The Briefing by Weintraub Tobin

Can a car be a copyrightable character? In Carroll Shelby Licensing v. Halicki, the Ninth Circuit said no — ruling that “Eleanor,” the iconic Mustang from 'Gone in 60 Seconds,' lacks the distinctiveness and consistency required for copyright protection. In this episode of The Briefing, Scott Hervey and Richard Buckley break down the history of the Eleanor litigation, review the district court and Ninth Circuit rulings, and explain what it actually takes for a character to qualify for copyright protection. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Can a car be a character? Well, that's the question at the heart of a long-running legal dispute over Eleanor, the muscle car made famous in the movie Gone in 60 Seconds. For years, the heirs of the original film's producer claimed Eleanor was a protectable copyright character, and they tried to stop others, including Carroll Shelby licensing, from building or selling versions of that car. But the Ninth Circuit has now weighed in and has definitive shut that claim down. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Richard Buckley. We're going to talk about Carroll Shelby Licensing versus Halicki and what it takes for a character to receive copyright protection on today's installment of The Briefing. Richard, welcome to The Briefing. This is a first for you. So, welcome. Richard: Thank you for having me. It's a pleasure. Scott: Absolutely. Richard is one of our litigators, so that means we keep him in the back of the firm and chained up, feed him raw meat every once in a while, just to So not often enough. Keep him ready to battle. All right. This is right up your alley, a piece of long-running litigation with steadfast defendants and steadfast plaintiffs arguing their claim all the way up to the Ninth Circuit? Richard: It's a privilege of being older and experienced, I guess. But yes. Scott: All right. Well, let's get into this one. So the saga over the car, Eleanor, has been years in the making. It began with the 1974 film, Gone in 60 Seconds, which began as an independent action film written and directed by H. B. Tobi Halicki. In that film, Yellow, 1971, Ford, Mustang Fastback named Eleanor, is the featured car in a climactic 40-minute chase scene. The film became a cult hit, and Eleanor became an underground icon. Richard: Right. In 2000, the movie, Gone in 60 Seconds, was remade by Disney and Jerry Bruckheimer, this time with Nicolas Cage behind the Wheel. Also in the remake, Eleanor is a Silver 1967 Shelby GT 500 Mustang. Very different look and different era. Still nicknamed Eleanor and still featured prominently. Scott: Halecky passed away in 1989, and his widow, Denise Halecky, later acquired certain intellectual property rights associated with the 1947 film, including the original script and footage. Denise Halecky, the widow, also began asserting that Eleanor, the car, was a protectable copyright character. Over the years, she and her company sent legal threats or sued individuals and businesses who built or sold Eleanor replicas, or what she claimed to be Eleanor replicas, including muscle car maker, Carroll Shelby, a former race car driver and car designer who was played by Matt Damon in the 2019 movie, Ford versus Ferrari. Great movie, by the way. Richard: Agreed. Those threats, Scott, culminated in the lawsuit that was filed by Carol Shelby licensing and Classic Recreations in 2020. They sought a declaratory judgment that Eleanor was not entitled to copyright protection and that Hyliki had no enforceable rights to stop them from building replicates. Scott: So this case has been winding its way through the district Court for the Central district of California and the Ninth Circuit. There have been many starts and stops and twists and turns in this case. But a summary of the proceedings is as follows. So originally,

If your company relies on online reviews, influencer partnerships, or digital marketing strategies, it's important to be aware of FTC Rules and the distinctions between real reviews and paid ads. Scott Hervey and Jessica Marlow discuss the dos and don'ts of consumer reviews on this featured episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: On August 14th, 2024, the Federal Trade Commission announced a final rule that will combat fake reviews and testimonials. All parties involved in influence or marketing or companies that have significant e-commerce businesses need to know about these rules, what they prohibit, and the consequences for violating them. Joining me to break down these new rules is fellow Weintraub partner Jessica Marlow on today’s installment of The Briefing. Jessica, welcome back to The Briefing. It’s been a while. Jessica: It has. Thank you for having me. Scott: Good to have you back. We’re talking about one of your favorite topics, influencer marketing. Jessica: Absolutely. FTC, they’re coming up with new rules all the time, so I’m excited to dig in. Scott: Yeah. Well, so let’s start out with a rule that I think a number of online brands, companies that have significant online businesses, will find maybe problematic. So the FTC says that it’s an unfair or deceptive act or practice and a violation for a business to provide compensation or other incentives in exchange for the writing or creation of consumer reviews expressing a particular sentiment, whether negative or positive, regarding a product, service, or business that is the subject of the review. In other words, no pay-to-play for consumer reviews. Now, according to the FTC notes, this section doesn’t address testimonials such as a blogger or an influencer paid review. This section only applies to consumer reviews. Also, the FTC pointed out that this section doesn’t prohibit paid or incentivized consumer reviews, only those where the compensation is provided in exchange for expressing a specific sentiment. Jessica: What about a campaign where a brand solicits positive feedback on a product in exchange for a discount on a future purchase? Something like, Tell us how much you loved our product, and we’ll give you 10% off your next purchase. Scott: The FTC that just because a business expects a review to be positive doesn’t mean that there is an express or an implied requirement that the review needs to be positive to obtain an incentive. The condition that the review needs to be of a particular sentiment in exchange for the incentive, it needs to be expressed or implied by the circumstances. However, let’s be clear that review gating, where a business only asks for positive reviews for customers while filtering out negative views, is itself illegal. Jessica: The rule also says that companies are prohibited from creating, writing, or selling fake reviews or testimonials. This would prohibit reviews attributed to a person that doesn’t exist. This would include AI-generated fake reviews, but not necessarily AI-generated summaries of actual reviews or reviews by real people who do not have actual experience with the business, its products, or its services, or that maybe misrepresent their experience of the person giving it. The rule also prohibits businesses from buying fake reviews or testimonials or disseminating such reviews or testimonials when the business knew or should have known that the reviews or testimonials were fake or false. Something to think about for brands or agencies that contract directly with influencers. Make sure that your agreement requires actual use of the reviewed product and that the review reflects the reviewer’s actual experience. Scott: Yeah, I agree with that. I think having that rep and warranty in an agreement is a way that a business can say, Well, there’s no way that I should have known that these testimonials given by this p...

What happens when a business built on a celebrity’s name no longer controls the name itself? In this episode of The Briefing, attorneys Scott Hervey and Jessica Marlow break down the Nicklaus Companies v. GBI decision and what it means for venture funds, PE firms, and brand-driven businesses. They discuss how Jack Nicklaus was able to legally walk away from the company bearing his name—and start competing—because the company failed to secure critical rights to his name, image, and likeness. Scott and Jessica examine the key legal documents that every investor should review when financing a business tied to personal branding, and the structures that can help prevent this kind of brand exodus. Whether you’re a creator behind a growing company, venture financing an influencer, a sports icon, or a lifestyle mogul, this is a must-listen for anyone putting money into a business that leverages a personal brand. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: It's not unusual for celebrities and influencers to build an empire around their personal brand. But what happens when they sell a piece of that empire and later want back in the game? That's the question at the heart of a recent New York Supreme Court decision in Nicholas Companies versus GBI Investors and Jack Nicklaus. The court had to determine who owned the commercial rights to the name and image of one of golf's most iconic figures, and whether he, Jack Nicholas, could compete against the very company he helped create. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Jessica Marlow. We are going to talk about branding rights, post-sale competition, and the high-stakes world of influencer-built businesses on today's installment of The Briefing. Jessica, welcome back to The Briefing. Jessica: Thank you. Thank you for having me. Excited to talk about this very timely topic. Scott: Yeah, I think it is really, really timely with the continued evolution of the creator economy and some of their businesses just getting bigger and bigger and huge financing transactions for a number of them. I think this is a timely lesson, both for influencers and for those that are buying or financing those businesses. Jessica: Absolutely. I don't I don't think there's any slow in this business, so better for everyone to get on the same page and avoid some of the pitfalls that we're about to talk about. Scott: Right. Well, let's dive right into it. So in 2007, Jack Nicklaus and GBI Investors, it was a company owned and controlled by Jack Nicklaus, entered into an agreement with Nicklaus Companies, LLC. This was a company that was formed by a real estate magnate, Howard Milstein. And Nicklaus Companies, for $145 million, purchased certain assets of GBI, which included a substantial portfolio of trademarks and applications, wealth registrations and applications related to Jack Nicklaus's name and his signature and the Golden Bear nickname in the United States and various other countries around the world, more than 600 in the US and 50 other countries. It also included in the purchase was the exclusive right to the golf course design service business that was rendered by GBI and marketing, promotional, and branding businesses of GBI, which included the right to use Jack Nicklaus's name, image, and likeness. The complaint alleges that Nicklaus Companies became the sole owner of all of the rights to use all of the intellectual property related to Jack Nicklaus. GBI and Mr. Nicklaus became members the company, and Mr. Nicklaus became a manager. Jessica: Fast forward to 2022, Jack Nicklaus retires from his day-to-day involvement with Nicklaus Companies, but then started to pursue deals for the use of his name, likeness, and trademarks, including personal endorsements outside of the Nicklaus Companies, which included Jack Nicklaus being paid to promote a European tour golf tournament and the ...

After nearly 30 years of litigation, a federal court has canceled General Cigar’s U.S. trademarks for COHIBA cigars — all because of a little-known treaty and a Cuban brand once favored by Fidel Castro. What does this mean for U.S. trademark law and the future of the COHIBA brand? Tune in to this week’s episode of The Briefing as Scott Hervey and Jessica Corpuz unpack this high-stakes decision. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: It's a battle decades in the making. Two cigar companies, one Cuban and one American, locked in litigation over one of the most iconic cigar trademarks in the world, Cohiba. And in a recent decision, a federal District Court in Virginia upheld a ruling canceling the US trademark registration long held by General Cigar. The reason? A rarely used international treaty and the trademark's Cuban origin. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Jessica Corpuz. We're going to talk about the Cohiba Trademark decision and what it means for brand owners on today's installment of The Briefing. Jessica, welcome to The Briefing. It's been a little while, but it's good to have you back. Jessica: Thanks for having me, Scott. Scott: So this case isn't It's new. In fact, this dispute has been going on for nearly 30 years, and it's between Cigar General, which is a US company, and Cuba Tobacco, a Cuban state-owned enterprise. Both claim rights to the Cohiba trademark. Have you ever had a Cohiba cigar? Jessica: Not personally, no. Have you? Scott: I have, yes. Outside of the United States, of course. Cigar General in the US, which held the Cohiba trademark, and Cuba Tobacco, which held that trademark in Cuba. Jessica: Yeah, that's right. So it all started in the late 1990s, when Cuba Tobacco applied to register Cohiba in the United States. The problem was that General Cigar already had registered the Cohiba marks, a wordmark and a stylized version, both used for cigars. Cuba Tobacco asked the USPTO to cancel General Cigar's registrations, claiming it had prior rights under international law. Scott: Right. Initially, the ETTAp suspended the cancellation case while Cuba Tobacco pursued litigation in federal court. That case made its way all the way up to the Second Circuit, which blocked Cuba Tobacco from getting injunctive relief, saying that any court-ordered transfer of the trademark to a Cuban company would violate US sanctions under the Cuban Assets Control Regulations. Jessica: Exactly. But then things shifted. The federal circuit later said that Cuba Tobacco could still pursue cancellation Installation of General Cigar's marks at the T tab under a separate theory. Article 8 of the Inter-American Convention, sometimes known as the Pan-American Convention, a treaty both the US and Cuba are parties to. Scott: Okay, so let's pause here for a second and let's unpack a few things. First, let's get some background on the Pan-American Convention. The Pan-American Convention, now you know why they call it the Pan-American Convention, is formerly known as the General Inter-American Convention for Trademarks and Commercial Protection. That's a long one, was signed in 1929 and entered into force in 1931. It was one of the earliest multinational efforts to create a uniform protection system for trademarks and commercial names across the Americas. And this was at a time when international trademark protection was really still developing. The convention was groundbreaking for expanding reciprocal rights among member nations and recognizing foreign trademark rights that went way beyond traditional territorial principles. Jessica: Yeah. So the convention's core goal was to protect legitimate business interests and prevent unfair competition across national borders. It sought to establish a framework whereby companies in one signatory country could assert rights against conflicting registrations ...

Warner Music Group just sued DSW for using 200+ hit songs in social media ads—without permission. Those TikToks could now cost $30M. On this episode of The Briefing, entertainment and IP attorneys Scott Hervey and Tara Sattler break down the legal firestorm and what every brand needs to know before hitting “post.” Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: A major music label just did the legal equivalent of a mic drop on one of America's best-known shoe retailers. Warner Music Group has filed a lawsuit against Designer Brands Inc, the parent company behind DSW, accusing them of using more than 200 hit songs by artists like Cardi B, Fleetwood Mac, and Lizzo in TikTok and Instagram videos without a license. And they're not just suing for direct infringement, they're going after DSW for contributory and vicarious infringement tied to the influencer content. I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my partner, Tara Sattler. We're going to talk about the DSW lawsuit and the lesson for brands that engage and Influencer Marketing on today's installment of The Briefing. Tara, welcome back to The Briefing. We've got another, I don't know, A scary piece of influence or marketing gone wrong here on the docket today. Tara: Yeah, we definitely do. I'm looking forward to talking about it with you. Scott: So earlier this month, Warner Music Group filed a federal lawsuit against DSW, claiming that over 200 of its copyrighted songs were used in social media ads on TikTok, Instagram, and other platforms without getting permission. Tara: Yeah, this isn't about just one rogue post. The complaint alleges that DSW DSW's marketing team, its influencers, and its in-house content creators, produced and shared branded videos that featured hit songs like Up by Cardi B and Barbi World by Nicki Minaj without securing proper licenses. Scott: The complaint alleges that DSW knows all about licensing music for advertising and that it had previously licensed music for use in its traditional ads. The complaint alleges that DSW knew exactly what it was doing when it skipped the licensing process for its influencer marketing ads. Tara: Right. In the complaint, Warner Music Group states that DSW, like many retailers, has shifted much of its marketing focus from traditional advertising to promoting its products through social media platforms like Instagram and TikTok, as well as through paid partnerships with well-known social media influencers. Scott: And as you and I discussed on a different episode, as we know, more than 50% of advertising spend has moved from traditional TV to social media. From my experience with my own brand clients, it seems that brands find social media advertising more effective and less expensive than traditional advertising. Well, I mean, less expensive when you don't get named as a defendant in a claim like this. Tara: Right. Here's what Warner Music Group is doing for. First, direct copyright infringement based on DSW's posts. Second, contributory copyright infringement based on the content created for DSW by the influencers. And third, vicarious copyright infringement because DSW benefited financially from the infringing influencer content and had the ability to control or remove the content. Scott: Right. So this is where this type of advertising campaign gets more expensive than traditional media. Warner Music Group is asking for statutory damages of up to $150,000 per work. That's $30 million if they win on the 200 songs. Now, the judge has discretion whether to award up to the full amount of statutory damages. But still, it's a substantial... This is going to be a substantial bill to pay either way. Tara: Yeah, that definitely is expensive. So let's take a step back and briefly talk about copyright infringement. Management and the different claims made by a Warner Music here. Scott: Sure.

A class action lawsuit has been filed against ALO Yoga and several influencers for failing to disclose that various social media campaigns were actually paid ads. Weintraub attorneys Scott Hervey and Tara Sattler break down this lawsuit and what brands should do to avoid costly FTC violations like this in the future. Watch this episode on the Weintraub YouTube channel. Scott previously discussed the risks of social media marketing and FTC compliance in a two-part series with IP attorney Jessica Marlow. Tune in to episode one and episode two now.

On this episode of The Briefing, Scott Hervey and James Kachmar break down the Supreme Court’s decision to pass on the McGuckin v. Valnet case—and how it keeps the legal confusion swirling around the "server test" for embedding online content. With courts on opposite coasts taking different stances, what does this mean for publishers, bloggers, and social media managers? They talk about the risks, what you can do to stay safe, and why your location might matter more than you think. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: The Supreme Court rejected a challenge to the Ninth Circuit server test, the test that the Ninth Circuit adopted in 2007 in the case of Perfect Ten versus Amazon, and it's used for determining copyright liability when photos are embedded online. Because the server test has been rejected by the Southern District of New York, this refusal by the Supreme Court will continue to create a split among circuits and confusion among copyright litigants. I'm Scott Hervey, shareholder with the law firm of Weintraub Tobin, and I'm joined today by my partner, James Kachmar. We're going to discuss this case and how to best navigate this issue on this installment of the briefing. James, it's good to have you back on the briefing. It's been a while. Thank you for coming on today. James: Thanks for having me, Scott. Scott: Okay, so let's talk really briefly about the case that was up for a petition for cert to the Supreme Court, and it's the case of McGuckin versus Valnet. And that case arises from Valnet, the operator of the website thattravel. Com, being accused of infringing 36 of McGuckin's Instagram photos by embedding them in various online articles. A California federal court applied the server test and dismissed McGuckin's suit, and the Ninth Circuit affirmed that decision in 2024. In affirming the dismissal, the Ninth Circuit referenced its 2023 decision of Hunt versus Instagram. This was a case that we covered here on the briefing in which the Ninth Circuit held that Instagram was not secondarily liable for copyright infringement when websites use Instagram posts to embed photos. James: Right, Scott. Why don't we start with the basics? The server test is a legal rule used to determine whether embedding an image or video into a website constitutes direct copyright infringement. Embedding is the process of copying unique HTML code assigned to the location of a digital copy of the photo or video published to the internet, and the insertion of that code into a target web page or social media post so that the photo or video is linked for display within the target post. Under this test, a website only infringes a copyright if it hosts the copyrighted file on its own server. If you're simply embedding a photo or video that is stored on someone else's server, like linking to a Instagram post, you're not displaying the content under the Copyright Act. You're just the HTML code that tells the user's browser where to go look to get the content. Scott: That's a really good description, James. The server test arises from the 2007 Ninth Circuit case of Perfect 10 versus Amazon. In that case, Perfect Ten, they were a publisher of adult content. They sued Google for linking to and displaying thumbnail versions of their copyrighted images. Google didn't host the full size images itself. Instead, it linked to them or embedded them from Perfect Ten's website. The court held that because Google wasn't storing the infringing images on its own server, it wasn't displaying them in the legal sense. See, under the Copyright Act to Violate the Public, display, right? An infringer must, quote, display copies of the copyrighted work. Under the server test, embedding in a website that does not also store an image or video on its own server, does not communicate a copy of the image or video, and thus does not violate the copyright owner's exclusive display right. Under Perfect10,

Lady Gaga’s “Mayhem” tour has sparked legal trouble. In this episode of The Briefing, Scott Hervey and James Kachmar analyze a trademark infringement lawsuit filed by surf brand, Lost International, which claims Gaga’s use of “Mayhem” on merchandise violates their long-standing rights. The discussion explores the strength of Lost’s trademark, the likelihood of consumer confusion, and key legal takeaways for brands navigating crowded trademark landscapes. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Lady Gaga brought her Mayhem tour to the 2025 Coachella Music Festival. While her performance was a critical success, there is someone who is not a fan of hers. At a minimum, not a fan of the name she chose for her tour. I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my partner, James Kachmar. We're going to talk about the trademark lawsuit filed by the surf and lifestyle brand Lost International against Lady Gaga for her use of Mayhem on today's episode of the Briefing. James, welcome back to the Briefing. It's been a while. James: Yes, thanks for having me back, Scott. Like you, I've been following this Lady Gaga case, and it certainly raises some interesting trademark law questions. Scott: Oh, absolutely, absolutely. So why don't we start with the basics? So, according to the complaint, Lost International, they're a California company that was established in 1985 as a surf and lifestyle brand. They claim to have been using the mark mayhem since 1988 in connection with surfboards, surf equipment, accessories, surf videos, and clothing. Lost owns a registered trademark for Mayhem in the United States, and it was issued on August 11, 2015, and it covers various clothing items like beanies, caps, jackets, pants, sandals, shorts, and, you know, other typical beach surf wear. This particular trademark registration is for a wordmark, which means that it covers the word Mayhem without having any particular font, style or color requirements. James: That's right, Scott. The complaint alleges that Lady Gaga released a music album called mayhem in March 2025 and announced a worldwide concert tour under the same name. Furthermore, Lost claims that prior to the album's release, Lady Gaga and associated parties began selling T shirts and other clothing items with the Mayhem mark prominently displayed, allegedly with a nearly identical design to Lost's own Mayhem products. They've even included a side by side comparison of the clothing and their Mayhem logos in their complaint. Scott: So LOST is seeking some significant remedies. James: Yes, they are. Lost is asking the court for a judgment that Lady Gaga has infringed their trademark rights. They are seeking monetary damages and also want an accounting of Lady Gaga's proceeds, which will result in a possible disgorgement of her profits. They want punitive and exemplary damages, interest costs, and attorney's fees. Lost is also crucially seeking injunctive relief to stop Lady Gaga from using the Mayhem mark in connection with her merchandise and promotions. Scott: Okay, so let's dive into the legal arguments. So the complaint asserts nine causes of action. Nothing like a big complaint, right? So these. These causes of Action include federal and common law trademark infringement, false designation of origin, and false advertising under the Lanham act, false advertising under California state law, and federal and state trademark dilution, as well as unfair business practices and common law unfair competition. So I think that the federal trademark claim is going to take center stage in this lawsuit, so let's focus on that. So in California, a court analyzing a trademark infringement claim is going to look at the sleek craft factors, which are the following. The strength of the plaintiff's mark, the similarity of the marks at issue, the similarity or relatedness of the goods,

Is traditional Hollywood facing an existential crisis? Deloitte's 2025 Digital Media Trends report reveals a massive shift in how Gen Z and millennials consume content. Scott Hervey and Tara Sattler break down the data and explore what this means for studios, creators, and the future of storytelling on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Deloitte released its 2025 digital media Trends earlier in March. It is a comprehensive look at the seismic shift rocking the media and entertainment landscape. Are traditional studios facing an existential crisis against these hyper scale and hyper capitalized tech giants? And with Gen Z and millennials finding social media content more relevant than TV and movies, what does this mean for the future of storytelling and celebrity? I'm Scott Hervey, partner in the entertainment and media Department of Weintraub Tobin. And today, I'm joined by my partner, Tara Sattler. Stick with us as we analyze these trends and what they mean for both the traditional and new media players navigating this rapidly evolving digital world in today's installment of The Briefing. Tara, welcome back to The Briefing. It's good to have you back. Tara: Thanks, Scott. Thanks for having me back. It's always great to be here. Scott: Yeah. I thought this one was going to be particularly relevant for both you and I because Our practice area is we both straddle both traditional media representing studios and production companies. And also we have another foot really squarely set in the creator economy, digital media, YouTube space, podcast. I think you and I have the benefit of seeing both sides of this. That's why I thought you'd be the perfect co-host for this one. Tara: We do, Scott. I think you're right. I've been looking through this report. It's really quite eye-opening. The shifts are significant, especially for the traditional media players who you and I both work with a lot. Scott: Yeah, absolutely. This report makes one thing abundantly clear, and I think it's something both of us have been talking to our clients about for a while. Social video platforms are becoming a dominant force in media and entertainment, and they do present a challenge to the traditional Hollywood model. So today we're going to summarize the key findings and discuss what opportunities exist for both traditional Hollywood studios and content producers and the content creators on platforms like YouTube. So let's dive in. So the report itself, the headline here is that social platforms are becoming the new center of gravity for media and entertainment. According to Deloitte, these platforms are drawing more of consumers' time and more of advertisers' money away from traditional media. Tara: Yeah, the report found that US consumers are spending about six hours daily on media and entertainment, and that number isn't growing. What's changing is how that time is distributed. Younger generations, especially Gen Z, are spending significantly less time watching traditional TV and movies and more time on social media platforms with user-generated content. Scott: Right. And Those numbers are pretty striking. Gen Z respondents are spending about 54% more time, so that's about 50 minutes more per day on social media platforms and watching user-generated content than the average consumer. They're spending 26% less time, so that's about 44 minutes less per day, watching TV and movies than the average person. Tara: It's not just about time spent. The report found that 56% of Gen Z and 43% of millennials say social media content is more relevant to them than traditional content like television shows and movies. Plus, about half of these generations feel a stronger personal connection to social media creators than they do to TV personalities or actors. Scott: Let's now talk about the advertising piece of this because it really is quite huge.

Can HBO be sued over a T-shirt? Scott Hervey and Tara Sattler unpack Duke University’s beef with 'White Lotus' after a character wore a Duke tee on screen. Does this cross the legal line—or is it just creative expression? They're talking trademark, the Rogers test, and what it all means for studios on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: In a recent episode, Timothy Ratliff is grappling with possible criminal liability for his involvement in a money laundering scheme. He thinks about taking his own life in a graphic scene where he holds a gun to his head while wearing a Duke University T-shirt. HBO didn't get permission from Duke, and Duke publicly expressed its displeasure with the situation in a statement with the New York Times. I'm Scott Hervey, a partner with the law firm Weintraub Tobin, and today I'm joined by my partner, Tara Sattler. We are going to break down the potential of Duke's trademark lawsuit against HBO on this installment of The Briefing. Tara, welcome back to The Briefing. Tara: Thanks for having me here, Scott. I do love the White Lotus series, so let's talk about this one. Scott: Yeah, I love the White Lotus series, too. But this is something you and I deal with a lot in our representation of television studios and production companies. I think this one is really relevant for you and me and also relevant for a lot of our audience. Okay, jumping in. Duke really is not happy about the situation. I'm really not happy. Duke's vice president for communications shared a statement with the New York Times, which stated as follows, Duke appreciates artistic expression and creative storytelling, but characters wearing apparel bearing Duke's federally-registered trademarks create confusion and mistakenly suggests an endorsement or affiliation where none exists. He wrote that in an email. He also said, White Lotus not only uses our brand without permission, but in our view, uses it on imagery that is troubling, does not reflect our values or who we are and simply goes too far. Tara: Like you said, Duke really isn't happy happy at all. But let's break down whether Duke really has any type of case against HBO besides just being unhappy. The shirt that was worn by the character had the name Duke on it, but it didn't have any design elements, logos, anything like that. We're really only talking about a trademark claim. Scott: Right. Yeah, it's not a copyright claim. Okay, with it being just a trademark claim, what do you think? Does Duke have a case? Tara: No, I really don't think that they do. As much as Duke may dislike the use of its T-shirt, all the things that the representative said, this is really exactly the situation that the Rogers test is meant to address. Scott: For us. For those that listen to this podcast, know that we talk about the Rogers test a lot. The Rogers test comes from a 1989 Second Circuit case, Rogers versus Grimaldi. It essentially creates a special framework for analyzing trademark claims when they involve expressive works protected by the First Amendment. Under the traditional Rogers test, the Lanamack doesn't apply to an expressive works use of a trademark unless that use has no artistic relevance to the underlying work or explicitly misleads consumers about the source or content of the work. Tara: That Rogers test went through a pretty significant change in 2023. We've talked about this a lot, too. Then the Supreme Court decided the case Jack Daniels Properties versus VIP Products. That case involved a dog toy called Bad Spaniels that parodied a Jack Daniels whiskey bottle. The court there significantly clarified when the Rogers test should apply. Scott: Yeah, the key distinction the Supreme Court made was that the Rogers test doesn't apply when a mark is used as a source identifier, regardless of whether it is also used to perform some expressive function. Tara: In other words,