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Scott Hervey is a corporate and intellectual property attorney at Weintraub Tobin who works with companies in a variety of different industries. His clients include wineries, restaurants, technology companies, and entertainment/new media ventures. Scott has led his clients through hundreds of matters involving complex acquisitions, licensing, financings, and other transactions. He also assists clients in protecting their valuable brands through trademark infringement litigation, domain name infringement arbitration, and proceedings before the United States Patent and Trademark Office and Trademark Trial and Appeals Board. He discusses IP Law topics on the weekly video series The Briefing.

The Supreme Court decision in Andy Warhol Foundation v. Goldsmith changed the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell v. Acuff-Rose Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether “the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative.” This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus was on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use. 

Continue Reading Is Warhol Bad for Documentarians?

A court denied Netflix’s request for GoTV Streaming to supply documents relating to the source of its patent litigation funding. Scott Hervey and Eric Caligiuri discuss this dispute on this episode of The Briefing by the IP Law Blog.

Continue Reading The Briefing by The IP Law Blog: Court Rules Litigation Funding Not Relevant in Netflix v. GoTV

The U.S. Supreme Court will hear the USPTO’s appeal of a Federal Circuit ruling that allows individuals to register trademarks using the name of a living person without their consent. Scott Hervey and Tara Sattler discuss this on this episode of The Briefing.

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The U.S. Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. Scott Hervey and Tara Sattler talk about this decision on this episode of The Briefing by the IP Law Blog.

Continue Reading The Briefing by the IP Law Blog: What Now for Fair Use After Warhol v. Goldsmith