Blackletter

https://www.dbllawyers.com/building-and-maintaining-brands-through-social-media-even-youtube-has-a-youtube/

Today’s marketplace is ever-expanding – and no I’m not just talking about Facebook Marketplace- although Facebook does, certainly, have an expansive position and a plethora of amazing deals. Instead, I mean the B2B (“business-to-business”) and B2C (“business-to-consumer”) marketplace at large, i.e., where the interchanging of ideas, goods, and services occurs.  It is in this marketplace where brands, such as Facebook, work hard to live, and learn, and grow, … all to consciously rise above the din (… or not).

Now, add in social media, … and it is fair to suggest that marketing, itself, has hit a revolution. In fact, brand marketing departments must deploy increasingly varied and complex strategies via social media just to keep their brands relevant, … never mind using social media as a tool to “rise above the din.”  Digital platform short-form branding videos are often key to social media marketing strategies- especially as conventional TV viewership continues to dwindle (ergo a diminution of conventional TV ad importance) and web browsers provide ad-block.

Clear examples, …?  Okay.  Many brands and brand parents now have their own YouTube channels containing hundreds if not thousands of short-form videos (… that’s right, … I said thousands of videos, …) that garner millions and millions of views. Consider Under Armour’s YouTube channel with (at the time of this writing) 224,000 subscribers and 610 videos. Then there’s Lockheed Martin with 255,000 subscribers and 1,155 videos. Even YouTube has a YouTube channel, with 29,200,000 subscribers and 308 videos (… YouTube has a YouTube channel, …).  Meaningful branded videos published via digital platforms such as YouTube, Instagram, Facebook, and the like are growing more and more indispensable, so, … brands are either joining in or else falling behind.

Unfortunately, it isn’t cheap to both keep up with competitors and take full advantage of social media platforms.  Something has to give.  So, … it seems traditional schemes for video production are giving way to modern necessity.

To control related costs of publishing ever more video assets direct to digital platforms, marketers increasingly turn to “small-house” producers (e.g., direct to digital production companies that are less expensive alternatives to full-service production companies), influencers, and in-house produced content to handle video content supply requirements. While this shift in methodologies supports agile brand marketing opportunities, there likewise arise concerns: e.g., ensuring the brand’s in-house or “small-house” handlers have commercially vetted production-related process, risk, and rights in order to actually use the content as produced with no, or at least acceptable, business risk.

One would think if a brand develops creative and produces online content based on that creative, the brand should be able to use that content with no problem. But, that’s not always the case, if the intellectual property rights associated with the media content haven’t been properly secured. A few recent examples quickly come to mind:  (i) Peloton was sued for music copyright infringement involving its use of songs in workout videos, with plaintiffs seeking hundreds of millions of dollars in damages, (ii) Sandra Bullock and Ellen DeGeneres have sued websites over misleading ads and fake online endorsements, and (iii) Ariana Grande has sued Forever 21 and Riley Rose (brand) alleging misappropriation of Ariana Grande’s name, likeness, and music.  No one wants to be unable to use their own creative, or possibly face expensive litigation in order to find a resolution.

In the end, building, maintaining, and featuring brands by employing short-form videos or any other audiovisual or musical work or unowned or uncontrolled right, especially in an evolving marketplace, requires brand owners and brand employees to be very knowledgeable concerning related business and legal affairs issues.  Not exercising due care for compliance with applicable laws and trade practices could result in tarnishment of an affected brand, wasted ROI (“return on investment”) opportunities, and lawsuits.  If those who are involved do not have the requisite knowledge or resources in-house, then qualified outside legal counsel should be brought in to support such branding efforts.

By: Kurt R. Klaus, Partner at Dunlap Bennett & Ludwig, & Brian Medich, Attorney at Dunlap Bennett & Ludwig

Tom Dunlap sits down with Daniel Davis of Dunlap, Bennett & Ludwig to unpack the regulations behind CCPA and Cal OPA and how to comply.

https://www.dbllawyers.com/dunlap-bennett-ludwig-settlement-among-top-10-most-influential-patent-market-developments-in-2019/

[12.31.2019 Beijing]   Today, IAM Magazine, a publication that focuses on intellectual property (IP) from the business perspective, produced a list of the Top 10 Patent Market Developments of 2019.  Among the events listed was recent settlement of Dunlap Bennett & Ludwig client, Advanced Codec Technologies (ACT), a United States licensing company or US Non-Practicing Entity (US NPE), headed by Beijing partner Erick Robinson which became one of the largest patent litigation settlements in the history of China, and certainly the highest for an NPE.

What happened?

Six patent lawsuits were filed in the Nanjing Intermediate Court for ACT against Xiaomi, a cell-phone production company in China, in early 2019.  At issue were six standard-essential video compression patents.  This settlement involved costs in the high seven figures (in USD).

Why was this case significant?

IAM Magazine determines this case as noteworthy because the patent owner is a United States NPE asserting in China against a large Chinese-domestic company and received a win.  Not only that, but this is a case in which an American company as a patent owner is litigating against a Chinese company amid a massive trade war between the US and China.

An additional significance was the fact that the patents were standard-essential patents, which typically are very complex to litigate and require more time both pre- and post-filing.  Just to add to the magnitude of this case, all the patents were nearing their expiration date meaning that there was no threat of an injunction.  It was about money damages only.

This proves to be great for the Chinese patent enforcement system, which over the past few years has emerged as a top patent litigation forum.

By Erick Robinson

Robinson is Dunlap Bennett & Ludwig’s lead partner in Chinese Patents & Litigation based out of Beijing.

Working with Mr. Robinson in the case for DBL were partner Dragon Wang, senior associates Bing Wu and Tianqi Yu, and associates Yannan Li and Ada Liu.

This last year Blackletter has invited a wide selection of CEOs, corporate counsel and entrepreneurs to the podcast.  Recording in studio and on location, Blackletter is bound to inspire with unconventional business wisdom and educational interviews.  Topics include law firm management, national and cyber security, business start up, employment law, the alcohol business and more!  In today’s post leave which episode you loved best and also subscribe to be part of this community in 2020!

This Monday we take a look back at the biggest copyright cases of the year.

Fourth Estate vs Wall-Street.com

My favorite, the Fourth Estate versus Wall-Street, finally ended a split in the circuits. It used to be that the case really depended on where your copyright case was happening as to whether or not you could bring it before you got a copyright registration. That Supreme court ruling in Fourth Estate versus Wall-Street finally ended that circuit split. The U S Supreme court said in March that copyright owners must wait for the copyright office to give them the green light to sue. That means your copyright now must be registered. So copyright registration, more important than ever, before you can file suit. Do it early, do it often. Good rule for copyright registration.

Rimini Street vs Oracle

Another big decision was Rimini Street versus Oracle. That case said that costs, and again, this was a Supreme court case, unanimous decision written by Justice Kavanaugh, followed by the entire Supreme court, said that costs in a copyright case include attorney's fees but don't include these massive expanded costs that happened in the Rimidi case. $12 million, which included things like E-discovery and expert witness costs.

Marcus Gray vs Katy Perry

Another big decision I thought was kind of fun was the Marcus Gray versus Katy Perry - Joyful Noise case, which is on appeal. A jury verdict found that Katy Perry had infringed Joyful Noise. 

Dr. Seuss Enterprises vs ComicMix

Dr Seuss enterprises versus ComicMix addressed mashups and mashups is something that's I think we're going to see more of soon because in this decision, they said it was fair use. In other words, it was allowed for the company ComicMix to create a version of a Dr Seuss book because they had transformed the comic book efficiently. 

Silver Top Associates vs Kangaroo Manufacturing

In August, the third circuit cited the Star Athletica case, a Supreme court 2017 ruling when it said that this company Rasta Imposta, which had a copyright on its banana costume, could block a rival company called Kangaroo Manufacturing from selling a look alike costume. The court said, Rasta Imposta established a reasonable likelihood that it could prove entitlement to protection for the veritable fruits of its intellectual labor.