publicity, an always hot issue in entertainment on today's installment of The Briefing. Richard, welcome back. This is our fourth installment of the Refresher Series here. And today we're talking about right of publicity. All right, let's jump right into it. The right of publicity protects an individual's name, image, and likeness, and sometimes even voice or signature from being used commercially without their consent. Richard: Unlike copyright or trademark law, the right of publicity is grounded in privacy and property interests. It gives people, especially public figures, control over how their persona is used. Scott: Right. Also, unlike copyright law, it is purely based on state law. There is no federal right of publicity law. All right, let's talk about key elements. To bring a claim for violation of right of publicity, a person generally must show that their identity was used. It was used for a commercial purpose, so generally in connection with the sale or advertisement of goods or services. It was used without consent, and it resulted in damages or unjust enrichment. This applies both to living individuals and in many states, like California, to deceased personalities whose estates may maintain postmortem publicity rights. There are many notable cases, but one of the classics is White versus Samsung, Banner White. Samsung ran an ad with a robot dressed like Banner White, turning letters on a game show set like Wheel of Fortune. Even though it wasn't her, the court found that the ad evoked her likeness without permission, and that violated her publicity rights. Richard: Other great examples are two cases that set the framework for soundalike cases. The first was Midler versus Ford, and the second was Tom Waits versus Frito Le. Both cases involved the use of a he sounded like a singer singing a song in the style of those artists in a television commercial or in two TV commercials. Both cases held that when a voice is a significant indicator of a celebrity's identity, like Arnold Schwarzenegger or Sylvester Stallone, the right of publicity protects against its imitation for commercial purposes without the celebrity's consent. Scott: So what about biopics or documentaries? Here, the First Amendment comes into play. Richard: Right. If the use is part of an expressive work, that use may be protected, especially if it's newsworthy or if it's transformative. Courts often apply the transformative use test that was seen in the case Comedy 3 Productions versus Satarup, where the California Supreme Court said that the First Amendment doesn't protect literal reproductions of celebrity images used in merchandise. Ai generated voices and faces are raising new issues. If you generate a synthetic version of someone's voice or what we would call a deep fake of their likeness, you could run into publicity rights and false endorsement claims. Scott: Several states have laws on the books to address this, and other states are updating their laws to address this. We'll likely see more litigation around digital replicas in advertising, video games, and even virtual performances. All right, let's talk about some practical guidance. Here's the bottom line.

Creators, beware: just because it’s online doesn’t mean it’s fair game. In this episode of The Briefing, Scott Hervey and Richard Buckley break down one of the most misunderstood areas of copyright law—fair use. In this episode, they cover: What makes a use "transformative"? Why credit alone doesn't protect you How recent court rulings (Warhol v. Goldsmith) are changing the game Tips to stay on the right side of the law Watch this episode on YouTube or listen to this podcast episode here.

On this episode of The Briefing, Scott Hervey and James Kachmar break down the Supreme Court’s decision to pass on the McGuckin v. Valnet case—and how it keeps the legal confusion swirling around the "server test" for embedding online content. With courts on opposite coasts taking different stances, what does this mean for publishers, bloggers, and social media managers? They talk about the risks, what you can do to stay safe, and why your location might matter more than you think. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: The Supreme Court rejected a challenge to the Ninth Circuit server test, the test that the Ninth Circuit adopted in 2007 in the case of Perfect Ten versus Amazon, and it's used for determining copyright liability when photos are embedded online. Because the server test has been rejected by the Southern District of New York, this refusal by the Supreme Court will continue to create a split among circuits and confusion among copyright litigants. I'm Scott Hervey, shareholder with the law firm of Weintraub Tobin, and I'm joined today by my partner, James Kachmar. We're going to discuss this case and how to best navigate this issue on this installment of the briefing. James, it's good to have you back on the briefing. It's been a while. Thank you for coming on today. James: Thanks for having me, Scott. Scott: Okay, so let's talk really briefly about the case that was up for a petition for cert to the Supreme Court, and it's the case of McGuckin versus Valnet. And that case arises from Valnet, the operator of the website thattravel. Com, being accused of infringing 36 of McGuckin's Instagram photos by embedding them in various online articles. A California federal court applied the server test and dismissed McGuckin's suit, and the Ninth Circuit affirmed that decision in 2024. In affirming the dismissal, the Ninth Circuit referenced its 2023 decision of Hunt versus Instagram. This was a case that we covered here on the briefing in which the Ninth Circuit held that Instagram was not secondarily liable for copyright infringement when websites use Instagram posts to embed photos. James: Right, Scott. Why don't we start with the basics? The server test is a legal rule used to determine whether embedding an image or video into a website constitutes direct copyright infringement. Embedding is the process of copying unique HTML code assigned to the location of a digital copy of the photo or video published to the internet, and the insertion of that code into a target web page or social media post so that the photo or video is linked for display within the target post. Under this test, a website only infringes a copyright if it hosts the copyrighted file on its own server. If you're simply embedding a photo or video that is stored on someone else's server, like linking to a Instagram post, you're not displaying the content under the Copyright Act. You're just the HTML code that tells the user's browser where to go look to get the content. Scott: That's a really good description, James. The server test arises from the 2007 Ninth Circuit case of Perfect 10 versus Amazon. In that case, Perfect Ten, they were a publisher of adult content. They sued Google for linking to and displaying thumbnail versions of their copyrighted images. Google didn't host the full size images itself. Instead, it linked to them or embedded them from Perfect Ten's website. The court held that because Google wasn't storing the infringing images on its own server, it wasn't displaying them in the legal sense. See, under the Copyright Act to Violate the Public, display, right? An infringer must, quote, display copies of the copyrighted work. Under the server test, embedding in a website that does not also store an image or video on its own server, does not communicate a copy of the image or video, and thus does not violate the copyright owner's exclusive display right. Under Perfect10,

On the latest episode of The Briefing, Weintraub attorneys Scott Hervey and Jessica Corpuz break down the court’s decision in Pepperdine’s trademark fight with Netflix over the name "Waves" in the new series Running Point. Tune in for insights on this case and how the Jack Daniel's ruling is reshaping trademark law in entertainment. Watch this episode on the Weintraub YouTube channel. For more content like this, subscribe here.

On this episode of The Briefing, Scott Hervey and Tara Sattler dive into the landmark Jack Daniels v. VIP Products case that changed trademark law. They break down the Supreme Court's ruling on trademark infringement vs. dilution and explore how a dog toy parody nearly tarnished Jack Daniels' brand. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: VIP products versus Jack Daniels' properties brought a landmark Supreme Court case that forever changed the application of the Rogers Test. However, cross-motions for summary judgment at the District Court following the Supreme Court have provided some degree of closure and finality on the trademark and dilution claims raised by Jack Daniels. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and today I'm joined by my partner, Tara Sattler. We're going to talk about a dog toy, a bottle of whiskey, and the Sometimes-murky waters of Trademark Law on this installment of The Briefing. Tara, welcome back to the briefing. It's good to have you back. Tara: Thanks, as always, Scott. Scott: We've talked about this Jack Daniels case as it has affected other cases I think, boy, almost ad nauseam. But there has finally been a resolution itself of the Jack Daniels case. Let me just give a little brief history of the background, and then you can recap the Supreme Court's decision. This legal battle began all the way back in 2014, so over 10 years ago, when VIP Products, a company that makes dog toys, filed a declaratory relief lawsuit against Jack Daniels, seeking a declaration that their Bad Spaniels dog toy did not infringe on Jack Daniels' trademarks. The Bad Spaniels toy was designed to mimic a bottle of Jack Daniels' Black Label Whisky. Jack Daniels counterclaimed, alleging both trademark infringement and trademark dilution. The case has gone through multiple appeals, including a trip to the Supreme Court. Court. The Supreme Court ultimately vacated the Ninth Circuit's decision and remanded that case back to the District Court. From there, let's quickly recap the Supreme Court decision. On June 8, 2023, the Supreme Court decided this case. At the district Court and on appeal to the Ninth Circuit, the issue was framed as whether the dog toy was an expressive work since trademark claims involving expressive works were analyzed under the Rogers test. Tara: Right. But on appeal, the Supreme Court said that the issue was not whether the dog toy was an expressive work, but rather the nature of the use of the Jack Daniels mark. Scott: Right. The Supreme Court found that the IP's use of the marks, while humorous, was for the purpose of serving as a source identifier, a trademark use, in other words. The Supreme Court held that the Rogers test does not apply to instances where the mark is used as a source identifier, regardless of whether it's also used to perform some expressive function. Tara: And then from there, the case was eventually remanded to the district Court to determine Jack Daniels' Lanham Act claims for dilution and infringement. Scott: Before we get into the dilution part, let's briefly touch on trademark infringement. To win on this claim, Jack Daniels needed to show that its trademarks were distinctive and nonfunctional and that there was a likelihood of consumer confusion. The court had previously ruled that Jack Daniels' trademarks were distinctive and nonfunctional. The key issue was whether VIP's Bad Spaniels toy would cause a likelihood of confusion about the source of the product. The Or ultimately found that while Bad Spaniels as a toy did evoke the Jack Daniels brand, it was a successful parody. Tara: That's right. A successful parody of a famous mark, one that conjures up the original yet creates contrasts from the original so that the message of ridicule or pointed humor becomes clear, is not often likely to create confusion. Scott: All right.

While influencer marketing has become popular in the creator space, it doesn't come without risks. From IP infringement to FTC compliance, Scott Hervey and Jessica Marlow discuss the key issues surrounding brand endorsement deals in this archive two-part episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Influencer social media marketing is big business, whether it's a brand integration on Instagram by an influencer or a long-term brand endorsement deal by an A-list movie star. Each deal is different, but there are similar issues that are apparent in all brand deals. I'm Scott Hervey with Weintraub Tobin, and I'm joined today by my partner, Jessica Marlow. Today is part one of our profile on understanding and navigating risks in brand marketing deals on today's installment of "The Briefing" by Weintraub Tobin. Jessica, welcome back to "The Briefing." Jessica: Thank you. Happy to be back. Scott: This is something we both deal with frequently from both the brand and the talent side. There are certain risks that celebrities and brands have to navigate in these types of deals. Making these risks more prevalent is the fact that we're talking about digital marketing, where things tend to move quicker. And for whatever reason, people, even marketing professionals, may sometimes believe that the laws applicable to terrestrial or regular advertising don't apply to the Internet. Let's talk about our top general risks from a talent perspective and how to deal with them. Now, we have a bunch of lawyers that listen to our podcast, and you might have a different list, and we would love to hear from you if you think we should have covered something that we didn't. But this is what we think are the top legal issues in a talent brand deal. Jessica: One of the major risks is IP infringement. Now, this is multifaceted, and the risk of infringement comes from a few different places. First, there is infringement risks that the celebrity or influencer imposes on themselves, which can happen in a few ways. The first way is by using content where the copyright is owned by a third party, for example, where a celebrity or influencer posts an image that they don't own. You've covered a few cases on "The Briefing" about this. Scott: That's right. One of the more well-known case is what is O'Neill versus Ratajkowski. While that case didn't necessarily involve brand marketing, it's a perfect example of this type of risk. In 2009, O'Neill, who was a professional paparazzi, took a photo of Ratajkowski outside of a flower shop in downtown Manhattan. Now, the photo showed Ratajkowski with her face covered by this bouquet of flowers. O'Neill subsequently registered his photograph with the Copyright Office. Now, shortly after O'Neill posted the photo online, Ratajkowski posted the photo on her own Instagram account. The photo she posted was the same, except that she added the words "Mood Forever" to the bottom of the Instagram post. Now, O'Neill, of course, sued Ratajkowski and her loan-out company for copyright infringement. Jessica: Right. And Ratajkowski tried to get out of the case on a fair use defense on a motion to dismiss, but she was unsuccessful. And this case was before the Supreme Court ruling in Warhol versus Goldsmith. Under the new fair use analysis, it's almost certain that Ratajkowski would not have had a fair use defense. Scott: Yeah, that's true. And this type of liability isn't just limited to cases where the photo that is used makes up the entire post. This type of potential liability can exist where the third-party photo only makes up a portion of the poster video. Jessica: Right. It's just not limited to photos. This could be a video or other similarly copyrighted, protected material like music or logos. Scott: Yeah, and music can be a bit tricky. You would think that almost everyone would understand that you can't just use your favorite band soun...

Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: Welcome to a special holiday edition of The Briefing. Today, we are decking the Halls with a look at some of the most unique Christmas-related patents ever filed, at least in my opinion. That's right, the spirit of invention doesn't take a break during the holiday season. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my colleague, Jamie Lincenberg. We are going to examine these festive follies of intellectual property. So grab your eggnog, snuggle up, and let's dive into five truly unique Christmas-themed patents on today's installment of The Briefing. Jamie, welcome back. Are you ready for this? Do you have your Santa hat nearby? Jamie: I'll grab it in a minute, but you have to put yours on, too. Okay. Scott: Well, I don't happen to have one nearby, unfortunately. That was really a mistake in prepping for this episode. I really should have brought my Santa hat. Oh, well. Okay. First, let's just point out, neither of us are patent lawyers. This is really more for humor than anything else. Second, I want to point out in doing my research for this episode, there are a lot of Christmas patents out there. Jamie: Well, that makes sense. Scott, Christmas is a big business. Scott: It is. It This is a big business. All right, so kicking things off, let's talk about the Santa detector. Every kid wants to try to spot Santa, and this device purports to give kids an edge on the elusive elf. This patent, filed in 1996, is for a device designed to detect Santa Claus entering your home. I mean, isn't that what the ring camera and ADT is all about, too? This patent application says, In the minds of young children, Santa Claus's arrival is denoted by the presence of Christmas presents under the tree and/or Christmas stockings filled with treats or cold, depending upon whether you're good or bad. That was not in the patent application. That was my ad lib. The patent continues on. However, none of these customary practices nor any prior art arrangements known to the applicant provides a Christmas stocking that is capable of being selectively illuminated to signal the arrival of Santa Claus. This ingenious gadget uses motion detectors, sound sensors, and even a Christmas tree light to trigger to alert an eager kids when the big man makes himself available. It's like a ring, doorbell for Santa, only much less practical. Jamie: Imagine the chaos if it went off every time Uncle Bob wandered into the living room for another round of Christmas cheer. Scott: Oh, yes, I'm sure everybody has an Uncle Bob. Unfortunately, though, Jamie, it seems that kids will have to use a less high-tech mechanism for spying on Santa. This patent expired in 2014 due to failure to pay maintenance fees. Jamie: Well, maybe the inventor was on the naughty list. Scott: Oh, maybe he was. Jamie: This next one seems very practical. For people that If you don't live in California and Arizona, where it tends to be in the mid '70s all December long, this patent application is for a Christmas tree watering system, which aims to solve the age-old problem of crawling under your tree to add water. It's a simple setup, a water reservoir in the shape of Santa with a water hose that extends from it to another hidden reservoir under the tree. Functional? Sure. Festive? Absolutely. Creepy? 100%. No one wants to see a water hose extending from Santa's rear end that doubles as a tripping hazard at 2 AM after the office holiday party. Scott: That's right. I love that. The picture that's in the patent application here.

Oakland’s attempt to rename its airport didn’t take off. On this episode of The Briefing, Scott Hervey and Jamie Lincenberg discuss the trademark dispute between San Francisco and Oakland over airport naming rights. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: When Tony Bennett sang about leaving his heart in San Francisco, he wasn't singing about Oakland. There are no little cable cars climbing halfway to the stars in Jack London Square, as charming as it is. Essentially, that's why the City and County of San Francisco sued the city of Oakland and the operator of the Oakland International Airport, the Port of Oakland, to stop Oakland from renaming its airport to San Francisco Bay Oakland International Airport. I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my colleague Jamie Lincenberg. Fasten your seat belts and put your seats in the upright and locked position. It's SFO versus OAK in today's installment of The Briefing. Jamie welcome back. Thank you for joining me today. Jamie: Thanks, thanks. Thanks for having me, Scott. Scott: Let's let's see how many airline airport puns and bits of humor we can spontaneously include in this story here. Jamie: Sounds good. Scott: Okay, so, are you ready for takeoff? Jamie: I'm ready. Scott: Okay, so this case is about the Port of Oakland's attempt to rename its airport and include San Francisco in its name. And this is also about the city of San Francisco's claim that such use would create consumer confusion and constitute trademark infringement. But the reason Oakland wanted to include San Francisco, at least it claims, isn't just about the desire to trade off of San Francisco's goodwill. Jamie: Okay, so please tell us, why did Oakland want to include San Francisco in the new name of its airport? Scott: Well, as you know, whether we have to travel into our office in San Francisco, which is right in the heart of the financial district or otherwise fly into downtown San Francisco. We don't always fly into SFO. Those who have to fly into San Francisco know that flying into Oakland is most often the better bet. It's fairly common to have weather delays in San Francisco, but that's not the case in Oakland. And also, you can catch the Bart right into San Francisco, right from the Oakland airport. And if you need a car. Oakland Airport is just right across the Bay bridge from downtown San Francisco. And apparently this was not well known to people outside of the Bay area or travelers who travel regularly in the San Francisco. Jamie: That's true. Scott: So, you know, apparently the Port of Oakland conducted some studies that concluded that Oakland's Oakland's proximity to San Francisco isn't really well known outside of the Bay area and completely unknown outside of California. And the port believed that this lack of awareness, this lack of awareness of the, you know, geographical proximity created challenges from the port in serving travelers. Jamie: Yeah. And I can understand why Oakland would want to do this, but I'm sure that San Francisco was not on board, so. Scott: True. Very true. San Francisco claimed that this would cause consumer confusion, and a few airlines also objected to the purported name change, saying that it would cause confusion for their travelers. The port went through with its internal requirements to implement the name change, and then the city of San Francisco sued, claiming trademark infringement. San Francisco claimed that consumers would believe that there was some association or affiliation between the two airports, and San Francisco also argued that consumers would buy tickets to the wrong airport or go to the wrong airport. Jamie: And so I guess this brings us to the heart of the case. Did Oakland's use of San Francisco constitute trademark infringement. Scott: So in determining that, the court applied the standard likelihood of con...

The US District Court for the Northern District of Ohio issued an opinion in Hayden V. 2K Games, Inc. that could potentially put an end to tattoo copyright cases. Scott Hervey and Tara Sattler discuss the court's opinion on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: Earlier this year, we discussed a jury ruling in Hayden versus 2K Games, Inc, where a jury in the US District Court for the Northern District of Ohio found video game publisher Take-Two Interactive not liable for copyright infringement for a video game that incorporated a depiction of certain tattoos on LeBron James in the game NBA 2K. After the jury verdict, the plaintiff moved the court for a judgment as a matter of law. The court denied the motion and issued an opinion that may potentially put an end to these types of tattoo copyright cases. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by frequent Briefing contributor Tara Sattler. We're going to talk about the court's opinion in Hayden versus 2K Games next on The Briefing. Tara, welcome back. It's been a while. Tara: Thanks, Scott. Glad to be back. Scott: So, Tara, can you give us a rundown of the facts in this case? Tara: Yes, absolutely. So Solid Oak, a licensing firm that represents the go-to tattoo artist for NBA players, sued Take-Two Interactive software, the game publisher behind the popular NBA 2K basketball video game, alleging that the game maker's depiction of LeBron and his tattoos infringes the tattoo artist copyrights in six tattoos. In ruling on the video game publisher's motion for summary judgment, the court found that the publisher had an implied license to depict the tattoos in the video game. An implied license exists where one party created a work at the other's request and handed it over, intending that the other copy and distribute it. The court in this case that the players had implied licenses to use the tattoos as elements of their likenesses and the defendant's right to use the tattoos in depicting the players derives from these implied licenses. A crucial element of the court's finding the tattoo artist knew their subject was likely to appear in public, on television, in commercials, or in other forms of media. After the jury verdict, the plaintiff then filed post-trial motions asking the judge to overturn the jury verdict or grant a new trial, which the judge denied. Scott: Before we go on, let's have a quick review of what an implied license is. An implied license is basically permission to use a copyrighted work that's inferred from circumstances and conduct rather than explicitly granting it in writing. In this case, the question was whether Hayden's actions in tattooing LeBron James implied that he, Hayden, was giving permission for the tattoos to be depicted as part of LeBron's likeness in various media, including video games. Tara: Let's focus on the evidence the court looked to in upholding the jury's finding of an implied license. We will talk about how this analysis will impact future similar cases and also provide some guidance to creators who may feature a person's likeness, either actually or in some type of digital replica. Scott: There was testimony that NBA players like LeBron James expressly give the NBA and the Players Association the right to license their likeness, which those organizations then licensed to video game companies and others. But I think the most compelling evidence, the evidence which supported the implied license were the following two pieces of evidence. First, the fact that James had appeared, LeBron James had appeared in numerous NBA 2K games with his tattoos for years before getting tattooed by Hayden. Second, despite Hayden knowing that James was a star athlete and that he also had appeared as an avatar in video games, Hayden admitted that he never told James that he, meaning James,

A group of senators introduced an update to the ‘No Fakes Act,’ which protects the voice and visual likeness of individuals from unauthorized AI-generated recreations. Scott Hervey and James Kachmar discuss the changes to this act on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis introduced an update to the ‘Nurture Originals Foster Art and Keep Entertainment Safe Act’ or the ‘No Fakes Act,’ which the four senators previously released last October. I'm Scott Hervey, and I'm joined today by James Kachmar, and we're going to talk about the ‘No Fakes Act’ or the update to the ‘No Fakes Act’ on this installment of The Briefing. James, welcome back to The Briefing. It's been a while. James: Good to see you, Scott. Thanks for having me. Scott: We have a fun one today, the ‘No Fakes Act.’ The purpose and intent of the ‘No Fakes Act’ is to prevent the creation and use of a digital replica of an individual without that person's consent. Let's dive into how this proposed act accomplishes this and what the liabilities are for violations of the act. First and foremost, the act creates a new federal property right to authorize the use of a person's voice or visual likeness in what's called a digital replica. Now, a digital replica is defined in the act as a newly created, computer-generated highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual. Now, this right, the right to control a digital replica or grant rights in a the original replica, survives postmortem and is transferable, licensable, and exclusive to the individual, the executors, the heirs or licensees or devices of that individual for an initial ten years, renewable for a rolling five-year period with a cap of 70 years. That's postmortem. As I said, this right is licensable. Interestingly, the act says that a license can only have a term of ten years. James: Okay, Scott, why don't we look at what the essence of the act is? It basically creates liability for one, the production of digital replica without consent of the applicable right holder, and two, publishing, reproducing, displaying, distributing, or transmitting, or otherwise making available to the public a digital replica without the consent of the applicable right holder, where such acts affect interstate commerce. It is not a defense to liability if the defendant displayed or publicly communicated a disclaimer stating that the digital was unauthorized or generated through artificial intelligence. Liability requires actual knowledge through either the receipt of notice from the right holder or a person authorized to act on behalf of the right holder or an eligible plaintiff, or from the willful avoidance of actual knowledge that the material is an unauthorized digital replica. Scott: Now, the act allows for a private right of action by the rights holder, and it also allows for a private right of action by any other person that controls, including through a license, the right to exercise or the right to use the rights holder's voice or likeness. The act is not clear whether this license needs to be exclusive in order to sue for a violation of the act, like under copyright or if it can be non-exclusive and still have the right to sue. James: The act also allows for a private right of action for record labels. In the case of digital replica involving either a sound recording artist who has entered into a contract for their exclusive sound recording artist services, or any artist who has entered into an exclusive license to distribute or transmit one or more of their album or works that capture their performance. This is similar to what you and I had talked about some time ago about Tennessee's Elvis Act. Scott: Right, it is. James: There's also a three-year statute of limitations ...

Netflix has been ordered to pay GoTV Streaming $2.5 Million in damages for infringing one of its wireless technology patents. Scott Hervey and Eric Caligiuri discuss this update on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: I'm Scott Hervey with Weintraub Tobin. In a prior discussion with my colleague, Eric Caligiuri, earlier this year, we talked about a case where a federal court denied discovery requests aimed at uncovering details surrounding the financing of a plaintiff's patent litigation. That case was GoTV Streaming LLC versus Netflix in the Central District of California. In response to some inquiries and requests for further updates from some of our viewers and listeners, we wanted to give you an update on the broader outcome of this case. That's coming up on this installment of The Briefing by Weintraub Tobin. Eric, welcome to another episode of the Briefing. Thanks for joining us today. Eric: Great to be here, Scott. Scott: Eric, what can you tell us about what's happened in the GOTV streaming versus Netflix case since we last spoke? Eric: Well, Scott, California jury has found that Netflix did in fact, infringe one of GOTV Wireless's technology patents with its television and movie streaming platform, and found Netflix owes GOTV Streaming 2.5 million for the infringement. In the verdict, the jury said that Netflix should pay GOTV the damages in one lump sum as a penalty for infringing US patent number 898715. But the jury did find that Netflix did not infringe a second patent that was also included in the suits. Both patents generally covered methods for rendering content on a wireless device. Scott: So, 2.5 million is not really a lot of money for Netflix. But I do have a technical question for you, and maybe you might not know, based on the judgment, does the judgment include ongoing royalties? In other words, will Netflix be able to continue to use this technology if it continues a particular royalty payment? Or does that $2.5 million include ongoing use of the patent, or is this just for past use, and Netflix can't use this technology without further infringement? Do you know? Eric: Yeah. So, that judgment was just for past infringement. It was a lump sum payment. There's nothing about ongoing royalties or future payments. There's probably a bit of an open question in terms know what Netflix can do in the future, and they may have to go and license the patent. But there was nothing specific in the jury verdict about going forward. It was simply damages for past infringement. Scott: Okay, so either Netflix has to enter into a commercial deal with GOTV, or they need to come up with a technology that doesn't infringe that particular patent. Interesting. Eric, can you tell us about some of the background of this case? Eric: Yeah, sure. So GOtV first sued Netflix in October of 2022, alleging certain parts of Netflix's streaming service infringed two of its wireless technology patents. Specifically, GOTV alleged Netflix's streaming service uses the methods covered by GOtV's patents to lay up content on its app and website, like its widgets, menu buttons, photo imagery. Netflix argued in response that it had no pre-filing knowledge of the patents, and without that knowledge, there couldn't be any indirect infringement or induced infringement. Instead, Netflix argued that GotV tried to create knowledge of the patents by filing suit, sorting the patents, and then alleging inducement and an amended complaint. But, according to Netflix, in order to claim induced infringement, there has to be proof that the infringer had knowledge of the patents in suit before the complaint was filed. Scott: Interesting. So what happened next? Eric: Well, after conducting discovery, including covering some of the issues into litigation funding that we discussed last time, the jury found that Netflix did in fact infringe ...

A federal court has granted summary judgment for Nirvana, dismissing Spencer Elden’s claim that the Nevermind album cover — depicting him as a baby — constituted child pornography. In this episode of The Briefing, Scott Hervey and James Kachmar revisit their earlier coverage of the Ninth Circuit’s decision and unpack how the district court’s final ruling turned on artistic intent and context rather than perception. Tune in to learn how the court applied the Dost factors, what this ruling means for artists and rights holders, and how intent shapes the boundary between art and exploitation. Watch this episode on YouTube. Show Notes:  Scott: In a previous episode, we covered Elden versus Nirvana, the lawsuit brought by Spencer Elden, the Baby, on the cover of Nirvana's Never Mind album, who claimed that the image amounted to child pornography. The Ninth Circuit revived Elden's case in late 2023, holding that his claims were not time barred and sent it back to the District Court to decide the big question, was Nirvana's album cover child pornography? Now that question has been answered. The District Court has granted summary judgment for Nirvana, holding that the cover is not child pornography as a matter of law. I'm Scott Hervey, and I'm joined today by my partner, James Kachmar. We are going to break down the District Court's ruling and evidence surrounding the artistic intent behind one of the most iconic album covers of all time on today's installment of The Briefing. James, welcome back to The Briefing. Good to have you. James: Thanks for having me back, Scott. Scott: So, James, when you and I last talked about this case, the Ninth Circuit had just revived Eldon's lawsuit. Can you remind the listeners how we got here? James: Sure, Scott. The photograph at the heart of this case is on the cover of Nirvana's Never album. It's a naked baby swimming underwater, appears to be reaching for a dollar bill that's on a fishing hook. That baby, Spencer Eldon, was four months old when that photo was taken in 1991. Thirty years later, in 2021, Eldon sued Nirvana, the surviving band members, and their record labels under a federal law that allows victims of child pornography to bring civil claims. He alleged that the photo was sexually exploitive and that Nirvana had knowingly possessed, reproduced, and distributed what he claimed was child pornography. Scott: And that case was originally dismissed on statute of limitations grounds. James: Exactly, Scott. The District Court initially threw it out saying that Eldon had waited too long to sue. He turned 18 around 2009, but waited another 12 years to file his lawsuit. But in December 2023, the Ninth Circuit reversed, holding that because the album had been rereleased in 2021, Eldon could bring claims based on that recent republication. That sent the case back to the district Court to decide the substance of Alden's claim, whether or not the image itself met the legal definition of child pornography. Scott: And now, the District Court, having heard arguments on both sides, has granted summary judgment for Nirvana. So Let's dive into the court's reasoning. James: Sure. The court held at the Never mind cover simply doesn't meet the definition of child pornography under federal law. Scott: Right. We don't normally dive into this on these podcasts, but this is a media case, and it is interesting. I think there's some other interesting aspects of this case that we're going to talk about later. Okay, so the court applied the DOS factors. That's a six-part test used to assess whether an image is sexually suggestive. Those factors look at things like whether the child's pose is sexually suggestive, whether the photographer intended to elicit a sexual response. Here, the court said, obvious, that the photograph is not sexually suggestive. It depicts a baby swimming underwater with no sexualized focus or context. James: That's right, Scott.

Disney faced a copyright lawsuit over the use of MOVA facial-capture software in Beauty and the Beast. A jury found Disney vicariously liable, the district court threw out the verdict, but the Ninth Circuit has now reinstated it. In this episode of The Briefing, Scott Hervey and Tara Sattler discuss: ● The facts behind Disney’s use of VFX vendor DD3 and the disputed MOVA software ● Why the district court found no “practical ability” for Disney to control its vendor ● How the Ninth Circuit reversed, emphasizing Disney’s contractual rights, on-set presence, and red-flag evidence ● What this means for studios and production companies managing VFX vendors

Neil Young vs. Chrome Hearts — What happens when a rock legend collides with a luxury fashion powerhouse? Chrome Hearts has filed suit against Neil Young, claiming his new band “Neil Young and the Chrome Hearts” infringes on their famous trademark   On this episode of The Briefing, Weintraub attorneys Scott Hervey and James Kachmar unpack the lawsuit, analyze the likelihood of confusion, and compare it to the Lady Gaga “Mayhem” case. Plus, they share practical takeaways for musicians to avoid trademark trouble. Show Notes:    Scott:  Neil Young, one of the most influential voices in rock history, has landed in federal court, but not for his music. His new backing band, Neil Young and the Chrome Hearts, has become the center of a trademark infringement lawsuit filed by luxury fashion brand, Chrome Hearts. At issue is whether Neil Young's use of the Chrome Hearts' name, and especially the sale of related merchandise, crossed the line into infringement. I'm Scott Hervey, a partner of the I'm a law firm of Weintraub Tobin, and today I'm joined by my partner, James Kachmar. We are going to break down Chrome Hearts versus Neil Young on today's installment of The Briefing.   James, welcome back to The Briefing. Good to have you.   James:  Thanks for having me, Scott. Anytime you've got a clash between a rock legend and a fashion powerhouse, you know it's going to be an interesting case. Scott:  Oh, absolutely. Well, so let's set the stage, shall we? So Chrome Hearts filed suit in the Central District of California against Neil Young and his production company, the Other Shoe Productions, and his bandmates. The complaint alleges trademark infringement, false designation of origin, unfair competition, common law trademark infringement, and common law unfair competition. But I think the centerpiece of this case really is the federal trademark infringement claim. I think, really, this case either lives or dies on whether or not Neil Young has violated the Lanham Act. Okay, let's talk about some background here. Chrome Hearts, for those of you who aren't aware, Chrome Hearts is not just a boutique clothing line. It's a billion-dollar brand that's been around since 1988. They've built an empire on jewelry, leather goods, apparel, eyewear, and even furniture. They've collaborated with the Rolling Stones, Rihanna, Madonna, Drake, and countless others. Their products are sold in exclusive boutiques worldwide, and they have a loyal following among musicians and celebrities. Now, critically, Chrome Hearts has a very long list of federally-registered trademarks covering Chrome Hearts, both the wordmark and related designs. These registrations span across jewelry, letter goods, clothing, eyewear, retail store services, and even entertainment services in the nature of live performances by a musical band.   Now, that last one is particularly important because I think it directly overlaps with Neil Young's activities.   James:  I knew about Chrome Hearts as a fashion and jewelry brand, but I had no idea that there was a band associated with it. Did you know that, Scott?   Scott:  No, I didn't until I read the complaint. I got a little curious, and I found the specific trademark that covered their entertainment services. I mean, it's listed in the complaint. I looked up its file at the USPTO to see what specimens it submitted. Lo and behold, it's a photo of a band with the band name Chrome Hearts right there on the stage monitors. I tried to find out more about that band, but when you search Chrome Hearts Band, all you get is references to Neil Young's new band.   James: Neil Young launched this new band, Neil Young and the Chrome Hearts, last year in 2024. They played shows in New York, branded the outing as the Chrome Hearts Tour, and then released new music earlier this year, including a full studio album this past June. The complaint highlights that they were selling T-shirts and ot...

The Anthropic settlement shows just how costly copyright missteps can be in AI development. Anthropic has agreed to a $1.5B settlement after a court found that keeping a permanent library of pirated books was not fair use—even though training its AI model on those same works was.   On this episode of The Briefing, Weintraub attorneys Scott Hervey and Matt Sugarman discuss the ruling, the settlement, and what it means for future copyright claims against AI companies. Show Notes:  Scott: In a previous episode, we broke down a key ruling in the Anthropic AI Training case. That one asked, what happens when an AI company trains its model on millions of books? Some purchased, some pirated. In that closely watched decision, a federal judge said, the training itself was fair use, comparing it to how humans learn by reading. But keeping pirated copies of those books in a permanent digital library, that crossed the line. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin. I'm joined today by my partner, Matt Sugarman. Today, we are going to talk about the one big question that ruling left open. What's the price tag for that mistake? That answer just came in, and it's a big one on this installment of the briefing. Matt, welcome back to the briefing. It's good to have you. Matt: Thank you, Scott. It's good to be here. Scott: Great. Well, this one's a good one. I know you and I both talk a lot about these AI training cases, and we covered the meta case previously. But why don't you give us a quick backstory on this case. Matt: Okay, Scott, let's rewind for a second. In 2021, Anthropic trained its Claude model on a massive data set of books, articles, websites, you name it. But instead of licensing the books, they grabbed millions of copyrighted works straight off the pirate sites. Scott: Right. They did license them by some, but for sure, they pirated millions of books. Like you said, we're not talking about a few. We're talking about more than seven million pirated books. And those works include some very notable authors. At the same time, they bought millions of print books, they scanned them, and they built this huge searchable digital library. Matt: That's correct, Scott. And that's what set off the lawsuit. The author said that Anthropic infringed their copyrights in three separate ways: downloading the pirated books, using them to train Claude, and keeping digital copies in a permanent internal library. Scott: So when Anthropic moved for summary judgment on fair use, Judge William Alsup, of the Northern District of California, didn't really give them a clean win. Instead, he carved up their conduct into three categories. Matt: That's right. Training AI on books, scanning and digitizing legally-purchased print books, and then the big problem, keeping pirated books in a permanent digital library. Scott: And the judge treated each one differently. Matt: Correct. First, training Claude with the books, the court said that was fair use. And not just fair use, he called it spectacularly transformative. Scott: That's right. He did call it spectacularly transformative. Even if Claude absorbed a lot of the underlying materials, the judge pointed out that the model wasn't spitting out verbatim chunks of the author's books. Matt: Well, the second point was digitizing purchased printbooks. The authors argued that converting them into searchable PDFs was also in free trade. Scott: But the court pushed back. Because Anthropic lawfully bought the books and then destroyed the physical copies and only kept one digital version for internal use, that passed muster as fair use. Matt: Scott, the judge even went out of his way to say that this use was more transformative than in Texaco. Google Books and Sony Betamax, and clearly different from the Napster case. Scott: Right, clearly different from the Napster case. That brings us to the third use,

The Yuga Labs v. Ryder Ripps case is shaking up NFTs and trademarks. In this episode of The Briefing, Weintraub attorneys Scott Hervey and Tara Sattler unpack the Ninth Circuit’s ruling on whether NFTs count as “goods,” why the First Amendment defense fell flat, and what it all means for the future of digital asset law. Watch this episode on YouTube. Show Notes: Scott: Was the Ryder Ripps Bored Ape Yacht Club NFT series a social commentary on the popular Board Ape Yacht Club and an exposure of its racist tropes? Or was it just an attempt to capitalize off of Bayes' popularity for profit? These questions were front and center in the lawsuit between Yuga Labs, the creators of the Board Ape Yacht Club NFT. Boys, say that 10 times fast. Project and Ryder Ripps, a popular visual artist. This case resulted in a bench trial award to Yuga Labs of $8 million in damages. But the appeal of that award to the Ninth Circuit raised some very interesting issues, named Mainly the question of whether NFTs are goods that fall under the Lanham Act. I'm Scott Hervey, a partner with Weintraub Tobin, and today I'm joined by my partner and frequent briefing contributor, Tara Sattler. We are taking a deep dive into the fascinating intersection of digital art, blockchain, and Intellectual Property on today's installment of The Briefing. Tara, welcome back to the briefing. Tara: Hi, Scott. Great to be here, as always. Scott: It's good to have you here. Let me ask you a question. Did you ever buy any NFTs? Tara: I did not. Scott: I did not either. But I think we're still qualified to talk about this case, even though we weren't suckers, I'm sorry, consumers of NFTs. Tara: Yes, I agree. Scott: Let's start with a summary of the Yuga Labs case. Why don't you tell us what exactly happened here? Tara: Sure. Yuga Labs Inc. Created the Bored Ape Yacht Club or B-A-Y-C NFT collection, which is one of the most recognized NFT collections globally. The B-A-Y-C collection was associated with, very early with celebrity owners, including Snoop Dogg, Justin Bieber, and Jimmy Fallon. Each NFT in this collection is associated with a unique cartoon soon, Bored Ape Image, and purchasing an NFT not only grants rights to the ape art, but also membership in what's been described as a strange combination of gated online community, stock shareholding group, and art appreciation society. Yuga Labs launched BAYC in April of 2021, quickly selling out the collection and generating over $2 million. They also developed various trademarked brand signifiers like Bored Ape Yacht Club and Bayayc. Scott: Now, this was right as NFTs took off, some promoting NFTs as an investment category and some just promoting it as hype. There was a huge rush to the adoption of NFT art, and NFTs gained cultural relevance as status symbols. That's where Ryder Ripps and Jeremy Cahan, hope I pronounce his last name correctly. Tara: Comment. Prefithely. In late 2021, Ryder Ripps, a visual artist, started criticizing Yuga Labs, alleging they used neo-nazi symbolism, alt-right dog whistles, and racist imagery in the B-A-Y-C NFTs. Scott: That's right. According to Ripps, the Bayy-C Ape Skull logo resembled the Totenkopf emblem of the Nazi SS Stormtroopers. Ripps compiled his findings on a website and used art to satirize the Bayy-C brand. In May 2022, Ripps and Kehen created their own collection called Ryder Ripps Board Ape Yacht Club, which was linked to the exact same ape images with some slight changes and a corresponding ape ID, as was Yuga's NFTs. Tara: So surprise, Yuga Labs sued Ripps and Cahin and asserted 11 federal and state causes of action, including claims under the Lanham Act for trademark infringement. Yuga claimed the defendants made counterfeits market, BAYC NFTs that they advertised and sold to the same customers in the same markets using Yuga's BAYC trademarks. Scott: The defendants argued that their use was protected by normative fair use...