Whether a Requirement to Bake a Wedding Cake Should be Viewed as a ‘Speech Compulsion’ – amicus brief in Masterpiece Cakeshop (Gay wedding cake case)

Amicus brief by Professors Eugene Volokh and Dale Carpenter in Masterpiece Cakeshop (the gay wedding cake case). Question presented:

Whether a requirement to bake a wedding cake should be viewed as a “speech compulsion” akin to a requirement to write, sing, paint, or photograph.


Recent Trademark-Related Tweets


Text of SDNY Decision in GRINCH Parody Suit


I apologize for being a little tardy in my blogging. From September: SDNY holds that WHO’S HOLIDAY, a play picking up the story of Cindy-Lou Who from “The Grinch Who Stole Christmas, as an unhappy adult living in a trailer, is a lawful parody.

Favorite passage:

fahoo fores dahoo dores


Guinness Book of World Records v Scholastic: Is The Cover of a Book ‘Packaging’ or ‘Product’ for Trade Dress Purposes?

guiness scholastic covers

This should be interesting. Guinness Book of World Records sues Scholastic alleging trade dress infringement of its covers (See covers above).

Guinness argues that the cover ‘is in essence the “packaging” of GWR’s product . . . thus, GWR is not required to demonstrate the existence of secondary meaning.’ (see pages 5-6). The memo of law (below) provides no citation on that one. Packaging trade dress can be inherently distinctive while product configurations must show secondary meaning to be protectable.


Ticketmaster v Ticket Bots: Bots Chew Gum and Keep Talking During Performances


Ticketmaster v Prestige Entertainment, et. al., CD Cal, complaint filed yesterday:

Ticketmaster sells tickets online using its website and mobile apps. Its terms of use prohibits bots (software scripts designed to run tasks ‘at a far higher rate than would be possible for a human alone.’ It uses various methods to prohibit the use of bots, such as CAPTCHA. Defendants are alleged to ‘have been using bots to access and navigate through Ticketmaster’s website and mobile app, and through such unlawful use, improperly produce tickets for the purpose of reselling them at a substantial profit.” (para 5).

Defendants were alleged to have purchased thirty to forty percent of all tickets available through Ticketmaster for Hamilton and a majority of all Ticketmaster tickets for the recent Mayweather fight. Id.

Defendants had recently agreed with the NY AG to stop using bots. Id.

By being able to complete transactions more quickly than humans, and by buying tickets in excess of contractual ticket limits, bots deprive humans of the opportunity top purchase tickets. Bots circumvent copy protection systems. Bots make unauthorized copies of pages from the site and app. Bots make the Ticketmaster site run more slowly. Bots intentionally interfere with contract. Bots induce fraud. Bots drink too much beer, then talk loudly about how spoiled the players are.


Text of Complaint in The Honest Company v Honest Herbal


The Honest Company, founded by Jessica Alba, sues re use of HONEST HERBAL for various products.


Fish vs Fish

Fish IP Law firm seeks declaratory judgment against Fish and Richardson.


Cepeda v Hadid and IMG re Instagram Use of Photo


Photographer sues model, Gigi Hadid, for uploading copyrighted photo to her Instagram page. As an aside, note alteration of ADIDAS to HADID.

Case was filed in ED of Virginia. Plaintiff’s lawyer is from there, and that’s pretty much it.


Engine Company 3, Ladder Company 12


When we lived in Chelsea, our local firehouse was Engine Co. 3, Ladder Co. 12. They would send firemen to visit our kids’ preschool. When we took the kids in the stroller by the firehouse, the firemen would let the kids climb on the firetrucks.

On 9/11, Engine Co. 3, Ladder Co. 12 lost five men.

Some people run from burning buildings and some people run towards them.


My Favorite Sentence From the Dr. Phil Fair Use Decision

See here for my prior post, including the text of the Dr Phil copyright fair use decision.

Re-cap: defendant was suing TV’s Dr. Phil in state court for torts arising from his allegedly abusive behavior. In order to show that Dr. Phil is someone who shouts, defendant, a former employee, obtained access to archival footage of the show, and recorded nine seconds of video outtakes. Dr Phil then obtains a copyright registration for those nine seconds, and sues for infringement in federal court.

In discussing the four fair use factors, the court notes:

While it is true that many courts and commentators have acknowledged the general
principle that use of a work in a judicial proceeding may be considered fair use, fewer have
addressed whether copying an entire work in preparing a complaint is transformative.

Emphasis added.

Face palm slap here.

Unlike most fair use cases, here the amount used by defendant was determined by the copyright owner, and not the defendant. When the defendant made her copy, she copied nine seconds of presumably hours of archival footage. The ‘entire work’ only became ‘the entire work’ AFTER she copied it, when plaintiff later registered those nine seconds. Has plaintiff created (and registered) any other nine second works? Defendant did not evince an intent to copy an entire work – in fact her intent was to copy only that which she needed to make her commentary on the work. Accordingly, the ‘portion of work taken’ analysis should either favor defendant (as measured against the archives) or be considered neutral, because of the uniqueness of plaintiff’s behavior post-infringement.