The Briefing by Weintraub Tobin

The trademark fight over Lady Gaga’s Mayhem era is over. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara J. Sattler break down the dismissal of Lost International’s lawsuit over the use of “Mayhem” on Gaga’s album, tour, and merchandise. They cover: Why the court dismissed Lost International’s complaint without leave to amend How the Rogers test applies when trademark claims collide with expressive works Why the ruling raises new questions after the Supreme Court’s decision in Jack Daniel’s v. VIP Products Tune in for a clear look at where trademark rights, creative expression, and branded merchandise collide.

Tyra Banks is suing Netflix over how her interview was edited in the documentary Reality Check: Inside America’s Next Top Model. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara J. Sattler break down Banks’ defamation and false light claims, the release she signed before filming, and Netflix’s attempt to end the case under California’s anti-SLAPP law. In this episode, they cover: Why the release Banks signed could pose a major obstacle to her claims How California’s anti-SLAPP law allows defendants to challenge certain lawsuits before discovery What production companies should consider when drafting editing rights, choice-of-law provisions, and promotional-use language Tune in for a clear look at how participant releases and anti-SLAPP laws can shape disputes over documentary editing and portrayal.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down Moore v. Daily Mail, a new class action alleging the publication copied photos from social media without permission and falsely credited platforms like Instagram instead of the actual creators. In this episode, they cover: How copying and rehosting social media images can lead to copyright infringement claims Why crediting Instagram instead of the photographer could create a separate DMCA claim How the case could turn a repeated image-sourcing practice into significant class action exposure Tune in for a clear look at how social media sourcing practices can turn into serious copyright and DMCA exposure. Watch this episode on our YouTube or listen to the podcast here.

When can a performer’s public criticism become a breach of contract? In this episode of The Briefing, Weintraub Tobin Shareholders Scott Hervey and Richard D. Buckley, Jr. break down Kennedy Center v. Redd, a dispute involving musician Charles Redd, a canceled performance, a morals clause, and D.C.’s Anti-SLAPP Act. In this episode, they cover: How D.C.’s Anti-SLAPP Act applied to Redd’s public statements Why the court dismissed the Kennedy Center’s breach of contract claims What the decision means for venues, studios, and producers relying on morals clauses in performer agreements Tune in for a clear look at what happens when contractual morals clauses collide with legal protections for public speech.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the four main categories of intellectual property and explain why protecting these assets is critical to a company’s long-term value. They cover: How trademarks, patents, copyrights, and trade secrets protect different types of business assets Why ownership, registration, and written agreements matter before a dispute or transaction arises How businesses can audit and strengthen their IP portfolios to protect their competitive advantage Tune in for a practical look at how understanding and protecting intellectual property can safeguard some of a company’s most valuable assets.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler discuss the legal rules governing talent representation and explain why the distinction between a manager and an unlicensed talent agent can have significant consequences for artists and their representatives. They cover: What constitutes “procurement” under California’s Talent Agencies Act Why a representative’s actual conduct matters more than the title in the agreement How Park v. Deftones and Marathon Entertainment v. Blasi shaped disputes involving unlicensed talent agency activity Tune in for a practical discussion of how artists, managers, and entertainment attorneys can structure their relationships, protect their interests, and avoid disputes over co

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. return to copyright fundamentals and explain how these rules affect creators, businesses, developers, filmmakers, and anyone commissioning creative work. They cover: What copyright protects and the requirements for originality and fixation Who owns commissioned work and why payment alone may not transfer copyright What rights copyright owners have and what happens when those rights are infringed Tune in for a practical look at how copyright ownership can determine whether a creative project moves forward or becomes tied up in legal complications.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara J. Sattler break down Cesari S.R.L. v. Peju Province Winery L.P., a long-running dispute involving the LIANO and LIANA wine marks. The Second Circuit vacated a judgment against Peju after finding that the earlier Trademark Trial and Appeal Board decision did not consider how the companies actually used their marks in the marketplace. In this episode, they cover: – The two-decade dispute over the LIANO and LIANA wine marks – Why the TTAB’s likelihood-of-confusion ruling did not bind the federal court – What the Second Circuit’s decision means for brands facing litigation after a TTAB loss Tune in for a clear look at when a TTAB loss can follow a brand into federal court, and when it cannot.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara J. Sattler break down the Supreme Court’s decision in Cox Communications v. Sony Music Entertainment, which reversed a $1 billion judgment against the internet service provider. They discuss: – Why knowledge that customers are infringing copyrights is not enough to establish contributory liability – How inducement and substantial lawful uses shape the liability analysis for technology providers – Why the decision could serve as both a shield and a potential sword in copyright cases involving AI-generated content Tune in for a clear look at how the Supreme Court’s ruling reshapes the line between neutral technology and contributory copyright infringement.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler discuss what the law requires, which advertisements may be exempt, and how brands and agencies should approach compliance. They cover: When advertisers must conspicuously disclose the use of a synthetic performer How exemptions for expressive works, audio-only ads, and language translation may apply Practical steps brands and agencies should take, including AI audits, vendor agreements, and updated creative guidelines Tune in for a practical look at how AI-generated spokespeople are reshaping advertising transparency and compliance.

In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Matt Sugarman discuss SAG-AFTRA’s new 2026 TV/Theatrical Agreement and the updated AI provisions shaping the future of entertainment production. In this episode, they cover:   What the new agreement says about digital replicas and synthetic performers How consent, compensation, and notice requirements may affect actors and producers Why entertainment attorneys should pay close attention to AI language in performer contracts Tune in for a clear look at where AI, performer rights, and entertainment production collide.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman revisit Lil’ Joe Records, Inc. v. Ross after the Eleventh Circuit reversed the district court’s ruling in favor of 2 Live Crew. The decision turns on a key bankruptcy issue: whether a copyright termination interest that was never scheduled in a Chapter 7 case remains property of the bankruptcy estate. In this episode, they cover: Why the Eleventh Circuit found Mark Ross’s termination interest remained in his bankruptcy estate How that changed the Section 203 majority vote needed to reclaim the copyrights What the ruling means for artists, estates, catalog owners, and attorneys handling termination notices The ruling changes the vote count under Section 203 and raises new due diligence questions for catalog reclamation projects. Tune in for a clear look at wh

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down Patagonia’s trademark lawsuit against drag performer and environmental activist Pattie Gonia. They discuss the trademark claims, the First Amendment defenses, and the broader question of whether filing the lawsuit was the right strategic move. They cover: Why Patagonia is challenging Pattie Gonia’s merchandise and trademark application How the Rogers test and First Amendment protections may apply to expressive personas and related merchandise What the case shows about trademark enforcement, public backlash, and litigation strategy Tune in for a clear look at when trademark enforcement collides with parody, activism, and the First Amendment.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler discuss the court’s ruling, where Brandy Melville’s trademark claims fell short, and whether a different trademark argument could have changed the outcome. They cover: Why the court treated the copied photos as a copyright issue, not a trademark issue What Brandy Melville needed to show to support its trademark claims How brands should think about protecting product images, marketing content, and visual identity online Tune in for a clear look at where copyright protection ends and trademark law begins.

Pepperdine has used the “Waves” name for its athletic teams since 1937. Netflix’s Running Point also features a fictional basketball team called the Waves. In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Tara Sattler break down Pepperdine’s trademark lawsuit against Netflix, the ruling on Netflix’s motion to dismiss, and what the decision says about the Rogers test after Jack Daniel’s v. VIP Products. They cover: Why Pepperdine challenged Netflix’s use of “Waves” How the court viewed the name in an expressive work What the ruling means for the Rogers test after Jack Daniel’s Tune in for a clear look at where trademark law and entertainment branding collide.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica Marlow break down UMG Records v. Last Brand, the lawsuit targeting Quince’s alleged use of unlicensed music across social media marketing. In this episode, they cover: Why platform music libraries do not automatically clear commercial use How influencer briefs, reposts, and “trending audio” can create copyright risk What brands and creators should address in influencer agreements before content goes live For brands, agencies, and influencer marketing teams, this case is a reminder that viral content still needs to be legally cleared. Tune in for a clear look at where music licensing meets influencer marketing, brand control, and copyright liability.

Did the courts just preserve documentary filmmaking as we know it? In this episode of The Briefing, Weintraub Tobin Partner Scott Hervey and Associate Caroline M. Korpiel revisit the Tiger King fair use dispute and break down the Tenth Circuit’s new opinion in Whyte Monkee Productions v. Netflix. In this episode, they cover: Why the original ruling alarmed documentary filmmakers and copyright experts How the Tenth Circuit reconsidered fair use after Warhol v. Goldsmith What this decision means for documentaries, biographical storytelling, and “biographical anchor” fair use Whether you’re a filmmaker, producer, content creator, or IP professional, this episode offers important insight into the future of fair use in documentary storytelling. Watch this episode on our YouTube or listen to the podcast here.

What happens when your AI assistant can act for you, but the platform says no? In this episode of The Briefing, Scott Hervey and Richard D. Buckley, Jr. break down the high-stakes dispute between Amazon and Perplexity AI over AI agents accessing password-protected user accounts. In this episode, they cover: – What “agentic AI” means and how tools like Comet actually function – Why Amazon moved quickly for a preliminary injunction – How the CFAA and California law are being used to challenge AI-driven access Tune in for a clear look at whether platform owners can legally fence off AI agents from interacting with their systems.

Can sending a cease-and-desist letter land you in court across the country? In this episode of The Briefing, Scott Herveyand Richard D. Buckley, Jr. break down a major Eleventh Circuit decision involving the Frida Kahlo brand and the risks tied to aggressive IP enforcement. In this episode, they cover: When cease-and-desist letters cross the line into tortious conduct How the corporate shield doctrine can fail when personal rights are asserted Why the “effects test” can pull IP owners into out-of-state litigation Tune in for a clear look at how a single demand letter can determine where you end up litigating.

Can a five word phrase be worth millions? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down the high stakes trademark dispute between Las Vegas performer Maren Flagg and Taylor Swift over the phrase “The Life of a Showgirl.” In this episode, they cover: – Whether a phrase can function as a protectable trademark or just a descriptive title – How the Rogers test applies to tour names and merchandise – What recent Supreme Court rulings mean for First Amendment defenses in trademark law From concert tours to commercial merch, the line between branding and expression is getting harder to define. Tune in for a clear look at where trademark law meets the First Amendment.

Can you use “March Madness” without getting sued? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica Corpuz break down the NCAA’s lawsuit against DraftKings and the high stakes fight over one of the most recognizable trademarks in sports. In this episode, they cover: What nominative fair use actually means and how courts apply it Why DraftKings says its use of “March Madness” is necessary for bettors How the NCAA argues the use creates false association and brand harm Tune in for a clear look at where trademark law meets sports betting. Watch this episode on our YouTube or listen to the podcast here.

What happens when a failed police raid turns into a music video about lemon poundcake and a $3.9 million lawsuit? In this episode of The Briefing, Scott Hervey and Richard Buckley, Jr. break down the Afroman defamation case, where surveillance footage, satire, and public officials collide under First Amendment law. In this episode, they cover: Why the deputies’ defamation claims failed under the “actual malice” standard How satire and parody shape what counts as a statement of fact Why the lack of an anti-SLAPP law in Ohio changed the entire case strategy Tune in for a clear look at where defamation law meets satire and the First Amendment.

What happens when two fantasy stories share the same DNA? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down a major copyright decision involving the Crave series and what it means for substantial similarity in fiction. In this episode, they cover: – Why common genre tropes like love triangles, supernatural powers, and chosen one narratives are not protectable – How courts filter out unprotectable elements using the “more discerning ordinary observer” test – Why combining familiar elements is not enough to prove copyright infringement Tune in for a clear look at where copyright law draws the line between inspiration and infringement.

When does an AI voice become your voice? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley break down the lawsuit filed by longtime broadcaster David Greene against Google over its NotebookLM tool and its eerily familiar AI-generated voice. In this episode, they cover: What Greene must prove to win a Right of Publicity claim How Midler and Waits shape the legal standard for voice imitation Why Google’s training data and “knowing use” will be key to the case From forensic voice analysis to AI training practices, this case raises major questions about identity, ownership, and emerging technology. Tune in for a clear look at where the right of publicity meets artificial intelligence

What happens when artists agree to transfer rights to a musical composition but never put that transfer in writing? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Jessica R. Corpuz break down a federal court decision arising from a copyright dispute tied to Ye’s Donda album. The case turned on a simple but unforgiving rule of copyright law: without a written assignment, you do not own the copyright and you cannot enforce it. In this episode, they cover: Why Section 204(a) of the Copyright Act requires copyright transfers to be in writing The legal difference between composition copyrights and sound recording copyrights How the lack of a written assignment wiped out most of the plaintiff’s infringement claims Tune in for a clear reminder that in copyright law, if it is not in writing, it may as well not exist.

What happens when an artist terminates a decades-old copyright grant under U.S. law, but the work is still being exploited around the world? In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Matt Sugarman break down the Fifth Circuit’s decision in Vetter v. Resnik and what it means for worldwide copyright grants. In this episode, they discuss: Whether termination under 17 U.S.C. § 304(c) can recapture foreign exploitation rights Why the Fifth Circuit parted ways with California cases like Siegel v. Warner Bros. The difference between ownership disputes and extraterritorial infringement claims How this ruling impacts publishers, studios, catalog buyers, and global licensing strategies If termination can unwind a worldwide grant, the leverage shift for authors and heirs could be significant. Tune in for a clear look at how copyright termination.

Can an arbitration provider force someone into arbitration who never signed the contract? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the high-profile dispute involving Skechers, global influencer Khaby Lame, his management company KBL Services, and talent manager Barrett Wissman. At the center of the fight is a critical question of arbitration law: does the American Arbitration Association have jurisdiction over a non-signatory? In this episode, they discuss: When non-signatories can be compelled to arbitrate Alter ego and veil piercing theories Agency law and representative capacity Whether the AAA can administer arbitration against someone who never agreed to it Strategic litigation choices when challenging arbitrability If you handle contracts, endorsement agreements, arbitration clauses, or business disputes, this episode offers important insight into the limits of consent in arbitration.

When a jury says two works are not substantially similar, is that the end of the story? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the Ninth Circuit’s decision arising from the Kat Von D tattoo of an iconic Miles Davis photograph and why it may signal the beginning of the end for the intrinsic test in copyright law. In this episode, they cover: How the Ninth Circuit’s two-part substantial similarity test works Why the jury’s finding was nearly impossible to overturn on appeal The concurring opinions calling the intrinsic test legally incoherent How other circuits analyze substantial similarity differently What a reworked test could look like going forward Whether you are a creator, lawyer, or rights holder, this case highlights a potential turning point in how courts evaluate copyright infringement.

California privacy law has entered a new phase. In Part Two of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley break down the CCPA’s new requirements for Risk Assessments and Cybersecurity Audits. In this episode, they cover: When Risk Assessments are required and what they must evaluate How businesses must weigh operational benefits against privacy risks Who must be involved in conducting Risk Assessments and when When Cybersecurity Audits are triggered and what they must include What businesses must submit to the California Privacy Protection Agency Tune in for part two on how a clear look at how California privacy law is turning AI compliance into an operational requirement.

California privacy law has entered a new phase. In Part 1 of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley breaks down California’s new CCPA regulations governing Automated Decision making Technology, or ADMT. This episode explains how the amended rules go beyond data collection and sharing to regulate how businesses use algorithms, artificial intelligence, and automated tools to make decisions about people. In this episode, they cover: What qualifies as Automated Decision making Technology under the CCPA Which automated decisions are considered “significant decisions” When a business is subject to the ADMT rules New notice, opt-out, and access rights for consumers, including employees and job applicants Key compliance deadlines businesses need to prepare for now Tune in for a clear look at how California privacy law is reshaping automated decision making and AI governance.

We previously covered the trademark lawsuit filed by Lost International against Lady Gaga over her use of “Mayhem” in connection with her album, tour, and related merchandise. Now the court has ruled, denying Lost’s motion for a preliminary injunction. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler break down the court’s order and what it signals about the Rogers test after the Supreme Court’s Jack Daniel’s decision. In this episode, they cover: Why the court applied the Rogers test instead of the traditional Sleekcraft likelihood of confusion analysis How the court treated tour merchandise tied to an expressive work under Ninth Circuit precedent What “artistic relevance” means and why that prong was easily met here Why “use of the mark alone” was not enough to show the use was explicitly misleading How this ruling fits into the broader post Jack Daniel’s landscape, including recent Ninth Circuit developments Tune in for a clear look at where trademark law meets tour merchandising and First Amendment protections.

The Ninth Circuit kicked off 2026 with a major copyright decision in the long-running Top Gun dispute, affirming summary judgment for Paramount in the lawsuit over Top Gun: Maverick. In this episode of The Briefing, Weintraub Tobin shareholders Scott Hervey and Tara Sattler break down the Ninth Circuit’s reasoning and why it matters for studios, writers, and anyone adapting real-world stories.   In this episode, they cover: The background of the claim tied to the 1983 magazine article “Top Guns” How the Ninth Circuit applied the extrinsic and intrinsic tests for substantial similarity Why historical facts and real events remain free for all to use, even when dramatic The court’s focus on “protected expression” versus unprotectable ideas, facts, and genre conventions Key takeaways for nonfiction adaptations, biopics, and projects inspired by true stories Tune in for a clear look at where copyright law draws the line between protected expression and real-world facts.

As 2025 fades into the rearview mirror, many of the entertainment and media industry’s biggest legal questions remain unresolved. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler take a forward-looking approach to the cases and doctrines that could shape 2026.   In this episode, they cover: The unsettled future of fair use in AI training and copyright infringement How courts are approaching lawful versus unlawful acquisition of training data The growing split in AI cases involving market substitution and fair use The narrowing application of the Rogers Test following the Jack Daniel’s decision What pending cases could mean for filmmakers, studios, and content creators Tune in for a clear look at the legal issues that could define entertainment and media in 2026.

Your intellectual property is one of your company’s most valuable assets. Are you keeping track of it? In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Tara Sattler walk through why an IP checkup is a smart way to kick off the year and how businesses can safeguard their intellectual property assets. In this episode, they cover: Why regular IP audits matter for growing businesses How to track and manage trademarks, copyrights, and patents Common gaps companies overlook in their IP portfolios – Practical steps to protect and strengthen your IP strategy Tune in for a practical guide to protecting the ideas and assets that drive your business forward.

In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down The New York Times v. Perplexity AI, a lawsuit that goes beyond copyright and into largely untested trademark territory. They discuss the Times’ allegations that Perplexity copied its journalism at both the input and output stages and, more significantly, that the AI attributed fabricated or inaccurate content to the Times using its trademarks. The case raises new questions about false designation of origin, trademark dilution, and how AI hallucinations could expose platforms to liability. In this episode, they cover: Alleged large-scale scraping and output copying of Times content How RAG systems complicate traditional copyright defenses The novel use of trademark law to challenge AI hallucinations False designation of origin and dilution by tarnishment claims What this lawsuit could mean for AI companies that cite or brand sources Tune in for a clear look at where trademark law meets AI-generated misinformation.

Get into the holiday spirit with a look at some of the most unique Christmas patents ever filed. From Santa detectors to upside-down Christmas trees, Scott Hervey and Jamie Lincenberg explore festive inventions that add a little extra cheer to the season on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.

The Terrifier franchise is one of the most unlikely independent horror success stories of the last 25 years. But a new lawsuit challenges how the first film was made and raises serious questions about performer consent and on-set protections. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Matt Sugarman break down actress Catherine Corcoran’s lawsuit against the film’s producers and what it reveals about SAG-AFTRA requirements for nudity and simulated sex scenes. In this episode, they cover: What a SAG nudity rider is and why it is legally required How consent must be disclosed, documented, and respected on set Why filming nudity without a signed rider can be deemed nonconsensual The risks producers face when still images or footage are reused without permission How intimacy coordinators and detailed riders protect both performers and productions This case is a reminder that nudity riders are not a formality. They are a core safeguard in film and television production. Tune in here for a clear look at how SAG protections, performer consent, and production liability intersect.  

Did Coca-Cola cross the line by using a Johnny Cash soundalike in its nationwide “Fan Work is Thirsty Work” campaign? In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Richard Buckley unpack the Cash estate’s lawsuit and what it reveals about the evolving law of soundalikes. In this episode, they cover: How Tennessee’s new Elvis Act expands protection for voices and vocal imitation Why the Cash estate is also asserting a Lanham Act false endorsement claim How Midler v. Ford and Waits v. Frito-Lay continue to shape soundalike disputes The line between imitating a musical “style” and misappropriating a distinctive voice What brands and agencies should consider before using tribute artists or AI vocals Tune in here for a clear look at where right of publicity, soundalike law, and advertising practice collide.

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.

Who really owns your Thanksgiving traditions? In this special holiday edition of The Briefing, Weintraub Tobin partners Scott Hervey and Richard Buckley discuss how intellectual property law intersects with holiday food, recipes, and branding. They explore: Why recipes usually aren’t protected by copyright The surprising trademarks behind holiday favorites like Turducken and Tofurky How brands use trademarks, trade dress, and storytelling to own a piece of the Thanksgiving season The rise of “Friendsgiving” as both a cultural phenomenon and a branding challenge Whether you’re a lawyer, brand owner, or marketing professional, this episode offers valuable insight into how IP shapes the way we celebrate and sell the holidays.

In this episode of The Briefing, Scott Hervey and Richard Buckley break down Campbell Soup Co. v. Campbell for Congress, the lawsuit over a political candidate’s “Soup4Change” slogan and AI-generated soup can design. They cover the backstory, the trademark and First Amendment arguments, and how the Hershey case may influence the court’s view of political campaign branding. Tune in for a clear look at where trademark law meets political speech. Watch this episode on YouTube.

After losing its anti-SLAPP motion, Warner Bros. has appealed in Roadrunner JMTC LLC v. Warner Bros. Television, the lawsuit brought by Michael Crichton’s estate claiming the new series The Pitt is an unauthorized derivative of ER. In this episode of The Briefing, Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss: The background behind the ER “freeze clause” Warner Bros.’ First Amendment arguments under California’s anti-SLAPP statute The battle over what “derivative work” really means How the trial court handled the Katz declaration The broader implications for creative freedom and legacy IP Watch this episode on YouTube.

When artistic identity meets corporate branding, where does copyright law draw the line?   In a new episode of The Briefing, Scott Hervey and Richard Buckley discuss the lawsuit filed by artist Tyrrell Winston against the New Orleans Pelicans. Winston—whose distinctive sculptures of deflated basketballs arranged in grids have been exhibited worldwide and licensed by brands like Nike, Adidas, and even NBA teams—claims the Pelicans copied his signature style in a social media campaign. His lawsuit raises a major question for artists, brands, and IP lawyers alike: Can a distinctive artistic style be protected under copyright law? The conversation compares Winston’s claim to the “vibe copyright” case (Sydney Nicole v. Alyssa Sheil) and examines whether courts are expanding protection from expression into concepts and aesthetics. Watch this episode on YouTube.

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, so the court applied the DOS factors. That’s a six-part test used to assess whether an image is sexually suggestive. Those factors look at things like whether the child’s pose is sexually suggestive, whether the photographer intended to elicit a sexual response. Here, the court said, obvious, that the photograph is not sexually suggestive. It depicts a baby swimming underwater with no sexualized focus or context. James: That’s right, Scott. The judge went even further, emphasizing that there was no evidence of sexual intent by anyone involved with the album cover. The judge wrote, The undisputed evidence establishes that the creative team intended the image to convey a critique of capitalism, not to sexualize or exploit the child. Scott: The court recognized that the concept behind the image was artistic, not sexual. The court noted that photographer, Kurt Weddell, testified that the shoot was done in a single session at a local pool, and that there was no direction to the baby, meaning that Eldon wasn’t posed or otherwise manipulated. James: Exactly, Scott. The designer, Robert Fischer, who created the album artwork, testified that the goal was to comment on how people are chasing money from birth. The court cited that testimony and wrote, The image was designed to be a satirical commentary on the pursuit of wealth, the baby reaching for the dollar, not to elicit any sexual thought. The court concluded that the artistic and social commentary intent was clear and undisputed, and that in context, the image was wholly inconsistent with a notion of sexual exploitation. Scott: I want to talk a bit about Eldon’s claims that the continued and widespread use of the album and the album cover caused him emotional harm. My opinion, and this is just my opinion, some of the evidence introduced by Nirvana tends to show that this was really an attempted money grab by Eldon, which I think is so ironic given the artistic intent of the album, the album cover. I want to make it clear, again, this is my personal opinion based on the district court’s factual findings and its analysis of the record. While they did not specifically say that Eldon brought the suit solely for monetary gain. The evidence discussed in the order strongly suggested that the suit was motivated by financial or publicity interest rather than genuine claims of exploitation or injury. James: Yes, Scott. The majority of this evidence is discussed in the context of rejecting Elden’s claim that the widespread use of the cover had caused him emotional distress or how his own conduct undermined his claim. Scott: All right. I mean, the court, in its order, it covered the fact that Elden had repeatedly and publicly celebrated his association with the never mind album cover for years before filing the lawsuit. He recreated the photo for various anniversaries of the album, and sometimes did that for paid photoshoots. Again, I’m going to point out the irony here. He also gave numerous media interviews over the years where he expressed pride in being the Nirvana Baby. Also relevant was the fact that the album had been around for 30 years before Elden began to complain of his emotional injuries. James: Yeah, and the court noted that these voluntary and enthusiastic reenactments undermine any claim of long-term psychological injury or exploitation, and instead showed that Elden benefited from and sought to profit from the notoriety of that album image. Scott: Yeah, the order specifically pointed out that Elden derived publicity and potential financial benefit from his identity as the Never mind Baby. This was completely inconsistent with a genuine victim narrative. In the order, the district Court points out that Elden even tattooed the album’s name across his chest. I mean, come on. James: Yeah. So even giving Elden the benefit of the Ninth Circuit Statute of Limitations Ruling, his case still fails on the merits. The court closed with a clear statement that the album cover is an artistic image globally recognized for its social commentary, not for sexual content. And with that, the court granted summary judgment for Nirvana and dismissed the case in full. Scott: Right. So after all these years, Elden versus Nirvana has come to an end. I mean, at least for now, Elden could appeal, but I don’t know. I think the chips are pretty much stacked against him, given his past conduct. James: Well, for what it’s worth, Scott, Eldon’s attorneys have told Rolling Stone magazine that they would likely appeal the ruling back to the Ninth Circuit. We may have to do another one of these episodes in the future. However, this ruling underscores that context and intent are critical when evaluating allegations of sexual exploitation in visual art. Artistic nudity, even in involving a minor, doesn’t automatically amount to child pornography. The court looked carefully at what the image was meant to express and concluded that it was a critique of commercialism, not a depiction of sexual conduct. Scott: Right. But I’m sure you would agree with me, James, in this. Let’s be clear, I don’t think this was a good idea from the outset. I understand the artistic intent behind the photo, but this isn’t the Italian Renaissance, right? I mean, maybe in the ’90s, it was a bit more relaxed, but there was way too much risk of a legal blowback here. The artistic intent could have just as easily been conveyed if the baby was wearing a diaper. I don’t know. I think a word of caution here to all of our creatives and rock bands looking to find the next version of the Never mind album cover. Let’s avoid naked babies, eh? James: Yeah, I agree, Scott. I’m not sure how that album cover would fly in today’s environment. Scott: Well, James, thanks for joining me today. Always great to have you. And thank you to our listeners for joining us on the briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Please leave us a comment or a review and let us know what topics you would like us to cover in future episodes. I’m Scott Herbie. I’ll see you next time on The Briefing.

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. I tried to find out more about that band, but when you search Chrome Hearts Band, all you get is references to Neil Young’s new band.   James: Neil Young launched this new band, Neil Young and the Chrome Hearts, last year in 2024. They played shows in New York, branded the outing as the Chrome Hearts Tour, and then released new music earlier this year, including a full studio album this past June. The complaint highlights that they were selling T-shirts and other merchandise, prominently using the Chrome Hearts name as part of that tour.   Scott:  If I had to guess, I would say that’s really the spark. Touring under a band name might have been acceptable, especially since it’s Neil Young and the Chrome Hearts. But I think once Young started selling merchandise, shirts, hoodies, and other items bearing Neil Young and the Chrome Hearts, that’s probably what caused Chrome Hearts to file its lawsuit. According to the complaint, vendors and fans, allegedly, have assumed there’s a collaboration between Young and the Chrome Hearts. That’s exactly the consumer confusion trademark law is designed to prevent.   James:  Yeah, and this isn’t the first time we’ve seen a conflict between a fashion brand and a musical tour.   Scott:  That’s right. Earlier this year, you and I covered the Lady Gaga mayhem case. In that one, the surf and lifestyle brand, Lost International, claimed that Lady Gaga’s use of mayhem as her tour and album title and on her merch conflicted with their registered trademark for clothing.   James: Exactly. Lost had been using mayhem since the late 1980s and owned a federal trademark registration that also covered apparel. Their argument was that Lady Gaga’s tour merchandise created a likelihood of confusion with their surfwear products.   Scott:  That case really highlighted the importance or risk of overlap. Even though Lady Gaga wasn’t in the surf industry, both sides were selling clothing. The court was going to analyze this overlap, the potential of trademark infringement, through the Sleekcraft factors.   James:  Right. That’s the same framework that the court would apply here. Let’s get into it. In trademark law, the core issue is whether there’s a likelihood of confusion. Courts will apply some version of the Sleekcraft factors in determining whether there is a likelihood of confusion with regard to the infringement complaint.   Scott:  Right. So let’s walk through them and let’s make a determination whether they would support Chrome Hearts or Neil Young. Now, obviously, we’re making these calls extremely early in the case before Young has even answered the complaint and before discovery. But I don’t know. I think we know enough about trademark law. Maybe there’s enough facts just from the complaint where we can see where this is going. All right. So just a quick recap. In California, courts analyzing a trademark infringement claim, they’re going to look at the Sleekcraft factors, which are the following: the strength of the plaintiff’s mark, the similarity of the marks at issue, the similarity or the relatedness of the goods covered by of those marks, the similarity of the marketing channels for those goods, both the plaintiffs and the defendants, the degree of care likely to be exercised by the consumer of those goods, whether it’s a sophisticated consumer or not, evidence of actual confusion, the defendant’s intent in selecting the marks, and likelihood of expansion of the product lines.   James:  Scott, let’s start at the top, the strength of Chrome Heart’s mark.   Scott:  All right. Okay, good call. I think Chrome Heart’s Mark is strong. It’s been around for decades, has incontestable registrations, and is pretty widely recognized in both fashion and music circles. Now, the registration provides them with certain presumptions of ownership and certain presumptions of the right to use the mark nationwide, and that mark is distinctive. I think this factor strongly favors Chrome Heart.   James:  Okay, but I’m not sure the next factor favors Chrome Hearts, and that’s a similarity of the marks. Here, Neil Young is using Chrome Hearts as part of his mark, but as his band name, Neil Young and the Chrome Hearts, and his tour name is the Chrome Hearts Tour. So the marks appear to be different in appearance, sound, and meaning. I think this factor may end up favoring Neil Young.   Scott:  I’m having flashbacks of our Lady Gaga conversation. I think I have to agree with you partially. I think the primary focus of Neil Young and the Chrome Hearts is Neil Young. I agree with you there that favors Neil Young. However, the Chrome Hearts Tour is very different. I think that one is more similar than dissimilar to Chrome Hearts, Mark.   James:  Okay, so let’s discuss the relatedness of the goods and services factor. Both parties are offering clothing and live music-related entertainment; it would be hard to see how this factor could not favor Chrome Hearts here.   Scott:  I think I agree, James. However, even though those goods are the same, I think the marketing channels factor show some significant differences in the nature of those goods. So this factor examines how and where the prospective goods or services are advertised and sold. Now, Chrome Hearts markets its products online and in high-end stores. Not quite sure where the Chrome Heart band performs, but I’m going to assume that it’s not in the same type of venues or has the same ticket prices as Neil Young. Now, as for Young’s merch, I couldn’t find any website that sells it. I note that there isn’t a dedicated website for Neil Young and Chrome Hearts. It’s my guess that the tour merch is sold only at tour venues. Now, yes, the Chrome Hearts tour is promoted online. However, courts do not treat the internet as a single undifferentiated channel. When they look at how and where on the internet the goods or services are sold and marketed, and to whom. I think it’s to whom where Chrome Hearts may have issues. I think it’s fair to assume that there’s not really going to be a significant an overlap between consumers of Chrome Hearts clothing and fans of Neil Young.  I’m sure we’re going to see evidence of that introduced in this case.   James: Yeah, I agree on that point. Let’s look at the evidence of actual confusion. The complaint points to vendors and consumers who believe there may be some connection between Neil Young and Chrome Heart, the fashion brand. This factor tends to be a fairly significant one in these types of cases.   Scott:  Right, it does. But I think just looking at the complaint itself, I think I’d have to call this one neutral since we really need to see more facts. If this is just one or two vendors, then I would probably call it a fluke and not convincing. However, if it were a significant number of consumers and vendors, well, that’s different.   James:  Right. Usually, you would see some survey or opinion of experts on that issue. Let’s talk about the defendant’s intent in adopting this mark. This factor considers whether the defendant adopted the mark with the intention of trading on the plaintiff’s goodwill. The complaint alleges that Neil Young was on constructive notice of Chrome Hearts trademark and was on actual notice based on a cease and desist letter that was sent in July 2025.   Scott:  Right. Now, I would assume that Young’s team ran a trademark search before coming up with the band and tour name and if they did, they would certainly have seen the Chrome Hearts trademarks. However, Young’s team may very well have concluded that there isn’t any likelihood of confusion between the two marks.   James:  Okay. Scott, where How did you come out on this? What’s your early assessment of this case?   Scott:  Okay. After I give you mine, you have to give me yours. I think that Chrome Hearts may have a very tough time with preventing the use of Neil Young and the Chrome Hearts. I think this mark is different enough, and the use of Neil Young as the primary focus of that mark pushes it over the top. Plus, the fact that the band and tour merch is sold only at concert venues, I assume that is going to be proven out. I think that really seals the deal. Now, the use of Chrome Hearts’ tour may be different, but in doing my research, I didn’t see any merch using Chrome Hearts Tour. The images included in the complaint, the images of the concert T-shirts, they call the tour, the merch has the tour labeled as the Love Earth Tour. I think we’ll have to wait and see what discovery uncovers with regard to the Chrome Hearts tour. What’s your take?   James:  I largely agree with that, Scott. I think in a lot of these cases, it’s going to come down to battling experts over the likelihood of actual confusion, where you’re going to have surveys to show how consumers may or may not have been confused between the two marks. I think you had mentioned earlier that it’s hard to see how a fan of Neil Young and a patron of Chrome Heart’s luxury brands is going to be much overlap or confusion.   Scott:  Right. I agree. It’ll be interesting to follow up and see if our call, which I think both of us are calling a high chance of success for Neil Young in defending the case, at least with regard to Neil Young and the Chrome Heart.   James:  Right. So, Scott, what’s the lesson here? First, musicians need to recognize that merchandise isn’t just an afterthought. It’s often where the money is made, and it’s where trademark issues frequently arise.   Scott:  Right. And let’s remember that courts wide authority to issue injunctions. If a case doesn’t settle, the agreed party may push hard to stop any further use of the name in connection with the concert and merch. That could be a significant issue for a touring band.   James:  I agree. Scott, what are some of your recommendations for young bands or artists out there?   Scott:  Yeah, good question, James. Okay, there are a few. So first, do a trademark search. Before naming a band or a tour, have a concert run a search to spot conflicts. And if you’re running the search, make sure that you also look at traditional band and tour merch, T-shirts, posters, coffee cups, etc. Avoid famous or established marks. If a name already has significant goodwill in fashion, entertainment, or consumer goods, I would steer clear of that. Consider licensing or collaboration. If you’re set on a name that overlaps with an existing brand, explore a licensing deal. Chrome Hearts has done collaborations before. They’re not a stranger to music tie-ins. I would suggest, though, before you reach out to an existing brand about a potential deal, get counsel from a lawyer experienced in this space. It could be like waving a red cape in front of an angry bull. So just be careful. And then lastly, think beyond music. Remember that trademark rights often extend to merchandise, live events, and online promotions. If your band name touches on those areas, you need clearance.   James:  One more thing, don’t forget to protect your brand. Once you’ve picked a name, consider registering it as a trademark yourself. This will likely give you stronger rights and may deter disputes down the road.   Scott:  That’s a great point, James. Thank you to our listeners for joining us on The Briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Leave us a comment or review and let us know what topics you’d like us to cover in future episodes. I’m Scott Hervey. See you next time on The Briefing.

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 destroyed the physical copies and only kept one digital version for internal use, that passed muster as fair use. Matt: Scott, the judge even went out of his way to say that this use was more transformative than in Texaco. Google Books and Sony Betamax, and clearly different from the Napster case. Scott: Right, clearly different from the Napster case. That brings us to the third use, which was pirating books and retaining those pirated books. Matt: Correct, Scott. That’s where Anthropic went off the rails. They downloaded millions of books from pirate sites, and they stored them, even when a lot of them weren’t used for trading at all. Scott: The kicker, internal emails show that the founder and other executives really knew of the risk, and they were quite cavalier about this, but they decided that essentially, piracy was easier than licensing. Matt: Yep. And the court said no. This was not transformative. It undercut the market, and it was full verbatim copy. The bottom line, fair use didn’t apply. Scott: So this brings us to the fallout. So just last week, Anthropic agreed to settle the author’s claims for $1. 5 billion. Matt: That sounds like a lot, but when you break it down, Scott, that’s only about $3,000 per copyrighted work. Scott: True, but it doesn’t really stop at $1.5 billion. That $1.5 billion is only floor. Once the lawyers finalize the class list, Anthropic may owe another $3,000 for every infringing work over the first $500,000. Plus, they have to destroy all of the pirated data sets. Matt: That’s right. But the settlement still needs court approval. There are a lot of logistical pieces, class certification, claims processing, notification, but the number is already quite staggering. Scott: I agree. That number is quite big. Here’s a bigger picture. This case doesn’t really line up with Codre versus Metta, which we covered previously. In Codre, the judge rejected the whole AI learn like a student analogy, saying the risk of competitive harm was way too high. Matt: Right. And that shows how different courts are approaching this. Judge Alsup zeroed in on the market harm and intent. In Cadegny, however, the plaintiffs They didn’t just have enough facts. But future plaintiffs could succeed, especially if they can prove market harm, even when the works aren’t pirated, but if they’re legally purchased. Scott: And we’re already seeing this play out. Apple was sued on September fifth for copyright infringement over AI training data sets. The complaint alleges unlicensed and pirated books, and it leans hard into the market harm argument that Apple’s output could replace place the very works authors are paid to write. Matt: The takeaway, Scott, building data sets from pirated material is at least a billion and a half dollar mistake, if not more. This case gives authors and their lawyers a clear roadmap for future claims. Scott: It certainly does, Matt. So, thanks again to my co-host, Matt Sugarman. Matt, always great to have your insights. And thank you to our listeners for joining us on the briefing. If you found this episode helpful or interesting, please take a moment to subscribe, like, and share it with your network. We’d also love to hear from you. Leave us a comment or a review, and let us know what topics you’d like us to cover in future episodes. I’m Scott Hervey. See you next time on the briefing.