Law360.com // YouTube Set For Copyright Rematch As Judge Defies 2nd Circ. - Press Mention - 04/19/2013
New York Law Journal: Are Restrictive Covenants Enforceable Against Employees Terminated Without Cause? - Published Article - 04/01/2013
By Neal H. Klausner; David Fisher
In doing so, these courts relied on Post v. Merrill Lynch, Pierce, Fenner & Smith, a case in which the New York Court of Appeals held that when an employee is terminated without cause, and thereafter enters into competition with his or her former employer, it would be unreasonable as a matter of law to enforce an agreement providing that the employee forfeit previously earned pension benefits based on such competition. But the Second Circuit’s recent decision in Hyde v. KLS Prof’l Advisors Grp., suggests that the lower courts have extended the ruling in Post beyond its intended limitation to the forfeiture-of-benefits-for-competition context, and may indicate an end to the automatic rule that restrictive covenants are unenforceable when an employment relationship is terminated without cause.
Council of Public Relations Firms: Advertising, Consumers, and the New FTC Disclosure Guidelines - Published Article - 04/01/2013
By Gary A. Kibel
Is your firm up on the latest FTC guidelines governing online advertising and the proper consumer disclosures required by law? It better be.
Law360.com // 9th Circ. Ruling Brings Consensus on DMCA Safe Harbor - Press Mention - 03/18/2013
New York County Lawyer: Recent Cases Demonstrate the Effectiveness of First Amendment Defenses to Claims of Intellectual Property Infringement - Published Article - 03/11/2013
By: Marc J. Rachman and Dominick R. Cromartie
There have been a number of recent cases reported in the press that have raised defenses un-der the First Amendment in response to claims of intellectual property infringement or right of publicity violations. For example, in February of 2012, an app developer sought First Amend-ment protection for its parody app called "Joustin Beaver" by filing a lawsuit seeking a declara-tion that the game did not violate Justin Bieber’s right of publicity because, among other things, it was protected speech. Similarly, in December of 2012, Sony Pictures moved to dismiss on fair use grounds a copyright infringement lawsuit concerning the use of William Faulkner’s famous quote, "The past is not dead! Actually, it’s not even past," in the Woody Allen film, Midnight In Paris. And in a matter that was not litigated, but widely reported, Paramount Pictures Corp. re-fused Anheuser Busch’s request that it remove the Budweiser logo from the film Flight, in which Denzel Washington portrayed a highly functional alcoholic airplane pilot, on the grounds that such use was protected under the First Amendment. This article will discuss the origins of these defenses and how several recent court decisions have upheld their application in connection with a reference to Lindsay Lohan in a rap song, the use of biographical information about Olympic athletes in a Facebook app, the appearance of a Louis Vuitton knockoff bag in the film Hangover II, the depiction in paintings and prints of the University of Alabama’s football team, and the lampooning of a viral video in an episode of the television show South Park.
Intellectual Property Litigation Alert >> Olympians’ Right of Publicity Claims Over a Facebook App Trumped by First Amendment - Alert - 02/04/2013
By Marc J. Rachman and Dominick R. Cromartie
A California state court recently dismissed a lawsuit brought by former Olympians, including Mark Spitz and Greg Louganis, against Samsung for right of publicity violations over a Facebook app that used their names, images and biographical information without their consent.
Intellectual Property Litigation Alert >> Court Flags Historical Use of NFL Team’s Former Logo in Video Game as Infringing - Alert - 12/19/2012
By Marc J. Rachman, David S. Greenberg and C. Andrew Keisner
Copyright law has long recognized that an artist’s right to protect his or her creation is somewhat limited by others’ rights to make fair use of a work in a reasonable manner. Courts frequently hold that copyrighted works can be used without liability, as "fair use," in news reporting, critical commentary, and historical scholarship.
Litigation Alert >> District Court Ruling May Lead to Increased Dodd-Frank Retaliation Suits - Alert - 12/04/2012
By Neal H. Klausner and David S. Greenberg
A recent ruling by a Connecticut federal court may lead to a rise in "whistleblower" lawsuits filed under the Dodd-Frank Act (the Act), which protects employees who attempt to expose corporate improprieties.
Intellectual Property Litigation Alert >> Recent Cases Expand Use of “Artistic Relevance” Test as a Defense for Trademark Infringement - Alert - 11/30/2012
By Marc J. Rachman and Dominick R. Cromartie
In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.
Law360 >> Use of “Artistic Relevance” Test is Expanding - Published Article - 11/06/2012
By Marc J. Rachman and Dominick R. Cromartie
In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.
2012 New York Super Lawyers and Rising Stars-Metro Edition Honors Nine Davis & Gilbert Partners - Press Release - 10/02/2012
New York, NY, October 1, 2012 – Nine Davis & Gilbert partners have been selected to appear on the 2012 New York Super Lawyers and Rising Stars-Metro Edition list in the areas of First Amendment/Media/Advertising, Employment & Labor, Intellectual Property Litigation, Business Litigation and Real Estate. In addition, Neal H. Klausner and Gerald R. Uram were ranked as Top 100 New York Super Lawyers. These lawyers received the highest point totals in the New York Metro nomination, research and review process.
Intellectual Property Alert >> Good For The Sole: Appeals Court Says Single Color Can Be Protectable as a Trademark - Alert - 09/12/2012
By Brooke Erdos Singer and Joy J. Wildes
The U.S. Court of Appeals for the Second Circuit has decided that the "Red Sole" trademark of fashion designer Christian Louboutin is a valid trademark. However, the court limited Louboutin’s rights in its mark to shoes which have a red outsole that contrasts with the "upper," or remainder, of the shoe.
Litigation Newsletter >> Summer 2012 - Newsletter - 08/13/2012
IN THIS NEWSLETTER: Maintaining sound business practices in order to avoid costly litigation is always a good idea. In this issue, we discuss a case that has practical implications for employer investigations concerning harassment and discrimination claims; give advice to brand owners that may be using a competitor’s trademark as a keyword in a search engine advertising program; and provide guidance to contract drafters given recent case law regarding the enforcement of contractual terms.
Intellectual Property Litigation Alert >> Ninth Circuit Draws Line On Red Carpet In Determining Consent In Right Of Publicity Cases - Alert - 08/01/2012
By Neal H. Klausner and Dominick R. Cromartie
The Ninth Circuit struck a blow to celebrities seeking to expand the protections provided under the right of publicity by holding that, under California law, consent to advertise a celebrity’s photo may be implied in certain contexts when the celebrity has consented to being photographed. In Jones v. Corbis, Shirley Jones, a former Partridge Family star, sued an online provider of photo image licensing for displaying her image to potential licensees without her consent.
Intellectual Property Litigation Alert >> Ninth Circuit Shreds Proposed Frosted Mini-Wheats Class Action Settlement - Alert - 07/25/2012
The Ninth Circuit did not sugar coat its decision rejecting the proposed $10.6 million settlement in a putative class action accusing Kellogg Co. of making false claims that Frosted Mini-Wheats enhance children’s ability to pay attention.
IP Law360: Case Study: Forest Park Pictures V. Universal Television - Published Article - 07/09/2012
By Marc J. Rachman and C. Andrew Keisner
The Second Circuit’s recent decision in Forest Park Pictures v. Universal Television Network Inc.[1] found that the “Star Wars” actor Hayden Christensen’s claim for breach of an implied contract was not preempted by the Copyright Act. Christensen had alleged that the USA Network series “Royal Pains” used, in breach of their implied contract, the idea he pitched to them for a television show about a “concierge” doctor to the rich and famous. He had claimed that there was an implied contract that he would be paid if his pitch was used and that USA Network breached that contract by failing to pay him for “Royal Pains.”
Practical Law Company: Rights Clearance Checklist - Published Article - 07/01/2012
By Richard S. Eisert
A Checklist identifying the main intellectual property and personal rights clearances that may be necessary when creating or using works that may qualify for copyright, trademark and other intellectual property and personal rights protections. Companies must conduct appropriate rights clearance when creating and using these materials to minimize exposure to potential legal action and exposure to liability.
The National Law Journal 2012 Midsize Hot List: When it Comes to Marketing, They Go Way Back - Published Article - 04/30/2012
By: Bob Stigle
Midsize and mighty. Oh, and venerable. All of the above apply to Davis & Gilbert, which opened in 1906. The firm's 114 lawyers specialize in the law attending marketing and advertising for clients including Apple Inc., Discover Financial Services and Nissan North America.
Practical Law Company: Expert Q&A on Recent Attempts to Expand the Right of Publicity - Published Article - 04/23/2012
Celebrity endorsements and affiliations can add significant value to advertising campaigns. New marketing and media platforms, including social media, are presenting increased opportunities for these individuals to exploit the value of their identities. To maximize this value, celebrities are seeking expanded control over the unauthorized commercial exploitation of their personas(identities) under state right of publicity laws. Recent lawsuits have highlighted the need for advertisers, agencies and their counsel to better understand and track developments in this evolving area of law. Practical Law Company asked Neal Klausner of Davis & Gilbert LLP to weigh in on the current legal landscape and how best to manage the risks and potential liability arising from right of publicity claims.
GameZone.com // Science Fiction Author Sues Ubisoft For Copyright Infringement - Press Mention - 04/20/2012
