Supreme Court Holds that a Copyright Claimant May Commence an Infringement Suit Only After the Copyright Office Registers the Copyright

Bradley GravelineEdwin KomenBy Bradley Graveline and Edwin Komen on Posted in Copyrights, IP/Brand Protection

On March 4, 2019, the United States Supreme Court held unanimously that “a copyright claimant may commence an infringement suit … when the Copyright Office registers a copyright.” Fourth Estate Public Benefit Corp. v. Wallstreet.com, LLC. (Slip. Op. at p. 1 (syllabus)). The Court also held unanimously that, upon registration of the copyright, “a copyright owner can recover for infringement that occurred both before and after registration.” Id. This decision resolves a long-standing circuit split between the application approach, which allowed a copyright owner to sue for infringement upon submission of a copyright application, and the registration approach, which allows an infringement suit to proceed only after the Copyright Office granted the registration.   Continue Reading

FTC Swats Public Relations Firm and Publisher for Misleading Olympic-Themed Mosquito Repellant Product Endorsements and Native Advertisements

Ted MaxBy Ted Max on Posted in Advertising

On November 20, 2018, the United States Federal Trade Commission (“FTC”) proposed two FTC consent orders against two Georgia-based companies, Creaxion Corporation (“Creaxion”) and Inside Publications, LLC (“Inside”) and their principals[1] concerning the promotion and advertising of Health Pro Brands, Inc.’s new FIT Organic mosquito repellant during the 2016 Zika virus outbreak and allegations that they had misrepresented paid athletes’ endorsements as independent consumer opinions and commercial advertising as independent journalistic content.[2] The proposed FTC consent orders prohibited Creaxion and Inside from making any false representations in the future and required that they ensure all endorsers disclose all material connections going forward and monitor compliance by any endorsers. Continue Reading

New York Federal Court Dismisses Nationwide Class Action Arising Out of Alleged Spying by E-Commerce Retailers

Kari RollinsDavid PoellBy Kari Rollins and David Poell on Posted in Privacy

In a victory for online retailers, a New York federal court recently dismissed three putative class action lawsuits brought on behalf of website visitors whose mouse clicks, keystrokes, and electronic communications were tracked by a third-party marketing company. The cases were filed against three e-commerce retailers—Casper (a mattress manufacturer and retailer), Tyrwhitt (a men’s clothing company), and Moosejaw (an active outdoor retailer)—and against a marketing company named NaviStone. NaviStone offers computer code that allows e-commerce retailers to determine the identities of consumers who visit their websites and track their online behavior. The plaintiff alleged that the code offered by NaviStone, and embedded in the retailers’ websites, functioned as an illegal wiretap enabling the retailers and NaviStone to “spy” on website visitors in real time as they browse. The lawsuits alleged violations under the federal Electronic Communications Privacy Act (ECPA), the federal Stored Communications Act (SCA), and New York General Business law (NYGBL).

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New York State Employers Take Note!!! Compliance With New Sexual Harassment Law Required By October 9, 2018

Lindsay Colvin StoneBy Lindsay Colvin Stone on Posted in Changes In Law, Labor and Employment

As described in a previous blog post, New York’s 2019 Budget created significant new responsibilities for employers in the state with respect to sexual harassment prevention. As of October 9, 2018, all employers in New York State are required to: (i) circulate a policy prohibiting sexual harassment that complies with state requirements; and (ii) conduct annual sexual harassment training for all employees in accordance with state standards. Continue Reading

Kim Kardashian West Won the First CFDA Influencer Award: Will A CGI Supermodel Be Next?

Ted MaxChidera AnyanwuBy Ted Max and Chidera Anyanwu on Posted in Advertising

It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.”[1] Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner.[2] As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the fashion world by storm. Yet, it is unlikely that any of these new influencers will ever win the CFDA Influencer Award. Continue Reading

Monumental Shift in Sales Tax Collection Requirements for Remote Retailers

Justin HepworthRoburt WaldowBy Justin Hepworth and Roburt Waldow on Posted in Tax

On June 21, 2018, the United States Supreme Court issued its decision in South Dakota v. Wayfair, Inc., overturning a 26 year-old decision holding that a retailer must have a physical presence in a state in order to have a sales or use tax collection obligation. The Wayfair decision has an immediate and major impact on retailers of all sizes, but also leaves open numerous unanswered questions.

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The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

Timothy KimBy Timothy Kim on Posted in Labor and Employment

On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor labor market.

In particular, the Court embraced a standard presuming that all workers are employees instead of contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing that such classification is proper under the newly adopted “ABC test” which will be discussed in further detail below. Continue Reading

#MeToo Mobilizes State Legislatures, Creates New Training Obligations For Employers

Lindsay Colvin StoneBy Lindsay Colvin Stone on Posted in Labor and Employment

On April 12, 2018, Governor Andrew Cuomo signed the 2019 budget for the State of New York (the “Budget”) which dramatically changed the landscape of obligations which New York employers are to their employees.  Beyond allocating financial resources, the Budget includes a new change to New York law requiring New York employers to conduct annual sexual harassment training for all employees in accordance with state standards.  Viewed as a response to the #MeToo movement, the Budget tasks the New York State Department of Labor and New York State Division of Human Rights with creating an interactive model sexual harassment training program for employers in the state, which shall contain the following elements:

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Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)

Whitney Jones RoyJeffrey ParkerBy Whitney Jones Roy and Jeffrey Parker on Posted in Government Regulations, Prop 65

If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.

Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again. Continue Reading

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