Extrateritoriality and other hard words
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Calendar Notes:
Gordon and Tamera will each be presenting (and recording Episode 162 before a live audience) at the Texas Entertainment Law Institute on Nov. 9-10, 2023. More details and registration information at https://teslaw.org/eli/
Gordon will be speaking on August 23, 2023 at Podcast Movement in Denver. Attending? Otherwise near the area? Contact us to schedule a meetup!
Table of Contents
SUPREME COURT EXCLUDES FOREIGN TRADEMARK INFRINGEMENT FROM US TRADEMARK LAW
AI “HALLUCINATIONS” SPARK DEFAMATION SUITS
SERVER TEST SURVIVES IN 9TH CIRCUIT
STATE OF NORTH CAROLINA REPEALS “BLACKBEARD’S LAW”
NIRVANA CIRCLES OF HELL DISPUTE BELONGS IN UK, NOT US, COURT SAYS
COURT ISSUES PERMANENT INJUNCTION AGAINST METABIRKIN BAG NFTs
DESANTIS DRAWS FIRST COPYRIGHT INFRINGEMENT CLAIMS THIS CAMPAIGN SEASON.
THE LONG NATIONAL NIGHTMARE IS OVER…. TACO TUESDAY IS FREE TO USE (Almost)
SUPREME COURT EXCLUDES FOREIGN TRADEMARK INFRINGEMENT FROM US TRADEMARK LAW
SUPREME COURT OF THE UNITED STATES
ABITRON AUSTRIA GMBH ET AL. v. HETRONIC INTERNATIONAL, INC
https://www.jdsupra.com/legalnews/supreme-court-holds-international-use-4052606/
https://www.supremecourt.gov/opinions/22pdf/21-1043_7648.pdf
AI “HALLUCINATIONS” SPARK DEFAMATION SUITS
(Who is liable on these?)
https://storage.courtlistener.com/recap/gov.uscourts.mdd.540279/gov.uscourts.mdd.540279.1.0.pdf
https://www.jdsupra.com/legalnews/defamatory-bots-and-section-230-3202468/
AI Litigation Database from the George Washington University https://blogs.gwu.edu/law-eti/ai-litigation-database/
*Ex. of the search result:
SAG-AFTRA JOINS WGA STRIKE
https://apple.news/AjOF4mMMJSIWCfppH0bz9pQ
https://www.threads.net/@internetcases/post/CupHEPmrTdE?igshid=MzRlODBiNWFlZA%3D%3D (EXAMPLE OF JOHNNY CASH AI DUPLICATE)
https://youtu.be/TZYv3SKVNZ0 (another AI voice example)
https://www.youtube.com/watch?v=etdWsBz8y5U (Video explainer. Editor’s note: this is far from impartial, but has some key points of relevancy regarding the AI proposal)
https://www.google.com/search?q=adam+conover+explains+sag+strike&oq=adam+conover+explains+sag+strike&aqs=chrome..69i57j33i160.6749j0j7&sourceid=chrome&ie=UTF-8#fpstate=ive&vld=cid:dda9879c,vid:aCqId3GFWac (another vid – Adam Conover has been a huge voice for the strikes on side of the Writers/Actors)
https://gizmodo.com/sag-aftra-ai-actors-strike-amptp-ceos-likeness-image-1850638409
https://www.hollywoodreporter.com/business/business-news/unpacking-bob-igers-bad-pr-week-1235544279/
https://variety.com/2023/biz/news/wga-ai-writers-strike-technology-ban-1235610076/
https://www.avclub.com/what-the-wga-strike-means-for-international-writers-1850399293
SERVER TEST SURVIVES IN 9TH CIRCUIT
https://law.justia.com/cases/federal/appellate-courts/ca9/22-15293/22-15293-2023-07-17.html
Ninth Circuit upholds server test from Perfect 10
The Ninth Circuit affirmed the dismissal of a class action lawsuit against Instagram for allegedly allowing third-parties to embed instagram images on their own websites, often times in the form of search results. In the published opinion, the Court held that it was bound by its holding in Perfect 10 v. Amazon, which provided us with the server test. Under the server test, HTML instructions directing a browser to an image hosted on Instagram is significantly dissimilar from displaying a copy of the image and therefore there is no infringement from displaying the copy. Thus, without that direct infringement, there can be no liability for secondary infringement by Instagram. Looks like the server test is here to stay in the Ninth Circuit.
STATE OF NORTH CAROLINA REPEALS “BLACKBEARD’S LAW”
North Carolina has repealed its own “Blackbeard’s Law.” The law, passed in 2015, had targeted famous underwater photographer Rick Allen and his footage of Blackbeard’s flagship, the Queen Anne’s Revenge by converting all photography and videos of shipwrecks that came into State hands into public records that the State could use without payment. The State apparently hopes this will end a lawsuit…but it won’t.
The backstory is almost as old as the law. In 2013, North Carolina’s Department of Natural and Cultural Resources violated copyrights owned by Allen and his company, Nautilus Productions—and paid $15,000 to settle their copyright infringement claim. Desperate to keep using Allen’s unique footage but unwilling to pay, the State passed “Blackbeard’s Law” and the State resumed its buccaneering ways. Nautilus and Allen answered with their own broadside: a lawsuit in federal court.
Finally, on June 30, 2023, North Carolina Gov. Roy Cooper signed a bill repealing Blackbeard’s Law. The repeal came after 8 years of litigation, and is apparently triggered by the State’s realization that it had no legitimate defense to at least one of the federal court claims: that Blackbeard’s Law was a constitutionally prohibited “Bill of Attainder”—a bill that targets and harms an individual, without any due process at all. Since various State legislators had admitted to the motivation, it would have been hard to show otherwise.
The repeal was passed unanimously by the state legislature, and is being hailed as a victory not just for Allen and Nautilus, but for copyright owners nationwide.
NIRVANA CIRCLES OF HELL DISPUTE BELONGS IN UK, NOT US, COURT SAYS
https://www.courthousenews.com/wp-content/uploads/2023/07/bundy-vs-nirvana-ninth-circuit.pdf
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JOCELYN SUSAN BUNDY vs. NIRVANA LLC, et al
Grandaughter of a British artist who drew the 1949 illustration of “Upper Hell” for the English translation of Dante’s “Divine Comedy” sued Nirvana in California over their merchandise using the artwork. Court dismisses case on grounds of Forum Non Conveniens and 9th Circuit affirms that the case belongs in UK courts, IF AT ALL.
COURT ISSUES PERMANENT INJUNCTION AGAINST METABIRKIN BAG NFTs
The Metabirkin Bag dispute has finally reached its epilogue. Mason Rothschild lost the case (arguing his work was fair use) and the jury found he intentionally represented that Hermés, the makers of the birkin bags had backed his project. The trial court issued an order restricting further and future sale of metabirkin bag NFTs, and prohibited the creator from marketing or promoting their sale. Rothschild now has to air drop the court’s order to the holders of the NFTs, as well as turn over the metabirkins.com domain name to Hermés.
DESANTIS DRAWS FIRST COPYRIGHT INFRINGEMENT CLAIMS THIS CAMPAIGN SEASON.
https://www.hollywoodreporter.com/tv/tv-news/ron-desantis-peaky-blinders-netflix-1235529683/
https://www.youtube.com/watch?v=n3wwXpQ_dYA (THE AD)
ASCAP Guidelines on using music in political campaigns: https://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf
It wouldn’t be a political campaign season without candidates vexing artists by using their work without permission.
The team behind Peaky Blinders, including star Cillian Murphy, is going after Florida Gov. and presidential candidate Ron DeSantis for his use of Peaky Blinders footage in a heavily criticized anti-LGBTQ campaign ad.
The ad uses scenes and images of murderous characters depicted heroically
THE LONG NATIONAL NIGHTMARE IS OVER…. TACO TUESDAY IS FREE TO USE (Almost)
https://amp.cnn.com/cnn/2023/07/18/business/taco-tuesday-lawsuit-ends/index.html
The fight over Taco Tuesday has come to an end. Taco Johns, the small local restaurant that owned the mark, has announced that it does not intend to continue defending its trademark against efforts from Taco Bell. Taco Bell had previously launched a campaign, spearheaded by Lebron James as spokesman, claiming that anyone should be able to use Taco Tuesday and that it shouldn’t be owned by one person. This set up the interesting battle of the massive fast food corporation and most famous basketball player in the world against a local restaurant. Taco John’s however is throwing in the towel, citing the looming possibility of massive legal bills. Now, thanks to Taco Bell and Lebron James, we’re all free to have our own Taco Tuesday celebrations.
Well, almost. There’s an interesting wrinkle because there’s also a New Jersey bar called Gregory’s that has a registered trademark for the phrase, too. They’re named in the lawsuit and they have filed an Answer… so right now, the lawsuit goes on.
Thanks, as always, to our crack team of volunteer contributors:
- Our Managing Editor – Jon Janacek
- Charles Thorn
- Mark Lindemann
- Malhar Oza
- Alexis Allen
- Yuming (Violet) Zhang
If you’re interested in joining the fun as a part of our team, reach out to us. entertainmentlawupdate-AT-gmail.com
Until next time…. that’s showbiz!