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The Latest in Intellectual Property Law – Big Changes Ahead

It’s that time of year when the Supreme Court hurries to clear the docket before adjourning for summer. 

And this spring, within the space of a week, SCOTUS issued two decisions that will have big implications for patentees, their customers, and their legal adversaries. The Ninth Circuit also issued a major decision recently that could spell trouble for online service providers and internet service providers.

Here’s what you may have missed:

Patent Rights are Completely Exhausted at the Time of Sale.

The Court’s most recent tech decision, Impression Products, Inc. v. Lexmark International, Inc., dealt with the issue of exhaustion doctrine for patent rights. When there is an authorized sale of a patented item, what rights does a patentee give up to the purchaser? And what rights does the patentee retain after the sale?

Lexmark International sells refillable printer cartridges. Impression Products purchases used Lexmark cartridges, refills them, and sells them for a lower price. Not liking this practice, Lexmark sued Impression for infringement. Following a line of precedent from other cases, the Fed Circuit ruled in Lexmark’s favor, finding that the company retained some of its post-sale rights.

But the Supreme Court recently overturned that decision, holding instead that all of a patentee’s IP rights are extinguished at the time of the first authorized sale. This is true whether the first sale takes place in or out of the United States.

The decision changes 20 years of legal precedent. It’s also made patent law simpler and more consumer-friendly. The lack of restrictions after the sale might mean result in lower prices for used goods.

At the same time, this ruling will force patentees to rethink how they do business. (The Court didn’t say that Lexmark has no cause of action; it simply said patent exhaustion precludes a cause of action for infringement.) In order to retain certain rights, Patentees might need to change their agreements with their licensees and customers. They may also need to revisit some of their strategies, especially those related to pricing (like Lexmark’s discount pricing program in the case).The full implications will become clearer as post-sale patent infringement cases come to a halt.

Patentees Have Limited Venue Options for Bringing Suit.

In TC Heartland LLC v. Kraft Foods Group Brands LLC, the Court unanimously limited the venues in which a patentee could sue an infringer. Previously, a plaintiff could effectively bring suit wherever a defendant could be subject to personal jurisdiction.

The Court found that the only relevant venue statute for patent matters is 28 U.S.C. § 1400(b). The statute specifies that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

Because a corporation’s “residence” is the place it’s incorporated, the court ruled that a suit can be brought in either there, or in a place where the defendant has a place of business.

TC Heartland goes against the traditional view that a plaintiff should have its choice of venue. The holding is a big blow to a lot of patentees who like to bring suit in the Eastern District of Texas. Delaware is now preparing for an influx of IP cases. And this decision will also transfer a lot of litigation costs from defendants to plaintiffs.

What other impact will TC Heartland have? As with everything else law-related, it will take some time to tell.

An Exception to the Safe Harbor Rule for Internet Service Providers?

SCOTUS doesn’t get all the glory. The Ninth Circuit just issued a bombshell decision with the potential to affect scores of website operators.

You may have noticed that certain websites don’t get sued for the information they publish. Those sites are protected by a safe harbor provision of the Digital Millennium Copyright Act (“DMCA”). The provision specifies that online services providers (“OSP”s) and internet service providers (“ISP”s) are protected from liability for infringement so long as certain requirements are met.

Part of the theory behind the safe harbor provision is that an OSP or ISP isn’t responsible for everything that appears thereon. Google, the company, cannot possibly be aware of everything that appears in the search results on Google, the website. Nor should it be expected to know which material on the site is infringing.

Hence, the law shields OSPs and ISPs from liability for infringing acts that are committed by third parties. But, in order for a service provider to qualify for the safe harbor provision, the infringers must truly be third parties. The OSP or ISP cannot have hand in the infringement or any right or ability to control the actions of the infringer.

Which leads to the question: what if a website that accepts content from third parties has moderators that process the content? Are the moderators acting on behalf of the website in question? Is the website exercising control over the infringement? These are the questions asked by the court in Mavrix Photographs LLC v. LiveJournal, Inc.

LiveJournal is a website that accepts user content; the content is moderated by volunteers before going live online. Mavrix Photographs brought suit against LiveJournal for infringing 20 of its photographs. LiveJournal moved for summary judgment on the grounds of the safe harbor provision of the DMCA, and the district court granted the motion.

However, the Ninth Circuit disagreed. LiveJournal has a process for reviewing photos before they’re posted, a list of resources not to post from, and a tool which blocks all posts from a certain source. As such, the court determined that the ISP might have a right or ability to control the infringement through its agents (the moderators). And if that’s true, then the ISP can’t enjoy immunity from liability under the safe harbor provision.

The court reversed the judgment for LiveJournal and sent the case back to the lower court, where LiveJournal will have to prove that it has no role in the infringement in order to be shielded from liability.

As a litigation and transactional firm, we have worked on cases involving infringement liability and the DMCA. Our attorneys have also dealt with matters where venue is at issue, and we’ve helped clients restructure agreements when it’s beneficial for them to do so (or when the law requires).

Our firm focuses on copyright, trademark, patents, trade secrets, entertainment law, and business law. We are located in Boca Raton, and would be happy to discuss your matter with you. Contact us at (561) 953-9300 or visit us online at for your free consultation.

Your Personal Name and Branding Advice

If you’ve read any of our prior blogs, you know that at the Lomnitzer Law Firm, we’re big proponents of protecting intellectual property rights.

One question we get asked a lot is, what if your intellectual property is your personal name – that is, if your business name is your given name? Is it protectable as a trademark?

Like so many other things in law, it depends.

A Trademarks Primer:

Here’s a quick primer on how trademarks work. They’re attached to a particular type of goods or services. And when you register a trademark (or service mark, for services – here, we’ll just say “mark” to refer to either one), you’re registering it for goods or services for which you’re already using the mark in commerce, or intend to soon.

The idea is to prevent a monopoly on the use of a mark across categories in which the mark’s owner does not intend to do business.

For instance, take the word “Apple.” Apple is a registered mark which refers to computers, software, computer peripherals, and other similar products. If you were to introduce a new technology called Apple and tried to register a trademark for it, you might have some difficulty. The U.S. Patent and Trademark Office (“USPTO”) would probably say that what you’re offering is too similar to the other Apple. Not to mention that Apple itself (the California company) would also likely oppose any attempt to register the trademark.

But suppose you were opening a chain of fitness centers under the name Apple. You may be able to register that mark because it’s in a completely different category of goods and services that one may not necessarily expect Apple (the California company) to expand into.

Yet you wouldn’t be able to register the name Apple to describe the fruit of the same name. Why? Because it’s too descriptive of that object. To preclude everyone in the world from referring to an apple as such would be unfair and impractical.

Basically, the more creative a trademark is – in either the wording itself or in the way it’s being used – the likelier a trademark will be granted. The less creative the mark – whether the word is merely descriptive or generic for the item or service it identifies – the more difficult it will be to register the trademark.

When the USPTO is in the process of approving a mark, it publishes the mark in gazette to give people the opportunity to oppose the registration. If no one opposes it, it’s generally smooth sailing. But if someone opposes the mark, the approval process becomes a bit more complicated.

Personal Names in Action as Brands:

With all that in mind, consider these recent happenings in the trademark world relating to personal names.

Entertainers Beyonce and Jay Z (the “Carters”) applied last year to trademark their daughter’s name, Blue Ivy Carter, across a broad range of goods and services – 14 categories, to be exact. They range from entertainment services to skincare products to baby teething rings.

But the Carters may face opposition from a woman who registered the name Blue Ivy (without “Carter” at the end) in 2012 for party planning and event management services. When the Blue Ivy Carter mark was published for opposition last month, the Blue Ivy owner filed for an extension of time to oppose it, signaling that she intends to do so.

Assuming she does, both sides have a valid point in their arguments. The Carters have an interest in protecting their young daughter’s name from being misappropriated. At the same time, the Blue Ivy mark owner has several arguments in her favor. She could argue that some of the categories the Blue Ivy Carter mark would cover are too similar to hers, causing confusion. She might also argue that Blue Ivy Carter is not currently being used in commerce in all the categories under which the Carters applied. And finally, she would likely want to argue that Blue Ivy Carter is too descriptive, because it’s the name of the individual who would be providing the goods or services.

We’ll be watching this to see what happens after the Blue Ivy owner files her opposition.

President Donald Trump has spent years fighting for the rights to his name for construction services in China and was finally handed a victory. Under China’s “first come first served” trademark registration policy, someone else received the rights to use the name because he had applied before Mr. Trump did in 2006. However, the original mark was invalidated late last year, while Mr. Trump’s application was allowed to proceed and is expected to be approved quickly. (This has led to speculation that China is attempting to win over the President, and that Mr. Trump’s acceptance of the registration of the marks might violate a provision of the U.S. Constitution. But that goes beyond the scope of this blog.)

A recent case in the UK involving designer Karen Millen and the company Karen Millen Fashions Limited is reminiscent of one in the US several years ago which involved fashion designer Joseph Abboud. Abboud had sold his trademarks to JA Apparel Corp. and then began a new fashion line called Jaz with the tagline “a new composition by designer Joseph Abboud.” Abboud was sued by JA Apparel for using his own name in this manner, but the court ruled in his favor, and he is allowed to use his name subject to certain limitations.

General Guidelines:

So it seems that you can trademark a personal name, at least in certain circumstances. Here are a few guidelines:

The name needs to identify and distinguish the services or goods specified in the trademark registration, and not merely the individual. There needs to be a connection in the mind of the consumer. For example, for George Foreman to register his personal name for barbecue grills, there needs to be demonstrable evidence that when people hear his name, they think of grills.

The name needs to be used in commerce, either directly in connection with rendering goods and services, or in the advertisements for those goods and services.

Finally, a certain level of fame or celebrity helps – though there is no bright-line rule for how well-known you have to be.

Are you thinking about trying to trademark your personal name, or anything else? Our firm is located in Boca Raton, and focuses on intellectual property and entertainment law and would be happy to discuss your matter with you. Contact us at (561) 953-9300 or visit us online at for your free consultation.

Please note: this blog is intended to provide general information which should not be taken as legal advice.

The Politics of Using Music to Promote Politics

Music and politics have always made for natural bedfellows. No wonder – both provide telling portrayals of the cultural zeitgeist at any given time. Musicians frequently write about politics and political issues. And politicians (like many others) are often inspired by music.

But for political candidates who wish to express their musical tastes by using particular songs as campaign music, many musicians have only one thing to say:

Stop it.

How can this be? Haven’t these musicians already given permission for their songs to be used? And if they didn’t give permission, can’t they just sue the candidate?

The short answer is that politicians do need permission—but not always from the musician (or other copyright holder, as not all copyrights are owned by their creators. We use the word “musician” in this blog post to refer to whoever the copyright owner may be.)

There are various types of music licenses, and the license required depends on how the music is being used. A televised commercial requires two licenses. One is a mechanical license, which grants reproduction and distribution rights for a musical recording. The other is a synchronization license, which permits the license-holder to sync the musical recording with corresponding audiovisual images. These licenses are generally issued by rights managers or publishers on behalf of the musician. So any time you hear a song on a televised commercial, the musician has given approval (or the entity airing the commercial is opening themselves up to a lawsuit).

But a live event, such as a campaign stop or party convention, is different from a commercial and requires a different kind of license: a public performance license. These licenses are granted by performing rights organizations (PROs), which collect royalties on behalf of musicians for the public performance of their songs. When a song is played on the radio, at a nightclub or gym or otherwise performed publicly, PROs collect and distribute the payments for these performances.

As you may imagine, the vast number of songs played daily mean that there’s a lot to keep track of. One way PROs handle this is by offering blanket licenses. These allow for the music user to publicly perform any song in the PRO’s music catalog. No permission is needed from individual musicians.

Here’s how this all works in real life. Take, for example, “We are the Champions” by Queen. A political candidate could not use the song in a television commercial without getting permission from the band. However, if a candidate wanted to play “We are the Champions” at a campaign rally, or at his party convention, he would only need a license from Queen’s PRO, BMI. And if the candidate were to have a blanket license from BMI, then he would be within his rights to play any song in BMI’s catalog at his political rally. Whether or not Queen approves does not matter.

So what recourse do musicians have when a political candidate they don’t like uses one of their songs? If a musician wants to litigate:

  • They can attempt to sue under the federal Lanham Act, which controls trademarks and deals with (among other things) falsely implied endorsements. A musician might argue that the politician’s use of the song implies that the musician endorses the politician, in violation of the act.

This concept hasn’t been very well tested in the courts, though, and the lawsuit that went furthest on this issue had its Lanham Act claims rejected. Plus, with so many musicians this election season speaking out against the use of their music, the “implied endorsement” theory might be a long shot.

  • Musicians can sue under right-of-publicity laws, which also often cover false endorsements. Yet these laws vary state by state, and not all states have one. The state where the song was played would need to have a right-of-publicity law in order for legal action to be possible. And even still, the implied endorsement theory might fail.
  • Songs that were recorded before 1972 are currently not subject to federal copyright law, but to state law. So if a pre-1972 song were played at the Democratic National Convention, a court would look to Pennsylvania law to determine whether that state protects against the unauthorized performance of music. If the state does, then the musician may have a valid cause of action.

But litigation can be expensive and time-consuming – and there are no guarantees of success. So musicians might want to try one of these alternate methods:

  • They can ask their PRO to revoke the license for the particular song, creating an exception within the blanket license. This purportedly worked for Queen, who did not want “We are the Champions” to be played at the Republican National Convention.
  • And of course, they can take their case to the court of public opinion. This seems to be the most popular option this election cycle, with many musicians making statements through their publicists and venting their frustrations on social media. Which is how tweets such as “@ScottWalker @GovWalker please stop using our music in any way…we literally hate you !!! Love, Dropkick Murphys” make their way into the public consciousness.

Copyright law can be confusing. If you have a question about copyright law or would like to discuss a matter pertaining to copyrights, trademarks, patents, or rights of publicity, contact us via our website or call us at 561.953.9300.

Led Zeppelin Wins Copyright Lawsuit

It was a memorable trial in which the plaintiff’s lawyer used the defendant’s album artwork as his computer screensaver… the jury got to listen to music from the classic Disney musical Mary Poppins… and one of the world’s greatest guitarists played both air guitar and air drums from the witness stand.

The fanfare was almost enough to make spectators forget what the suit was about.

But the high stakes of the case Skidmore v. Led Zeppelin, which accused the seminal English rock group of copyright infringement over their biggest hit, “Stairway to Heaven,” helped keep the merits of the case at the forefront.

If you thought you’d heard before that Led Zeppelin “ripped off” someone else’s music, you probably did. The band has been accused more than once of co-opting others’ sounds in the creation of their own works. “Stairway to Heaven” in particular has been the subject of these rumors for decades. Yet the song was released 45 years ago, and copyright law has a statute of limitations (the time limit in which to file a lawsuit) of 3 years after an infringement is discovered. So how and why can the band be sued over it now?

The short answer is that copyright law provides that each new infringement of a work is a discrete claim which starts a new statute of limitations period. In this case, Led Zeppelin founder Jimmy Page has spent the past several years remastering and re-releasing Led Zeppelin’s catalog of studio albums. “Stairway to Heaven” was re-released in 2012, triggering a new timeframe to bring infringement lawsuits related to the song.

The lawsuit was brought by the estate of a guitarist named Randy Wolfe, who played in a band called Spirit in the 1970s. Wolfe’s estate accuses Led Zeppelin of infringing on Spirit’s song “Taurus,” which was released before “Stairway” and contains a similar chord progression.

That chord progression proved to be a problem for the plaintiff. The sheet music for both songs demonstrated that the melodies of the songs were not the same – only the chord progression was. And as for any chord progression, there are only 12 music notes, placing an inherent limit to how many ways they can be assembled.

Led Zeppelin seized upon this fact, with Page telling the jury that “Stairway to Heaven” was largely inspired by the Mary Poppins song “Chim Chim Cher-ee,” which has a similar progression. The band also set forth evidence that this progression was used at least as early as the 1600s in a classical composition that is now in the public domain. More recently, a group called the Modern Folk Quartet released a song in 1963 containing the progression – five years before Spirit released “Taurus.”

It didn’t take long for the jury to decide that Led Zeppelin was not guilty of infringement, to the joy of musicians and songwriters everywhere.

After all, the industry is still reeling from the surprise decision last year that Robin Thicke and Pharrell’s hit “Blurred Lines” infringed Marvin Gaye’s “Got to Give it Up.” In our blog about that case, we discussed how the outcome could have a chilling effect on the music creation process. And since that time, infringement lawsuits have been brought against popular artists including Justin Bieber and Ed Sheeran. The Led Zeppelin case, had it turned out differently, had the potential to continue this trend – and to make other artists think twice about releasing remastered or legacy editions of older albums. But the decision in this case may reverse the tide.

Experts suggest that the plaintiff might appeal the verdict by arguing that certain evidence should have been allowed into the trial – particularly the musical recordings of the songs. There are different copyrights for different aspects of a song, and the plaintiff’s “Taurus” copyright is only in the composition (the sheet music) rather than in the sound recording. Consequently, the jury never heard Spirit’s recording of “Taurus”; rather, they heard only an expert performance of the sheet music.

Yet these same experts suggest that an appeal would be unsuccessful. The only question would be whether the judge abused his discretion by not allowing the original recording to be heard. This is a stringent standard, and courts are often hesitant to make such a finding.

The issue of attorneys’ fees could also deter an appeal. Copyright law gives the courts discretion to assess attorneys’ fees even if the losing party had a reasonable claim, and a party’s conduct during the litigation can play a role in this decision.

In the instant case, the plaintiff’s attorney prompted more than 100 sustained objections and numerous rebukes from the judge. This behavior could factor into the court assessing costs against the plaintiff estate even if it doesn’t appeal – and if it does, the likelihood of being charged for Led Zeppelin’s legal fees rises.

Of course, one could argue that the plaintiff has already been successful in one regard. The estate’s trustee testified that he brought this lawsuit to cement Wolfe’s legacy. It’s safe to say that far more people now know about Randy Wolfe, Spirit, and “Taurus” than did before the suit. So if the case is truly about a legacy rather than royalties, the plaintiff has already won.

If you have a question about musical copyright law, or any other intellectual property matter, contact us through our website or call (800) 853-9692.


Defend Trade Secrets Act Explained

Does your work involve trade secrets? If it does—or even if you’re not sure—there’s some new legislation that you should know about: the Defend Trade Secrets Act (“DTSA”), which was recently signed into law by President Obama. Here’s some information about the act and how it may affect you.

What is a trade secret?

Like copyrights, patents, and trademarks, trade secrets are a type of intellectual property. A trade secret is information (often in the form of a formula, process, pattern, or the like) that is not generally known or reasonably ascertainable by others and which gives a business an economic advantage over its competitors. An example of a trade secret is the formula for Coca Cola. The formula is closely guarded and gives Coke a business advantage over other soda makers who do not have it.

What does the DTSA do, and why does it matter?

Most intellectual property is governed by federal law, with trademarks being an exception to the general rule. These may also be governed by state law and common law, and trademark-based lawsuits often claim federal-, state-, and common-law based causes of action.

Unlike other intellectual property, trade secrets had been solely state-law causes of action until now. Without federal law governing trade secrets, plaintiffs’ claims for misappropriation were matters for state court, and remedies were dictated by state law. The DTSA now allows plaintiffs to bring trade secrets claims in federal court so long as these secrets are used in interstate commerce. In other words, plaintiffs now have the option to select the forum for their lawsuit. Because many people prefer to litigate in federal court than in state court, this is a big deal.

The Act also creates a uniform scheme nationwide for dealing with misappropriation, providing remedies and responsibilities that will apply to all litigants across the board. Finally, as with trademarks, one can sue under federal law, state law, and common law. The DTSA does not limit a plaintiff’s recovery under state law or at common law.

Does the DTSA provide any new remedies for the misappropriation of trade secrets?

The law allows for ex parte injunctions to issue in certain, very limited circumstances. This means that a court could seize the trade secret, or order a party to stop using it, without a hearing beforehand. This is in addition to whatever other remedies are available.

However, parties should carefully consult with their attorney to consider whether an injunction is an appropriate measure to seek. If one is granted and later found wrongful or excessive, the DTSA gives the latter a cause of action against the party seeking the injunction.

For employers, exemplary damages and attorneys’ fees are available in a trade secret suit where the employer has provided notice of immunity in agreements or contracts entered into or updated after May 12, 2016 with employees, contractors or consultants. All new agreements (entered into after May 12, 2016), as well as any amendments or other “updates” to preexisting agreements, should include an appropriate disclosure identifying the immunity provisions of the DTSA if the contract relates to trade secrets and/or other confidential information.

Does the DTSA protect whistleblowers?

To encourage compliance with the law, numerous federal acts (as well as state acts, as applicable) provide whistleblowers with civil and criminal immunity. The DTSA is one such law. Whistleblowers may confidentially share trade secrets with their attorney or the government so long as they do so because they suspect a violation of the law. They may also file trade secrets under seal in court documents for the same reason. In the event that an employer retaliates against a whistleblower, the whistleblower can use the trade secret in an anti-retaliation lawsuit, so long as its confidentiality is maintained.

Some employers require their employees to be subject to a contract governing the use of trade secrets or confidential information. These employers must alert their employees about the immunity provision of the DTSA, either within the contract itself or by referring to a different company document which explains this aspect of the law. If an employer does not include the immunity provision, they will not be able to collect exemplary damages or attorneys’ fees in the event of litigation.

How do I find out more about trade secrets and the DTSA?

While the above is general information rather than legal advice, we regularly work on cases involving the misappropriation of trade secrets. If you’d like to discuss a legal matter pertaining to trade secrets or need to speak to an attorney about updating your employment agreement/confidentiality agreements, contact our firm today via phone or website form.


The New GTLDS: A Blessing and a Curse For Your Brand Identity

Have you looked into purchasing a new internet domain recently? If so, you may have noticed that there are a plethora of new generic top-level domains (“gTLDs”) to choose from. gTLDs are domain suffixes which appear after the last period in a domain name – such as .com and .net. But those are just the tip of the iceberg. New gTLDs range from .academy to .zone… with some 300 options currently available and more becoming available on a regular basis.

gTLDs are created by the Internet Corporation for Assigned Names and Numbers (“ICANN”). In 2012, ICANN allowed individuals and companies worldwide to apply for new gTLDs. Three years later, many of these gTLDs are rolling out for the public to purchase and use.

The new gTLDs allow for individuals and businesses alike to add a more descriptive, personal touch to their domain names. Always wanted to be a .ninja? Or a .guru? Now you can be either—or both. Want to make clear that you’re a consultant? Just purchase a .consulting gTLD for your company name. Are you an .engineer? There’s a gTLD for that too. And the music community is eagerly awaiting the availability of its eponymous gTLD, which is currently awaiting ICANN approval.

The new TLDs offer an opportunity for businesses to use domain names to help describe what they do. For example, this firm could choose the domain, or, giving website visitors a pretty good idea of what kind of business we’re in. Will these new gTLDs catch on to the extent that the more “classic” domain gTLDs have? Only time will tell. Regardless, it still may be a good idea for you to consider registering domains with new gTLDs as part of your business plan.

This is particularly true for companies which may not have a lot of brand recognition behind them. Domestically, businesses with trademark and name recognition should still be able to continue to enforce their intellectual property rights in the context of these new domains. Yet why would you want to have to? It may save a lot of trouble and legal expenses down the road to preemptively purchase domains with gTLDs that are relevant to your business. So if you own a company called, for example, Really Great Marketing, you may want to consider purchasing the domain, as well as any other gTLDs that you find relevant or you think your prospects and customers may search for. This will head off legal issues before they arise.

Keep in mind, too, that not all of the new gTLDs originate from the US. And, as you may imagine, other countries have different intellectual property laws than the US. So if you take issue with a gTLD that is based outside of this country, it may be more difficult to enforce your rights. In this situation, prevention may again be the best cure. By registering relevant gTLDs for your business, you may reduce the possibility of dealing with intellectual property rights in an international context.

The domain .sucks requires particular attention. Yes, there really is going to be a .sucks gTLD, and it may already be live by the time you read this. The preregistration period for this registry is closing in a matter of weeks and the domains will soon be available to the public. While these domains are expensive, they’re probably cheaper than fighting a dissatisfied customer who registers—not to mention the bad publicity caused by that customer.

Ultimately, the new gTLDs represent a great opportunity for a variety of organizations. Yet they also present the possibility of damage to your brand. Businesses would be wise to develop a strategy for monitoring and dealing with the new gTLDs in order to protect their hard-earned intellectual property rights.

For more information about gTLDs and how to protect your brand identity, contact The Lomnitzer Law Firm located in Boca Raton, FL.


Copyright Laws Create Blurred Lines

By now you’ve heard that Robin Thicke and Pharrell Williams have lost their legal battle against the Marvin Gaye estate. A jury found in mid-March that Thicke and Pharrell’s “Blurred Lines,” the biggest-selling song of 2013, infringed on Gaye’s “Got to Give it Up” to the tune of more than $7.3 million dollars. The “Blurred Lines” creators purportedly intend to appeal.

A quick listen to portions of the songs back-to-back makes it easy to hear the similarities between them. But still: aren’t there songs out there that sound more similar than these? Sam Smith just settled with Tom Petty because the chorus of Smith’s “Stay With Me” has the same melody as the chorus of Petty’s “I Won’t Back Down” – before the case ever made it to court. And many people are surprised that Madonna never sued Lady Gaga over Gaga’s “Born This Way” – easily identifiable as being inspired by the queen of pop’s “Express Yourself.” “Blurred Lines” sounds arguably less like “Got to Give it Up” than some of these other examples. So what’s the difference?

A variety of commentators agree that the similarity in this song is really in the sound and the feel – like the listener is at a disco party where people are clapping, cheering, and playing the cowbell. If you played the songs on an acoustic guitar, you would hear different chords, keys, and melodies. But due to when Gaye’s disco track was released, that actually doesn’t matter. The copyright for “Got to Give it Up” was registered in 1977, the last year before a sea change in the Copyright Act. Hence, there are different rules for works with copyrights registered before 1978, and works with copyrights registered in 1978 or later. In this case, Gaye only had a copyright in the musical composition of his song and not the completed sound recording. This means that the final recording itself was never at issue, and indeed, the jury never even listened to the two complete songs in court!

Some chalk it up to having the case heard by a jury who considered the similarities in the sound recordings which were not supposed to matter. Others say that it was unwise for Thicke to openly talk about how he wanted to record an homage to “Got to Give it Up,” one of his favorite songs of all time. And then there is the question of whether any of this would be an issue if “Blurred Lines” hadn’t made so much money.

Regardless of the reason for the ruling, its implications for the music industry are huge. The purpose of copyright law is to incentivize creators to develop new works by providing protection for the creations. Yet this rationale fails in this case for two reasons. First, Marvin Gaye himself reaps no benefit; rather, his heirs do, and those heirs had nothing to do with the creation of Gaye’s song. Second, the outcome of this case may ultimately end up stifling creativity rather than promoting it. Because while inspiration is everywhere, artists may become afraid if their songs sounds too similar to other musical works that came before. And even if the artists aren’t afraid, their record labels might be.
Who really lost in court? Robin Thicke and Pharrell Williams, certainly. But also musicians and music lovers everywhere.


Why Hire an Entertainment Attorney

The entertainment industry is a highly contractual business surrounded by lots of legal terms and conditions. While entertainers are working on their craft, it is integral that he or she have proper legal representation, not only at the onset of a career but throughout all business dealings.

When navigating through agreements, business relationships, intellectual property, and revenue sharing, the representation of an entertainment attorney can make or break an entertainer’s bottom line results.

What is the Role of an Entertainment Attorney?

Lawyers representing entertainers will perform a multitude of services including but not limited to reviewing contracts, negotiating deals, and pursuing legal disputes through settlement or court.

When Should You Hire an Entertainment Attorney?

This answer is easy. You should certainly have an entertainment attorney present prior to signing any contract. We also feel strongly that you should be represented prior to sharing any intellectual property (copyrights, trademarks, etc…).

Entertainment Negotiations

Your entertainment lawyer spends much time focused on drafting and negotiating deals, including management contracts and industry specific arrangements, with a constant awareness on the legal terms and ramifications of any particular deal. A talented and dedicated entertainment lawyer can often be a one-stop solution for a new entertainer. Until the career is up and running, an enertainment attorney can eliminate the need for other service providers such as the business manager, accountant, agent, and more.

Entertainment Litigation

The entertainment lawyer’s focus is the legal aspect of all endeavors. When potential legal issues arise, the attorney will attempt to resolve such issues firts through mediation, then arbitration, and if neither has worked successfully, through a full court litigation.

Contact Our Office

The Lomnitzer Law Firm, P.A., located in Boca Raton, FL, is represented by several entertainment attorneys that focus solely on the entertainment industry, including film, music, sports, and theater. Our lawyers will confidently guide you based on experience and knowledge of entertainment law. Contact us for more information.

intellectual property attorney florida

Three Benefits of Hiring a Copyright Attorney

So you created a wonderful new piece of intellectual property such as:

  • Music
  • Literature
  • A Movie or Play
  • Choreography
  • A Photograph
  • Sculptures
  • A Website
  • Or any other unique work or design

Now what do you do?

How do you protect yourself and your work from monetary or personal loss?

You will need to explore the legal protection known as copyrighting. A copyright attorney can be extremely helpful. The legal advice and guidance you will receive will not only provide proper credit to the responsible party, but it will serve as the foundation for protected business ventures. Below we outline the main three benefits of hiring a copyright lawyer:

  • Copyright Registration. A copyright attorney will successfully complete your copyright registration. With a knowledgeable attorney, there will be no time delays, no oversights and no mistakes. Your work will undoubtably be properly protected by a qualified professional.
  • Copyright Renewals. Copyright renewals will not go unnoticed. As you progress in your business or endeavors, your plate will become increasing full. Your copyright attorney will always keep a watchful line on renewals and expirations. Also, as you continue to progress, guess who is going to need a knowledgeable business lawyer for guidance, advice, and representation? Yes, you!
  • Copyright Protection. When a properly filed copyright is violated, it is still the responsibility of the registrant to seek a resolution or legal judgement. An experienced copyright attorney will properly represent your best interests for a expedited remedy to the violation.

The Lomnitzer Law Firm, P.A., located in Boca Raton, FL, will consult to review your needs and guide you based on experience and knowledge of the law. Contact us for more information regarding copyright registration, how to protect your intellectual property via copyright, or copyright infringement cases.

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How to Protect Intellectual Property

Intellectual property can also be defined as intangible assets. Usually, intellectual property will fall into one of these categories: music, art, inventions, symbols, logos, designs, brands, or trade secrets.

In order to protect intellectual property, you will want to register your IP, which will preserves the rights of inventors, artists, businesses, etc…

Once Intellectual Property is registered, it has the same ownership rights as that of physical property. Intellectual property can be bought, sold, or transferred in the same way as a piece of land, a house, or an automobile.

There are several ways to protect your intellectual property. Depends on the type of IP that you have, you’ll need to chose the proper registration. An experienced Intellectual Property Attorney will be able to guide you through the registration process to protect your IP and make it legally yours.


Patents are generally reserved for inventions. If you have developed a product or process that is unique, and plan to profit from it, you’ll want to seek a patent registration. Patent registrations are often a complex process that requires a patent lawyer with experience in patent law.


A copyright registration will protect original works like authorship, literary compositions, music, drama, photography, audio, video, software and other intellectual works. The owner of the copyright should begin using the standard copyright symbol when registration is completed.


A trademark registration will protect the name of your business, product, or service by preventing others from representing a business, product, or service under the same or similar name. The first step in a trademark registration is to conduct a trademark search to confirm that a trademark has not already been registred.

A Final Word

The Lomnitzer Law Firm, P.A. will consult to review your needs and guide you based on experience and knowledge of the law. For more information regarding how to properly protect your intellectual property, contact us to learn how we can be of assistance to you.