The Briefing by the IP Law Blog

A class action lawsuit has been filed against ALO Yoga and several influencers for failing to disclose that various social media campaigns were actually paid ads. Weintraub attorneys Scott Hervey and Tara Sattler break down this lawsuit and what brands should do to avoid costly FTC violations like this in the future. Watch this episode on the Weintraub YouTube channel. Scott previously discussed the risks of social media marketing and FTC compliance in a two-part series with IP attorney Jessica Marlow. Tune in to episode one and episode two now.

On this episode of The Briefing, Scott Hervey and James Kachmar break down the Supreme Court’s decision to pass on the McGuckin v. Valnet case—and how it keeps the legal confusion swirling around the "server test" for embedding online content. With courts on opposite coasts taking different stances, what does this mean for publishers, bloggers, and social media managers? They talk about the risks, what you can do to stay safe, and why your location might matter more than you think. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: The Supreme Court rejected a challenge to the Ninth Circuit server test, the test that the Ninth Circuit adopted in 2007 in the case of Perfect Ten versus Amazon, and it's used for determining copyright liability when photos are embedded online. Because the server test has been rejected by the Southern District of New York, this refusal by the Supreme Court will continue to create a split among circuits and confusion among copyright litigants. I'm Scott Hervey, shareholder with the law firm of Weintraub Tobin, and I'm joined today by my partner, James Kachmar. We're going to discuss this case and how to best navigate this issue on this installment of the briefing. James, it's good to have you back on the briefing. It's been a while. Thank you for coming on today. James: Thanks for having me, Scott. Scott: Okay, so let's talk really briefly about the case that was up for a petition for cert to the Supreme Court, and it's the case of McGuckin versus Valnet. And that case arises from Valnet, the operator of the website thattravel. Com, being accused of infringing 36 of McGuckin's Instagram photos by embedding them in various online articles. A California federal court applied the server test and dismissed McGuckin's suit, and the Ninth Circuit affirmed that decision in 2024. In affirming the dismissal, the Ninth Circuit referenced its 2023 decision of Hunt versus Instagram. This was a case that we covered here on the briefing in which the Ninth Circuit held that Instagram was not secondarily liable for copyright infringement when websites use Instagram posts to embed photos. James: Right, Scott. Why don't we start with the basics? The server test is a legal rule used to determine whether embedding an image or video into a website constitutes direct copyright infringement. Embedding is the process of copying unique HTML code assigned to the location of a digital copy of the photo or video published to the internet, and the insertion of that code into a target web page or social media post so that the photo or video is linked for display within the target post. Under this test, a website only infringes a copyright if it hosts the copyrighted file on its own server. If you're simply embedding a photo or video that is stored on someone else's server, like linking to a Instagram post, you're not displaying the content under the Copyright Act. You're just the HTML code that tells the user's browser where to go look to get the content. Scott: That's a really good description, James. The server test arises from the 2007 Ninth Circuit case of Perfect 10 versus Amazon. In that case, Perfect Ten, they were a publisher of adult content. They sued Google for linking to and displaying thumbnail versions of their copyrighted images. Google didn't host the full size images itself. Instead, it linked to them or embedded them from Perfect Ten's website. The court held that because Google wasn't storing the infringing images on its own server, it wasn't displaying them in the legal sense. See, under the Copyright Act to Violate the Public, display, right? An infringer must, quote, display copies of the copyrighted work. Under the server test, embedding in a website that does not also store an image or video on its own server, does not communicate a copy of the image or video, and thus does not violate the copyright owner's exclusive display right. Under Perfect10,

Lady Gaga’s “Mayhem” tour has sparked legal trouble. In this episode of The Briefing, Scott Hervey and James Kachmar analyze a trademark infringement lawsuit filed by surf brand, Lost International, which claims Gaga’s use of “Mayhem” on merchandise violates their long-standing rights. The discussion explores the strength of Lost’s trademark, the likelihood of consumer confusion, and key legal takeaways for brands navigating crowded trademark landscapes. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Lady Gaga brought her Mayhem tour to the 2025 Coachella Music Festival. While her performance was a critical success, there is someone who is not a fan of hers. At a minimum, not a fan of the name she chose for her tour. I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and I'm joined today by my partner, James Kachmar. We're going to talk about the trademark lawsuit filed by the surf and lifestyle brand Lost International against Lady Gaga for her use of Mayhem on today's episode of the Briefing. James, welcome back to the Briefing. It's been a while. James: Yes, thanks for having me back, Scott. Like you, I've been following this Lady Gaga case, and it certainly raises some interesting trademark law questions. Scott: Oh, absolutely, absolutely. So why don't we start with the basics? So, according to the complaint, Lost International, they're a California company that was established in 1985 as a surf and lifestyle brand. They claim to have been using the mark mayhem since 1988 in connection with surfboards, surf equipment, accessories, surf videos, and clothing. Lost owns a registered trademark for Mayhem in the United States, and it was issued on August 11, 2015, and it covers various clothing items like beanies, caps, jackets, pants, sandals, shorts, and, you know, other typical beach surf wear. This particular trademark registration is for a wordmark, which means that it covers the word Mayhem without having any particular font, style or color requirements. James: That's right, Scott. The complaint alleges that Lady Gaga released a music album called mayhem in March 2025 and announced a worldwide concert tour under the same name. Furthermore, Lost claims that prior to the album's release, Lady Gaga and associated parties began selling T shirts and other clothing items with the Mayhem mark prominently displayed, allegedly with a nearly identical design to Lost's own Mayhem products. They've even included a side by side comparison of the clothing and their Mayhem logos in their complaint. Scott: So LOST is seeking some significant remedies. James: Yes, they are. Lost is asking the court for a judgment that Lady Gaga has infringed their trademark rights. They are seeking monetary damages and also want an accounting of Lady Gaga's proceeds, which will result in a possible disgorgement of her profits. They want punitive and exemplary damages, interest costs, and attorney's fees. Lost is also crucially seeking injunctive relief to stop Lady Gaga from using the Mayhem mark in connection with her merchandise and promotions. Scott: Okay, so let's dive into the legal arguments. So the complaint asserts nine causes of action. Nothing like a big complaint, right? So these. These causes of Action include federal and common law trademark infringement, false designation of origin, and false advertising under the Lanham act, false advertising under California state law, and federal and state trademark dilution, as well as unfair business practices and common law unfair competition. So I think that the federal trademark claim is going to take center stage in this lawsuit, so let's focus on that. So in California, a court analyzing a trademark infringement claim is going to look at the sleek craft factors, which are the following. The strength of the plaintiff's mark, the similarity of the marks at issue, the similarity or relatedness of the goods,

Is traditional Hollywood facing an existential crisis? Deloitte's 2025 Digital Media Trends report reveals a massive shift in how Gen Z and millennials consume content. Scott Hervey and Tara Sattler break down the data and explore what this means for studios, creators, and the future of storytelling on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: Deloitte released its 2025 digital media Trends earlier in March. It is a comprehensive look at the seismic shift rocking the media and entertainment landscape. Are traditional studios facing an existential crisis against these hyper scale and hyper capitalized tech giants? And with Gen Z and millennials finding social media content more relevant than TV and movies, what does this mean for the future of storytelling and celebrity? I'm Scott Hervey, partner in the entertainment and media Department of Weintraub Tobin. And today, I'm joined by my partner, Tara Sattler. Stick with us as we analyze these trends and what they mean for both the traditional and new media players navigating this rapidly evolving digital world in today's installment of The Briefing. Tara, welcome back to The Briefing. It's good to have you back. Tara: Thanks, Scott. Thanks for having me back. It's always great to be here. Scott: Yeah. I thought this one was going to be particularly relevant for both you and I because Our practice area is we both straddle both traditional media representing studios and production companies. And also we have another foot really squarely set in the creator economy, digital media, YouTube space, podcast. I think you and I have the benefit of seeing both sides of this. That's why I thought you'd be the perfect co-host for this one. Tara: We do, Scott. I think you're right. I've been looking through this report. It's really quite eye-opening. The shifts are significant, especially for the traditional media players who you and I both work with a lot. Scott: Yeah, absolutely. This report makes one thing abundantly clear, and I think it's something both of us have been talking to our clients about for a while. Social video platforms are becoming a dominant force in media and entertainment, and they do present a challenge to the traditional Hollywood model. So today we're going to summarize the key findings and discuss what opportunities exist for both traditional Hollywood studios and content producers and the content creators on platforms like YouTube. So let's dive in. So the report itself, the headline here is that social platforms are becoming the new center of gravity for media and entertainment. According to Deloitte, these platforms are drawing more of consumers' time and more of advertisers' money away from traditional media. Tara: Yeah, the report found that US consumers are spending about six hours daily on media and entertainment, and that number isn't growing. What's changing is how that time is distributed. Younger generations, especially Gen Z, are spending significantly less time watching traditional TV and movies and more time on social media platforms with user-generated content. Scott: Right. And Those numbers are pretty striking. Gen Z respondents are spending about 54% more time, so that's about 50 minutes more per day on social media platforms and watching user-generated content than the average consumer. They're spending 26% less time, so that's about 44 minutes less per day, watching TV and movies than the average person. Tara: It's not just about time spent. The report found that 56% of Gen Z and 43% of millennials say social media content is more relevant to them than traditional content like television shows and movies. Plus, about half of these generations feel a stronger personal connection to social media creators than they do to TV personalities or actors. Scott: Let's now talk about the advertising piece of this because it really is quite huge.

Can HBO be sued over a T-shirt? Scott Hervey and Tara Sattler unpack Duke University’s beef with 'White Lotus' after a character wore a Duke tee on screen. Does this cross the legal line—or is it just creative expression? They're talking trademark, the Rogers test, and what it all means for studios on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: In a recent episode, Timothy Ratliff is grappling with possible criminal liability for his involvement in a money laundering scheme. He thinks about taking his own life in a graphic scene where he holds a gun to his head while wearing a Duke University T-shirt. HBO didn't get permission from Duke, and Duke publicly expressed its displeasure with the situation in a statement with the New York Times. I'm Scott Hervey, a partner with the law firm Weintraub Tobin, and today I'm joined by my partner, Tara Sattler. We are going to break down the potential of Duke's trademark lawsuit against HBO on this installment of The Briefing. Tara, welcome back to The Briefing. Tara: Thanks for having me here, Scott. I do love the White Lotus series, so let's talk about this one. Scott: Yeah, I love the White Lotus series, too. But this is something you and I deal with a lot in our representation of television studios and production companies. I think this one is really relevant for you and me and also relevant for a lot of our audience. Okay, jumping in. Duke really is not happy about the situation. I'm really not happy. Duke's vice president for communications shared a statement with the New York Times, which stated as follows, Duke appreciates artistic expression and creative storytelling, but characters wearing apparel bearing Duke's federally-registered trademarks create confusion and mistakenly suggests an endorsement or affiliation where none exists. He wrote that in an email. He also said, White Lotus not only uses our brand without permission, but in our view, uses it on imagery that is troubling, does not reflect our values or who we are and simply goes too far. Tara: Like you said, Duke really isn't happy happy at all. But let's break down whether Duke really has any type of case against HBO besides just being unhappy. The shirt that was worn by the character had the name Duke on it, but it didn't have any design elements, logos, anything like that. We're really only talking about a trademark claim. Scott: Right. Yeah, it's not a copyright claim. Okay, with it being just a trademark claim, what do you think? Does Duke have a case? Tara: No, I really don't think that they do. As much as Duke may dislike the use of its T-shirt, all the things that the representative said, this is really exactly the situation that the Rogers test is meant to address. Scott: For us. For those that listen to this podcast, know that we talk about the Rogers test a lot. The Rogers test comes from a 1989 Second Circuit case, Rogers versus Grimaldi. It essentially creates a special framework for analyzing trademark claims when they involve expressive works protected by the First Amendment. Under the traditional Rogers test, the Lanamack doesn't apply to an expressive works use of a trademark unless that use has no artistic relevance to the underlying work or explicitly misleads consumers about the source or content of the work. Tara: That Rogers test went through a pretty significant change in 2023. We've talked about this a lot, too. Then the Supreme Court decided the case Jack Daniels Properties versus VIP Products. That case involved a dog toy called Bad Spaniels that parodied a Jack Daniels whiskey bottle. The court there significantly clarified when the Rogers test should apply. Scott: Yeah, the key distinction the Supreme Court made was that the Rogers test doesn't apply when a mark is used as a source identifier, regardless of whether it is also used to perform some expressive function. Tara: In other words,

Is 'The Pit' a spinoff, sequel, or something else entirely? Scott Hervey and Tara Sattler break down the lawsuit over 'ER' and whether 'The Pit' crosses the legal line into derivative territory on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Show Notes: Scott: A legal battle is in full swing over the hit medical drama, ER and the Pit, a new medical drama set in Pittsburgh. The agreement between the creator of ER, Michael Crichton and WB, says that any sequels, remakes, spinoffs, and/or other derivative works require the approval of Crichton, Amblin, and Warner Brothers. So, is the Pit any of those things? I'm Scott Hervey, a partner at the law firm of Weintraub Tobin, and today I'm joined by my partner, Tara Sattler. We are going We're going to discuss ER versus the Pit. What is the Pit? On this installment of The Briefing. Tara, welcome back. Tara: Hi, Scott. I'm happy to be here, especially talking about this topic. I really love all these medical traumas and was a big fan of ER back then, so this is going to be a fun one. Scott: Right. Did you do your homework this weekend? Tara: I did. Scott: Yeah, I did, too. I think Binge about five episodes of The Pit. Tara: And I liked it. Scott: Yeah, it was good. Tara: It was easy to do. Scott: I got to say, I Before we get into it, I am amazed at how the actors really sell themselves as doctors. I'm not a doctor, so probably maybe when a doctor is watching this, they probably look at it and go, They did that all wrong. We do when we watch legal traumas and we're like, This is wrong, all wrong. But from a layman, non-doctor, it looks quite, quite impressive. Tara: I agree. Scott: Well, so we previously reported in an episode where we broke down the initial skirmish between Crichton and W. B. And how Sherry Crichton survived Warner Brothers' attempt to shut down the lawsuit, her lawsuit, against Warner Brothers with an anti-slap Today, we are going to look at what will likely be next for Sherry Crichton, and that is establishing that the pit is some type of derivative of E. R. The 1994 agreement between Michael Crichton and Warner Brothers regarding the hit series E. R. Specifically freezes any subsequent productions. The exact wording used in the 1994 agreement is as follows, Any and all sequels, remakes, spin in-offs and/or derivative works shall be frozen, with mutual agreement between Creighton, Amblin, and Warner Brothers being necessary in order to move forward in any of these categories. Tara: That's really the crux of Creighton's case against Warner Brothers. What exactly is the Pit? Scott: Right. Let's go through that part of the 1994 agreement, and let's start with the question of whether the Pit is a sequel of E. R. I think the place to look at for the definition of sequel is probably the Writers Guild of America Minimum Basic Agreement. Under the WGA, a sequel, at least pursuant to the WGA MBA, it's defined as a film or a picture where the principal character of the original film or picture participate in a new and different story. Tara: On Noah Wiley played Dr. John Carter, and on the Pit, Noah Wiley plays Dr. Michael Robbie Rabinovitch. Are those characters essentially the same, or is Robbie really John Carter, 15 years later? Scott: Yeah, that's a tough one. On the surface, it seems that the answer is going to be no, because the two characters, they have different names. We don't really know too much Dr. Robbie's backstory yet. We know a little, but we don't know five episodes in. We don't really know a whole heck of a lot. But I don't think it's going to be that simple of an inquiry? Tara: Probably not, but I do think it's safe to say that the Pit isn't a remake of ER. Again, going back to the WGA, for definitions, a remake is substantially similar to a prior motion picture or television program regarding principal characters, setting, plot, storyline,

The estate of 'ER' creator Michael Crichton is suing Warner Brothers, claiming their new medical drama 'The Pit' is a derivative of 'ER.' IP and Entertainment attorneys Scott Hervey and Jessica Corpuz discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel.   Scott: A legal battle is unfolding over the hit medical drama, ‘The Pit,’ which the estate of Michael Crichton claims is the unauthorized successor to ER. The estate, represented by a roadrunner, JMTC LLC, has sued Warner Brothers television over The Pit, a new medical drama set in Pittsburgh. Warner Brothers attempted to shut down the lawsuit by using California's anti-slap statute, arguing that the case threatened their free speech rights, but the court didn't bite. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Jessica Corpuz. We are going to talk about the court's decision to deny Warner Brothers' anti-slap motion and what this means for contract rights in the entertainment industry on today's installment of The Briefing. Jessica, welcome back to The I'm glad we could get my people to call your people and get you booked again. Jessica: Thanks so much for having me, Scott. Scott: Thanks. Well, why don't we jump right into this? Jessica: Thanks, Scott. So today we're unpacking a high-profile case in the entertainment world, Road Runner: JMTC/LLC versus Warner Brothers Television, which involves the estate of legendary author and screenwriter Michael Crichton, the long-running medical drama, ER, and a new TV show called The Pit. Scott: That's right. This case revolves around claims of breach of contract, interference with contractual relations, and whether the pit is a derivative of ER. Warner Brothers attempted to shut down the lawsuit with an anti-slap motion under California law, but the court denied it. So let's break it down, starting with some background on the parties. Jessica: So Michael Crichton, of course, is best known for Jurassic Park, but he also co-created ER, the wildly successful medical drama that ran for 15 seasons. After his passing, Crichton's widow, Sherry Crichton, on behalf of his estate, represented in the dispute that we're talking about today by Roadrunner J. M. T. C. Lllc, has been involved in legal efforts to protect his contractual rights as the creator of ER. Warner Brothers television, on the other hand, is a dominant force in TV production, and they're behind The Pit, a new medical drama set in Pittsburgh. The estate argues that the Pit is a derivative work of ER, and that Warner Brothers breached the 1994 agreement between Crichton Warner Brothers, concerning the ER pilot and the series. Scott: That's right. The 1994 agreement between Crichton and Warner Brothers specifically freezes any subsequent productions. The exact wording used in the 1994 agreement is as follows, Any and all sequels, remakes, spinoffs, and/or other derivative works shall be frozen, with mutual agreement between Crichton, Amblin, and Warner Brothers being necessary in order to move forward in any of these categories. Jessica: Okay, so that's the contract. But let's talk a little bit about the facts surrounding the party's discussions about the pit, since those facts play a really big role in this outcome we're talking about today. Scott: Yeah, you're right. They really do. So the complaint says that around Thanksgiving 2022, Sherry Crichton got a call from John Wells. Wells was one of the producers of ER, who purportedly told Sherry that there was going to be a big press release on deadline within days announcing an ER reboot, starring Noah Wiley, and that Wells would be producing it with Warner Brothers television for the HBO Max streaming service. According to the complaint, Warner Brothers made an offer, Crichton made a counter offer, and that included a guaranteed created by credit for Michael Crichton.

In this installment of The Briefing, Scott Hervey & Jessica Corpuz cover the landmark defamation case Copeland v. Netflix—dissecting the high bar for public figures to prove defamation and the critical concept of "actual malice." From the Surviving R. Kelly documentary to First Amendment protections, they unpack the legal complexities surrounding public figures and media reporting. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Surviving R. Kelly was a Netflix documentary series that delved into the extensive allegations of sexual abuse, misconduct, and predatory behavior leveled against the R&B singer R. Kelly. Diana Copeland, Kelly's former personal assistant, claims she was falsely portrayed in the documentary as being essentially a co-conspirator in Kelly's alleged sex crimes. Copeland sued Netflix and the producers of the documentary, Lifetime and A&E for defamation. There was a recent decision in Copeland versus Netflix, one that emphasized the stringent First Amendment protections for media when reporting on a public figure. How high is the bar for a public figure to prove defamation against the media outlet? And what does the legal concept of actual malice truly entail in such case? I'm Scott Herbie, a partner with the law firm of Weintraub Tobin, and I'm joined today by my partner, Jessica Corpus. Stay tuned as we dissect this significant decision and its implications for producers of programming of this type on this installment of the briefing. Jessica, welcome back. It's good to have you. Jessica: Thanks so much for having me, Scott. Scott: This one, I think, is going to be quite interesting. I always like defamation cases because there's always a lot to unpack. Jessica: Oh, they're very exciting cases. We get this question a lot, and having to educate people about the standard of defamation happens all the time in our world, so it's good to talk about it. Scott: Yeah, and more and more, you're seeing defamation claims come out of not just documentaries, but scripted, essentially, fictional docudramas. But today, we're looking at the R. Kelly documentary. And this is the recent decision in Diana Copeland versus Netflix. And it comes out of the United States district Court for the district of Delaware. That's a district we don't hear from very often, but we're hearing from them today. Jessica: So this decision comes as a result of Netflix's motion to dismiss. A motion to dismiss in federal court is called a Rule 12(b)(6) motion, and it's where a defendant moves to dismiss the complaint because the plaintiff has failed to state a claim upon which relief can be granted. In other words, the defendant is arguing that even if everything that the plaintiff claims is true, those claims still don't provide a legal basis for the court to grant them any relief. Scott: Well said. So this case centers on a lawsuit brought by Diana Copeland, who was the personal assistant for the singer R. Kelly. Following R. Kelly's arrest and charges relating to sexual abuse, Lifetime Entertainment produced a documentary series called Surviving R. Kelly. Copeland did not participate in the documentary. However, she alleges that an episode contained several false and defamatory statements about her, portraying her as a co-conspirator in Kelly's crimes. She subsequently sued Netflix, which distributed the series, along with its producers Lifetime and A&E, for defamation. Jessica: Those defendants moved to dismiss Copeland's claims. Netflix based its motion on the following arguments. First, that the fair report privilege protects the statements. Second, that the statements are non-actionable opinions based on disclosed facts. And three, that Copeland is a public figure and that she failed to plea that defendants published the statements with actual malice. Scott: That's right. Now, the court said it didn't need to address the first two arguments advanced by Netflix because Copeland...

A petition is calling for the Supreme Court to decide on the validity of the "discovery rule," which allows copyright claims long after the alleged infringement. NBA teams like the Indiana Pacers and Denver Nuggets are even weighing in, worried that social media posts from years ago could be used as grounds for lawsuits. Scott Hervey and Tara Sattler dive into this game-changing copyright case in this installment of The Briefing. Watch this episode on the Weintraub YouTube channel.

On the latest episode of The Briefing, Weintraub attorneys Scott Hervey and Jessica Corpuz break down the court’s decision in Pepperdine’s trademark fight with Netflix over the name "Waves" in the new series Running Point. Tune in for insights on this case and how the Jack Daniel's ruling is reshaping trademark law in entertainment. Watch this episode on the Weintraub YouTube channel. For more content like this, subscribe here.