LICENSING UPDATE 2021 - GREGORY J. BATTERSBY CHARLES W. GRIMES - Bass, Berry & Sims PLC

 
2021
LICENSING UPDATE

 GREGORY J. BATTERSBY
  CHARLES W. GRIMES
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ABOUT THE EDITORS
      Gregory J. Battersby holds an A.B. (bio-chemistry) from Seton Hall
University and a J.D. from Fordham University School of Law. He is a member
of the New York and Connecticut Bars and is admitted to practice as a patent
attorney before the United States Patent and Trademark Office. He is managing
member of The Battersby Law Group, LLC, 25 Poplar Plain Road, Westport,
CT 06880 (203) 454-9646, which specializes in intellectual property and licens-
ing law with a particular emphasis on merchandising law and toy licensing.
Mr. Battersby has been a guest lecturer at the Franklin Pierce Law School,
University of Connecticut Law School and Quinnipiac Law School and serves
as General Counsel for the International Licensing Industry Merchandiser’s
Association (LIMA). He has been a Vice President and member of the Board of
Directors of The New York Intellectual Property Law Association.
      Charles W. Grimes holds a B.S. (engineering mechanics) from
Pennsylvania State University and a J.D. from the University of Denver School
of Law. He is a member of the Illinois, New York, Connecticut, and Florida Bars
and is admitted to practice as a patent attorney before the United States Patent
and Trademark Office. He is managing partner of Grimes, LLC, 3501 Bonita
Bay Blvd., Bonita Springs, FL 34134, 239-330-9000, which specializes in
intellectual property law with a particular emphasis on trademarks, licensing
and litigation. Mr. Grimes is an Adjunct Professor at Ava Maria Law School
and has served on the Editorial Board of The Trademark Reporter.
      The two have written and lectured on a variety of intellectual property
issues. They have authored The Law of Merchandise and Character Licensing,
Licensing Law Handbook, Multimedia and Technology Licensing Agreements:
Forms and Commentary, Drafting Internet Agreements, License Agreements:
Forms and Checklists, Licensing Desk Book, Licensing Royalty Rates, Licensing
Update, A Primer on Technology Licensing, Patent Disputes: Litigation Forms
and Analysis, The Toy & Game Inventor’s Guide, and Trademark Disputes:
Litigation Forms and Analysis. They serve as Executive Editors of the Licensing
Journal and the IP Litigator. They are recognized as the leading experts on the
subject of merchandising law.

                                       xi
ABOUT THE CONTRIBUTORS
      Robert Ambrose (@rambrose) is the Director of Strategy and Business
Development at FADEL, a global provider of enterprise-class intellectual prop-
erty rights and royalty management software. He works with media, entertain-
ment, publishing, and high-tech companies to transform their approach to
exploiting content, brands, and intellectual property (IP). Previously,
Mr. Ambrose worked as a broadcast journalist, media technology consultant,
and industry analyst.
      Rebecca Ash is the Editorial Director at Total Licensing Ltd., which
publishes several renowned titles, including Total Licensing Magazine, a
worldwide magazine for the licensing industry read by over 80,000 individuals
in 104 countries, Total Art Licensing, Total Licensing Australia, and Total
Licensing UK. The company has also recently launched a new publication, Total
Brand Licensing. As Editor, Becky is responsible for content, editorial decisions,
business growth ideas and innovation, design, traveling and participating in
global trade events, and sourcing new business.
      Griffin M. Barnett is an Associate with Winterfeldt IP Group. Griffin’s
practice focuses on trademark and Internet matters, particularly digital
enforcement issues such as domain name disputes (including UDRP complaints
and similar administrative proceedings to recover or disable infringing domain
names) and ICANN-related issues, including the new gTLD program. Griffin
currently chairs the International Trademark Association’s Subcommittee on the
Rights Protection Mechanism Review and is an active member of ICANN’s
Intellectual Property Constituency.
      Christie Bates is an associate in the McMillan’s Intellectual Property and
Technology Group in Toronto. She is developing a broad practice in intellectual
property litigation, as well as in trademark, copyright, and patent law.
      Bryan Bergman is a partner with Los Angeles based firm, Nolan Heimann,
LLP. He mainly provides legal services to businesses operating in the cannabis
industry. His client services include providing assistance in entity strategy and
formation; contract negotiations and drafting on a wide variety of deals including
real estate, investment, management, distribution/sales, and other business trans-
actional issues; cannabis license application preparation; regulatory compliance;
and organizational structuring and management. In addition to his legal work,
Bryan maintains a substantial network of cannabis professionals from a variety
of areas available to assist his clients in all aspects of establishing or expanding
their businesses, such as legal, financial/accounting, labor, political consulting/
lobbying, real estate, banking, business development, media, social media, and
brand marketing.

                                        xiii
2021 LICENSING UPDATE

      Martin Brochstein is Senior VP of Industry Relations and Information at
Licensing International in New York City. www.licensinginternational.org
      Sheldon Burshtein is a partner with Blakes, Cassels & Graydon LLP based
in Toronto. He has been certified by The Law Society of Upper Canada as a spe-
cialist in IP law, particularly in the areas of patent, trademark, and copyright
practice. He is also a registered patent and trademark agent in Canada.
Mr. Burshtein’s practice includes the clearance, prosecution, acquisition, enforce-
ment, and exploitation of patents, trademarks, copyright, industrial designs, and
other forms of IP. A significant portion of his practice is devoted to counseling
on IP, technology, electronic commerce, and social media. His primary focus is
licensing and other transactions involving technology, including life sciences
and information technology, and other IP rights, including in the sports and enter-
tainment industries. Mr. Burshtein regularly advises on IP matters affecting every
industry sector and represents clients in all technology sectors.
      David L. Cohen provides IP monetization services through his law firm,
David L. Cohen, P.C., and his consultancy, Kidon IP. His hands-on experience
includes strategic litigation planning; global project management; patent moneti-
zation; FRAND licensing; building and managing legal and IP teams; patent
licensing and negotiations; global anti-trust; strategic IP portfolio development
and acquisition; IP strategy and opinion work; patent and trade secret assessments
and management; and IT needs, strategy, & design. Prior to launching his law
firm David. L. Cohen, P.C., and his consultancy, Kidon IP, in 2017, David was
the Chief Legal and IP Officer of Vringo, Inc. where he created a world class
in-house team that spearheaded an effective global monetization program and
brought in over 40MUSD in licensing revenue while pioneering numerous cut-
ting edge, global monetization, enforcement, and structured innovation techni-
ques. Prior to Vringo, David was senior in-house counsel at Nokia Corporation,
where he participated in or managed projects that generated over 1BUSD in rev-
enue. David worked at the law firms of Lerner David and Skadden Arps before
joining Nokia and clerked for Chief Judge Carman of the Court of International
Trade. David has a BA in the history of science (with departmental honors) and
an MA in History from the Johns Hopkins University, an M. Phil in the History
and Philosophy of Science from Cambridge University, and an MA in Legal
and Political Theory (with distinction) from University College London. His
received his juris doctorate from Northwestern University School of Law in
1998, cum laude, where he was on law review. David has multiple publications
to his credit, is a co-inventor on two patents, and is a frequent speaker at confer-
ences. David was listed in IAM 300: The World’s Leading IP Strategists in 2015,
2016, and 2020.
      Kimberly Culp is a litigator in the IP, Advertising and Marketing, and
Trademarks and Brand Protection Practice Groups at Venable, LLP. She has suc-
cessfully represented and counseled clients in state and federal courts in high
stakes complex commercial, trademark, patent and false advertising, trade
secrets, and class action defense matters.

                                        xiv
ABOUT THE CONTRIBUTORS

      Adrian Cyhan is a partner in the San Diego office of Dinsmore & Shohl
LLP. He is a registered patent attorney with a practice focused on licensing and
technology transactions, and providing strategic counsel with respect to identify-
ing, protecting, and leveraging intellectual property assets.
      Rodney DeBoos is a consultant with the Australian Intellectual Property
law firm, Davies Collison Cave Law in Melbourne. He has had extensive experi-
ence in all types of IP matters and is a Certified Licensing Professional and a for-
mer president of the Licensing Executives Society Inc.
      Eric Fanchiang is an associate in Crowell & Moring’s Irvine, CA office
and a member of the firm’s antitrust and commercial litigation groups. His prac-
tice focuses on both defense-side and plaintiff-side antitrust litigation in a variety
of markets including technology and transportation.
      James G. Gatto is a partner at Sheppard Mullin in the firm’s Intellectual
Property Practice Group. He serves as leader of the firm’s Blockchain & Digital
Assets and Open Source industry teams. Jim leverages his unique combination
of nearly 30 years of IP experience, business insights and attention to technology
trends to help companies develop IP and other legal strategies that are aligned
with their business objectives. His practice focuses on all aspects of intellectual
property, internet and technology law, including patent, trademark, copyright,
trade secret, and open source. Jim advises clients of all sizes (startups to Fortune
100 companies) on key legal and business issues relating to the use of social
media, video games, social games and online gambling (gamblification), virtual
goods and currency, social networks, virtual worlds, mirror worlds, augmented
reality, open source user-generated content, location-based services, and gamifi-
cation. He regularly advises internet and social media companies on business
and legal strategies relating to virtual goods and virtual currency, developing IP
protection and monetization strategies, handling terms of service and end user
license agreements, development, licensing and partnership agreements, develop-
ing DMCA policies, handling DMCA enforcement, privacy and COPPA policies
and much more.
      Peter Giddens is a Partner in the Toronto office of McMillan and Co-Chair
of the firm’s Intellectual Property Group. Peter counsel’s clients concerning the
acquisition, clearance, management, protection, enforcement and licensing of
intellectual property, with a particular emphasis on trademark, copyright, and
domain name issues.
      Laura Adriana Grinschgl LL.M. (QMUL) specializes in IP and Tech Law
matters at Freshfields Bruckhaus Deringer LLP in Vienna (Austria).
      Roman Golovatsky is a Legal Director with DLA Piper in St. Petersburg,
Russia and specializes in civil law, intellectual property law, antimonopoly law
and advises Russian and international companies on a wide range of issues.
Roman possesses extensive litigation and arbitration practice on traditional busi-
ness disputes. Roman is registered as a patent attorney in the Russian Federation
and is a recognized expert in the development and practical implementation of
comprehensive defense measures for intellectual property owners and of the

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2021 LICENSING UPDATE

means of individualization in Russia and the CIS, including measures to combat
illegal import of goods containing intellectual property.
      Jennifer P. Gore, Winterfeldt IP Group’s Internet Policy Specialist, leads
the firm’s policy and advocacy efforts on behalf of brand owners. Jennifer has
been working in the domain industry for over two decades, and previously held
senior leadership roles with major Internet registries and registrars, as well as
with ICANN. She is an active member of ICANN’s Intellectual Property
Constituency.
      Brad Hanna is a partner at McMillan LLP who Co-Chairs the firm’s
Franchise and Distribution Group as well as the International Arbitration Group.
His practice consists of complex corporate commercial litigation with a particular
focus on franchise and distributorship disputes. He represents Canadian and inter-
national franchisors before all levels of courts in Canada. As a Fellow of the
Chartered Institute of Arbitrators, he also has expertise in alternative dispute res-
olution techniques and routinely acts as counsel in mediations and both domestic
and international commercial arbitrations.
      Jessica Hannah is an associate at Finnegan. She focuses on trademark liti-
gation and prosecution, client counseling, false advertising, and portfolio man-
agement related to a broad range of industries, including consumer goods, food
and beverage, media, and sports and fitness. She assists with counseling clients
on the selection, registration, maintenance, portfolio management, and enforce-
ment of trademarks in the United States and abroad. Jessica is involved in cases
before the federal trial courts and the TTAB.
      B. Brett Heavner is a partner at Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP whose practice includes all aspects of trademark and unfair compe-
tition law, with particular emphasis on trademark infringement, counterfeiting,
false advertising litigation, and Trademark Trial and Appeal Board (TTAB) liti-
gation. His clients include pharmaceutical companies, medical device manufac-
turers, banking and financial services institutions, major trade associations, food
product companies, and petroleum exploration and refining companies.
      Mark Hess is the Vice President of Client Relationship Management at
IMC Licensing.
      John F. Hornick is an IP counselor and litigator based in Finnegan’s
Washington D.C. headquarters. Based on his 30+ years of experience, he coun-
sels clients on virtually every aspect of IP law, from licensing to litigation. He
has litigated close to 100 IP cases in more than 30 U.S. federal courts in 18 states,
five U.S. Circuit Courts of Appeals, the U.S. Supreme Court, the U.S. Interna-
tional Trade Commission (ITC), and others. He has appeared before more than
100 judges, arbitrators, and mediators and has tried every type of IP case. He
has successfully avoided litigation for clients in hundreds of other disputes. His
passion is the IP issues of 3D printing/additive manufacturing. Mr. Hornick
started the firm’s 3D printing initiative and founded Finnegan’s 3D Printing
Working Group. Mr. Hornick advises and educates clients about 3D printing
and the IP issues of this rapidly developing and potentially disruptive technology,

                                        xvi
ABOUT THE CONTRIBUTORS

and how it may affect their businesses, both offensively and defensively.
Mr. Hornick closely follows the industry, frequently speaks and writes on 3D
printing and its potential effects on IP law and the world, and has been recog-
nized as a thought leader in this space. His articles have been published at
www.3DPrintingIndustry.com, in the Journal of 3D Printing & Additive
Manufacturing, for which he serves on the Editorial Board, and in Wired Innova-
tion, and he writes a column for 3D Printing World, published in English and
Chinese. He was the only IP attorney selected by the National Academies to par-
ticipate in the U.S. Comptroller General Forum on Additive Manufacturing
(which will be the basis of a report to the U.S. Congress), and was invited by
the National Association of Attorneys General to participate in its 3D printing
initiative. Mr. Hornick also serves on the Advisory Board of Advanced
Manufacturing Insight and as a juror for the International Additive Manufactur-
ing Award.
      Matthew Hunt is an associate with Bristows LLP in the Competition & EU
department and is currently involved in a number of on-going FRAND disputes,
both for SEP holders and implementers.
      Christine G. Ing is Co-Practice Group Leader of the Blakes Law Firm’s
Information Technology group. Her practice focuses on commercial transactions
involving information technology and IP.
      Chrissie Jamieson is VP Marketing at MarkMonitor, UK. She has over
15 years of experience in the business intelligence, brand protection and domain
sector and has worked to develop the MarkMonitor brand internationally.
Through her career, Chrissie has been responsible for the Marketing leadership
and market development of major technology businesses such as Information
Builders. Chrissie holds a degree in Marketing and Business Administration from
Hertfordshire University and a Post Graduate in Strategic Management from
Hertfordshire Business School.
      Anne S. Jordan has 30+ years’ experience advising large- and medium-
sized corporations, both as a senior executive with responsibility for the corpora-
tions’ legal affairs and as outside counsel. She is currently Of Counsel to the
Chicago law firm Mandell Menkes, advising high-tech and consumer products
companies on commercial transactions and IP strategy and enforcement matters.
She also serves as a mediator and arbitrator on American Arbitration Associa-
tion’s and Institute for Conflict Prevention and Resolution’s commercial panels.
Prior to joining Mandell Menkes, Ms. Jordan served as the Senior Vice President,
General Counsel and Secretary of PeopleSoft, Inc., the world’s second largest
provider of enterprise application software with annual revenues of approxi-
mately $2.8 billion. Before that, she was the Vice President and General Counsel
for Sega of America, Inc., a partner in the Palo Alto firm Carr & Ferrell, and
Assistant General Counsel for Dole Foods, Inc., a $2 billion food processing
and real estate development corporation.
      Paul C. Jorgensen is the founder and principal of The Jorgensen Law Firm
in Washington D.C. Mr. Jorgensen’s over 20 years of legal experience includes

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2021 LICENSING UPDATE

acting as a senior IP and contract counsel at the Washington D.C. law firm Patton
Boggs LLP. Prior to his years with Patton Boggs, he was a Senior Intellectual
Property Counsel with Choice Hotels International, Inc., where he managed a
large worldwide portfolio of trademarks, copyrights, domain names and trade
secrets, and where he designed and managed profitable licensing programs.
Through this experience, he has successfully prosecuted many U.S. and interna-
tional trademark, copyright, domain name applications, and has designed and
negotiated hundreds of successful contracts and licenses.
      Holger A. Kastler is an IP/IT attorney at Hyazinth LLP in Berlin,
Germany. His practice focuses on technology transactions and disputes, in and
out of court. He represents companies in licensing negotiations in a variety of
industries.
      Nicki Kennedy is a patent partner at Kilpatrick Townsend & Stockton LLP
in Denver, CO.
      Samuel Kim is an associate at Ernst & Young in its Transaction Tax group.
His work focuses on buy and sell side tax structuring and due diligence surround-
ing mergers and acquisitions in the private equity and media and entertainment
sectors. Samuel can be reached at samuel.kim2@ey.com.
      Lisa Kimmel is Senior Counsel at Crowell & Moring, LLP in Washington,
D.C. Ms. Kimmel has nearly twenty years of experience as an antitrust lawyer
and holds a Ph.D. in economics from the University of California at Berkeley.
A former senior advisor at the Federal Trade Commission, her practice focuses
on clients in the information and communications technology and digital com-
merce sectors, including issues at the intersection of antitrust and intellectual
property law.
      Justin Krieger is the Managing Partner of the Denver office of Kilpatrick
Townsend & Stockton LLP. Mr. Krieger’s practice focuses on client counseling,
district court and patent office litigation, and patent prosecution. He has a partic-
ularly successful track record handling inter partes review (IPR) proceedings
before the U.S. Patent Trial and Appeal Board (PTAB).
      Ellen Lambrix is a senior associate in the Commercial IP/IT Team at Bris-
tows LLP. Ellen has a broad IP experience and specializes in advising clients on
non-contentious IP matters with a focus on transactions which involve the devel-
opment, exploitation, and transfer of IP rights. Ellen advises clients across a
range of industries and has a particular interest in the life sciences sector. More
information about Ellen is available at Bristows.com.
      Oliver Laing is a UK solicitors and partner in the firm of Potter Clarkson
LLP. Oliver specializes in the negotiation of technology licensing and collabora-
tion agreements and also handles infringement litigation.
      Janna Lawrence is an associate in the Commercial IP/IT Team at Bristows
LLP. She qualified as a solicitor in August 2020 and has a background in life
sciences and journalism. More information about Janna is available at
Bristows.com.

                                        xviii
ABOUT THE CONTRIBUTORS

      Ryan Martin focuses his practice at Loeb & Loeb LLP in Chicago on
trademark, marketing, promotions, advertising, copyright, privacy, and other
intellectual property matters. He assists consumer brands and advertising agency
clients in the drafting and negotiation of sponsorship agreements, branded enter-
tainment and media deals, celebrity talent and influencer agreements, and the
licensing of music, trademarks, and other intellectual property. Ryan graduated
cum laude from the University of Illinois at Urbana-Champaign and cum laude
from the University of Michigan Law School (J.D.).
      Alistair Maughan is Co-Managing Partner of Morrison & Foerster’s Lon-
don office. He is co-chair of the Technology Transactions Group and a member
of the Global Sourcing Group. Mr. Maughan focuses on commercial contracts
and technology-based projects for major companies and public sector organiza-
tions at https://www.mofo.com/people/alistair-maughan.html.
      Patricia Ann Metzer is a Commissioner of the Massachusetts Appellate
Tax Board. She is the author of numerous texts and articles on taxation, including
the taxation of IP. Miss Metzer has served as an Associate Tax Legislative Coun-
sel with the U.S. Treasury Department, vice chair-publications of the Tax
Section of the American Bar Association, and a member of the Advisory Com-
mittee of the NYU Annual Institute on Federal Taxation.
      Paige Mills is a member at Bass, Berry & Sims in Nashville, Tennessee. As
a seasoned trial lawyer with more than 25 years of litigation experience, she con-
centrates her practice in complex litigation and intellectual property and technol-
ogy. Paige routinely represents clients all over the country in copyright, patent,
trademark, trade secret, entertainment, advertising, privacy, internet and technol-
ogy disputes. In 2019, Paige was accepted as a mediator for the World Intellec-
tual Property Organization (WIPO) Arbitration and Mediation Center, an
international organization that resolves various types of intellectual property dis-
putes. She can be reached at pmills@bassberry.com.
      Akkad Moussa is an associate at Kilpatrick Townsend & Stockton LLP in
Washington, D.C.
      Amy Mudge is an experienced attorney and partner in the Regulatory and
Advertising and Marketing Practice Groups at Venable. She represents clients before
the Federal Trade Commission (FTC), Department of Justice (DOJ), state attorneys
general, and the National Advertising Division. Ms. Mudge is the co-editor of the
blog allaboutadvertisinglaw.com (www.allaboutadvertisinglaw.com).
      Erik Müürsepp is an associate in the Commercial IP/IT Team at Bristows
LLP. With a background in life sciences, he advises a range of clients in innova-
tive industries on the effective commercialization of intellectual property and
technology assets. More information about Erik is available at Bristows.com.
      Yasamin Parsafar is an associate at Sheppard Mullin in the firm’s Intellec-
tual Property Practice Group. She serves as a lead associate of the firm’s Block-
chain & Digital Assets industry team. Yasamin’s practice focuses on protecting
her clients’ intellectual property rights through counseling, prosecution, enforce-
ment and litigation.

                                        xix
2021 LICENSING UPDATE

      Mark Patrick is an associate at Sheppard Mullin in the firm’s Intellectual
Property Practice Group. He serves as a lead associate of the firm’s Esports &
Games industry team.
      Kathleen T. Petrich is a partner with Miller Nash, based in the firm’s
Seattle office. Ms. Petrich practices in the area of IP, including mechanical/
electrical, electromechanical, design patent, and trademark prosecution. She
counsels clients regarding their IP rights and strategizes with clients as to the
protection and enforcement of those rights. She also litigates IP disputes, and pro-
vides clearing, registration, prosecution, opposition practice, portfolio manage-
ment, opinion, due diligence, license, and settlement negotiations services. In
addition, Ms. Petrich works in the green technology sector, with a special interest
in clean transportation.
      Dr. Lutz Riede LL.M. (UBC), LL.M. (IT-Law) specializes in IP and Tech
Law matters at Freshfields Bruckhaus Deringer LLP in Vienna (Austria).
      David Schnider is a partner with the Los Angeles based firm, Nolan
Heimann LLP. His practice focuses primarily on intellectual property, branding,
and licensing. David manages a portfolio of over 500 domestic and international
trademark registrations for his clients. He has been representing cannabis compa-
nies since 2015, helping them navigate the unique business and regulatory
requirements that impact their brand strategy. David also spent six years in house
where he helped build a multi-million-dollar licensed apparel division from
scratch and developed an understanding of how to adapt legal strategy to practical
business needs.
      Randy Shaheen is a partner in the Regulatory and Advertising and Market-
ing Practice Groups at Venable LLP. He represents clients before numerous reg-
ulatory agencies including the FTC, state attorneys general, the Consumer
Financial Protection Bureau, and the National Advertising Division.
Mr. Shaheen is the co-editor of the blog allaboutadvertisinglaw.com (www.
allaboutadvertisinglaw.com).
      Wolfgang Schönig is a partner of Morrison & Foerster (International) LLP
based in the firm’s German office in Berlin. His practice specialty is advising on
IP aspects relative to transactions in the digital, telecoms, high tech, life sciences,
and pharmaceuticals industry, as well as legal representation in IP disputes.
      Mark Seavy joined Licensing International in 2014 as Publications Editor,
responsible for the trade association’s daily Newslinks online publication. Prior to
that, he was senior editor at Consumer Electronics Daily and its predecessor, Tele-
vision Digest, for 21 years, and a news editor at the Associated Press in Connecticut.
      Bruce B. Siegal is a member of Taylor English’s Intellectual Property and
Entertainment, Sports and Media Departments, where he focuses on sports brand
protection and enforcement, trademark licensing, contract negotiation, marketing,
and business operations. Formerly the SVP and General Counsel of the Collegiate
Licensing Company/IMG College, Siegal has vast experience in trademark
enforcement actions and anti-counterfeiting efforts. Contact him via email,
bsiegal@taylorenglish.com.

                                          xx
ABOUT THE CONTRIBUTORS

      Christopher Smith is a shareholder in the Metro-Detroit office of Brooks
Kushman P.C. He has over 14 years of patent litigation, licensing, and opinion
experience. Chris advises clients on various licensing transactions, on both the
licensor and licensee side of the negotiation. He has also represented corporations
across a broad range of industries and technologies in various IP litigation dis-
putes, including lawsuits involving patents, trademarks, trade secrets, and copy-
rights, as well as post-grant proceedings at the PTAB.
      Mark Snelgrove is a UK solicitor and partner in the firm of Potter Clarkson
LLP. Mark specializes in the negotiation of technology licensing and collabora-
tion agreements.
      Christiana State is a legal executive with over 20 years of experience in
the areas of technology and commercial transactions, product counseling, intel-
lectual property, privacy and global litigation management. Christiana holds elec-
trical engineering and law degrees from Santa Clara University. Christiana is also
a certified CIPP privacy professional and registered to practice before the US Pat-
ent and Trademark Office. Christiana’s experience includes advising start-up
companies, as well as public corporations, in a variety of technology-related cor-
porate matters and activities, including strategic partnerships, intellectual prop-
erty management, open source, standards, corporate reorganizations, global
patent licensing, including FRAND licensing, M&A diligence and marketing.
Christiana is a frequent speaker at various conferences on intellectual property,
litigation and privacy topics and has been a guest lecturer at Santa Clara Univer-
sity and University of San Francisco. Christiana has also served on the board of
directors of various non-profit entities.
      Robert Strand is a renowned expert in helping brands strategically acceler-
ate growth. A creative brand strategist and concept activator, he brings 26 years
of brand extension, strategic partnership development, intellectual property rights
management, licensing, marketing, product & content development, and buying
experience to client engagements. He has achieved success in both entrepreneur-
ial and established corporate environments. At The Blake Project, he serves as
Chief Brand Extension & Licensing Strategist and assists clients with strategic
brand partnership strategy and serves as an expert witness as a brand and licens-
ing subject matter expert. Prior to joining The Blake Project, Robert served Vice
President, Licensing & Sponsorship at CONSOR Intellectual Asset Management
where he assisted clients with brand monetization strategy, valuation, and licens-
ing services. Key initiatives included valuing the licensing programs of two
world famous and deceased celebrities, patent monetization, and co-presenting
educational seminars at prestigious New York City law firms as part of the
Licensing Executives Society Continuing Licensing Education program.
      Pat Treacy is a Partner with Bristows LLP in London and works with cli-
ents on transactions and complex agreements (including settlement, R&D, licens-
ing and joint venture agreements) in all sectors, with a focus on high tech and
pharma/life sciences.

                                        xxi
2021 LICENSING UPDATE

      Gia M. Velasquez focuses her practice at Loeb & Loeb LLP in Chicago on
transactional matters related to intellectual property, information technology,
advertising, and media. She graduated summa cum laude from Yale College
(B.S. Chemistry) and cum laude from Harvard Law School (J.D.). While in law
school, Gia received the Weiler Scholar Award for Excellence in Sports Law
and was the recipient of Dean’s Scholar Prizes for Music and Digital Media and
Sports and the Law: The Three Major Leagues.
      David Wanetick is the Managing Director at IncreMental Advantage, a
world renowned IP valuation firm. Mr. Wanetick is a thought leader in valuing
emerging technologies and intangible assets such as patents, trademarks, copy-
rights, customer lists, and contracts. His clients include leading technology trans-
fer offices, solo inventors, Fortune 100 companies, mid-sized companies, law
firms, incubators, venture capital, and private equity firms. His valuations are con-
ducted for licensing, capital raising, tax reporting, and litigation support purposes.
      He developed the widely acclaimed Total Valuation Extraction methodol-
ogy for assessing the value of emerging technologies as well as the Patent Valu-
ation Gauntlet for determining the value of patents. He has written several books
on investing and his articles have been published in virtually all of the intellectual
property, accounting, IP law, and valuation publications in the United States,
Canada, and the United Kingdom. He lectures on the Valuation of Emerging
Technologies all over the United States as well as in Canada, the United King-
dom, the Netherlands, Belgium, Germany, and Israel.
      Tyson Winarski is a patent law professor with the Sandra Day O’Connor
College of Law at Arizona State University and the University of San Francisco
School of Law and teaches a course on Patent Licensing and Monetization. Tyson
also serves on the Board of Directors for the Grand Canyon Conservancy, the
official non-profit partner of the Grand Canyon National Park. For nearly 8 years,
Tyson also served as a Senior Licensing Attorney for Intellectual Ventures devel-
oping and executing patent monetization programs through assertion-based
licensing strategies and negotiating licensing agreements. Tyson also worked
for seven years with Steptoe and Johnson LLP and Pillsbury Winthrop in
Washington, D.C. where Tyson’s patent practice included patent litigation in
Federal District Court and the International Trade Commission under Section 337,
opinions on validity and infringement, all phases of patent preparation and pros-
ecution, portfolio due diligence for mergers and acquisitions as well as IPO S-1
statements, patent reexamination proceedings, and copyright and trademark liti-
gation and licensing. In addition, Tyson has testified as an expert witness on
licensing in Federal District Court and has served as a court appointed arbitrator.
Tyson is also the inventor of 33 patents, 11 of which have been purchased by var-
ious companies including Google. Tyson’s inventions include blockchain tech-
nologies, nanotechnologies, graphene coated optic fibers and lasers, anti-
terrorist laser devices, and renewable energies. Tyson is widely published on IP
matters with IAM-Intellectual Asset Management Magazine, IEEE Magazine,
the American Intellectual Property Law Association (AIPLA), and Wolters

                                         xxii
ABOUT THE CONTRIBUTORS

Kluwer publishers. Tyson has also been a frequent lecturer on patent matters at
AIPLA, Practicing Law Institute, IEEE Conferences, European Nano Systems
NSTI, the San Francisco Intellectual Property Law Association, and the Arizona
Bar Association. A graduate of the Sandra Day O’Connor College of Law at Ari-
zona State University, Tyson is a registered patent attorney holding a BSME and
MSEE. Tyson can be reached at tywinarski@gmail.com.
      Brian J. Winterfeldt, the Founder and Principal of Winterfeldt IP Group,
has been practicing trademark law for nearly two decades. His expertise encom-
passes both traditional trademark portfolio matters and brand-related digital
issues, as well as ICANN issues and other Internet policy matters. Brian is cur-
rently President of ICANN’s Intellectual Property Constituency, a member of
the USPTO’s Trademark Public Advisory Committee, a panelist with the World
Intellectual Property Organization for the UDRP, and a member of the Interna-
tional Trademark Association’s Anti-Counterfeiting Committee.
      Mark Wittow is a partner at K&L Gates LLP, where he leads the firm’s
intellectual property/technology transactions and data protection practice group.
His work focuses on complex intellectual property and technology transactions
of all types, as well as electronic commerce and content licensing issues and data
privacy and data protection compliance. Mark can be reached at mark.wit-
tow@klgates.com and further information about him is at http://www.klgates.
com/mark-h-wittow/.
      Nancy E. Wolff is a member of the intellectual property, media and enter-
tainment law firm of Cowan, DeBaets, Abrahams & Sheppard, LLP located in
New York, New York and Beverly Hills, CA. She represents a wide range of cre-
ative individuals and companies in all areas of digital media, art law, licensing
and publishing and serves as counsel to the Digital Media Licensing Association.
She is part of the firms Litigation Practice and supports the firms Entertainment
practice with pre-publication and fair use review of films. Ms. Wolff frequently
speaks on copyright, digital media, and licensing issues.
      Chelsea Wong is a Solicitor at Baldwins Intellectual Property. She is a New
Zealand barrister and solicitor specializing in intellectual property advice and dis-
pute resolution. Chelsea has experience across a range of industries, including
having worked in the public sector advising on copyright policy, and several
years as a project manager in music education and outreach for one of New Zeal-
and’s largest arts organizations. Chelsea is a violinist and musicologist, with a
music degree and law (honors) degree from the University of Auckland, New
Zealand. She has a particular interest in music copyright and issues that affect
the creative sector.
      Yinfei Wu is an associate at Finnegan and has significant experience in
both United States and China trademark and copyright law. She advises clients
and works closely with counsel around the world on trademark usage, clearance,
prosecution, domestic and worldwide portfolio management, litigation, and
enforcement matters. Ms. Wu also handles cancellation and opposition proceed-
ings before the TTAB.

                                        xxiii
CHAPTER 3
    COPYRIGHT LICENSING
    Paige Mills

§ 3.01 Copyright Protection
       [A] Introduction
       [B] Copyright Licensing
       [C] International Treaties and Directives
§ 3.02 Year in Review
       [A] New Legislation
            [1] CASE Act of 2020
            [2] PLSA
       [B] Who Can Sue?
       [C] Who Is Subject to Suit?
       [D] What Is Copyrightable Subject Matter?
            [1] Facts and Historical Events Are in the Public Domain and
                thus Are Not Copyrightable
            [2] States Cannot Claim a Copyright in Their Laws
       [E] What Constitutes Infringement?
            [1] Proving Substantial Similarity
            [2] Defenses
       [F] Musical Works
            [1] ISPs Can Have Liability for Illegal Downloads
       [G] Social Media
            [1] Use of Instagram’s Embed Tool May Be Infringement
                Without an Explicit License
       [H] Art Works
            [1] VARA Can Provide Substantial Liability for Destroying Art

                                   3-1
COPYRIGHT LICENSING                                                        § 3.01[A]

§ 3.01 COPYRIGHT PROTECTION

[A] Introduction

      The basics of copyright law are well-established but bear repeating. As a
quick summary, copyright is a form of protection provided by the U.S. Copyright
Act (17 U.S.C. §§ 501 et seq.) to authors of “original works of authorship” that
are fixed in a tangible form of expression. An original work of authorship is a
work that is independently created by a human author and possesses at least some
minimal degree of creativity, the bar for which is low. A work is “fixed” when it
is captured (either by or under the authority of an author) in a sufficiently perma-
nent medium such that the work can be perceived, reproduced, or communicated
for more than a short time.
      Copyrighted works may include literary, dramatic, musical, artistic, sound
recordings, films, or typographical creations. Copyright protection in the United
States exists automatically from the moment the original work of authorship is
fixed; registration is not required. A copyright vests in its owner a “bundle” of
rights, including the exclusive right to do the following:

     • Reproduce the work in copies or phonorecords.
     • Prepare derivative works based upon the work.
     • Distribute copies or phonorecords of the work to the public by sale or
       other transfer of ownership or by rental, lease, or lending.
     • Perform the work publicly if it is a literary, musical, dramatic, or cho-
       reographic work; a pantomime; or a motion picture or other audiovisual
       work.
     • Display the work publicly if it is a literary, musical, dramatic, or cho-
       reographic work; a pantomime; or a pictorial, graphic, or sculptural
       work. This right also applies to the individual images of a motion pic-
       ture or other audiovisual work.
     • Perform the work publicly by means of a digital audio transmission if
       the work is a sound recording.

      The breach of these exclusive rights by one other than the copyright owner
is copyright infringement, unless a defense applies, such as fair use, license, or
the material is in the public domain. As mentioned above, registration is not
required to have a copyright interest. However, registration does convey certain
important benefits in protecting the copyright, such as the ability to sue in federal
court and, if the copyright was registered at the time of the infringement, the abil-
ity to seek statutory damages for the infringement.

                                        3-3
§ 3.01[B]                                                2021 LICENSING UPDATE

     Copyright does not protect:

     • Ideas, procedures, methods, systems, processes, concepts, principles, or
       discoveries.
     • Works that are not fixed in a tangible form (such as a choreographic
       work that has not been notated or recorded or an improvisational speech
       that has not been written down).
     • Titles, names, short phrases, and slogans.
     • Familiar symbols or designs.
     • Mere variations of typographic ornamentation, lettering, or coloring.
     • Mere listings of ingredients or contents.

     Consequently, another important defense to a claim of copyright infringe-
ment is that the subject matter of the claimed copyright is not copyrightable.

[B] Copyright Licensing

      A copyright owner can allow another to exercise one or more of the exclu-
sive rights in its bundle of rights. Such permission is a license, and it can be
exclusive or non-exclusive. If exclusive, it must be in writing.
      Generally, a copyright owner who grants a nonexclusive license to use
copyrighted material waives the right to sue for copyright infringement if the
license is breached. The only remedy is a suit for breach of contract. If, however,
a license is limited in scope and the licensee acts outside the scope of the license,
the licensor can bring an action in copyright infringement. Courts generally will
narrowly construe a license’s scope, making the breach of a license a chancy
proposition, often resulting in claims of copyright infringement in addition to
breach of contract.
      When a work being licensed is a joint work, any of the joint authors may
license its use, so as long as the author accounts to the co-authors for any profits
earned. However, where the copyrighted work is not a work of joint authorship,
but rather a compendium or collection, all co-owners must join in to grant an exclu-
sive license. Otherwise, a single co-owner can only grant a non-exclusive license.
      The copyright owner can, of course, enter into voluntary licenses. The
Copyright Act also provides for involuntary or compulsory licenses under certain
conditions. For example, once a musical work has been recorded and distributed
to the public, any content creator is allowed to record and distribute the song as
long as they pay the required mechanical royalty and meet copyright law require-
ments. With a compulsory license, the copyright owner’s permission is not
required. Compulsory licenses are commonly used by satellite television provi-
ders, cable providers, webcasters, and music companies, allowing them to
broadly distribute copyrighted content legally and efficiently.

                                        3-4
COPYRIGHT LICENSING                                                    § 3.01[C]

[C] International Treaties and Directives

      In the United States, original works of expression that are eligible for
copyright protection are protected under the U.S. Copyright Act. There is no
international copyright that protects the author or copyright owner. A copyright
may be protected only by the copyright laws of individual nations. International
copyright conventions and treaties have been developed to establish obligations
for treaty member countries to adhere to, and implement in their national laws,
thus providing more certainty and understanding about the levels of copyright
protection in particular countries. For example, the United States is a signatory
to the two leading multilateral copyright treaties: the Universal Copyright
Convention and the Berne Convention. These treaties do not provide direct
copyright protection, but instead provide that a qualifying foreign work will
receive protection which is equal to or greater than the protection given to the
signatory’s own works.
      The United States is a member of many treaties and conventions affecting
copyright. The following are the primary treaties and conventions that govern
the protection of works in other countries:

     • Berne Convention for the Protection of Literary and Artistic Works (the
       “Berne Convention”)—the leading international agreement that sets
       standards for protecting literary and artistic works.
     • The Buenos Aires Convention—a treaty signed by most North and
       South American countries which allows for protection of all creative
       works as long as they contain a notice informing that the creator claims
       a copyright in the work.
     • The Brussels Convention Relating to the Distribution of Program-
       Carrying Signals Transmitted by Satellite (“SAT”).
     • Geneva Phonograms Convention (the “Geneva Convention”) sets
       standards for protection of sound recordings against piracy.
     • The Marrakesh Treaty to Facilitate Access to Published Works for Persons
       Who are blind, Visually Impaired, or Otherwise Print Disabled (“VIP”)
     • Universal Copyright Convention (UCC)—an international agreement
       that sets standards for protecting literary and artistic works, largely
       superseded by Berne.
     • WIPO Performances and Phonographs Treaty (WPPT)—an international
       agreement setting standards for protection of sound recordings; and
     • World Trade Organization (WTP)—the World Trade Organization’s
       obligations regarding Trade-Related Aspects of Intellectual Property
       Rights, incorporating and expanding on Berne and adding enforcement
       obligations.

                                      3-5
§ 3.02                                                  2021 LICENSING UPDATE

      In seeking copyright protection for a U.S. work in another country, it is
important to determine the “points of attachment” under that country’s copyright
system, i.e., the factors that connect an eligible work to be protected among treaty
member countries. An author’s nationality or the place a work was first published
are examples of points of attachment. Often protection depends on the facts
existing at the time of first publication. The scope of protection available in that
country will then turn on the substantive provisions available under that country’s
law and practice. Despite these numerous treaties, be aware that some countries
offer little or no copyright protection to foreign works.

§ 3.02 YEAR IN REVIEW

      2020 was a turbulent year by anyone’s estimation—we weathered the first
of two presidential impeachments, a global pandemic, one of the most conten-
tious election cycles in modern history, and the arrival of the “murder hornets.”
While the landscape of copyright law was quite calm in comparison, there are
lots of important developments that the careful copyright practitioner needs to
know. There was important new legislation passed as part of the COVID Relief
Deal or the “Consolidated Appropriations Act, 2021,” which created a small
claims court for copyright disputes and criminal penalties for unlawful streaming.
There were also significant decisions on subjects ranging from state immunity,
copyright trolls, graffiti, and tattoos.

[A] New Legislation

     [1] CASE Act of 2020

     On December 21, 2020, Congress passed a long-anticipated second round of
COVID relief legislation as part of the Bipartisan-Bicameral Omnibus COVID
Relief Deal or the “Consolidated Appropriations Act, 2021.” This relief bill pro-
vided a second round of stimulus to individuals, businesses, and hospitals in
response to the economic distress caused by the coronavirus (COVID-19) pan-
demic. Included in the $2.3 trillion spending and coronavirus pandemic relief
package was the Copyright Alternative in Small-Claims Enforcement Act (or
the “CASE Act of 2020”). The CASE Act had been pending as part of H.R.
133 and contains an alternative dispute resolution program that was first
approved by the House of Representatives on October 22, 2019.
     The CASE Act establishes a Copyright Claims Board (the “Board”) as a
small claims court staffed by three Copyright Claims Officers to handle disputes,
unless the accused infringer timely opts out. The Board can decide infringement
claims, declarations of non-infringement, misrepresentation, and related defenses
and counterclaims. If the work was registered at the time of the infringement, the
Board is also empowered to award limited injunctive relief (in the event that the

                                        3-6
COPYRIGHT LICENSING                                                      § 3.02[A]

parties agreed to cease certain activities in the underlying proceeding) and money
damages of up to $15,000 per violation with a cap of $30,000 per proceeding,
excluding attorneys’ fees and costs. Even if the work was not registered at the
time of the infringement, the copyright owner can potentially obtain statutory
damages for a violation, but in that situation the damages are limited to $7,500
per work infringed, with a total of $15,000 in any one proceeding. The Board
does not have the authority to make a finding of willfulness when making an
award of statutory damages, although it can award attorney fees and costs if it
determines that a litigant has acted with “bad faith conduct.”
      A final determination from the Board precludes re-litigation before any
other court or tribunal. Generally, the Board would be excluded from hearing
claims/counterclaims decided by or pending before a court of competent jurisdic-
tion, by or against a federal or state governmental entity, or against a person or
entity residing outside the United States.
      A petitioner must have filed for and obtained (or been denied) a registration
before it can bring a claim before the Board. Any claim must be brought within
three years of the accrual of the claim. Filing the proceeding tolls the statute of
limitations for the commencement of an action on the same claim in a U.S.
district court during the period in which the proceeding is pending. A respondent
must be properly served with a notice and claim. Once served, the respondent
will have a 60-day period to “opt out” of the Board proceeding by providing
written notice to the Board. If the respondent does not opt out within 60 days,
the Board will make a final determination which will generally preclude
re-litigating the issue before any court or tribunal. Although the Board’s
determinations are not binding on Article III courts, courts cannot vacate or
modify these determinations, except in rare cases of fraud, misconduct or lack of
authority—much like the grounds necessary to set aside an arbitration award.
      Many have raised concerns that the CASE Act will make it easier for
copyright trolls to exact settlements because it reduces the obstacles to filing a
copyright infringement case and that the $30,000 damages limit is too high to
truly constitute a “small claims” court. Moreover, a copyright owner appears to
have the right to obtain a subpoena to identify internet subscribers, without being
burdened by the requirement of stating a plausible claim under Fed. R. Civ.
P. 12(b)(6), opening the door for invasive discovery for claims that might be
deemed defective or frivolous by a federal judge. Further, the targets of trolls
might be unsophisticated individuals or small business that fail to appreciate the
significance of being sued at the Board and fail to timely address the proceedings,
resulting in default judgements that will be difficult, if not impossible, to
overturn.
      The CASE Act is not without safeguards to prevent abusive filings, how-
ever, it provides that any party who pursues a claim or defense in bad faith more
than once in a 12-month period may be barred from initiating a claim before the
Board for 12 months and grants the Register of Copyrights authority to issue reg-
ulations limiting the number of proceedings a claimant may initiate in any given

                                       3-7
§ 3.02[B]                                                          2021 LICENSING UPDATE

year. Only time will tell if the Board will help provide fair and cost-effective
redress for copyright infringement or if it will simply give another tool for trolls
to extort unreasonable settlements.

       [2] PLSA

       In addition, the CASE Act also contains the Protecting Lawful Streaming Act
(“PLSA”). This legislation increases penalties for illegal streaming of copyrighted
works. Currently a misdemeanor, the PLSA makes illegally streaming of copy-
righted material a felony punishable by up to 10 years of imprisonment. This law
was passed without much debate or scrutiny. Although the law primarily targets
those who are illegally streaming for commercial gain, there is some concern that
it could be used against the Average Joe who might lend his or her Netflix login
to friends or family. It will be interesting to see how these provisions are interpreted
by content providers and law enforcement in efforts to combat illegal streaming.

[B] Who Can Sue?

     As set forth above, there has been a great deal of concern about the rise in
copyright litigation brought by the so-called “copyright troll.” As quoted in
Wisser v. Vox Media, Inc., No. 19 Civ. 1445, 2020 WL 1547381, at *2
(S.D.N.Y. Apr. 1, 2020) (citations omitted),

       A copyright troll is a plaintiff who is “more focused on the business of
       litigation than on selling a product or service or licensing their copyrights to
       third parties. A copyright troll plays a numbers game in which it targets
       hundreds or thousands of defendants seeking quick settlements priced just
       low enough that it is less expensive for the defendant to pay the troll rather
       than defend the claim.”

      And while everyone might love to hate the copyright troll, the U.S. Court of
Appeals for the District of Columbia Circuit made it clear that one’s business
model or the prurient nature of the copyright work is not to be considered when
deciding whether a litigant has the right to early discovery or the ability to sur-
vive a motion to dismiss. See Strike 3 Holdings, LLC v. John Doe, Subscriber
Assigned IP Address 73.180.154.14, 964 F.3d 1203 (D.C. Cir. 2020).
      In Strike 3 Holdings, the D.C. Circuit found that the district court abused
its discretion by relying heavily on the copyright owner’s litigation history and
the nature of its films rather than the relevant legal standards under the Federal
Rules of Civil Procedure. Strike 31 is a producer and online distributor of adult
films, an industry that constantly battles online piracy. To protect against this

   1
     Strike 3 is one of the most prolific copyright trolls around, having filed more than 2,000 copy-
right infringement cases in 2018 alone. See https://torrentfreak.com/us-online-piracy-lawsuits-hit-a-

                                                3-8
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