Matthew Hersh
Copyright lawyer, writer, traveler, 1970s brit-punk enthusiast
NEW>>CHECK OUT MY PROFILE PAGE ON THE WEBSITE OF MESTAZ LAW, A FAST-GROWING PHOENIX-BASED COPYRIGHT AND COMMERCIAL LITIGATION PRACTICE
FEATURED RECENT WRITINGS
Aug 15, 2022: I wrote this amicus brief on behalf of photography expert Jeff Sedlik in the Supreme Court case of Warhol v. Goldsmith.
SELECTED CLIPS FROM THE IP LAW DAILY
Okolita v. Amazon.com, 7/28/23
A seamstress’s feathered costumes are for the children, but much of her complaint is for the birds
Flo & Eddie v. Pandora Media, 7/25/23
Slow and steady doesn’t win the race for these Turtles
Daiichi Sankyo v. Vidal, 7/11/23
Court rejects ‘Apple-to-AstraZeneca’ comparison when it comes to agency patent review
Too late to amend a copyright registration while litigation was already pending
Not laughing now: Sarah Silverman takes on ChatGPT in new lawsuit
In re: Determination of Rates and Terms for Making and Distributing Phonorecords, 6/22/23
From the ‘not a typo’ department: Copyright Royalty Board finalizes mechanical license rates for the years 2018-2022
Markham Concepts v. Hasbro, 6/22/23
A lesson from the The Game of Life: Everybody pays for their own attorney
State Street Global Advisors Trust v. Visbal, 6/16/23
Creator of the famed ‘Fearless Girl’ statue faces down her accuser in court
Gibson Brands, Inc. v. 225 Parsons, LLC, June 13, 2023
Not blowing smoke: Gibson’s lawsuit over iconic Michigan smokestack survives a jurisdictional challenge
How many ways can a banana be duct-taped to a wall?
A ‘Rembrandt of Snow’ will have to prove ownership and artistry
Pearson Education v. Chegg, 6/2/23
Are the answers derivative of the questions? A discovery dispute might provide a clue
In re: Palacio Del Rio, 5/25/23
A River Walk hotel may be pretty, but its design is not unique
Souza v. Exotic Island Enterprises, 5/19/23
A model’s recognizability is all that matters when evaluating the strength of her mark
Athos Overseas Limited Corp. v. Youtube, 5/16/23
Notice and ‘take-down’ prevails over notice and ‘stay-down’
Warner Chappel v. Sherman Nealy, 5/3/23
Supreme Court is asked to resolve ‘an entrenched conflict’ over the copyright statute of limitations
The ability to withdraw a ‘carrot’ does not create the ‘stick’ of right to supervise
In re: Vetements Group AG, 4/21/23
Would consumers make a French connection? TTAB says yes
H&M Hennes & Mauritz v. Unicolors, 4/17/23
Is knowledge of legal and factual inaccuracies in a copyright registration the same as an intent to defraud?
Prepared Food Photos v. DelVecchio Pizza, 4/18/23
Stolen scenes from an Italian restaurant might get chain owner in trouble
Mercedes-Benz Group v. Lenovo , 4/18/23
Stars align? Mercedes claims that Lenovo’s three-pointed star logo is confusingly similar to its own
PalatiumCare v. Notify, 4/13/23
One percent solution: A tiny amount of borrowed source code might be enough to constitute a derivative work
Store Chain v. Gilbert, 4/12/23
Missouri court has Zippo jurisdiction over Florida resident based on a single online sale
Sony Music Entertainment Espana v. Moody, 4/10/23
Not in my House: Legend of the Chicago sound is hit with infringement lawsuit
Group registrants, beware: Use of a convenient Copyright Office procedure might limit the scope of statutory damages
Pie Development v. Pie Insurance Holdings, 3/30/23
NDA drafters beware: An agreement signed by a parent alone might not protect the subsidiary’s trade secrets
Richardson v. Kharbouch, 3/30/23
French connection: aspiring producer can’t bridge the gaps in lawsuit against popular rapper
If a photograph imitates reality, and reality is wearing a pin-up girl design on her trousers, whose art wins?
Cook v. Maximus International Specialists, 3/23/23
Defendant’s name is Maximus, but Plaintiff has her revenge
Tip your server: Dow Jones has domestic cloud servers to thank for its lawsuit against a Chinese company
Rios v. MicMac Records, 3/14/23
‘Artful pleadings’ cannot avoid a copyright claim, a court reminds litigators
Creative Photographers v. Julie Torres Art 3/13/23
Does an exclusive right to grant an exclusive license amount to an exclusive right under the Copyright Act?
Topalsson GmbH v. Bayerische Motoren Werke AG, 3/10/23
Did a luxury carmaker roll one of its suppliers?
Earth Wind & Fire IP v. Substantial Music Group, 3/6/23
Not your father’s Earth Wind & Fire: Complaint takes aim at so-styled ‘legacy’ band
Blame it on Remo: Mark is too much like a surname to be registered
Will the real SHADY please stand up?
Oppenheimer v. Prutton, 2/28/23
A serial litigator is first past the post at the Copyright Claims Board
SAG-AFTRA v. LABC Productions, 2/24/23
Unhappy union: SAG-AFTRA loses DMCA claim against AT&T
In re: Zarya of the Dawn 2/21/23
Artificial intelligence can’t outwit Copyright Office
Band of brothers: A legal battle between Don and Phil Everly draws closer to an end
Nolan v. Universal Music Group, 2/9/23
Mr. Nolan if you’re nasty: Songwriter alleges illegal sampling of his 1970s composition
Hermès International v. Rothschild, 2/2/23
It’s not just a bag, it’s a lawsuit: Battle between Hermès and an alleged NFT knockoff goes to the jury
Teichert v. Church of Jesus Christ of Latter-Day Saints, 2/1/23
Church of the Latter-Day Saints confronts a modern-day legal problem
Waite v. UMG Recordings, 1/27/23
Fender Bender: GM clashes with an auto parts dealer, but comes away without a scratch
Wilson Sporting Goods v. Dahlander, 1/26/23
The mighty SLUGGER has struck out
Rick Astley v. Matthew Hauri et. al, 1/26/23
Was Rick Astley rolled by a soundalike?
LKQ Corp. v. GM Global Technology Operations, 1/20/23
Class dismissed: Recording artists must proceed individually in termination cases against their labels
Ahal Al-Sara Group for Trading v. American Flash, 1/23/23
Arabian rights: Cancellation petition filed in Saudi Arabia does not open the door for counter-petition in United States
BMG Rights Management v. MGA Entertainment, 1/19/23
My Humps, My Poops and a ‘slime surprise’
LKQ v. GM Global Technology Operations, 1/20/23
Fender Bender: GM clashes with an auto parts dealer, but comes away without a scratch
Andersen v. Stability AI, 1/13/23
Man versus machine: Artists take on AI-created images
Adlife Marketing & Communications v. Karns Prime and Fancy Food, 1/13/23
A disbarred lawyer continues to haunt his prior clients
Who’s your daddy: Jamaican dancehall legends take on Daddy Yankee and dozens of other reggaeton stars
Vient v. Highlands News-Sun, 1/5/23
No second act for a frequent litigant in Florida
Bobby Goldstein Productions v. E.W. Scripps, 12/14/22
Don’t cheat a cheater: ION Network accused of improperly rebroadcasting an infidelity-themed show
Tesla v. Wayne Enterprises, 12/8/22
‘S3XY Models’ website has no sex appeal for Tesla, a new complaint asserts
Northeast Supreme v. Northeast Angels, 12/2/22
Boys against girls: Softball league is enjoined from using a baseball training facility’s marks
Nkanginieme v. Appleton, 11/28/22
LOVETTE or leave it in place? Board denies reconsideration over opposition to registration
Getty Images v. Car Culture, 11/14/22
Stay in your lane: Getty can’t force classic car photographer into arbitration proceedings
Punchbowl v. AJ Press, 11/14/22
Who spiked the punch? Punchbowl News did not infringe event planning company’s ‘Punchbowl’ mark
Teva-Lilly battle over migraine medication creates a headache of its own for the court
Structured Asset Sales v. Sheeran, 9/29/22
Let’s get it on: Marvin Gaye--Ed Sheeran clash edges closer to trial
The thong remains the same? Sandal-maker accuses competitor of copying its marks
‘Prodigal Son’ was illicit offspring of popular series of novels, a new complaint asserts
Does an NBA video game ‘transform’ a player’s tattoo? A jury will have to decide
Polaris Innovations v. Brent, 9/15/22
Questions over “vacatur of vacatur” procedure once again rear their head
Shake Shack v. Brand Design Company, 9/9/22
Shake Shack Shakedown? Venerable burger chain pushes back over typeface dispute
Saber Interactive v. Oovee, 8/30/22
Lawsuit brings together two video games, the First Amendment, and a 1960s Soviet tractor
Lopez v. Pandora Media, 8/23/22
Pandora’s royalty policies are no joke to comedian George Lopez
Lee v. Anthony Lawrence Collection, 8/24/22
Fight song of historic black university can’t be the subject of an infringement suit
In hit show Better Call Saul, art imitates reality, and reality bites back
Estate of Henry Joseph Darger v. Lerner, 7/27/22
A long-running dispute over the legacy of a famously reclusive artist reaches the federal courts
After eight-year saga, copyright owner manages to land an alleged Vietnamese infringer in U.S. courts
A sharp circuit split emerges over discovery rule damages lookback
Pyrotechnics Management v. XFX, 6/29/22
Digital messages to ignite pyrotechnics system lacked ‘even a spark of creativity’
iLicensing 1.0: Lawsuit over scope of text message license survives early challenge
Dramatic Publishing v. Carter, 6/17/22
Dispute over To Kill a Mockingbird stage rights sent back to arbitration
Writer’s heirs have no loving feeling for Top Gun remake
Champlin v. Music Sales Corp., 5/31/22
Writer of ‘After the Love Has Gone’ finds no love lost with his publisher
Goldstein Productions v. Habeeb, 5/24/22
‘Cheaters’ may prosper, but they cannot compel arbitration
Harrington v. 360 ABQ, 5/19/22
Trolling the troll: A rare defense of copyright misuse moves forward
First Amendment applies to digital tokens for ‘fur-covered Birkin handbag’
Sketchworks v. Jacobs, 5/12/22
Sendup of ‘misogynistic features’ of the musical ‘Grease’ is protected as parody
Keatley v. The Escape Game, 5/5/22
Maker of ‘The Escape Game’ wriggles free of attorney fees
Acuti v. Authentic Brands, 5/4/22
A happenstance signature on a document does not create a copyright termination right
United King Film Distribution v. Does, 4/26/22
An injunction targeting the operators of infringing websites may test the outer boundaries of judicial power
Wise Man Brewing v. Three Bridges Distillery, 4/22/22
A bridge too far: No protection for brewery named after notable local landmarks
Pop star John Waite, along with other recording artists of the past, seek to reclaim lost rights
Legendary test pilot’s personal jurisdiction argument won’t fly
Texas Lottery Commission v. Ansari, 4/18/22
One step back: Texas lottery fails to block registration of another ‘Texas Two Step’ mark
Sunlighten v. Finnmark, 3/31/22
A sauna’s appearance on ‘Dr. Oz’ winds up invalidating its patents
Hanagami v. Epic Games, 3/29/22
How long (has this been going on): Lawsuit contends Fortnite Battle Royale infringes well-known “How Long” dance choreography
Another California slapdown: San Diego company proves a competitor willfully infringed even without specific knowledge of each purloined patent
No such thing as a ‘publisher infringement’ claim, a puzzled court finds
No deposit, no returns: Failure to deposit a song with the Copyright Office precludes royalty lawsuit
A ‘House of Eternal Return’ pays only short-term dividends, an artist contends
Wolman Archives v. Complex Media, 2/22/22
Arise and bear witness: Notorious attorney, now disbarred from practice, can still provide testimony in support of former client
Dellamorte v. The Michaels Companies, 1/27/22
Vampire Diaries (global edition): Sale of a “vampire bat” mug on Amazon and other global platforms held sufficient to support claim of access in China
Home free: Zillow escapes major damages in copyright lawsuit over its Digs platform
A mention on Jeopardy! bolsters the fame of the GARANIMALS mark
Beata Music v. Danelli, 1/6/22
Good Lovin’ (Gone Bad): Former member of The Rascals fails in bid to assert rights in band name
Miami rapper draws the short stack over a meeting at the IHOP
In Re DMCA Subpoena to Twitter, 12/29/21
Photos of a billionaire’s ‘hot young girlfriend’ lead to the unmasking of an anonymous Twitter user
Solid 21 v. Breitling , 12/10/21
Red Gold and Green: Maker of six-figure celebrity watch is denied a trial on trademark claim
Broecker v. Widows Sons, 11/15/21
Masonic motorcycle organization casts the first stone, wins round one in lawsuit against fellow biker group
ESI Group v. Wave Six, LLC, 11/9/21
Can you hear me now? Lawsuit for theft of acoustic modeling technology gets the go-ahead for trial
VPR Brands, LP v. HQDTech USA LLC, 10/28/21
Sometimes a cigarette is just a cigarette: Complaint’s reference to “electronic cigarettes” held enough to put defendant on notice of infringement claim
Horror Inc. v. Miller, 9/30/21
Return of Jason: Screenplay for Friday the 13th goes back to its original author
Lubby Holdings LLC v. Chung, 9/21/21
Don’t get high on your own supply: Vaping company overreached in demand for infringement damages
Shepard v. Wo Hop City, Inc., 9/20/21
How to restrain your dragon: Artists win infringement case against legendary Chinatown restaurant
La Michoacana Natural, LLC v. Maestre, 9/7/21
Michoacana’s revenge: Infringement lawsuit over a popular style of Mexican ice cream boomerangs on its filer