The Briefing by the IP Law Blog By cover art

The Briefing by the IP Law Blog

By: Weintraub Tobin
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  • Summary

  • In The Briefing by the IP Law Blog, intellectual property attorney Scott Hervey and his guests discuss current IP issues related to trademark, copyright, and entertainment, as well as IP litigation and intellectual property in the news.
    Copyright 2021 by Weintraub Tobin Chediak Coleman Grodin
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Episodes
  • Netflix Defamation Lawsuit About Inventing Anna – Not an Imposter

    Netflix Defamation Lawsuit About Inventing Anna – Not an Imposter
    May 17 2024
    Update on Rachel Williams' defamation lawsuit against Netflix's "Inventing Anna." Weintraub lawyers Scott Hervey and Jamie Lincenberg discuss the recent court ruling as a warning for docudrama producers on "The Briefing." Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott We have an update on the defamation lawsuit brought by Rachel Williams, the Vanity Fair photo editor whose friendship with Anna Delvey, who passed herself off as German heiress Anna Sorkin, was featured in the Netflix series Inventing Anna. The news is not great for Netflix, and this should be a warning for producers of docudramas who take creative license with facts. I'm Scott Hervey from Weintraub Tobin, and today, I'm joined by fellow Weintraub lawyer Jamie Lincenberg. We are going to review this lawsuit, the recent court ruling not allowing Netflix to get out from under William's defamation claim, and talk about how this should be a concern for producers of the genre du jour docudramas on today's installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.” Jamie Thanks for having me today, Scott. Scott So, let's jump right into this. For those who may not remember, Rachel Williams is a real person. At the time of her portrayal in the Netflix program Inventing Anna, she was a Vanity Fair photo editor and a friend to Anna Delvey, also known as Anna Sorkin. Williams did not come across well in inventing Anna. Jamie No, she didn't. She comes across as a privileged freeloader who sponges off of Sorkin and then abandons her when her real situation comes to life. Scott True, true. She does come across that way. As a result, Williams sued for defamation. Now, in order to prevail, she would have to demonstrate that her portrayal in inventing Anna was an assertion of fact was actually false or created a false impression about her, that it was highly offensive to a reasonable person or was defamatory. Since Williams is a public figure, she published a story in Vanity Fair and published a book about her experience with Sorkin; she must also prove by clear and convincing evidence the statements were made with actual malice, meaning that the defendants knew that the statements were false or had serious doubts about the truth of the statement. Jamie There are numerous instances of William's portrayal in this series, she claims to be actionable. We recently reran the podcast episode where you first reported on this lawsuit, where you covered all of the instances in detail. So, there's no need to do that here. Instead, let's look at the two portrayals addressed by the court in denying Netflix's motion to dismiss. Both of those have to do with the scene in Morocco where Williams leaves. Scott That's right. The first portrayal comes after several scenes depicting the problems with the credit cards at the hotel and a very expensive private museum tour. Williams tells Anna, who is portrayed as being alone in her room, drinking and heavily depressed, that she is leaving. Sorkin is portrayed as begging Williams not to leave her, but Williams leaves anyways. Now, the next portrayal is the following statements that's made by another character in Inventing Anna. This character says, “Please, Rachel abandoned Anna, kicked her when she was down, and left her alone in some foreign country. Rachel's happy to call herself Anna's friend when it means free ‘stuff’ trips to Morocco. But as soon as times got tough, some friend.” actually, the character didn't say “tough” or “stuff,” she said some expletive that we won't use here on the pod. So according to the complaint, Williams alleges that these statements are false, as Williams had a pre-existing business meeting in France. And Williams told Sorkin, prior to the pair heading to Morocco, that she would have to leave early. Also, according to the complaint, when Williams left Morocco,
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    8 mins
  • Brandy Melville Doubles Down Against Redbubble

    Brandy Melville Doubles Down Against Redbubble
    May 10 2024
    The ongoing dispute between Brandy Melville and Redbubble over trademark and copyright infringement continues. Despite previous setbacks, Brandy Melville has filed a new lawsuit against Redbubble, alleging the sale of counterfeit products and copyright infringement. Scott Hervey and Jamie Lincenberg from Weintraub Tobin explore the history of the dispute, the claims made in the new complaint, and potential legal strategies moving forward. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott We have covered Brandy Melville's dispute with Redbubble, including the Ninth Circuit's refusal to hold Redbubble liable for contributory copyright infringement because Redbubble didn't know or have reason to know of specific incidents of infringement by its users and the Supreme Court's refusal to take on Brandy Melville's certiorari petition. Despite these significant setbacks, Brandy Melville seems determined to hold Redbubble accountable and has filed a new lawsuit against Redbubble. I'm Scott Hervey from Weintraub Tobin, and today I'm joined by Weintraub lawyer Jamie Lincenberg to talk about this update in the Brandy Melville Redbubble Dispute on this installment of “The Briefing” by Weintraub Tobin. Jamie, welcome back to the briefing. Jamie Thanks, Scott. I'm glad to be here and happy we can jump into this Brandy Melville Redbubble case again. Scott This is our third conversation about Brandy Melville Redbubble, and I have the feeling that it will not be our last. Before we dive into this new complaint, can you take us back through the history of the Brandy Melville Redbubble dispute? Jamie Sure. The dispute began in 2018 when Brandy Melville, the popular clothing retailer, brought a trademark infringement suit against Redbubble, an online marketplace that allows independent artists to upload their own designs for on-demand printing on various items of merchandise. Brandy Melville had found products on Redbubble's website that infringed the company's trademarks. Initially, the District Court had found Redbubble liable for both willful contributory counterfeiting of the marks and contributory infringement of the marks. Then, on appeal, the Ninth Circuit Appellate Panel overturned much of the lower Court's findings. Scott And then, as we know, the Supreme Court denied certiorari to Brandy Melville's petition, thus letting stand the Ninth Circuit's holding. So here we are again. Brandy Melville filed a new complaint against Redbubble on March 29, 2024, which alleges that Redbubble is advertising, creating, and selling counterfeit Brandy Melville products, which incorporate exact replicas of the Registered Chilled Since trademark and Radio Silence trademark. They've added a couple of new causes of action that we'll talk about, such as a claim that these products infringe and include exact because of the Registered Comic Eyes copyrighted design. Jamie The trademark claims made in this new complaint are mostly the same as the trademark claims Brandy Melville made in its case against Redbubble the first time around. So, Unless Brandy Melville alleges a failure to redress specific instances of infringement or infringers, it may seem the same result as the first case. Scott I agree. But it's worth noting that This new complaint does seem to focus on this heightened standard imposed by the Ninth Circuit. Brandy Melville claims that Redbubble continued to sell counterfeit items bearing one or more of the exact same designs and brands even after Brandy Melville had previously reported them to Redbubble. Brandy Melville also contends that Redbubble has been, and continues to be aware of, and contributing to the infringement of its trademarks and that it creates and distributes the infringing and counterfeit goods to end consumers and facilitates financial transactions. Brandy Melville also includes as an alternative basis for its contributory trademark infri...
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    14 mins
  • How “knockoff” Furniture Landed Kim Kardashian in an IP Lawsuit

    How “knockoff” Furniture Landed Kim Kardashian in an IP Lawsuit
    May 3 2024
    Kim Kardashian faces a lawsuit from the Donald Judd Foundation for allegedly using and promoting knockoff furniture in her office tour video. While Kardashian's counsel denies liability, the case underscores the importance of due diligence in endorsements. Scott Hervey and Jamie Lincenberg from Weintraub Tobin dissect the legal drama in this installment of “The Briefing.” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Jamie Last week, the art world was buzzing with yet another dupe scandal. Kim Kardashian has been sued by the Donald Judd Foundation for using and promoting knockoffs of the late designer's furniture. We will dive into the details of this case on today's episode of "The Briefing." I'm Jamie Lincenberg of Weintraub Tobin, and I'm joining my colleague, Scott Hervey, on today's episode of "The Briefing." Scott Thank you for joining me today, Jamie. Can you provide us with a recap of how this case came about? Jamie Of course. Yeah. In a lawsuit filed just two weeks ago on March 27th in California's district Court, the foundation of artist Donald Judd, who passed in 1994, known famously for his minimalist designs, is suing reality television star and entrepreneur Kim Kardashian and the Los Angeles-based interior design firm, Clements Design, the company who's been faulted for fabricating and selling allegedly infringing tables and chairs to Kardashian. The lawsuit asserts that the firm sold Kardashian fakes of Judd's tables and chairs for the offices of Skin by Kim, which is Kardashian's skincare company, and accuses Kardashian of false endorsement and Clements Design of trademark and copyright infringement, false advertising, and unfair competition. Scott So this dispute stems originally from a video Kardashian posted on her personal YouTube account. Where she gave a tour to her followers of the Los Angeles office of her skincare brand, Skin by Kim. It's just a typical house tour, office tour-type video that influencers do. In this video, while showing a large communal kitchen and dining room, Kardashian said, "If you guys are furniture people, I've really gotten into furniture lately. These Donald Judd tables are really amazing, and they totally blend in with the seats." As of late January of this year, the video had been viewed more than 3.6 million times, and this video was then subsequently removed from YouTube a few days after the lawsuit was filed. Jamie That's right. So shortly after the video was posted, the Judd Foundation contacted Kim Kardashian and Clements Design, demanding that those furnishings in question be destroyed or recycled and that Kardashian issue a public statement. Kardashian ultimately declined to replace the furniture, retract the video, or issue a corrective statement. Her reps instead offered to update the caption information in the video and to create a separate social media post in which she would promote the Judd Foundation. The foundation rejected that as that would, of course, still allow the knockoff furniture to remain in the video online. Scott When the foundation learned that Clements Design, which is a well-known celebrity design firm, and apparently, they also custom-make furniture pieces. When they learned that Clements Design had made the knockoff furniture, it asked for an agreement that the design company would never make and sell fake Donald Judd furniture again and that it would return and recycle Kardashian's furniture, according to the complaint. But the design company rejected both requests and denied the foundation's rights to the furniture design. Jamie So, the foundation has now filed suit and is seeking injunctive relief, a retraction of the video by Kim Kardashian. Issuance of a corrective statement, recycling of the inauthentic furniture, and any profits that Kardashian and Clements' design may have received from the purported misrepresentation of the tables and chairs...
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    13 mins
Art Economics Sports & Outdoors
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