June 5, 2017
Marshall, Texas is a town of less than 25,000 residents in East Texas. It is closer to Shreveport, Louisiana than it is to Dallas or to Houston. Nevertheless, since the late 1990s, Marshall has become the epicenter for a series of high-profile patent litigation cases. In 2015, there were nearly 6,000 patent infringement cases filed in the United States. At least 1,500 of these filings ended up before Judge Rodney Gilstrap, a judge for the Eastern District of Texas, in the Marshall, Texas division. This was no accident.
As of last month, however, this may all be subject to change.
On May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands LLC, the United States Supreme Court addressed a dispute regarding the patent venue statute and unanimously held that civil actions for patent infringement may only 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. Prior to TC Heartland, patent owners could choose to file suit in most any state given that most corporations made or sold products nationwide. This allowed certain courts to set up shop as patent “rocket dockets” which encouraged litigators to choose their venue.
This is how one judge in Marshall, Texas came to oversee, on average, nearly a quarter of all patent infringement cases filed in the United States. Now that TC Heartland is the rule of the land, there are three primary issues to address and explore: (1) how did Marshall, Texas become a “rocket docket” for patent cases?; (2) what rule did the Supreme Court actually change?; and (3) what is likely to happen now?
June 29, 2016
On June 22, 2016, South Texas College of Law announced that it was changing the name of the school to “Houston College of Law.” The school also introduced a new color scheme on its website that is predominantly red and white, with shades of gray. As a bookend to the public announcement, it appears the school also filed a trademark application for the word and design mark HOUSTON COLLEGE OF LAW EST. 1923, with a filing date of May 12, 2016. The trademark application also asserts a date of first use of April 6, 2016.
Name changes can be a good thing. Typically. A rebranding can assist in drawing attention to a stale mark or product. It can attract new customers. It can introduce a product or service into a previously under-represented industry. In essence, this is what trademarks are for: to assist the consuming public in identifying the source of goods and services. The only problem is that “Houston College of Law” looks and sounds like “University of Houston Law Center,” which has been in existence in the same geographical area since approximately 1947. The University of Houston has also embraced a red-and-white color scheme since the late 1930s.
As you can imagine, this name change and color scheme did not sit well with the other local law school. On Monday, June 27, 2016, the Board of Regents of the University of Houston System filed a lawsuit in the Southern District of Texas, Houston Division against South Texas College of Law. The Complaint asserts causes of action for trademark infringement, unfair competition and false designation of origin, false advertising, dilution by blurring or tarnishment, and related state and common law claims.
Now that this matter is in the court system, what can be expected and how should this play out?
It has long been a running joke that if you only know how to play the G, C and D chords on a guitar, then you already know how to play hundreds of different popular songs. Many musical acts have been ridiculed for only playing the same three chords over and over. “Three-chord” rock music is practically its own genre. The I-IV-V major key chord progression is even considered the “standard” blues progression. Within that construct, there are only 12 basic “notes” or tones in the musical spectrum: A, Bb, B, C, C#, D, Eb, E, F, F#, G, and G#. From there it is just a matter of octaves to achieve different ranges of an “A” note. In short, there is a finite amount of discrete notes along with a relatively limited amount of chord progressions that are available to a songwriter.
Copyright law, meanwhile, only protects “original works of authorship” in musical works and sound recordings. It is right there in the statute: the song or sound recording must be original. Without the element of originality, there is nothing protectable under the law.
Knowing this, and with hundreds of years of the history of songwriting, are there any songs that are truly “original” anymore? Is there any progression or riff that is so unique as to stand apart from every song that has been previously written? If not, how are musical works still subject to claims of copyright infringement and why should we care?
Can musicians and artists legally demand that politicians not use their works?
Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.
Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:
Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
Today is Good Friday, the legal and Christian religious holiday of sorts commemorating the crucifixion of Jesus Christ. Sunday is Easter, celebrating the resurrection, concluding Holy Week, and also culminating in the end of the religious period known as Lent. These events have been recognized throughout the Christian and secular world for over 2,000 years.
Easter is also big business. From “Easter eggs,” to chocolate bunnies, to special pastel-colored clothing for Sunday church services, the holiday has been commercialized. Not surprisingly, there are multiple registered trademarks that are Easter-themed. Here are just a few:
On Sunday, February 7, 2016, the Carolina Panthers® and Denver Broncos® will take the field for the kickoff of Super Bowl® 50. This is the annual showcase game for the National Football League®. In the interim time, the NFL® has assembled an army of lawyers that are ready, willing and able to send a bevy of cease-and-desist letters to any individual or entity that has the audacity to use certain terms or phrases that the league perceives might dilute or infringe famous trademarks that belong to the NFL.
The Super Bowl is practically an American institution, now in its fiftieth year. Many groups contend that the Monday after the Super Bowl should be a national holiday. In fact, a formal petition was once initiated for that very purpose. As a result, you will see and hear numerous advertisements leading up to the Super Bowl promoting numerous goods and services. It is kind of a big deal. What you are unlikely to hear in these advertisements, however, is quite noteworthy. You will rarely hear any advertisement use the term SUPER BOWL.
Why are we reduced to using nebulous terms like “The Big Game” or “The Pro Football Championship” to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of “Super Bowl” that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)
In what seems to be a rite of passage for up-and-coming comedians, Golden Globe® nominee Amy Schumer was recently accused of “joke theft” by a series of fellow comedians. All puns aside, “joke theft” can be a serious matter and allegations of the same have negatively affected the careers of many comedians, including Denis Leary, Carlos Mencia, and Dane Cook. While few jokes are truly original anymore, the blatant lifting of an entire comedic performance from another often subjects the alleged thief to public shaming. In the case of a comedian with the status of Amy Schumer, that shaming can be high-profile. Many have already taken to YouTube to create comparison videos.
But is joke theft a stand-alone basis for a legal claim of copyright infringement?
Yes, yes it can be. Please allow me to explain…
[originally posted September 23, 2015 at www.law-dlc.com]
By now it is likely you have seen the news story. On Tuesday, September 22, 2015, Judge George H. King, in the United States District Court for the Central District of California, ruled that Warner/Chappell, the publishing arm of Warner Music, did not have the right to enforce its claims in the copyright for the ubiquitous lyrics to the song “Happy Birthday.” The legal implications are that the song lyrics may be in the public domain and free to use by all.
The question many of you likely also have is “how was ‘Happy Birthday’ still subject to a copyright after all these years?” It can be somewhat complicated.