The Wrong Argument – Why Authors Lost Against Meta and What Comes Next

In a major win for Meta, a federal court recently dismissed a lawsuit brought by prominent authors who claimed their books were illegally used to train the company’s LLaMA models. But the ruling doesn’t give AI companies a free pass—it reveals the roadmap for how a better-prepared copyright plaintiff could win next time. In this episode of The Briefing, Scott Hervey is joined by his partner Matt Sugarman as they break down: The background of Kadrey v. Meta The court’s detailed fair use analysis A comparison to Bartz v. Anthropic The "third theory" of market harm that could shape future litigation What AI developers must do now to avoid lawsuits Watch this episode on YouTube.

A federal judge has ruled that training Claude AI on copyrighted books—even without a license—was transformative and protected under fair use. But storing millions of pirated books in a permanent internal library? That crossed the line. In this episode of The Briefing, Scott Hervey and Tara Sattler break down this nuanced opinion and what this ruling means for AI developers and copyright owners going forward. Watch this episode on YouTube. Show Notes: Scott: What happens when an artificial intelligence company trains its models on millions of books? Some purchased, some pirated. In a closely watched ruling, a federal judge held that training the AI was fair use, likening the process to how a human learns by reading. But keeping pirated copies of those books in a permanent digital library, well, that crossed the line. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner and frequent Briefing contributor, Tara Sattler. We are going to break down the recent fair use ruling in the lawsuit over Claude AI, that's Anthropic’s AI, and explore what it means for the future of AI training on today's installment of the briefing. Tara, welcome back to The Briefing. Good to have you. Tara: Thanks, Scott. I always enjoy being here with you. Scott: Always enjoy having you. This one is a much-awaited decision because we have a number of these cases that are swirling around, challenging the process by which AI companies train their large language models. One of these cases involved the Anthropic AI Claude. Why don't we jump jump into this one, Tara, maybe you could give us some of the background of this particular case. Tara: Absolutely. In 2021, Anthropic PVC, a startup founded by former OpenAI employees, set out to create a cutting-edge AI system, and that system would eventually become Claude. Like other large language models, Claude was trained on a vast amount of textual data, books, articles, websites, and more. But unlike many of its competitors, Anthropic took a controversial shortcut. Scott: Right. Instead of licensing books or building a clean data set, Anthropic downloaded millions of copyrighted works from pirate sites like Books 3, Library genius, and the pirate, Library Mirror. In total, Anthropic downloaded over seven million pirated books, including works by authors Andrea Barth, Charles Graber, and Kirk Wallace, Johnson. Anthropic also purchased millions of print books, scanned them, and then created a digital central library of searchable files. Tara: So the plaintiff sued, alleging that Anthropic infringed their copyrights by copying their works without permission. First, by downloading them from the pirate sites, and then by using them to train Claude, and finally, by keeping digital copies of the books in its internal library for potential future use. Scott: All right, so let's now... So as we know, the lawsuit was filed, and Anthropic eventually moved for summary judgment based on fair use only. And in its ruling on Anthropic's motion, Judge Al up of the Northern District of California issued a very detailed and nuanced opinion. The opinion splits Anthropic's conduct into three key uses. The first is using the books to train the AI or the large language model, scanning and digitizing legally purchased print books, and thirdly, downloading and keeping pirated books in a permanent digital library. Each of these uses was evaluated under the Copyright Act's Four-Factor Fair-Use Test. Tara: Right. Let's walk through how the judge applied the four fair use factors in each use. For anyone who needs a refresher, here are the statutory factors for fair use under Section 107 of the Copyright Act. Scott: If you need a refresher, you're not listening to this podcast often enough. Go ahead, Tara. Tara: Okay, so we'll refresh anyway. First is the purpose and character of the use, including whether it is commercial and whether it's tran...

The Supreme Court sidestepped a major copyright showdown—again. What does it mean when infringement claims surface decades later? In this episode of The Briefing, Scott Hervey and Tara Sattler break down the latest in the discovery rule debate, RAD Design’s rejected petition, and how this uncertainty affects creators, businesses, and copyright holders across the country. Watch this episode on YouTube. Show Notes: Scott: In Warner Chapel Music versus Neely, the Supreme Court acknowledged without resolving a major question in copyright law, should plaintiffs be allowed to bring infringement claims years or even decades after the alleged violation happens if they say they just recently found out about it? That question was front and center in Rad Design versus Michael Greckeau Productions. And while many expected the court to finally address it, they declined to take the case. What does this mean for copyright holders, digital content creators, and the businesses defending against those claimed? I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my colleague Tara Sattler. We are diving into the Supreme Court's decision to leave the discovery rule untouched, at least for now. On in this episode of The Briefing. Tara, welcome back to The Briefing. It's good to have you back. Tara: Thanks, Scott. Glad to be here, and glad to be getting into some important copyright strategy with you here today. Scott: Right. Yeah. So let's start by defining what we're actually talking about, the discovery rule. It's a judgment doctrine that allows plaintiffs to file a copyright lawsuit within three years of discovering the infringement, even if the infringement happened long before that. Tara: Right. And for years, courts have disagreed on whether the Copyright Act actually allows this. The text of the Copyright Act says that actions must be brought within three years after the claim accrued. But it doesn't say whether accrual starts at the time of infringement or at the time of discovery. Scott: And that ambiguity is at the heart of the issue. Some courts, like the Second Circuit, have embraced the discovery rule. Others are skeptical. That split was one reason the Supreme Court agreed to hear Neely in the first place. So before we get deeper into the implications of the Supreme Court denying Cert and Rad Design, we should revisit the Warner Chapel Music versus Neely decision because that case really set the stage for all of this. Tara: Absolutely. That case started back in 2018 when music producer Sherman Neely sued Warner Chapel Music and Artist Publishing Group. He claimed that Flowrida's 2008 song, In the Air, contained an unauthorized sample from a 1984 track Neely co-owned the rights to. Now, that's a fairly typical copyright infringement claim, but what made this case different was the timing. Scott: Right. So Neely had been incarcerated for a number of years, and apparently, they don't allow radios in the jail or prison that he was in. And he argued that he only discovered the alleged infringement shortly before his filing of his lawsuit, even though the infringement happened decades earlier. The question that ended up before the Supreme Court was whether under the discovery rule, as applied by some circuit courts, a plaintiff could recover damages for acts of infringement that happened more than three years before the lawsuit was filed. Tara: And that was a hotly contested issue. Some circuits, like the Second Circuit, applied a very strict three-year cap on damages, even when a claim was deemed timely under the discovery rule. That rule came up from the Supreme Court's prior language in Petrela versus MGM, where Justice Gainsberg wrote that a successful plaintiff can gain retrospective relief only three years back from the time of suit. In contrast, the ninth and 11th circuits had taken the opposite view. They allowed damages to go all the way back to the first act of infringement,

Who really owns WallStreetBets? The man who created the subreddit, or the platform that hosted it? In this episode of The Briefing, Scott Hervey and Tara Sattler dive into the trademark showdown between Jaime Rogozinski and Reddit, and why both the District Court and the Ninth Circuit said no to Rogozinski's claim of trademark ownership. This case is a cautionary tale for creators and entrepreneurs about what really counts as “use in commerce” under trademark law. Just coining a catchy name or launching a community isn’t enough. If you’re not the one offering goods or services under the brand, you don’t own the trademark. Watch this episode here. Show Notes: Scott:  He created the subreddit. He coined the name. He even filed a trademark application for it. But when Jamie Rogosinski took reddit to court to enforce his claim over the Mark Wall Street bets, both the district Court and the Ninth Circuit told him the same thing. Just because you created the name doesn't mean you own the trademark. I'm Scott Hervey, a partner with the Law firm of Weintraub Tobin, and I'm joined today by my colleague, Tara Sattler. We are going to talk about Trademark use, ownership, and the Reddit battle over Wall Street bets on this installment of The Briefing. Tara, welcome back to The Briefing. Thanks for being here today. Tara: Thanks for having me. Always glad to be chatting with you, Scott. Scott:  So this one's a real interesting I think almost everybody knows about the subreddit Wall Street Bets. Can you give us some background on this whole dispute? Tara: Yes, absolutely. So the story starts with Jamie Rogosinsky, and I really hope I'm pronouncing that right. So my apologies if I'm not. But Jamie Rogosinsky, the man widely credited with launching the subreddit feed Wall Street Bets back in 2012. And What began as a niche community for high-risk trading chatter exploded into really a cultural phenomenon in 2021 during the Gamestop and AMC Short Squeez. Right. Scott:  Sensing an opportunity to commercialize the brand. Rogusinski filed a trademark application for Wall Street Bets in 2020, covering merchandise and other goods. But Reddit, which owned and hosted the subreddit platform, wasn't on board with that. It removed Rogusinski as a moderator for violating its policies and later filed its own trademark application for the same name, this time for an online forum service. Tara: So Rogusinski sued Reddit in early 2023 in the Northern District of California and asserted claims for trademark infringement, unfair competition, and declaratory relief, arguing that he, not Reddit, owned the Wall Street Beats brand. Scott:  Let's talk about who actually used the mark. So to understand why both the District Court and the Ninth Circuit rejected Jamie Rogosinski's trademark claim over Wall Street bets, we have to look closely at what each party actually did with the trademark, and more importantly, how the law defines, quote, use in commerce. Tara: Right. So Rowe Kuzinski argued that he was the originator of the mark. He created the subreddit, Wall Street Bets in 2012, moderated it for eight years, and even shaped the visual identity of the community itself. So according to him, he wasn't just a user, he was the brand in the brand space. Scott: And to bolster that claim, he pointed to several activities movies. First, he published a book in January 2020 that he called Wall Street Bets: How Boomers Made the World's Biggest Casino for Millennials. He linked it to the subreddit, and he Wall Street Betts' name directly in the title. Tara: He also announced plans to launch Wall Street Betts' branded merchandise and even promoted a real money esports trading competition, all under that Wall Street Bets' name. He highlighted his growing media presence and public persona, and he claimed the public really associated him with the mark and not read it. Scott: But here's the legal problem. None of Isn't that moderating a subreddit feed,

In this episode of The Briefing, Scott Hervey and Richard Buckley dive into Pepperdine University v. Netflix, a trademark showdown over the use of the name “Waves” in the Netflix series Running Point. After Pepperdine’s attempt to block the series’ release was denied under the Rogers test, the university is back—this time arguing that the Jack Daniel’s Supreme Court decision changes everything. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: What happens when a Christian university's proud athletic legacy collides with the creative freedom of Hollywood? That's the question at the heart of Pepperdine University versus Netflix, a trademark dispute centered around the name Waves. Pepperdine lost its initial attempt to block the release of Netflix basketball comedy ‘Running Point.’ Very funny television show. But the fight is far from over. Now the court must decide whether Netflix use of the Waves mark is protectable artistic expression or actionable infringement. And it all comes down to a legal test some thought was subtle law until the Supreme Court rocked the waters in Jack Daniels versus VIP Products. I'm Scott Hervey, a partner at Weintraub Tobin, and I'm joined today by my partner, Richard Buckley. We are going to unpack this battle over brand identity, free speech, and college sports on this episode of the Briefing. Richard, welcome back to The Briefing. Good to have you. Richard: It's great to be here again. Scott: Yeah. Did you watch Running Point? Richard: I have not. Scott: Okay, well, you are missing out. You should watch it. It's quite funny. Richard: I feel like I must now. Scott: All right, let's get into this. So let's start with the basics. What's this case about, Richard? Richard: So Pepperdine's athletic teams have been known as the Waves since 1937. Netflix and Warner Brothers released a scripted comedy series called Running Point, featuring a fictitious professional basketball team named the Los Angeles Waves. The university sued, claiming trademark infringement and false designation of origin under the Lanham act, among other things. Scott: Pepperdine raised several issues in the complaint. First, they argued that the fictional Los Angeles Waves team, which, by the way, is not a collegiate team. It's a like an NBA league team, uses the word Waves with a strikingly similar font to Pepperdine's registered marks. Pepperdine also contended that the colors used by the fictional team were similar to Pepperdine's and that both marks were used in athletic context. Pepperdine specifically pointed out that an image in the Running Point trailer included a frame jersey with the number 37, which they believe references Pepperdine's founding year of 1937. Coincidence? I don't know. But perhaps most importantly, Pepperdine was concerned about reputational harm. They argued that the themes and Running Point, including excessive alcohol and substance use, sexual innuendos in imagery and foul language and other content, didn't align with Pepperdine's Christian values and would negatively impact the university's reputation. Richard: So Pepperdine sought a temporary restraining order, a tro, to block the release of Running Point, which premiered on February 27, 2025. The university argued that the use of Waves, along with similar color schemes in a jersey number 37, would confuse viewers and damage Pepperdine's reputation. As you previously mentioned, the court denied the TRO for finding that Pepperdine was unlikely to succeed on the merits of its trademark claims because the use of Waves fell under the Rogers test, which protects expressive works unless the use is irrelevant or is explicitly misleading. Scott: Right. We. We previously covered the court's ruling on the tro, so we're not going to delve into that too deeply. You can. We'll include a link to that episode in the show notes here. So. So after the show aired,

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.