A consent agreement can be a powerful tool to overcome a USPTO likelihood-of-confusion refusal—but only if it’s done right.



In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley discuss the TTAB’s precedential decision in In re Ye Mystic Krewe of Gasparilla, where the Board rejected a one-page consent agreement as a “naked consent” insufficient to overcome a Section 2(d) refusal.



They unpack:



* The history of the GASPARILLA application

* Why the TTAB said the agreement didn’t “show the work”

* How to draft a consent agreement that will actually persuade the USPTO



Don’t miss this one—it’s a practical guide for anyone working with trademarks or brand portfolios. Watch this episode on YouTube.

Can a car, a superhero, or even a cartoon sidekick be protected by copyright? In this episode of The Briefing, Scott Hervey and Matt Sugarman break down how fictional characters earn legal protection — and when they don’t.


 


From DC Comics v. Towle (the “Batmobile” case) to Carroll Shelby Licensing v. Halicki (the “Eleanor” case), Scott and Matt explore the three-part test for character copyrightability, how trademark rights can extend protection, and what creators and studios can do to safeguard their most valuable IP assets.




 


You’ll learn:


 


● What makes a fictional character “especially distinctive” under copyright law


 


● Why consistency across stories matters for protection


 


● How trademark rights protect character names and merchandise


 


● The difference between creative expression and brand identity


 


Watch this episode on YouTube and learn how to keep your characters safe from copycats.

A federal court has granted summary judgment for Nirvana, dismissing Spencer Elden’s claim that the Nevermind album cover — depicting him as a baby — constituted child pornography. In this episode of The Briefing, Scott Hervey and James Kachmar revisit their earlier coverage of the Ninth Circuit’s decision and unpack how the district court’s final ruling turned on artistic intent and context rather than perception.



Tune in to learn how the court applied the Dost factors, what this ruling means for artists and rights holders, and how intent shapes the boundary between art and exploitation.

Watch this episode on YouTube.

Show Notes: 

Scott: In a previous episode, we covered Elden versus Nirvana, the lawsuit brought by Spencer Elden, the Baby, on the cover of Nirvana's Never Mind album, who claimed that the image amounted to child pornography. The Ninth Circuit revived Elden's case in late 2023, holding that his claims were not time barred and sent it back to the District Court to decide the big question, was Nirvana's album cover child pornography? Now that question has been answered. The District Court has granted summary judgment for Nirvana, holding that the cover is not child pornography as a matter of law.

I'm Scott Hervey, and I'm joined today by my partner, James Kachmar. We are going to break down the District Court's ruling and evidence surrounding the artistic intent behind one of the most iconic album covers of all time on today's installment of The Briefing. James, welcome back to The Briefing. Good to have you.

James: Thanks for having me back, Scott.

Scott: So, James, when you and I last talked about this case, the Ninth Circuit had just revived Eldon's lawsuit. Can you remind the listeners how we got here?

James: Sure, Scott. The photograph at the heart of this case is on the cover of Nirvana's Never album. It's a naked baby swimming underwater, appears to be reaching for a dollar bill that's on a fishing hook. That baby, Spencer Eldon, was four months old when that photo was taken in 1991. Thirty years later, in 2021, Eldon sued Nirvana, the surviving band members, and their record labels under a federal law that allows victims of child pornography to bring civil claims. He alleged that the photo was sexually exploitive and that Nirvana had knowingly possessed, reproduced, and distributed what he claimed was child pornography.

Scott: And that case was originally dismissed on statute of limitations grounds.

James: Exactly, Scott. The District Court initially threw it out saying that Eldon had waited too long to sue. He turned 18 around 2009, but waited another 12 years to file his lawsuit. But in December 2023, the Ninth Circuit reversed, holding that because the album had been rereleased in 2021, Eldon could bring claims based on that recent republication. That sent the case back to the district Court to decide the substance of Alden's claim, whether or not the image itself met the legal definition of child pornography.

Scott: And now, the District Court, having heard arguments on both sides, has granted summary judgment for Nirvana. So Let's dive into the court's reasoning.

James: Sure. The court held at the Never mind cover simply doesn't meet the definition of child pornography under federal law.

Scott: Right. We don't normally dive into this on these podcasts, but this is a media case, and it is interesting. I think there's some other interesting aspects of this case that we're going to talk about later. Okay,

Disney faced a copyright lawsuit over the use of MOVA facial-capture software in Beauty and the Beast. A jury found Disney vicariously liable, the district court threw out the verdict, but the Ninth Circuit has now reinstated it. In this episode of The Briefing, Scott Hervey and Tara Sattler discuss:




● The facts behind Disney’s use of VFX vendor DD3 and the disputed MOVA software


● Why the district court found no “practical ability” for Disney to control its vendor


● How the Ninth Circuit reversed, emphasizing Disney’s contractual rights, on-set presence, and red-flag evidence


● What this means for studios and production companies managing VFX vendors

Former Congressman George Santos sued Jimmy Kimmel after the late-night host used Cameo videos in a comedy segment called “Will Santos Say It?” Santos claimed copyright infringement and fraud, but both the District Court and the Second Circuit said Kimmel’s use was fair use. In this episode of The Briefing, Scott Hervey and Tara Sattler break down:


 


● How Kimmel obtained the videos using fake Cameo accounts


 


● Why the District Court dismissed Santos’s case


 


● How the Second Circuit reinforced that criticism and satire are protected under fair use


 


● Why Santos’s contract and fraud claims also failed


Watch this episode on YouTube.

Neil Young vs. Chrome Hearts — What happens when a rock legend collides with a luxury fashion powerhouse? Chrome Hearts has filed suit against Neil Young, claiming his new band “Neil Young and the Chrome Hearts” infringes on their famous trademark

 


On this episode of The Briefing, Weintraub attorneys Scott Hervey and James Kachmar unpack the lawsuit, analyze the likelihood of confusion, and compare it to the Lady Gaga “Mayhem” case. Plus, they share practical takeaways for musicians to avoid trademark trouble.




Show Notes: 

 

Scott:  Neil Young, one of the most influential voices in rock history, has landed in federal court, but not for his music. His new backing band, Neil Young and the Chrome Hearts, has become the center of a trademark infringement lawsuit filed by luxury fashion brand, Chrome Hearts. At issue is whether Neil Young's use of the Chrome Hearts' name, and especially the sale of related merchandise, crossed the line into infringement. I'm Scott Hervey, a partner of the I'm a law firm of Weintraub Tobin, and today I'm joined by my partner, James Kachmar. We are going to break down Chrome Hearts versus Neil Young on today's installment of The Briefing.

 

James, welcome back to The Briefing. Good to have you.

 

James:  Thanks for having me, Scott. Anytime you've got a clash between a rock legend and a fashion powerhouse, you know it's going to be an interesting case.

Scott:  Oh, absolutely. Well, so let's set the stage, shall we? So Chrome Hearts filed suit in the Central District of California against Neil Young and his production company, the Other Shoe Productions, and his bandmates. The complaint alleges trademark infringement, false designation of origin, unfair competition, common law trademark infringement, and common law unfair competition. But I think the centerpiece of this case really is the federal trademark infringement claim. I think, really, this case either lives or dies on whether or not Neil Young has violated the Lanham Act. Okay, let's talk about some background here. Chrome Hearts, for those of you who aren't aware, Chrome Hearts is not just a boutique clothing line. It's a billion-dollar brand that's been around since 1988. They've built an empire on jewelry, leather goods, apparel, eyewear, and even furniture. They've collaborated with the Rolling Stones, Rihanna, Madonna, Drake, and countless others. Their products are sold in exclusive boutiques worldwide, and they have a loyal following among musicians and celebrities. Now, critically, Chrome Hearts has a very long list of federally-registered trademarks covering Chrome Hearts, both the wordmark and related designs. These registrations span across jewelry, letter goods, clothing, eyewear, retail store services, and even entertainment services in the nature of live performances by a musical band.

 

Now, that last one is particularly important because I think it directly overlaps with Neil Young's activities.

 

James:  I knew about Chrome Hearts as a fashion and jewelry brand, but I had no idea that there was a band associated with it. Did you know that, Scott?

 

Scott:  No, I didn't until I read the complaint. I got a little curious, and I found the specific trademark that covered their entertainment services. I mean, it's listed in the complaint. I looked up its file at the USPTO to see what specimens it submitted. Lo and behold, it's a photo of a band with the band name Chrome Hearts right there on the stage monitors.

The Anthropic settlement shows just how costly copyright missteps can be in AI development. Anthropic has agreed to a $1.5B settlement after a court found that keeping a permanent library of pirated books was not fair use—even though training its AI model on those same works was.


 


On this episode of The Briefing, Weintraub attorneys Scott Hervey and Matt Sugarman discuss the ruling, the settlement, and what it means for future copyright claims against AI companies.




Show Notes: 

Scott: In a previous episode, we broke down a key ruling in the Anthropic AI Training case. That one asked, what happens when an AI company trains its model on millions of books? Some purchased, some pirated. In that closely watched decision, a federal judge said, the training itself was fair use, comparing it to how humans learn by reading. But keeping pirated copies of those books in a permanent digital library, that crossed the line. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin. I'm joined today by my partner, Matt Sugarman. Today, we are going to talk about the one big question that ruling left open. What's the price tag for that mistake? That answer just came in, and it's a big one on this installment of the briefing. Matt, welcome back to the briefing. It's good to have you.

Matt: Thank you, Scott. It's good to be here.

Scott: Great. Well, this one's a good one. I know you and I both talk a lot about these AI training cases, and we covered the meta case previously. But why don't you give us a quick backstory on this case.

Matt: Okay, Scott, let's rewind for a second. In 2021, Anthropic trained its Claude model on a massive data set of books, articles, websites, you name it. But instead of licensing the books, they grabbed millions of copyrighted works straight off the pirate sites.

Scott: Right. They did license them by some, but for sure, they pirated millions of books. Like you said, we're not talking about a few. We're talking about more than seven million pirated books. And those works include some very notable authors. At the same time, they bought millions of print books, they scanned them, and they built this huge searchable digital library.

Matt: That's correct, Scott. And that's what set off the lawsuit. The author said that Anthropic infringed their copyrights in three separate ways: downloading the pirated books, using them to train Claude, and keeping digital copies in a permanent internal library.

Scott: So when Anthropic moved for summary judgment on fair use, Judge William Alsup, of the Northern District of California, didn't really give them a clean win. Instead, he carved up their conduct into three categories.

Matt: That's right. Training AI on books, scanning and digitizing legally-purchased print books, and then the big problem, keeping pirated books in a permanent digital library.

Scott: And the judge treated each one differently.

Matt: Correct. First, training Claude with the books, the court said that was fair use. And not just fair use, he called it spectacularly transformative.

Scott: That's right. He did call it spectacularly transformative. Even if Claude absorbed a lot of the underlying materials, the judge pointed out that the model wasn't spitting out verbatim chunks of the author's books.

Matt: Well, the second point was digitizing purchased printbooks. The authors argued that converting them into searchable PDFs was also in free trade.

Scott: But the court pushed back. Because Anthropic lawfully bought the books and then ...

The Yuga Labs v. Ryder Ripps case is shaking up NFTs and trademarks. In this episode of The Briefing, Weintraub attorneys Scott Hervey and Tara Sattler unpack the Ninth Circuit’s ruling on whether NFTs count as “goods,” why the First Amendment defense fell flat, and what it all means for the future of digital asset law.

Watch this episode on YouTube.



Show Notes:

Scott: Was the Ryder Ripps Bored Ape Yacht Club NFT series a social commentary on the popular Board Ape Yacht Club and an exposure of its racist tropes? Or was it just an attempt to capitalize off of Bayes' popularity for profit? These questions were front and center in the lawsuit between Yuga Labs, the creators of the Board Ape Yacht Club NFT. Boys, say that 10 times fast. Project and Ryder Ripps, a popular visual artist. This case resulted in a bench trial award to Yuga Labs of $8 million in damages. But the appeal of that award to the Ninth Circuit raised some very interesting issues, named Mainly the question of whether NFTs are goods that fall under the Lanham Act.

I'm Scott Hervey, a partner with Weintraub Tobin, and today I'm joined by my partner and frequent briefing contributor, Tara Sattler. We are taking a deep dive into the fascinating intersection of digital art, blockchain, and Intellectual Property on today's installment of The Briefing. Tara, welcome back to the briefing.

Tara: Hi, Scott. Great to be here, as always.

Scott: It's good to have you here. Let me ask you a question. Did you ever buy any NFTs?

Tara: I did not.

Scott: I did not either. But I think we're still qualified to talk about this case, even though we weren't suckers, I'm sorry, consumers of NFTs.

Tara: Yes, I agree.

Scott: Let's start with a summary of the Yuga Labs case. Why don't you tell us what exactly happened here?

Tara: Sure. Yuga Labs Inc. Created the Bored Ape Yacht Club or B-A-Y-C NFT collection, which is one of the most recognized NFT collections globally. The B-A-Y-C collection was associated with, very early with celebrity owners, including Snoop Dogg, Justin Bieber, and Jimmy Fallon. Each NFT in this collection is associated with a unique cartoon soon, Bored Ape Image, and purchasing an NFT not only grants rights to the ape art, but also membership in what's been described as a strange combination of gated online community, stock shareholding group, and art appreciation society. Yuga Labs launched BAYC in April of 2021, quickly selling out the collection and generating over $2 million. They also developed various trademarked brand signifiers like Bored Ape Yacht Club and Bayayc.

Scott: Now, this was right as NFTs took off, some promoting NFTs as an investment category and some just promoting it as hype. There was a huge rush to the adoption of NFT art, and NFTs gained cultural relevance as status symbols. That's where Ryder Ripps and Jeremy Cahan, hope I pronounce his last name correctly.

Tara: Comment. Prefithely. In late 2021, Ryder Ripps, a visual artist, started criticizing Yuga Labs, alleging they used neo-nazi symbolism, alt-right dog whistles, and racist imagery in the B-A-Y-C NFTs.

Scott: That's right. According to Ripps, the Bayy-C Ape Skull logo resembled the Totenkopf emblem of the Nazi SS Stormtroopers. Ripps compiled his findings on a website and used art to satirize the Bayy-C brand. In May 2022, Ripps and Kehen created their own collection called Ryder Ripps Board Ape Yacht Club, which was linked to the exact same ape images with some slight changes and a...

50 Cent’s two-minute cameo in the horror film "Skill House" turned into a full-blown legal battle over credits, contracts, and control. In this episode of The Briefing, Weintraub entertainment and IP attorneys Scott Hervey and Tara Sattler break down what went wrong—and what Hollywood can learn from it.


Watch this episode on YouTube.


Show Notes: 

Scott:

Picture this, Curtis 50 Cent Jackson, hip hop legend and media mogul, steps on to the set of a new horror flick, Skill House. He films a quick two-minute scene, gets billed as a producer, and then next thing you know, he's in court, trying to stop the film's release, claiming his name and likeness were used without his permission. But the producers say, Hold on, wait a minute, we had a deal. Welcome to the Briefing by Weintraub Tobin, where we dissect the legal showdowns Shaking Up Hollywood.

I'm Scott Hervey, and I'm joined today by my partner, Tara Sattler. Today, we're going to unravel this messy dispute on today's installment of The Briefing. Tara, welcome back to The Briefing.

Tara: It's always great to be here, Scott, and welcome back. I know you've been gone for a little bit.

Scott: Yeah, that's right. We pre-filmed about four or five episodes, and they weren't our standard deep dive into current cases. I'm happy to dig back into this one. This I wrote while I was away on vacation because I found this case from the start to be incredibly interesting.

Tara: God, since I work with a lot of studios and production companies, this case is absolutely my worst nightmare.

Scott: Oh, mine too. I work with a bunch of studios and production company as well. When I read this case, I broke out in cold sweat. This is the thing that keeps you up at night.

Tara: Yeah, it really is. It's a wild ride. A 50 Cent, a horror film, a missing signed contract. Let's get into it.

Scott: Yeah. So let's start with the factual history of the dispute, Tara. Why don't you give our listeners a Some background on what's going on here.

Tara: Yeah, absolutely. So this case revolves around Skill House, a horror film that was released on July 11th, 2025, earlier this summer. Curtis Jackson, also known as 50 Cent, appears in the film for just over two minutes, but is prominently featured as a producer in its marketing. 50 Cent and his company, NYC Viive LLLC, filed a lawsuit against the film's production company, Skillhouse Movies, LLC, its producer Ryan Cavenagh and GenTV, LLC, alleging unauthorized use of his name, likeness, voice, trademarks, and other intellectual property. 50 Cent then sought a preliminary injunction to stop the film's release, claiming it would cause irreparable harm to his brand and reputation. The defendants, however, argued that 50 Cent agreed to participate in and promote the film in exchange for a back-end profit share of 10%, among some other terms.

Scott: Right. So the core issue, or one of the core issues, is whether there was an agreement. What's the backstory on that, Tara?

Tara: So in the summer of 2022, 50 Cent and Cavenagh started discussing his involvement in Skillhouse, which is Gen TV's first feature film. On June 26th, 2022, 50 Cent Council, Stephen Sava, emailed Production Council Neil Sacker, confirming they were good to go on the terms, including producer credit, 10% of the back-end profits, social media promotion with approval rights, product placement for 50 Cent Cognac and champagne brands, and a small acting role. Kavanaugh confirmed these terms,

You came up with a clever brand name in a foreign language—great! But did you know it might be refused by the USPTO? In this episode of The Briefing, Scott Hervey and Richard Buckley break down what a doctrine is, how trademark examiners apply it, and other important considerations for choosing foreign-language marks.

Watch this episode on YouTube.



Show Notes:

Scott: You've come up with a great brand. It's clever, it's catchy, and it's in a foreign language. But when you file for a trademark, the USPTO refuses your application. Why? Well, the answer might lie in an obscure but important rule, the doctrine of foreign equivalence. I'm Scott Hervey, a partner with a law firm of Weintraub Tobin, and I'm joined today by my partner Richard Buckley. We are going to unpack the doctrine of foreign equivalence, how it works, when it applies, and what it means for brand owners and their lawyers on today's installment of the briefing. Richard, welcome back to The Briefing.

Richard: Great to be here, Scott. Great topic.

Scott: Yeah, I was reminded of this when I was looking at a trademark search for a client, and it happened to be for a consumer brand, and their mark was in Italian. In clearing the brand, I had to think, Okay, what does that word mean? I had to look for that English language word for similar products. I'm jumping ahead of myself, though. Let's start with the basics. The doctrine of foreign equivalence is a rule in US trademark law used to analyze trademarks that contain foreign words. Under this doctrine, a foreign word used in a trademark mark may be translated into English to determine whether the mark is generic or merely descriptive, and whether it's confusingly similar to another registered or pending mark.

Richard: The doctrine reflects the idea that the average American consumer familiar with the foreign language may translate the word when encountering the mark. It's not automatic. Translation only happens if it's likely that the consumer would recognize the term translate it mentally into English.

Scott: All right. So let's talk about how this comes up in practice. So during the trademark examination process, and that happens after an applicant has filed their trademark registration application with the Patent and Trademark Office, the USPTO examining attorneys are required to consider whether a foreign term should be translated under this document. The USPTO even has what's called a Trademark manual of Examining Procedure, or the TMEP, which directs examiners to apply the doctrine when it is appropriate.

Richard: Here's how they typically analyze it. First, language recognition. Is the word in a common, modern, foreign language that is spoken by a substantial portion of US consumers? Spanish, Italian, French, German, and Mandarin are the usual suspects.

Scott: Last Latin, not so much. Okay.

Richard: Not anymore.

Scott: Translatability. Is the term directly translatable? For example, Lupo, right? It's Italian for wolf.

Richard: Third, relevance of the translation. Does the English translation affect the analysis of the mark? For instance, if the translation is descriptive or generic, that can be grounds for refusal. If the translated the word is confusingly similar to an already registered English language mark, that may lead to a Section 2D likelihood of confusion refusal.

Scott: Right. The doctrine of foreign equivalence only applies when an ordinary American purchaser is likely to translate the foreign mark into Englis...

Can you use a celebrity’s voice or image in your work? What about AI-generated versions? On this episode of The Briefing, Scott Hervey and Richard Buckley explore the right of publicity—how it protects names, likenesses, voices, and what happens when you cross the line.

Watch this episode on YouTube.



Show Notes:

Scott: Can you use a celebrity's name or likeness in your film, in your podcast, or in an advertisement? Well, you shouldn't do that without understanding the right of publicity, because if you don't, there certainly will be lawsuits or problems that will follow. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I am joined today, again, by my partner, Richard Buckley, and we are going to talk about the right of publicity, an always hot issue in entertainment on today's installment of The Briefing. Richard, welcome back.

This is our fourth installment of the Refresher Series here. And today we're talking about right of publicity. All right, let's jump right into it. The right of publicity protects an individual's name, image, and likeness, and sometimes even voice or signature from being used commercially without their consent.

Richard: Unlike copyright or trademark law, the right of publicity is grounded in privacy and property interests. It gives people, especially public figures, control over how their persona is used.

Scott: Right. Also, unlike copyright law, it is purely based on state law. There is no federal right of publicity law. All right, let's talk about key elements. To bring a claim for violation of right of publicity, a person generally must show that their identity was used. It was used for a commercial purpose, so generally in connection with the sale or advertisement of goods or services. It was used without consent, and it resulted in damages or unjust enrichment. This applies both to living individuals and in many states, like California, to deceased personalities whose estates may maintain postmortem publicity rights.

There are many notable cases, but one of the classics is White versus Samsung, Banner White. Samsung ran an ad with a robot dressed like Banner White, turning letters on a game show set like Wheel of Fortune. Even though it wasn't her, the court found that the ad evoked her likeness without permission, and that violated her publicity rights.

Richard: Other great examples are two cases that set the framework for soundalike cases. The first was Midler versus Ford, and the second was Tom Waits versus Frito Le. Both cases involved the use of a he sounded like a singer singing a song in the style of those artists in a television commercial or in two TV commercials. Both cases held that when a voice is a significant indicator of a celebrity's identity, like Arnold Schwarzenegger or Sylvester Stallone, the right of publicity protects against its imitation for commercial purposes without the celebrity's consent.

Scott: So what about biopics or documentaries? Here, the First Amendment comes into play.

Richard: Right. If the use is part of an expressive work, that use may be protected, especially if it's newsworthy or if it's transformative. Courts often apply the transformative use test that was seen in the case Comedy 3 Productions versus Satarup, where the California Supreme Court said that the First Amendment doesn't protect literal reproductions of celebrity images used in merchandise.

Ai generated voices and faces are raising new issues. If you generate a synthetic version of someone's voice or what we wou...

Who owns the rights when you co-create something? It’s not always as simple as you think. On this episode of The Briefing, Scott Hervey and Richard Buckley dig into:



Joint authorship


Work-for-hire rules


Why every collaboration needs paperwork


 


Avoid disputes before they derail your project. Watch this episode on YouTube.



Show Notes:



Scott: In a film, a television show, and music— creative projects are almost always collaborative. So, who owns what? And how do you avoid a fight over rights down the line? I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by our partner, Richard Buckley. We are going to talk about copyright ownership in collaborative works and how to avoid using Richard's services as a litigator on today's installment of The Briefing.

Richard, welcome back to our third installment of, we called it last In the last episode, we called it Refreshers. I think I said I like to call them refreshing. These are our refresher episodes where we're going to cover basic issues, refresh our audience on some basic issues. Today we're covering copyright basics, collaborative works, and how to avoid the unfortunate and often painful task of hiring litigator like yourself to deal with disputes. All right, let's start at the beginning. Copyright basics. A copyright protects original works of authorship that are fixed in a tangible medium. So think, scripts, songs, films, choreography, artwork, photographs, lots more. Ownership automatically vests in the creator unless there is a written agreement stating otherwise.

Richard: Scott, this is certainly your world, but in entertainment, collaboration is constant. But how the law treats collaborators depends on how the project is structured. In a joint work, two or more people intend to merge their contributions into a single piece. Think of songwriting duos or co-writers film.

Scott: It's important to note that in a joint work like that, each co-author owns an undivided interest in the whole work. That means each individual can independently exploit that work, license that work, distribute that work without the other's permission, even though they would have to share profits. You could see that can get a little bit confusing in the marketplace. Where you have a joint work, it's It's best to have a writing between the two and define who's responsible for what. Contrast that with works made for hire. If a creator is your employee or if there is a signed agreement that states that the work is a work made for hire, then the employer or the commissioning party owns all of those rights.

Richard: Problems arise when the roles are not clearly defined. Perhaps the composer thinks that he he or she owns the score that they wrote, the production company disagrees, or a freelance editor claims they were not a work for hire because no written agreement exists. These disputes can stop a project from being sold, licensed, or even released. Without a clear chain of title, distributors often walk away.

Scott: That's very, very true. All right, let's talk about some real-world scenarios. Let's take an independent film. You might have, and you will have, a director, a writer, a composer, a cinematographer, a graphic designer, or a VFX company that creates visual effects or the title cards. You have a bunch of actors, lots of people that contribute to the creation of an independent film.

Richard: Right.

From podcast names to iconic sounds, trademarks shape the entertainment world. In this episode of The Briefing, Scott Hervey and Richard Buckley break down what trademarks are, how to get one, and why creators must protect their brand. A must-listen for anyone building a name in entertainment.


Watch this episode on YouTube.



Scott: From movie titles to podcast logos, trademarks are everywhere in the entertainment industry. But how do you get one and what does it actually protect? I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Richard Buckley. We are going to talk about the fundamentals of trademark law and why it matters in the entertainment industry on today's installment of The Briefing.

Richard, welcome back. This is our second installment of our, I guess we'll call it our Basic Series. It's not basic, but it is a series on basic issues.

Richard: It's a great refresher.

Scott: It is. The Refresher Series. I like that. The Refreshing Series. All right. So let's jump into this here. So let's start with the definition. What is a trademark? So A trademark is any word, phrase, symbol, or design. It actually even can be a color, and it can also be a noise that identifies and distinguishes the source of goods or services. So think names like Marvel, Pixar, Netflix, or even think the distinctive chime sound from NBC. And let's not forget the color blue. That is the color of the Tiffany box, right? That's also a trademark.

Richard: So trademarks are fundamentally about branding. You're telling consumers where a product or service comes from and preventing confusion in the marketplace. Right.

Scott: So in entertainment, a trademark covers more than you might think. Show titles, well, series titles, production companies, logos, podcast names, podcast series names, even character names in film franchises, they can also be trademarked. If they function as brand identifiers.

Richard: Take, for example, Star Wars. That's a trademark. So is The Tonight Show. If you're launching a podcast or a production company, you want to consider protecting your brand as well.

Scott: Let's talk about what goes into obtaining a trademark. Some people are surprised to learn that you really don't need to register a trademark to have rights in it. Just by using a mark in commerce, you can establish what's called Common Law Trademark Rights.

Richard: But registration with the US Patent and Trademark Office gives you several benefits: nationwide protection, presumed ownership, the ability to use that cool symbol, the circle with the R in it, trademark symbol. Also, you have a clearer path to enforcement.

Scott: Yeah. Also, I might add a federal trademark registration is required in order to protect your brand outside of the United States. It is what's required. Often, also, a federal trademark registration is required if you are dealing with taking down counterfeit merchandise off of B2C sites like Amazon or Etsy or Redbubble. All right, let's talk about what goes into choosing a trademark and how to avoid choosing a wrong one. One of the biggest mistakes I see is creators falling in love with the name before clearing it. Clearence is about searching to ensure that no one else is already using a confusingly similar mark in your space, your industry, on your same or similar goods or related goods or services.

Richard: It's important to note that a strong trademark is distinctive. It's not generic or descriptive.

Creators, beware: just because it’s online doesn’t mean it’s fair game. In this episode of The Briefing, Scott Hervey and Richard Buckley break down one of the most misunderstood areas of copyright law—fair use.



In this episode, they cover:



* What makes a use "transformative"?

* Why credit alone doesn't protect you

* How recent court rulings (Warhol v. Goldsmith) are changing the game

* Tips to stay on the right side of the law



Watch this episode on YouTube or listen to this podcast episode here.

In a major win for Meta, a federal court recently dismissed a lawsuit brought by prominent authors who claimed their books were illegally used to train the company’s LLaMA models. But the ruling doesn’t give AI companies a free pass—it reveals the roadmap for how a better-prepared copyright plaintiff could win next time.

In this episode of The Briefing, Scott Hervey is joined by his partner Matt Sugarman as they break down:



* The background of Kadrey v. Meta
* The court’s detailed fair use analysis
* A comparison to Bartz v. Anthropic
* The "third theory" of market harm that could shape future litigation
* What AI developers must do now to avoid lawsuits

Watch this episode on YouTube.

A federal judge has ruled that training Claude AI on copyrighted books—even without a license—was transformative and protected under fair use. But storing millions of pirated books in a permanent internal library? That crossed the line.



In this episode of The Briefing, Scott Hervey and Tara Sattler break down this nuanced opinion and what this ruling means for AI developers and copyright owners going forward.



Watch this episode on YouTube.


Show Notes:
Scott: What happens when an artificial intelligence company trains its models on millions of books? Some purchased, some pirated. In a closely watched ruling, a federal judge held that training the AI was fair use, likening the process to how a human learns by reading. But keeping pirated copies of those books in a permanent digital library, well, that crossed the line. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner and frequent Briefing contributor, Tara Sattler.

We are going to break down the recent fair use ruling in the lawsuit over Claude AI, that's Anthropic’s AI, and explore what it means for the future of AI training on today's installment of the briefing. Tara, welcome back to The Briefing. Good to have you.

Tara: Thanks, Scott. I always enjoy being here with you.

Scott: Always enjoy having you. This one is a much-awaited decision because we have a number of these cases that are swirling around, challenging the process by which AI companies train their large language models. One of these cases involved the Anthropic AI Claude. Why don't we jump jump into this one, Tara, maybe you could give us some of the background of this particular case.

Tara: Absolutely. In 2021, Anthropic PVC, a startup founded by former OpenAI employees, set out to create a cutting-edge AI system, and that system would eventually become Claude. Like other large language models, Claude was trained on a vast amount of textual data, books, articles, websites, and more. But unlike many of its competitors, Anthropic took a controversial shortcut.

Scott: Right. Instead of licensing books or building a clean data set, Anthropic downloaded millions of copyrighted works from pirate sites like Books 3, Library genius, and the pirate, Library Mirror. In total, Anthropic downloaded over seven million pirated books, including works by authors Andrea Barth, Charles Graber, and Kirk Wallace, Johnson. Anthropic also purchased millions of print books, scanned them, and then created a digital central library of searchable files.

Tara: So the plaintiff sued, alleging that Anthropic infringed their copyrights by copying their works without permission. First, by downloading them from the pirate sites, and then by using them to train Claude, and finally, by keeping digital copies of the books in its internal library for potential future use.

Scott: All right, so let's now... So as we know, the lawsuit was filed, and Anthropic eventually moved for summary judgment based on fair use only. And in its ruling on Anthropic's motion, Judge Al up of the Northern District of California issued a very detailed and nuanced opinion. The opinion splits Anthropic's conduct into three key uses. The first is using the books to train the AI or the large language model, scanning and digitizing legally purchased print books, and thirdly, downloading and keeping pirated books in a permanent digital library. Each of these uses was evaluated under the Copyright Act's Four-Factor Fair-Use Test.

Tara: Right.

The Supreme Court sidestepped a major copyright showdown—again. What does it mean when infringement claims surface decades later? In this episode of The Briefing, Scott Hervey and Tara Sattler break down the latest in the discovery rule debate, RAD Design’s rejected petition, and how this uncertainty affects creators, businesses, and copyright holders across the country.



Watch this episode on YouTube.
Show Notes:
Scott: In Warner Chapel Music versus Neely, the Supreme Court acknowledged without resolving a major question in copyright law, should plaintiffs be allowed to bring infringement claims years or even decades after the alleged violation happens if they say they just recently found out about it? That question was front and center in Rad Design versus Michael Greckeau Productions. And while many expected the court to finally address it, they declined to take the case. What does this mean for copyright holders, digital content creators, and the businesses defending against those claimed? I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my colleague Tara Sattler. We are diving into the Supreme Court's decision to leave the discovery rule untouched, at least for now. On in this episode of The Briefing. Tara, welcome back to The Briefing. It's good to have you back.
Tara: Thanks, Scott. Glad to be here, and glad to be getting into some important copyright strategy with you here today.
Scott: Right. Yeah. So let's start by defining what we're actually talking about, the discovery rule. It's a judgment doctrine that allows plaintiffs to file a copyright lawsuit within three years of discovering the infringement, even if the infringement happened long before that.
Tara: Right. And for years, courts have disagreed on whether the Copyright Act actually allows this. The text of the Copyright Act says that actions must be brought within three years after the claim accrued. But it doesn't say whether accrual starts at the time of infringement or at the time of discovery.
Scott: And that ambiguity is at the heart of the issue. Some courts, like the Second Circuit, have embraced the discovery rule. Others are skeptical. That split was one reason the Supreme Court agreed to hear Neely in the first place. So before we get deeper into the implications of the Supreme Court denying Cert and Rad Design, we should revisit the Warner Chapel Music versus Neely decision because that case really set the stage for all of this.
Tara: Absolutely. That case started back in 2018 when music producer Sherman Neely sued Warner Chapel Music and Artist Publishing Group. He claimed that Flowrida's 2008 song, In the Air, contained an unauthorized sample from a 1984 track Neely co-owned the rights to. Now, that's a fairly typical copyright infringement claim, but what made this case different was the timing.
Scott: Right. So Neely had been incarcerated for a number of years, and apparently, they don't allow radios in the jail or prison that he was in. And he argued that he only discovered the alleged infringement shortly before his filing of his lawsuit, even though the infringement happened decades earlier. The question that ended up before the Supreme Court was whether under the discovery rule, as applied by some circuit courts, a plaintiff could recover damages for acts of infringement that happened more than three years before the lawsuit was filed.
Tara: And that was a hotly contested issue. Some circuits, like the Second Circuit, applied a very strict three-year cap on damages, even when a claim was deemed timely under the discover...

Who really owns WallStreetBets? The man who created the subreddit, or the platform that hosted it?
In this episode of The Briefing, Scott Hervey and Tara Sattler dive into the trademark showdown between Jaime Rogozinski and Reddit, and why both the District Court and the Ninth Circuit said no to Rogozinski's claim of trademark ownership.
This case is a cautionary tale for creators and entrepreneurs about what really counts as “use in commerce” under trademark law. Just coining a catchy name or launching a community isn’t enough. If you’re not the one offering goods or services under the brand, you don’t own the trademark. Watch this episode here. Show Notes:
Scott:  He created the subreddit. He coined the name. He even filed a trademark application for it. But when Jamie Rogosinski took reddit to court to enforce his claim over the Mark Wall Street bets, both the district Court and the Ninth Circuit told him the same thing. Just because you created the name doesn't mean you own the trademark. I'm Scott Hervey, a partner with the Law firm of Weintraub Tobin, and I'm joined today by my colleague, Tara Sattler. We are going to talk about Trademark use, ownership, and the Reddit battle over Wall Street bets on this installment of The Briefing. Tara, welcome back to The Briefing. Thanks for being here today.
Tara: Thanks for having me. Always glad to be chatting with you, Scott.
Scott:  So this one's a real interesting I think almost everybody knows about the subreddit Wall Street Bets. Can you give us some background on this whole dispute?
Tara: Yes, absolutely. So the story starts with Jamie Rogosinsky, and I really hope I'm pronouncing that right. So my apologies if I'm not. But Jamie Rogosinsky, the man widely credited with launching the subreddit feed Wall Street Bets back in 2012. And What began as a niche community for high-risk trading chatter exploded into really a cultural phenomenon in 2021 during the Gamestop and AMC Short Squeez. Right.
Scott:  Sensing an opportunity to commercialize the brand. Rogusinski filed a trademark application for Wall Street Bets in 2020, covering merchandise and other goods. But Reddit, which owned and hosted the subreddit platform, wasn't on board with that. It removed Rogusinski as a moderator for violating its policies and later filed its own trademark application for the same name, this time for an online forum service.
Tara: So Rogusinski sued Reddit in early 2023 in the Northern District of California and asserted claims for trademark infringement, unfair competition, and declaratory relief, arguing that he, not Reddit, owned the Wall Street Beats brand.
Scott:  Let's talk about who actually used the mark. So to understand why both the District Court and the Ninth Circuit rejected Jamie Rogosinski's trademark claim over Wall Street bets, we have to look closely at what each party actually did with the trademark, and more importantly, how the law defines, quote, use in commerce.
Tara: Right. So Rowe Kuzinski argued that he was the originator of the mark. He created the subreddit, Wall Street Bets in 2012, moderated it for eight years, and even shaped the visual identity of the community itself. So according to him, he wasn't just a user, he was the brand in the brand space.
Scott: And to bolster that claim, he pointed to several activities movies. First, he published a book in January 2020 that he called Wall Street Bets: How Boomers Made the World's Biggest Casino for Millennials. He linked it to the subreddit, and he Wall Street Betts' name directly in the title.
Tara: He also announced plans to launch Wall Street Betts' branded merch...

In this episode of The Briefing, Scott Hervey and Richard Buckley dive into Pepperdine University v. Netflix, a trademark showdown over the use of the name “Waves” in the Netflix series Running Point. After Pepperdine’s attempt to block the series’ release was denied under the Rogers test, the university is back—this time arguing that the Jack Daniel’s Supreme Court decision changes everything.

Watch this episode on the Weintraub YouTube channel.



Show Notes:

Scott: What happens when a Christian university's proud athletic legacy collides with the creative freedom of Hollywood? That's the question at the heart of Pepperdine University versus Netflix, a trademark dispute centered around the name Waves. Pepperdine lost its initial attempt to block the release of Netflix basketball comedy ‘Running Point.’ Very funny television show. But the fight is far from over. Now the court must decide whether Netflix use of the Waves mark is protectable artistic expression or actionable infringement. And it all comes down to a legal test some thought was subtle law until the Supreme Court rocked the waters in Jack Daniels versus VIP Products.

I'm Scott Hervey, a partner at Weintraub Tobin, and I'm joined today by my partner, Richard Buckley. We are going to unpack this battle over brand identity, free speech, and college sports on this episode of the Briefing. Richard, welcome back to The Briefing. Good to have you.

Richard: It's great to be here again.

Scott: Yeah. Did you watch Running Point?

Richard: I have not.

Scott: Okay, well, you are missing out. You should watch it. It's quite funny.

Richard: I feel like I must now.

Scott: All right, let's get into this. So let's start with the basics. What's this case about, Richard?

Richard: So Pepperdine's athletic teams have been known as the Waves since 1937. Netflix and Warner Brothers released a scripted comedy series called Running Point, featuring a fictitious professional basketball team named the Los Angeles Waves. The university sued, claiming trademark infringement and false designation of origin under the Lanham act, among other things.

Scott: Pepperdine raised several issues in the complaint. First, they argued that the fictional Los Angeles Waves team, which, by the way, is not a collegiate team. It's a like an NBA league team, uses the word Waves with a strikingly similar font to Pepperdine's registered marks. Pepperdine also contended that the colors used by the fictional team were similar to Pepperdine's and that both marks were used in athletic context. Pepperdine specifically pointed out that an image in the Running Point trailer included a frame jersey with the number 37, which they believe references Pepperdine's founding year of 1937. Coincidence? I don't know. But perhaps most importantly, Pepperdine was concerned about reputational harm. They argued that the themes and Running Point, including excessive alcohol and substance use, sexual innuendos in imagery and foul language and other content, didn't align with Pepperdine's Christian values and would negatively impact the university's reputation.

Richard: So Pepperdine sought a temporary restraining order, a tro, to block the release of Running Point, which premiered on February 27, 2025. The university argued that the use of Waves, along with similar color schemes in a jersey number 37, would confuse viewers and damage Pepperdine's reputation. As you previously mentioned,

Can a car be a copyrightable character? In Carroll Shelby Licensing v. Halicki, the Ninth Circuit said no — ruling that “Eleanor,” the iconic Mustang from 'Gone in 60 Seconds,' lacks the distinctiveness and consistency required for copyright protection.

In this episode of The Briefing, Scott Hervey and Richard Buckley break down the history of the Eleanor litigation, review the district court and Ninth Circuit rulings, and explain what it actually takes for a character to qualify for copyright protection.

Watch this episode on the Weintraub YouTube channel.


Show Notes:
Scott: Can a car be a character? Well, that's the question at the heart of a long-running legal dispute over Eleanor, the muscle car made famous in the movie Gone in 60 Seconds. For years, the heirs of the original film's producer claimed Eleanor was a protectable copyright character, and they tried to stop others, including Carroll Shelby licensing, from building or selling versions of that car. But the Ninth Circuit has now weighed in and has definitive shut that claim down. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Richard Buckley.

We're going to talk about Carroll Shelby Licensing versus Halicki and what it takes for a character to receive copyright protection on today's installment of The Briefing. Richard, welcome to The Briefing. This is a first for you. So, welcome.

Richard: Thank you for having me. It's a pleasure.

Scott: Absolutely. Richard is one of our litigators, so that means we keep him in the back of the firm and chained up, feed him raw meat every once in a while, just to So not often enough. Keep him ready to battle. All right. This is right up your alley, a piece of long-running litigation with steadfast defendants and steadfast plaintiffs arguing their claim all the way up to the Ninth Circuit?

Richard: It's a privilege of being older and experienced, I guess. But yes.

Scott: All right. Well, let's get into this one. So the saga over the car, Eleanor, has been years in the making. It began with the 1974 film, Gone in 60 Seconds, which began as an independent action film written and directed by H. B. Tobi Halicki. In that film, Yellow, 1971, Ford, Mustang Fastback named Eleanor, is the featured car in a climactic 40-minute chase scene. The film became a cult hit, and Eleanor became an underground icon.

Richard: Right. In 2000, the movie, Gone in 60 Seconds, was remade by Disney and Jerry Bruckheimer, this time with Nicolas Cage behind the Wheel. Also in the remake, Eleanor is a Silver 1967 Shelby GT 500 Mustang. Very different look and different era. Still nicknamed Eleanor and still featured prominently.

Scott: Halecky passed away in 1989, and his widow, Denise Halecky, later acquired certain intellectual property rights associated with the 1947 film, including the original script and footage. Denise Halecky, the widow, also began asserting that Eleanor, the car, was a protectable copyright character. Over the years, she and her company sent legal threats or sued individuals and businesses who built or sold Eleanor replicas, or what she claimed to be Eleanor replicas, including muscle car maker, Carroll Shelby, a former race car driver and car designer who was played by Matt Damon in the 2019 movie, Ford versus Ferrari. Great movie, by the way.

Richard: Agreed. Those threats, Scott, culminated in the lawsuit that was filed by Carol Shelby licensing and Classic Recreations in 2020.