Feb 12, 2020

Patagonia Sues Apparel Company Over Pro-Oil and Gas Industry “Petrogonia” Line


Patagonia Inc., an outdoor apparel company known for its commitment to conservation efforts, filed suit on Monday against a Colorado-based retailer for trademark and copyright infringement claims over its pro-oil and gas industry “Petrogonia” apparel. Patagonia alleges that OC Media LLC is selling apparel with a logo that closely mimics Patagonia’s mountain silhouette logo.  OC Media has replaced the mountain silhouette imagery with oil field imagery: specifically, machinery associated with oil wells.  The word “Petrogonia” also appears on the clothing in a font nearly identical to Patagonia’s word trademark. According to the complaint, which was filed in California federal court,… Read more

Jan 29, 2020

Can the State of Georgia Own a Copyright in its Official Code?


The Official Code of Georgia Annotated (the “OCGA”) is made up of not only the statutory laws, but also various annotations, including history lines, repeal lines, commentaries, case notations, law review article excerpts, Attorney General opinion summaries, editor’s notes, and other references (the “Annotations”).  The State of Georgia (the “State”) contends that it owns the copyright in the Annotations, while a non-profit entity contends that because the Annotations are part of the Official Georgia code, the Annotations cannot be the subject of a valid copyright and are in the public domain.  The Supreme Court will decide this issue later this… Read more

May 2, 2019

Fourth Circuit Fixes Fair Use


On April 26, the Fourth Circuit Court of Appeals reversed a controversial ruling that caused significant concerns for visual artists. Brammer v. Violent Hues Productions, LLC, No. 18-1763 (4th Cir. Apr. 26, 2019). The lower court ruled that a festival promoter’s unlicensed use of a copyrighted photograph on its website in connection with advertising the festival was permitted as “fair use.” More information concerning the trial court’s ruling is contained in our earlier article, Is Fair Use Still Fair, available here. After analyzing the statutory fair use factors, the lower court found that they weighed in favor of permitting the… Read more

Dec 13, 2018

Music to Our Ears: The Music Modernization Act of 2018

Music Modernization Act Photo

At its most fundamental, the law of copyright is literally that – a protective limitation on the right to copy the original creative expression of authors and artists.  And, as is the case of law in general, it has always been a struggle for copyright law to keep pace with science and technological advances.  In their time, the introduction of the photocopy machine and the VCR problematically made duplication possible at the push of a button.  More recently, music digitization and the internet have made the unauthorized dissemination and sharing of copyrighted material a stress test on the royalty collection… Read more

Oct 23, 2018

Eleventh Circuit Rejects Georgia’s Copyright for the Annotations to the Official Code of Georgia

Georgia Supreme Court: Georgia Code

A government cannot copyright a statute, but what about the annotations to the statute? In Code Revision Commission v. Public.Resource.Org, Inc., Case No. 17-11589 (decided Oct. 19, 2018), the United States Court of Appeals for the Eleventh Circuit held that the annotations to the Georgia Code were part of the Code and could not be copyrighted by the State of Georgia. Like many state codes, Georgia’s Official Code is published with annotations including describing relevant case law applying the provisions of the Code. Those annotations are prepared by a private company under contract with the State of Georgia. That company… Read more

Aug 30, 2018

Ninth Circuit Holds Mere “Remastering” of Pre-1972 Sound Recording Does Not Entitle It to Federal Copyright Protection

Record on Record Player: Copyright Protection

On August 20, 2018, the Ninth Circuit Court of Appeals reversed a lower court’s ruling that digital remastering of pre-1972 sound recordings creates a new sound recording entitled to copyright protection.[1]  In so holding, the Ninth Circuit rejected the Defendant radio broadcasters’ claims that, because the pre-1972 sound recordings had been remastered from analog sound recordings into digital formats, they were entitled to federal copyright protection. The Plaintiffs, a group of record companies that own sound recordings of classic artists such as The Everly Brothers and Al Green, filed a class action lawsuit against CBS Corporation and CBS Radio Inc.,… Read more

Oct 9, 2017

Franchises & Brand Development

Brand Development

The most important, if not essential, element of the ultimate success of a business is the development of a brand. A brand is a promise and assurance to a customer that establishes the customer’s expectation of a company’s goods and services. To truly develop a brand, a business must consistently deliver on these promises and assurances. Every business event positively or negatively affects consumers’ perception of the brand. It’s a never-ending process, a continuum. A brand should be distinctive and unique from other companies’ goods and services, as well as emblematic of a company’s self-identity, self-vision, and market perception. A… Read more

Jan 21, 2016

Will the Supreme Court Clarify the Standard for Awarding Attorneys’ Fees under §505 of the Copyright Act?

The Supreme Court has granted certiorari to address the standards to be applied in awarding attorney’s fees under  17 U.S.C.§505 of the Copyright Act. At issue is whether Supap Kirtsaeng, the prevailing defendant in a copyright lawsuit, should be awarded his attorney’s fees.  This is Mr. Kirtsaeng’s second trip to the Supreme Court. The  Court held in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) that under the “first sale” doctrine (codified at 17 U.S.C. §109(a)), Kirtsaeng, as the lawful owner of the particular physical copy of the textbook purchased abroad, was permitted to resell that… Read more

Sep 11, 2015

The “Happy Birthday” Song (How Old Are You Now?)

According to the 1998 Guinness World Records, “Happy Birthday to You” is the most recognized song in the English language. The melody of “Happy Birthday to You” comes from the song “Good Morning to All,” which has been attributed to American siblings Patty Hill and Mildred J. Hill who wrote the melody in 1893. Patty was a kindergarten principal in Louisville, Kentucky; her sister Mildred was a pianist and composer.  The Summy Company registered for copyright in 1935, crediting the lyrics to authors Preston Ware Orem and Mrs. R.R. Forman. In 1988, Warner/Chappell Music purchased the company owning the copyright… Read more

Sep 3, 2015

The Rise of Copyright Cases Against Retailers

By: Joyce Klemmer Copyright law is in the news again this week, including the rise in copyright infringement cases against retailers in copyright infringement cases over textile patterns. Retailers are now one of the top groups of defendants in copyright infringement cases brought by manufacturers of patterns and fabrics. According to a new report from legal strategist Lex Machina, the top four defendants are Ross Stores, TJX (parent of the T.J.Maxx, Marshalls and other brands), Amazon, and the Burlington Coat Factory. Other retailers targeted include Forever 21, J.C. Penney, Nordstrom, Sears, and Wal-Mart. According to Lex Machina, “They have a… Read more