The Copyright Act grants protection for “original works of au­thorship fixed in any tangible medium of expression,” and aims to protect a creator’s proprietary interests in his expressive works. 17 U. S. C. §102(a). Traditionally, the Copyright Act provided protection for books, maps, prints, engravings, musical and dramatic compositions, photo­graphs, and works of art. The modern day Act protects works of authorship including website text, pantomimes, sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.

Continue Reading Supreme Court Strikes Down Pay-Per-Law Copyright: Copyright Protection Not Available for Annotations to State Law If Commissioned by Officers With Legislative Authority

Last July, a jury ruled that Katy Perry and her co-writers had plagiarized the Christian rap song Joyful Noise by Marcus “Flame” Gray in Perry’s creation of the 2013 hit Dark Horse; Perry was ordered to pay a $2.8 million penalty. The jury verdict was met with wide criticism; one songwriter emphasized that despite the similarities, no one person should be able to own the musical elements as they represent “fundamental aspects of pop music”.[1] The New York Times framed the debate centered around verdicts like the one reached as a “penalty for making use of generic musical elements, like a song’s beats and feel”.[2] Perry and the Dark Horse creative team appealed the ruling, and on March 17, 2020, the Central District of California overturned the jury verdict, relying on the Ninth Circuit’s en banc Led Zeppelin decision.

Continue Reading Good News for Pop Singers Katy Perry & Ed Sheeran: Copyright Does Not Protect Musical Building Blocks

Trademarks serve as source indicators for distinguishing the goods sold by different manufacturers. Trade dress, a “symbol” or “device” by which the goods of a manufacturer may be distinguished from the goods of others, is registrable as a trademark if its function is to identify the source of the goods. Trade dress may be the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.

Continue Reading Color Combination and Design on Product Packaging Can Function as a a Trademark Federal Circuit Says

In cases of trademark infringement, it has long been debated whether infringers should be required to disgorge profits if they unknowingly violated intellectual property laws.

For decades, there was a wide variance on whether a trademark owner would be able to recover profits in litigation. While the Lanham Act (1946), the guiding trademark legislation, states that profits could be awarded “subject to the principles of equity,” there has not been consensus on how that should be applied. One particular sticking point?

Willfulness, or the voluntary, intentional violation of a known legal duty.

But last week, the Supreme Court provided much-needed clarity on this topic for courts, attorneys, and business owners when it ruled in favor of Romag Fasteners against Fossil Inc. The U.S. Supreme Court handed down a ruling on trademark infringement, stating that infringers can, in fact, be made to hand over profits to a brand owner even when the infringers have not willfully violated the law.

Continue Reading Where There Is No Will, There Is A Way: Willfulness Not A Requirement for Lanham Act Disgorgement of Profit Damages


While the issue of what color a trash bag handle is may not be the first topic you would expect to raise ire in the trademark industry, the world is an unpredictable place. Recently, Poly-America and API, two major manufacturers of trash bags in the United States, went up against each other over their competing trade dresses of colored trash bag drawstrings – Poly-America uses an orange drawstring, and API uses a gray colored drawstring.

Continue Reading TTAB Determines Color Drawstrings of Trash Bags Not to be Trademarks Due to Genericness and Functionality

While studies show that each individual sees color differently, the Trademark Trial and Appeal Board (TTAB) determined that as used on medical gloves, a shade of light green is not confusingly similar to a shade of dark green. In a black-and-white decision, the TTAB reversed a Trademark Examining Attorney’s refusal to register the color green identified as Pantone 2274C as used on medical gloves in light of an existing registration for the color green identified as Pantone 7488U used on the same line of goods.

The Gloves Are Greener on the Other Side

In November of 2019, Medline Industries, a leading manufacturer of medical gloves, submitted a request to register the color of their green gloves, Pantone 2274C, on the United States Patent and Trademark Office’s Supplemental Register. This is the list for trademarks that are not yet eligible to be listed on the Principal Register, but may be one day. The Trademark Examining Attorney, however, rejected Medline Industries’ application. The rejection was based on Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), which restricts granting trademarks based on the probability of confusion with another mark.

Continue Reading Shades of Green: TTAB Allows Registration of Color Mark

In November of 1971, Led Zeppelin released its iconic song, “Stairway to Heaven.” Since it made its debut, there have been lots of claims about the song: it has been played on the radio 2.8 million times; it is one of the greatest songs of all time; if you play it backward, you will hear a hidden Satanic message; and, perhaps most interestingly, that the famous intro was plagiarized.

Plagiarism claims and a history of litigation

The plagiarism claim linked the intro’s origins to a lesser-known 70s rock band, Taurus, and their song, “Spirit.” Michael Skidmore, a trustee for the estate of Randy California, the guitarist for and composer of Taurus, brought a lawsuit in 2014 alleging that Zeppelin stole the guitar intro for “Stairway” from Spirit. The lawsuit alleges that the two bands toured together in the late 1960s, and therefore, Zeppelin had “access” to Spirit’s songs.

Continue Reading Sometimes Words Have Two Meanings: Court Rules Stairway to Heaven’s Troubled Copyright History

A recent New Jersey federal court decision denying Strike 3 the right to expedited discovery highlights a recent departure from the status quo of allowing Strike 3 to subpoena Internet Service Providers (“ISP”) such as Comcast, Verizon, and Optimum, in order to discover the identity of the individual subscriber of a certain Internet Protocol (“IP”) address that Strike 3 alleges was used to illegally download its copyrighted adult movies using the file sharing platform BitTorrent. This is good news for those who find themselves caught in the well-oiled litigation machine created by Strike 3 and Malibu Media.

Continue Reading New Jersey Federal Court Shuts Door on Strike 3 Litigation

Not all bananas are created equally. Rasta Imposta, a retail wholesaler of Halloween costumes, filed a claim for copyright and trade dress infringement and unfair competition against Kangaroo Manufacturing, another costume retailer, after Rasta’s CEO discovered Kangaroo selling a costume that resembled one of Rasta’s costumes without a license. The costumes in issue in Silvertop Assocs. v. Kangaroo Mfg., No. 18-2266, 2019 U.S. App. LEXIS 22989 (3d Cir. Aug. 1, 2019) consisted of full-body yellow banana outfits:

banana costume copyright infringement

Continue Reading A Case of Bananas: Costume Copyright Infringement

This month, the Supreme Court struck down 25 U.S.C. § 1052(a) of the Lanham (Trademark) Act of 1946, which prohibited federal trademark registration of “immoral or scandalous” marks for goods and services, on the grounds that it violated the First Amendment’s Free Speech Clause as impermissible viewpoint-based discrimination due to its favoring of certain ideas over others.

Continue Reading Iancu v. Brunetti: The Best Defense is a Great Offense