What Is Fair Use and Why Does It Matter? (Featured)

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.