Prof. Evans to moderate NBA IP Law Review CLE webinar Wed 6/8

I invite you to register for Wednesday’s webinar, hosted by the NBA IP Law Section. Registration is free for all IP Section members, and $30 for non-members.

IP Law Review – A Survey of Recent Developments in Patent, Trademark, and Trade Secret Law.

Date: Wednesday, June 8, 2016

Time: 1:00pm to 2:30pm EDT

Follow live tweet at #NBAIPLaw


  • Tonya Evans (Widener University Commonwealth Law School) – Moderator
  • Darrell Mottley (Banner Witcoff)
  • Shontavia Johnson (Drake University Law School)
  • Kevin Jordan (JP Morgan Chase)

Summary – Our panelists will discuss a variety of hot topics and recent developments in patent, trademark, and trade secret law, including:

  • The internet of things as an emerging technology/industry, and related IP and regulatory issues
  • Intersection between the First Amendment and Section 2(a) of the Lanham Act regarding registration of immoral, scandalous, or disparaging trademarks, including the impact of trademark cases
  • Overview of trade secret law and its viability as an alternative means of IP protection

CLE Info: The NBA IP Law Section is looking into obtaining CLE accreditation in the following jurisdictions: CA, GA, IL, NY, TX, and VA. For questions regarding CLE accreditation, please contact Bill Barrow (wbarrow[at]

Cost: This webinar is free for NBA IP Law Section members and costs $30 (plus processing fees) for non-members.

Register at:

‘Dumb Starbucks’ parody shuts down but debate over trademark law & parody continues

By Professor Tonya M. Evans

dumbstarbucks-cupsOn February 9th, The Huff Post and other media outlets reported the grand opening of a store in the Los Feliz neighborhood of Los Angeles, “Dumb Starbucks”. The clever prankish parody even caught the attention of Forbes:

‘Although it looks like Starbucks, smells like Starbucks and even acts like Starbucks (the super-friendly baristas asking for your name were hired off Craigslist), the whole thing is an elaborate goof on Starbucks culture. A list of Frequently Asked Questions posted on premises compared the place to Weird Al Yankovic’s homage to Michael Jackson’s “Beat It.” Dumb Starbucks, you see, is the “Eat It” of $6 coffee drinks.’ Source:

Amazingly, people stood in line for hours for the Dumb Starbucks java, which reportedly was whatever the local grocery store had on hand for the few days Dumb Starbucks remained open. The locals and media alike seemed to get a big kick out of the entire thing. Starbucks execs? Um, not so much. The Dumb Starbucks mastermind, Comedy Central comedian Nathan Fielder from Nathan for You, explained the method to his parodic madness and the Starbucks response to Jimmy Kimmel recently:

The store shutdown for reasons completely unrelated to the trademark vs. parody debate. It seems that Fielder not only caught the attention of the coffee giant, Starbucks, but also the local health department. The Health Department cited code violations for selling coffee without a permit. And there is no word on whether Fielder will attempt to secure the necessary permissions to re-open. But what is sure to re-open and remain so is the debate on whether the First Amendment and parody trumps trademark law. Continue reading “‘Dumb Starbucks’ parody shuts down but debate over trademark law & parody continues”

The Politics of Copyright and Music on the Campaign Trail

© 2012 Ami Patel (student contributor)

Credit: AP

If the beginning of endless commercials didn’t give it away, it’s that time again – presidential campaign season. If there is one thing history has shown us, it’s that campaigns shouldn’t use an artist’s song without permission.  Then again, there are many lessons that candidates fail to learn on the campaign trail.

The most recent of these cases involves Mitt Romney, who was recently sent a cease and desist letter for using the Silversun Pickups song “Panic Switch” during his campaign.  He should have learned his lesson after numerous other presidential candidates used music without authorization from an artist and sparked a controversy in the process.

History is littered with candidates who used an artist’s song for campaign purposes. Continue reading “The Politics of Copyright and Music on the Campaign Trail”

Google says “Book scanning? No harm, no foul.” The Authors Guild says “Not so fast …”

“The long-running lawsuit over Google’s decision to scan millions of books could be nearing the end game. Google’s latest filing, in a case poised to redefine copyright law, cites everything from Mad Men to minority rights to argue that book scanning is ‘fair use.'”

Read the full article about Google’s argument in support of its fair use claim, by Jeff John Roberts at

Here’s the Authors Guild take on the Google Book issue [Scott Turow, June 1, 2012]

Widener Law News: Prof. Evans delivers Primer on Copyright, Free Exchange, and the Web on WITF’s Radio Smart Talk

Headshot of Professor Tonya Evans
Credit: Leaping Lion

Just a quick note in case you missed the show on Wednesday “Copyright and the Free Exchange of Information”, the story is featured today at the law school Web site with quotes and a summary. After today, read the full Widener Law Web site article by clicking here.

The archived show is now available and you can catch it online via the WITF (NPR) feed or WITF via iTunes.

Evans’ Copyright & Music Sampling article published by Fordham IPJ

Professor Evans’ article Sampling, Looping & Mashing … OH MY! How Hip-Hop is Scratching More Than the Surface of Copyright Law was recently published by the Fordham Intellectual Property, Media & Entertainment Law Journal. Use the link below to download the PDF.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition.

Hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films, as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley, is but one stark example.

This article examines the impact of copyright law on music creation both historically and currently. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

Read the article abstract & download the full article

Can you REALLY copy an ENTIRE news article online and claim fair use?

Yes. Really. Well, sometimes. Maybe. (How’s that for an answer?) The answer is sometimes yes, at least according to a recent decision in a copyright infringement case between purported copyright “troll” Righthaven and its latest defendant, Wayne Hoehn. Hoehn is a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, owned by Stephens Media. Righthaven is a Las Vegas-based company co-owned by its CEO and founder Steve Gibson and Stevens Media, owner of approximately 70 media outlets, including the Las Vegas Review-Journal.

What’s a copyright troll?

A copyright troll (a term borrowed from the patent side of intellectual property) is a person or, more commonly, a company that buys rights to copyrighted works and then actively looks for allegedly infringing activity so it can file a law suit. This type of systematic filing is usually done without issuing a cease & desist letter (which commonly precedes most infringement cases although C&Ds are not required by law). The cost to file a lawsuit is relatively low. And with the statutory damage awards available in copyright infringement suits (anywhere from $200 – $150,000 per infringement), the potential gain — either with a successful suit or settlement — can be considerable. reports that Righthaven has sued more than 200 websites, bloggers and commentators for copyright infringement. More than 100 of these have settled out of court. So evidently instead of taking a more traditional route to help its client sell more newspapers, Stevens Media and its partner Gibson have found a new revenue center — lawsuits; thereby “monetizing” news content on the backend, as explained by David Kravets in a 2010 article about Righthaven’s legal tactics. Recently, however, Righthaven has not been as successful and has lost three cases that identified the defendant’s use as fair.

Copyright in a nutshell

Copyright protects a literary or artistic work that’s fixed in a tangible medium (ex: when a song is recorded or a news article is written). Once the creative work is “fixed” then, presumably it is capable of being reproduced, adapted, distributed, or performed or displayed publicly. This litany of uses make up the “bundle of rights” that a copyright owner holds. Therefore anyone who uses a copyrighted work without right, permission or defense will be liable for copyright infringement.

In this case, Hoehn defended his unauthorized use on fair use grounds because use for news reporting, comment, criticism and so forth are permitted uses. But even when used in a way otherwise permitted under copyright law, use of the entire work is more likely than not excused. And that’s why this particular case is getting such attention. The federal district judge in this case, held that because Hoehn’s use did not harm the market for the newspaper’s publication of the article, Hoehn’s unauthorized use was deemed fair and therefore excused. Potential harm to the copyrighted work’s potential market is one of four factors a court considers in analyzing a fair use defense. Unfortunately, this opinion is currently “unreported”. This means that it is not readily searchable in legal databases or bound reporters generally relied on by judges and their clerks to find precedent for other cases. Because of this,at least one group, Harvard’s Citizen Media Law Project, is pressing Judge Phillip Pro to publish his opinion.

So is the case on fair use closed?

This is an easier question to answer; NO. Beware of relying too heavily on this case as a wholesale endorsement of the unauthorized use of entire news articles (or any other copyrighted work) in your blog. Fair use is evaluated on a case-by-case basis. And the facts of this case suggest that not only did the judge consider market harm, he also considered the actions and arguably questionable ethics of the Righthaven (it’s reputation certainly precedes it in court these days) and Righthaven’s lack of standing to sue.

Nonetheless, this case presents interesting questions about how copyright law will be applied to an ever-evolving cut-n-paste technological world. In this world of micro-blogging, instant access to — and dissemination of — information, and user-generated content based on existing copyrighted material it will be interesting to see how courts respond. Will courts respond by recognizing fair uses where infringement once lived? Or will judges render decisions like this one and seek to protect the “creative space” content-providers need — and technology and consumer expectations demand — to create and share creative content in the 21st century? Only time will tell.

© 2011 Tonya M. Evans. This post may be “shared socially” and republished provided this post is copied in its entirety and copyright and byline information is included for attribution. “This post is republished with permission from Copyright 2011 Tonya M. Evans, Esq. Assistant professor of law, author, speaker and intellectual property expert”.