News

Federal Judge Dismisses Taylor Swift Copyright Suit

Taylor Swift is victorious in court again, after a California judge dismissed a copyright lawsuit over the lyrics to her song “Shake It Off,” The Washington Post reports. The suit claimed Swift stole lyrics from the 2001 song “Playas Gon’ Play” by 3LW, which featured the lyrics “players gonna play” and “haters gonna hate.” U.S. District Judge Michael W. Fitzgerald ruled that those lines alone to not qualify as creative and original enough to warrant copyright protection.
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Sweeping Music Copyright Package Headed to U.S. House Committee Next Month

House Judiciary Committee Chair U.S. Rep. Bob Goodlette, R-Virginia, plans to introduce an umbrella music licensing bill next month, The Tennessean reports. The bill will include the Music Modernization Act, the Classics Act and the AMP Act. The Music Modernization Act would overhaul the digital mechanical licensing process and lead to better payouts for songwriters, according to advocacy groups representing songwriters and publishers. The Classics Act would require digital radio companies to pay artists and labels royalties for songs recorded prior to 1972. The AMP Act would codify the existing practice of paying music producers compensation stemming from digital royalties earned by artists.
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Texas Judge Rules Law Firms with Similar Initials is Not Trademark Infringement

A law firm using the initials P and M in its name did not infringe upon the trademark of another firm with the same initials, a Texas judge ruled. The ABA Journal reports that Paranjpe & Mahadass, which uses “P&M” and “PM” in its marketing materials, received a cease-and-desist letter from the PM Law Firm, and filed a suit for declaratory judgment in the matter. PM countered that it was entitled to damages for trademark infringement. Judge Robert Schaffer ruled that PM Law doesn’t have a valid common law trademark for its name.
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Federal Judge Awards Street Artists $6.7 Million in Milestone Case Against Landlord

On Monday, a federal judge in Brooklyn awarded $6.7 million in damages to 21 artists whose work at 5Pointz — a former factory turned space for artists' studios in Queens, NY — was destroyed according to The Washington Post. This comes after a three-week trial in November 2017 in U.S. District Court in Brooklyn. The case marked the first time a court has been asked to determine whether graffiti, with its transitory nature, should be considered art protected under the Visual Artists Rights Act (VARA), weighing a property owner's rights against the rights of visual artists. 
 
Senior United States District Judge Frederic Block awarded the artists the maximum damages possible, saying the building's owner, Gerald Wolkoff, "willfully" ruined the artwork and showed no remorse for his "recalcitrant behavior." "He was bent on doing it his way, and just as he ignored the artists' rights he also ignored the many efforts the Court painstakingly made to try to have him responsively answer the questions posed to him," Block wrote in his opinion. "Wolkoff has been singularly unrepentant."
 
As a final resort one tenant, Johnathan Cohen, tried to prevent the imminent demolition by seeking a preliminary injunction against Wolkoff under VARA. The court denied the plaintiffs' application for a preliminary injunction but said an opinion would come within eight days. "Rather than wait for the Court's opinion," Block wrote, "Wolkoff destroyed almost all of the plaintiffs' paintings by whitewashing them during that eight-day interim."
 
The landlord and his lawyer have contended that the artists knew for years that the buildings would ultimately be demolished but Block said Wolkoff should have put off demolishing the properties for at least 10 months when he had all his permits. The judge said Wolkoff's "precipitous conduct was an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art."
 
The case is also the first time that a jury decided a VARA claim in court.
 
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The Protest Movement as a Tool for Social Change: Fifty Years Post-King

The Ben F. Jones Chapter of the National Bar Association presents a dynamic day of programming in recognition of 50th anniversary of the death of Dr. Martin Luther King in Memphis. This program explores the protest that brought Dr. King to Memphis in 1968 and the legacy that his untimely death has left on the fabric of the city. The event will focus on the protest movement in its current state as well as provide updated information on the law surrounding assembly, protest and municipal responsibility.
 
The program features local historical figures who worked with Dr. King, representatives of the media, City of Memphis, local activists, attorneys and judges.
 
Speakers and producers include:
  • Barbara Arnwine, Esq., CEO and Founder of the Transformative Justice Coalition, Washington, D.C. 
  • Judge Earnestine Hunt Dorse, Municipal Court Judge, Memphis
  • Bill Cody, Burch, Porter and Johnson, Memphis
  • Earle Schwartz, Memphis Bar Association President, Memphis
  • Judge Bernice Bouie Donald, United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit, Memphis
When: Feb. 23, 9 a.m. CST
 
Where: Fogleman Business Center, First Floor Amphitheater, 330 Innovation Dr., Memphis, Tennessee 38152
 
Contact Florence Johnson by email or call her at 901-725-7520 for more information.
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Access to Justice Commission Seeking Feedback

The Tennessee Supreme Court’s Access to Justice Commission is seeking input from the legal community to help in planning efforts as it develops a new strategic plan in March. A brief survey is available for all who wish to share thoughts and feedback. The survey will remain open through Feb. 7. Please contact Anne-Louise Wirthlin at the Administrative Office of the Courts with questions or for more information. 

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Seminar: Intellectual Property in the 4th Industrial Revolution

David Kappos, former under secretary of commerce for intellectual property and director of the United States Patent and Trademark Office, will be holding a free seminar on Intellectual Property in the 4th Industrial Revolution at Vanderbilt Law School on Feb. 6.
 
The 4th Industrial Revolution, otherwise known as the Internet of Things, has been a hot topic in the IP community and is set to transform how the world works through technology. Do not miss this informative session designed for intellectual property professionals in a fully connected world. Here's the key info:
 
When: Tuesday, Feb. 6, 12-1 p.m., CST
 
Where: Bennett-Miller Law School Auditorium, 131 21st Ave S., Nashville, TN 
 
 
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Glen Campbell's Longtime Publicist Subpoenaed Regarding Contested Will

The longtime publicist of Glen Campbell, who passed away from Alzheimer's Disease last year, has been subpoenaed to testify regarding the late singer's competence when he signed a now-disputed will, according to The Tennessean.

Records in Davidson County Probate Court show a subpoena has been issued for Sanford Brokaw to appear for testimony in Nashville on Feb. 20. The subpoena calls on Brokaw to "provide proof of the decedent's capacity since 2002” and submit "all communications regarding the estate of the decedent."

The contention is regarding the exclusion of three of Campbell's children, who have been cut out of his estimated $50 million estate, according to a 13-page will filed by his widow in 2006, Rolling Stone reported. The will states that he was "specifically excluding" the three children from receiving anything under the will or a related trust, and names his wife, Kim, as executor. Court records indicate there was an earlier version of Campbell's will, dated in 2002.

This was not the first interfamilial feud, as Campbell’s eldest daughter Debby and son Travis previously won a legal victory after claiming that Kim Campbell was denying them the right to visit their father during his illness. Tennessee Gov. Bill Haslam subsequently signed a bill into law called the Campbell / Falk Act, which allows family members and close friends of a person with Alzheimer’s disease, dementia or other disabilities to visit a loved one in person, or maintain contact with them by phone, email or mail, despite the stated wishes of a legally appointed conservator.

Campbell was first diagnosed with the Alzheimer’s in 2011 and died in August 2017. A Netflix film, "I’ll Be Me", details his diagnosis, final tour and his farewell to fans.

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ABA asks Federal Circuit to Reverse Panel’s Decision Awarding Lawyer Fees in Patent Appeal Cases

The American Bar Association has filed an amicus brief with the United States Court of Appeals for the Federal Circuit, arguing that a provision of U.S. patent law does not give the government the right to be reimbursed for its lawyers' expenses regardless of which side prevails in a court appeal of an administrative patent decision.
 
The argument focuses on the U.S. Patent and Trade Office's proposed interpretation of Section 145 of the law which states that "all expenses of the proceedings shall be paid by the applicant." 35 U.S.C. § 145. For nearly two centuries, the phrase has been understood universally to mean that the applicant must pay only the PTO's out-of-pocket expenses for the proceedings, like travel costs and expert witness fees.
 
The ABA contends that an interpretation in a recent case, Nantkwest, Inc. v. Joseph Matal, is a radical departure from that longstanding interpretation, in that it requires the applicant to pay for the government's salaried attorneys any time the applicant invokes Section 145, even if the applicant prevails against the government in the proceedings. The ABA feels that this additional hurdle, on top of the already high costs of a civil action, may be prohibitive for many patent applicants, particularly the poor, small businesses and non-profit organizations. 
 
The full brief can be found here.
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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SCOTUS to Take Up Trump Travel Ban

The U.S. Supreme Court today announced it would take on the case against the latest version of President Donald Trump’s travel ban, which blocks individuals from six majority-Muslim countries from entering the United States, Fox News reports. The court will hear arguments in April and is expected to issue a ruling in June. This version of the ban applies to citizens of Chad, Iran, Libya, Somalia, Syria and Yemen, as well as North Korea and certain people from Venezuela.
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Army Opposes Vegas Hockey Team’s Trademark

The Department of the Army today filed a notice of opposition with the U.S. Trademark and Patent Office against Black Knight Sports and Entertainment over the use of the name “Golden Knights” for an NHL Las Vegas expansion team. Sportslogos.net reports that the Army “believes it will be damaged” by the registration of the trademark, as they have used it since 1969 in connection with the U.S. Army Parachute team and public relations efforts. The Golden Knights’ majority owner noted that the team’s color scheme was inspired by that of West Point.
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Music City Legal Hackers to Host Meet Up Thursday

The Music City Legal Hackers have a meet up planned for Thursday at Vanderbilt Law School from 5 to 6:30 p.m. Planning for Nashville’s second annual legal hackathon, scheduled for April 14, is one item on the agenda.
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Levy Named Patterson IP Law’s New Managing Shareholder

Ryan Levy has been named new managing shareholder at Patterson IP Law, the Nashville Post reports. He replaced Ed Lanquist in the role. Levy has been with the firm since 2005, and serves as co-chair of Patterson’s Litigation Practice Group. Lanquist praised the choice of Levy and noted that the ascension was part of a transition plan that began two years prior.
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Nashville Attorneys Open New Practice

Nashville lawyers A.J. Bahou and Sam Miller have officially opened a new boutique firm, Bahou Miller PLLC, Business Insider reports. The firm will focus on intellectual property, business litigation and advising. Both lawyers have experience with technology-related legal topics in their practice, such as blockchain, cryptocurrencies, online defamation, data privacy and more. Miller is a graduate of the Maurer School of Law at Indiana University and is a former chair of the Intellectual Property Section of the TBA. Bahou earned his law degree and LL.M. from the Franklin Pierce Law Center at the University of New Hampshire.

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Rock Band The Turtles Loses Royalty Case

The Florida Supreme Court ruled yesterday that Florida law doesn’t protect performers seeking compensation for recordings made before 1972, the ABA Journal reports. The ruling came in the case of members of the band The Turtles, who sued SiriusXM radio over royalties. Flo & Eddie Inc., which controls the music rights for the band, lost a similar lawsuit in New York as well.
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Changes in the Propriety of “Venue” in a Patent Infringement Suit

Recently, the United States Supreme Court issued a decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, 16-341, US S. Ct. This decision heralds a major change in the propriety of “venue” in a patent infringement suit brought against a US company in a US district court for infringement of a US patent.
 
The patent venue statute reads as follows:
 
 28 U.S.C. § 1400. Patents and copyrights, mask works, and designs
(a) Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.
(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.
 
The Supreme Court held in TC Heartland that for purposes of §1400(b) (venue in patent infringement actions), a domestic corporation will now be deemed to “reside” ONLY in its state of incorporation. This, in effect, overturns the prevailing interpretation of §§ 1391 & 1400(b), read together, that venue would be proper in any judicial district in which a defendant accused of patent infringement is also subject to personal jurisdiction. The Supreme Court has now determined this interpretation of §§ 1391 and 1400(b) contravenes its decision some 60 years ago in In Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 226 (1957) that, for purposes of §1400(b), a domestic corporation “resides” only in its State of incorporation.   
 
In light of TC Heartland, a domestic corporation may now only properly be sued for patent infringement in a judicial district (i) in its state of incorporation or (ii) where the domestic corporation has both (a) committed acts of infringement and (b) has a regular and established place of business. The bottom line is that, in the wake of TC Heartland, many of the new patent infringement suits are likely to be brought in states like Delaware, Nevada, and other states where companies have historically favored chartering their business or, of course, in states where such companies have regular and established places of business and have allegedly committed acts of infringement. On the other hand, states like New York, New Jersey, Illinois, California, and Texas are likely to see a significant drop in the filing of new patent infringement actions.
 
Many new questions are likely to be raised by TC Heartland, which undoubtedly represents a major change in how future patent infringement suits will be brought, including, for example, the impact of TC Heartland on pending or recently filed cases, its applicability to patent declaratory judgment actions, and the like. It is also not known whether Congress will be pressured to act to, in effect, overrule TC Heartland by appropriate legislative amendment to the general and/or patent venue statutes. One approach some are taking as a result of TC Heartland is to sue customers who sell or resell products alleged to infringe patents and/or products made by processes/methods alleged to infringe US patents. This is likely to spark considerably more adjudication over the little-known, but potentially very powerful, “customer suit” exception. The customer suit exception allows a “supplier” or manufacturer entity (the so-called “real party in interest”) to commence a DJ action in the supplier/manufacturer's home state of incorporation or any other state where the suit could properly have been brought, and then intervene and have the case brought against its customer moved to the court where the DJ action is pending, assuming the plaintiff is subject to the jurisdiction of the court in which the DJ action has been filed.
 
Mark Graham, The Graham Law Firm PLLC
 
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Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond

 
The International Law Section of the Tennessee Bar Association is sponsoring a free seminar “Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond” to be held on Thursday, Nov. 2 from 6:00 p.m. – 7:30 p.m. at Nashville School of Law, Appellate Courtroom, 4013 Armory Oaks Drive, Nashville, Tenn. 
 
The speakers on the panel include:
  • Terry Olsen, Chair of the TBA International Law Section, as Moderator
  • Clay Banks, Regional Director of Tennessee Department of Economic & Community Development
  • James Forde, Prosperity and Economics Officer of British Consulate General, Atlanta
  • Ms. Joanne Chu, Director of Hong Kong Economic and Trade Office (New York)
  • Mr. Michael Kwan, Deputy Director of Hong Kong Economic and Trade Office (New York)
The seminar will provide an overview of the global & U.S. trade & investment landscape as it concerns Tennessee for 2018 & beyond, and both policy & legal views of the ever-changing global standard of Tennessee in the international investment environment.
 
Attendees will also have the opportunity to have direct interactive discussions with the speakers at the end of the seminar.
 
The panel discussion will last from 6pm thru 7pm, and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts. 
 
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Volunteer Service Project

Get involved! Please join in this joint service project with members of Intellectual Property Section and the Entertainment & Sports Section to give back to the community.  

To sign up, just email Jeff Allen at jallen@bradley.com. The event will be Oct. 28 from 1 to 4 p.m. at the Second Harvest Food Bank in Metro Center.

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Rutherford County Chancery Court Celebrates E-Filing System Launch

To celebrate the launch of Rutherford County Chancery Court’s e-filing program, a ribbon cutting was held last week at the Rutherford County Judicial Building. Hosted by Chancellor Howard Wilson and Clerk and Master John Bratcher, the event celebrated four years of hard work to put the system into place. “We look forward to the time when our Circuit Court and all of the other state trial courts come online with e-filing,” Wilson said.

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Netflix Sends Humorous Cease-and-Desist Letter to Bar Owners

A lawyer for Netflix took a unique approach to sending a cease-and-desist letter to the owners of a “Stranger Things”-themed pop-up bar in Chicago, the ABA Journal reports. “Please don’t make us call your mom,” the letter from attorney Bryce Coughlin reads. “Look, I don’t want you to think I’m a total wastoid, and I love how much you guys love the show. But unless I’m living in the Upside Down, I don’t think we did a deal with you for this pop-up.” The letter allows the owners to keep the bar open but requests that they do not extend the pop-up beyond its six-week run and that they reach out to Netflix for permission if they plan to do something similar in the future.
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Inventor Legal and Business Boot Camp in Knoxville on Wednesday

The TBA will conduct an Inventor Legal & Business Boot Camp on Sept. 20 in Knoxville to educate all attendees about the legal and business aspects of Intellectual Property and its role in starting a business. This program is designed for those who create or own intellectual property (inventors, makers, artists, licensing organizations, etc.) and the attorneys who represent them. Click here for more information and to register.

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Court Square Series Kicks Off in Chattanooga

On Sept. 21, this year’s Court Square series kicks off in Chattanooga at Chambliss, Bahner & Stophel. Kevin Christopher will address common intellectual property issues for general practitioners. Jay Elliott will cover issues attorneys may encounter when handling matters with in-house counsel and Chris Varner will provide a summary of litigation updates. The last session will be a roundtable discussion offering point and counterpoint scenarios in connection with various contract provisions. For more information or to register.   

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Privacy Concerns Raised Over iPhone's New Facial Recognition Technology

Users of the new iPhone X from Apple will be able to unlock their phones using facial recognition technology, prompting questions from civil liberties groups about whether or not police can use the new feature to access users' information. The ABA Journal reports that, while the Riley v. California decision established that police would need a warrant to search the contents of a phone, whether they can force you to unlock it is unclear. Read the full story here

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