Arent Fox’s Anthony V. Lupo, co-chair of the firm’s Entertainment Law practice, was featured in two recent editions of Bloomberg Law Reports – Intellectual Property, with the publication of his article titled “A Survey of the Case Law on Copyrights and Trademarks in Film and Television.” Tony was assisted in writing the article by Arent Fox associate Anthony D. Peluso.

This significant two-part article, which appeared in back-to-back issues of Bloomberg Law Reports, is the most comprehensive overview of the use of third-party trademarks in film and television programming published to date.

The two-part article appeared in back-to-back issues of Bloomberg Law Reports – Intellectual Property.

The attorneys write:

The film and television context is rife with potential intellectual property issues, as virtually every facet of creating and producing a film or television program presents an opportunity for the unwitting author, filmmaker, or producer to incur liability for infringing upon another’s intellectual property rights. Accordingly, those who create these works must take care to ensure that their productions do not cross the line into the territory of infringement. On the other hand, it is equally important that copyright or trademark holders understand the extent of their rights in order to protect the often-sizeable investments they have made in establishing those rights. Recent decisions by federal courts can provide some guidance in this respect.

This Article examines the state of the case law regarding copyright and trademark protection in the film and television context. Part I considers recent rulings that address various aspects of copyright law, including the “substantial similarity” element of a prima facie claim of copyright infringement, the affirmative defense of “fair use,” the preemption of state law claims under the federal Copyright Act, and the nature of copyright protection for fictional characters that are portrayed in film or other audiovisual works. Part II will discuss the unlicensed use of another’s trademark in film, specifically with respect to the passive appearance of unaltered marks, the use of real marks to represent unrelated fictional products, and the application of various affirmative defenses to trademark infringement claims.

To read Part I of the article, please click here.

To read Part II of the article, please click here.

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