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Warhol and Prince: Redefining Fair Use

In a highly consequential decision involving signature works of renowned artist Andy Warhol and photographs of music legend Prince, the U.S. Supreme Court has clarified the long-standing fair use defense to copyright infringement and narrowed the scope of transformative works that qualify as fair use. The decision in Andy Warhol Foundation for the Visual Arts,…

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Supreme Court Nixes First Amendment Defense To Trademark Infringement

The U.S. Supreme Court has practically nixed a longstanding and widely adopted First Amendment defense co trademark infringement that exempted certain unauthorized but “artistically expressive~ usages of trademarks from the reach of the Lanham Act. The specific issue decided in Jack Daniel’s, was application of the “Rogers test”, a decades old standard, which aimed to…

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Copyright Protection for Public Performances of Pre-1972 Music

A 2021 decision by the Ninth U.S. Circuit Court of Appeals has renewed focus on the scope and extent of copyright protection for public performances of pre-1972 sound recordings. The issue decided by the three-judge panel for the Ninth Circuit was whether California state copyright law protects rights to public performances of music created before…

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Uncertain fate of AB 51 and PAGA arbitration prohibition

Judge William A. Fletcher, one of the judges in the original 2-1 panel majority upholding AB 51, switched sides on Appellant’s en bane rehearing petition and voted for a panel rehearing. In a stunning act of backtracking, a panel of the Ninth Circuit Court of Appeals has vacated its earlier decision upholding the validity of…

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Defenses to Performance of COVID-19 Impacted Contracts

A recent decision by an Orange County Superior Court judge confirms the viability of the defenses of impossibility or impracticability of performance of certain COVID-19 impacted contracts, and finds a remedy is reformation of such contracts in accordance with the equities of a particular case. Balboa Capital Corporation v. Ederra Plastic Surgery, PC, Case No….

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Trademark Infringement in Cannabis

Cannabis and Hemp CBD companies should be increasingly vigilant regarding the risks of potential trademark infringements of non-cannabis and hemp-related marks. There has been a long history of cannabis products in the unlicensed markets with similar or near-identical names, logos, or identifying artwork to well-known brands, products, companies, and in some instances, well-known persons. These…

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Consideration of Non-Traditional Trademarks in Branding Strategy

Many are surprised to learn that a scent can be a trademark. For example, toy and board game company Hasbro has registered the “Play-Dough” scent mark, which it described as “a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.” The Play-Dough scent mark is…

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COVID-19 and Commercial Frustration

With the COVID-19 wreaking havoc on California’s economy, many of the adversely affected businesses increasingly find themselves unable to perform their contractual obligations. Hardest hit are businesses declared non-essential and ordered to shut down, including movie theaters, cruise liners, sport stadiums, restaurants, convention centers, clothing outlets, barbers and beauty salons, etc.  Other businesses such as…

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Daily Journal PUBLISHED: Supreme Court to Decide if Recovery of Trademark Infringer’s Profits Requires Willfulness

Supreme Court to Decide if Recovery of Trademark Infringer’s Profits Requires Willfulness, Daily Journal (April 14, 2020) In an article published in the Daily Journal, Dr. Dariush Adli discusses oral arguments recently heard by the Supreme Court on a high profile case that will have profound impact on damages available to plaintiffs in trademark infringement…

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Ruling Will Make It Harder to Prove Copyright Infringement, Daily Journal (April 3, 2020)

In an article published in the Daily Journal, Dr. Dariush Adli  discusses a recent 9th Circuit Court of Appeals ruling, which will likely make it harder for copyright owners to prove infringement of their works.  The en-banc decision overruled a 43 year old 9th Circuit precedent, known as the “inverse ratio rule,” under which a copyright owner…

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