May 2023

Singer Ed Sheeran Wins Long-Running Copyright Trial

Takeaway: A federal jury has ruled in favor of Ed Sheeran, stating that his song “Thinking Out Loud” did not copy Marvin Gaye’s “Let’s Get It On,” ending a 7-year long copyright case.

A federal jury in Manhattan has ruled in favor of Ed Sheeran, determining that his song “Thinking Out Loud” did not copy Marvin Gaye’s song, “Let’s Get It On.” The verdict brings an end to a long-running copyright case in which Sheeran had been facing infringement claims since 2016. The jury deliberated for only 2.5 hours before deciding that Sheeran and his co-writer Amy Wadge independently created the 2014 ballad.

The trial included allegations from the family of Ed Townsend, the deceased co-writer of “Let’s Get It On,” who claimed that Sheeran had lifted chords, rhythm, and melody from the 1973 hit. Sheeran’s defense argued that these elements are basic building blocks of music that cannot be owned.

Following the verdict, Sheeran emphasized the importance of creative freedom for songwriters and expressed his desire to continue writing original music without baseless copyright claims. Despite this win, he still faces two lawsuits related to “Thinking Out Loud” and “Let’s Get It On” from Structured Asset Sales, a company that owns a portion of the Townsend family rights. Sheeran’s lawyer believes these cases will have little merit, similar to the recently concluded trial.


Supreme Court Makes Final Ruling on Andy Warhol’s Prince Series Fair Use Trial

Takeaway: The U.S. Supreme Court has ruled that Andy Warhol’s portraits of Prince are not protected under fair use doctrine, affirming that Warhol’s work did not sufficiently differ in purpose from the original photograph.

The Supreme Court’s ruling in favor of The Andy Warhol Foundation in The Andy Warhol Foundation v. Goldsmith case creates greater copyright infringement risks for creators drawing inspiration from other copyrighted works.

The Supreme Court held that Warhol’s “Prince Series,” based on Lynn Goldsmith’s photograph of Prince, did not constitute “fair use,” a legal doctrine that allows for the limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, commentary, news reporting, teaching, and transformative uses. The issue addressed was whether or not the Andy Warhol image was sufficiently transformative from another’s copyrighted photograph.

On one hand, the Court’s ruling helps reinforce the bundle of rights afforded to creators against third-parties creating derivative works, while on the other hand, it limits the creative expression of third-parties to draw inspiration from existing works.

The Supreme Court’s decision provides some guidance on the application of fair use principles in cases involving transformative works as art, although “fair use” is still a mixed legal and fact-specific analysis and typically analyzed by a jury in light of the specific context and circumstances of each case. This makes such determinations very difficult in counseling artists as to whether or not there is a sufficiently transformative use.

It is also important to note that fair use is typically interpreted differently by different courts, a problem the Supreme Court’s recent decision has not remedied.

Supreme Court Rules for Sanofi and Regeneron in Antibody Patent Dispute

Takeaway: Recent Supreme Court decision upheld that a patent covering a class of processes must provide enough information to allow a skilled individual to replicate the invention(s).

The U.S. Supreme Court has ruled in favor of Sanofi and Regeneron Pharmaceuticals in a patent dispute over antibody patents. The court unanimously decided that a patent covering a class of processes must provide enough information for skilled individuals to replicate the entire scope of the invention. The court emphasized that patents must enable skilled people to make and use the entirety of the claimed invention(s), allowing for a reasonable amount of experimentation but not detracting from the basic requirement that skilled individuals must be able to make and use the invention(s).

The case involved Amgen’s attempt to revive patents for its cholesterol drug, Repatha, which were invalidated by Sanofi and Regeneron. The Supreme Court’s decision upholds the lower court’s ruling that Amgen had failed to enable all that it had claimed in its patents for a specific genus of antibodies. Amgen argued that it had provided sufficient examples, while Sanofi and Regeneron contended that Amgen’s broad standard allowed it to patent more than it had actually discovered.


Taco Bell Fights to Free “Taco Tuesday”

Takeaway: Taco Bell files petitions to cancel Taco John’s ownership of “Taco Tuesday,” believing the popular phrase should be available to all.

The U.S. Patent and Trademark Office on Monday announced that it is launching a new awards program recognizing trademark owners who are helping to solve humanitarian challenges through their products and services.

Fast-food chain Taco Bell has filed legal petitions to cancel the trademark registration of “Taco Tuesday” owned by a small competitor, Taco John’s. Taco Bell argues that the trademark has restricted the use of the popular phrase nationwide and believes it should be available to all. They are not seeking damages or a new trademark.

Taco John’s owns the Taco Tuesday registration in 49 states, and Taco Bell has also filed a petition to cancel a separate registration in New Jersey. Taco John’s has previously sent cease-and-desist letters to restaurants and media outlets using the term. Taco Bell’s move has sparked a response from Taco John’s CEO, who thanked Taco Bell for “reminding everyone that Taco Tuesday is best celebrated at Taco John’s.”

The case will proceed if an agreement is not reached within 40 days, and Taco Bell is encouraging its supporters to sign a petition in favor of freeing Taco Tuesday.

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Law Firm Disputes Google Over Legal Service Advertisements

Takeaway: LegalForce hits Google with arbitration dispute for allowing unverified legal services to advertise through the tech giant, contending Google does not take adequate measures to protect its users.

Global law firm LegalForce has initiated an arbitration dispute against Google, accusing the technology giant of allowing illegal trademark entities to compete in its advertising program. LegalForce claims that Google’s actions have led to revenue loss by diverting sales to unverified providers of trademark filing services.

LegalForce asserts that small business owners are deceived by these advertisements and are exposed to phishing scams and potentially invalid trademarks. As well, the firm states that it has suffered a loss of revenue and market share due to these alleged practices.

LegalForce contends that Google has not taken adequate measures to protect its users, and the law firm aims to make it a legal problem for the tech giant through the arbitration dispute. LegalForce’s complaint aligns with the terms and conditions of Google’s advertising program, which mandate the use of binding individual arbitration for dispute resolution. Google has not yet responded to the dispute.


High Ratio of U.S. Trademark Registrations to Assets Increases Annual Value

Takeaway: A recent study has found that the number of trademarks a company registers in a given year can predict its profitability and stock returns for the following year.

Researchers examined public companies that registered a large number of U.S. trademark applications relative to their assets and compared them to companies with fewer registrations. The companies with a higher ratio of trademark registrations showed higher profitability and stock returns over the next 12 months, providing evidence of a positive correlation between trademark registration and stock value.

The researchers analyzed over 300,000 trademark registrations issued by the USPTO from 1976 to 2014 and developed portfolios based on trademark intensity. They found that a hedge portfolio consisting of companies with strong trademark portfolios outperformed those with smaller trademark portfolios. Higher ratios of new trademark registrations were seen as a signal of promising innovation and new products/services, indicating higher sales and future profits.

Overall, the study suggests that investing resources in securing trademark registrations can deliver significant value for companies.


Cislo & Thomas LLP Spotlight

Cislo & Thomas LLP Wishes you a Happy Memorial Day

This upcoming Memorial Day weekend is a time to honor and remember the brave men and women who have made the ultimate sacrifice while serving our great country. We are thankful every day for the sacrifice of fallen soldiers. As proud citizens of the United States, we hope you have a safe and blessed Memorial Day weekend.