Category: Intellectual Property

Intellectual Property

No Longer Inked in the Law? Sedlik v. von Drachenberg Challenges the Ninth Circuit’s Test for Substantial Similarity

Written by Eleanor M. Lackman In the coming months, the Ninth Circuit en banc will decide Sedlik v. von Drachenberg, a relatively straightforward infringement case that asks whether a tattoo copied from a photograph of Miles Davis was substantially similar in protected expression to the photograph. The jury found that the tattoo was not substantially similar. The admitted copying and the jury’s widely questioned finding … Continue reading No Longer Inked in the Law? Sedlik v. von Drachenberg Challenges the Ninth Circuit’s Test for Substantial Similarity

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Intellectual Property

Third Circuit: Training an AI Tool on Westlaw Headnotes to Compete with Westlaw Is Not Fair Use

Written by Josh Geller Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., No. 25-2153 (3d Cir. Sept. 29, 2026) On September 29, the Third Circuit affirmed the U.S. District Court’s 2025 ruling that ROSS Intelligence infringed Thomson Reuters’s copyrights when it used Westlaw headnotes to train a competing legal research tool, and that the use was not protected as fair use. The ruling is … Continue reading Third Circuit: Training an AI Tool on Westlaw Headnotes to Compete with Westlaw Is Not Fair Use

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Intellectual Property

Connecting Is Not Displaying: The Fifth Circuit Rejects the Server Test for a New “Transmit Requirement”

Written by Harrison Newman On August 27, 2026, the Fifth Circuit became the first court of appeals to reject the Ninth Circuit’s “server test” for copyright’s public display right, scrapping that test in favor of a new “transmit requirement” that “likely provides similar results as the server test in many ways.”  Emmerich Newspapers, Inc. v. Particle Media, Inc., No. 25-60550, 2026 WL 2530247, at *6 … Continue reading Connecting Is Not Displaying: The Fifth Circuit Rejects the Server Test for a New “Transmit Requirement”

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Intellectual Property

A Tarnished Legal Theory and a Reversal: Ninth Circuit Rejects Jack Daniel’s “Bad Spaniels” Dilution Claim

Written by Samantha Frankel On August 4, 2026, the Ninth Circuit vacated the district court’s permanent injunction barring VIP Products from selling its “Bad Spaniels” dog toy and directed entry of judgment for VIP on Jack Daniel’s claim for dilution by tarnishment.  VIP Prods., LLC v. United States, No. 25-2027, 2026 WL 2237625, at *2 (9th Cir. Aug. 4, 2026).  The precedential decision clarifies the … Continue reading A Tarnished Legal Theory and a Reversal: Ninth Circuit Rejects Jack Daniel’s “Bad Spaniels” Dilution Claim

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Intellectual Property

Tenth Circuit Affirms Fair Use Defense for Documentary’s Use of Video Footage, Clarifies Post-Warhol Standard for Transformativeness

Written by James Berkley & Robert Rotstein On April 30, 2026, the United States Court of Appeals for the Tenth Circuit issued a significant published opinion in Whyte Monkee Productions, LLC v. Netflix, Inc., No. 22-6086, affirming summary judgment in favor of Netflix and its production partner Royal Goode Productions in a copyright infringement dispute arising from the 2020 documentary series Tiger King: Murder, Mayhem and Madness. The ruling … Continue reading Tenth Circuit Affirms Fair Use Defense for Documentary’s Use of Video Footage, Clarifies Post-Warhol Standard for Transformativeness

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Intellectual Property

Extrinsically Valid or Intrinsically Flawed: Two Judges Question Ninth Circuit’s Test for Substantial Similarity of Copyrightable Expression

Written by Skyler Terrebonne On January 2, 2026, the Ninth Circuit handed tattoo artist Kat Von D a victory over photographer Jeffrey Sedlik in his suit against her for alleged copyright infringement of his portrait of jazz icon Miles Davis. Sedlik sued Von D in early 2024 after discovering she used his photograph—which featured a dimly-lit Davis, posed against a black background, index finger pressed … Continue reading Extrinsically Valid or Intrinsically Flawed: Two Judges Question Ninth Circuit’s Test for Substantial Similarity of Copyrightable Expression

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Intellectual Property

New York State Legislature’s Preliminary Response to AI: Disclosure of “Synthetic Performers” in Advertising and Expanded Prohibitions on “Digital Replicas” of Deceased Performers

Written by Andrew Nietes Largely in response to the proliferation of content generated by artificial intelligence, including use of AI to depict deceased individuals, on December 11, 2025, Governor Kathy Hochul signed two bills into law. The first requires disclosure of AI-generated “synthetic performers” when used in advertising (other than in connection with expressive works). The second amends the already existing prohibitions on unauthorized digital … Continue reading New York State Legislature’s Preliminary Response to AI: Disclosure of “Synthetic Performers” in Advertising and Expanded Prohibitions on “Digital Replicas” of Deceased Performers

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Intellectual Property

PleasrDAO v. Shkreli: Wu-Tang Clan Album May Be Considered A Trade Secret

Written by Constance Kang Can a rare musical work constitute a trade secret? In a novel application of trade secret law to a Wu-Tang Clan album, a federal judge in the Eastern District of New York has answered “yes.”  U.S. District Judge Pamela Chen’s September 25 order emphasized the unusual nature of this analysis, as musical works do not fit squarely within traditionally protected categories … Continue reading PleasrDAO v. Shkreli: Wu-Tang Clan Album May Be Considered A Trade Secret

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Intellectual Property, Labor & Employment, MSK Blog

Of Trademark and Labor Law: Trader Joe’s Company v. Trader Joe’s United

Written by Rebecca Benyamin and Matt Mardesich On September 8, 2025, the United States Court of Appeals for the Ninth Circuit reinstated a trademark infringement claim and reversed the district court’s conclusion that the Norris-LaGuardia Act barred it from granting injunctive relief.  See Trader Joe’s Company v. Trader Joe’s United, — F.4th —, 2025 WL 2586674 (9th Cir. 2025). Trader Joe’s alleged that Trader Joe’s … Continue reading Of Trademark and Labor Law: Trader Joe’s Company v. Trader Joe’s United

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Intellectual Property, MSK Blog

Hara v. Netflix, Inc.: Ninth Circuit Reaffirms Rogers Test for Expressive Works Post-Jack Daniel’s 

Written by Samantha Frankel On July 28, 2025, the Ninth Circuit affirmed dismissal of a Lanham Act false endorsement suit brought by drag performer Lance Hara (known professionally as Vicky Vox) against Netflix over an animated cameo in the comedy series Q-Force.  Vox alleged her animated likeness appeared without permission in a ten-second scene, an official teaser trailer, and a promotional still image.  Hara v. … Continue reading Hara v. Netflix, Inc.: Ninth Circuit Reaffirms Rogers Test for Expressive Works Post-Jack Daniel’s 

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