Podcast
The Briefing by Weintraub Tobin
Hosted by Weintraub Tobin · EN
In The Briefing by Weintraub Tobin, intellectual property attorney Scott Hervey and his guests discuss current IP issues related to trademark, copyright, and entertainment, as well as IP litigation and intellectual property in the news.
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Episodes
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Vetter v. Resnik: When Copyright Termination Goes Global
Feb 28Tap to summarizeWhat happens when an artist terminates a decades-old copyright grant under U.S. law, but the work is still being exploited around the world? In this episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Matt Sugarman break down the Fifth Circuit’s decision in Vetter v. Resnik and what it means for worldwide copyright grants. In this episode, they discuss: Whether termination under 17 U.S.C. § 304(c) can recapture foreign exploitation rights Why the Fifth Circuit parted ways with California cases like Siegel v. Warner Bros. The difference between ownership disputes and extraterritorial infringement claims How this ruling impacts publishers, studios, catalog buyers, and global licensing strategies If termination can unwind a worldwide grant, the leverage shift for authors and heirs could be significant. Tune in for a clear look at how copyright termination.
Transcribe →Skechers, TikTok, and Khaby Lame: Is Barrett Wissman Potentially Liable?
Feb 28Tap to summarizeCan an arbitration provider force someone into arbitration who never signed the contract? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the high-profile dispute involving Skechers, global influencer Khaby Lame, his management company KBL Services, and talent manager Barrett Wissman. At the center of the fight is a critical question of arbitration law: does the American Arbitration Association have jurisdiction over a non-signatory? In this episode, they discuss: When non-signatories can be compelled to arbitrate Alter ego and veil piercing theories Agency law and representative capacity Whether the AAA can administer arbitration against someone who never agreed to it Strategic litigation choices when challenging arbitrability If you handle contracts, endorsement agreements, arbitration clauses, or business disputes, this episode offers important insight into the limits of consent in arbitration.
Transcribe →Kat Von D, Miles Davis, and the Possible Death of the Intrinsic Test?
Feb 20Tap to summarizeWhen a jury says two works are not substantially similar, is that the end of the story? In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Richard D. Buckley, Jr. break down the Ninth Circuit’s decision arising from the Kat Von D tattoo of an iconic Miles Davis photograph and why it may signal the beginning of the end for the intrinsic test in copyright law. In this episode, they cover: How the Ninth Circuit’s two-part substantial similarity test works Why the jury’s finding was nearly impossible to overturn on appeal The concurring opinions calling the intrinsic test legally incoherent How other circuits analyze substantial similarity differently What a reworked test could look like going forward Whether you are a creator, lawyer, or rights holder, this case highlights a potential turning point in how courts evaluate copyright infringement.
Transcribe →Part Two: CCPA’s New Rules on Risk Assessments and Cybersecurity Audits
Feb 13Tap to summarizeCalifornia privacy law has entered a new phase. In Part Two of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley break down the CCPA’s new requirements for Risk Assessments and Cybersecurity Audits. In this episode, they cover: When Risk Assessments are required and what they must evaluate How businesses must weigh operational benefits against privacy risks Who must be involved in conducting Risk Assessments and when When Cybersecurity Audits are triggered and what they must include What businesses must submit to the California Privacy Protection Agency Tune in for part two on how a clear look at how California privacy law is turning AI compliance into an operational requirement.
Transcribe →CCPA’s New Rules on Automated Decision making Technology (ADMT)
Feb 6Tap to summarizeCalifornia privacy law has entered a new phase. In Part 1 of this two-part episode of The Briefing, Weintraub Tobin Partners Scott Hervey and Richard Buckley breaks down California’s new CCPA regulations governing Automated Decision making Technology, or ADMT. This episode explains how the amended rules go beyond data collection and sharing to regulate how businesses use algorithms, artificial intelligence, and automated tools to make decisions about people. In this episode, they cover: What qualifies as Automated Decision making Technology under the CCPA Which automated decisions are considered “significant decisions” When a business is subject to the ADMT rules New notice, opt-out, and access rights for consumers, including employees and job applicants Key compliance deadlines businesses need to prepare for now Tune in for a clear look at how California privacy law is reshaping automated decision making and AI governance.
Transcribe →Why Lady Gaga Beat a Trademark Injunction Over “Mayhem”
Jan 30Tap to summarizeWe previously covered the trademark lawsuit filed by Lost International against Lady Gaga over her use of “Mayhem” in connection with her album, tour, and related merchandise. Now the court has ruled, denying Lost’s motion for a preliminary injunction. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler break down the court’s order and what it signals about the Rogers test after the Supreme Court’s Jack Daniel’s decision. In this episode, they cover: Why the court applied the Rogers test instead of the traditional Sleekcraft likelihood of confusion analysis How the court treated tour merchandise tied to an expressive work under Ninth Circuit precedent What “artistic relevance” means and why that prong was easily met here Why “use of the mark alone” was not enough to show the use was explicitly misleading How this ruling fits into the broader post Jack Daniel’s landscape, including recent Ninth Circuit developments Tune in for a clear look at where trademark law meets tour merchandising and First Amendment protections.
Transcribe →Top Gun Cleared for Takeoff: The Ninth Circuit Affirms Paramount’s Copyright Win
Jan 23Tap to summarizeThe Ninth Circuit kicked off 2026 with a major copyright decision in the long-running Top Gun dispute, affirming summary judgment for Paramount in the lawsuit over Top Gun: Maverick. In this episode of The Briefing, Weintraub Tobin shareholders Scott Hervey and Tara Sattler break down the Ninth Circuit’s reasoning and why it matters for studios, writers, and anyone adapting real-world stories.   In this episode, they cover: The background of the claim tied to the 1983 magazine article “Top Guns” How the Ninth Circuit applied the extrinsic and intrinsic tests for substantial similarity Why historical facts and real events remain free for all to use, even when dramatic The court’s focus on “protected expression” versus unprotectable ideas, facts, and genre conventions Key takeaways for nonfiction adaptations, biopics, and projects inspired by true stories Tune in for a clear look at where copyright law draws the line between protected expression and real-world facts.
Transcribe →The 2026 Forecast: Resolving Some of the Entertainment Industry’s Open Legal Issues
Jan 16Tap to summarizeAs 2025 fades into the rearview mirror, many of the entertainment and media industry’s biggest legal questions remain unresolved. In this episode of The Briefing, Weintraub Tobin partners Scott Hervey and Tara Sattler take a forward-looking approach to the cases and doctrines that could shape 2026.   In this episode, they cover: The unsettled future of fair use in AI training and copyright infringement How courts are approaching lawful versus unlawful acquisition of training data The growing split in AI cases involving market substitution and fair use The narrowing application of the Rogers Test following the Jack Daniel’s decision What pending cases could mean for filmmakers, studios, and content creators Tune in for a clear look at the legal issues that could define entertainment and media in 2026.
Transcribe →Court Drowns Pepperdine’s ‘Waves’ Trademark Battle Against Netflix
Mar 14, 202500:18:21Tap to summarizeOn 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.
Transcribe →The Briefing: The Stanley Cup Clash – A Trademark Battle
Mar 7, 202500:10:58Tap to summarizeDid you know the popular Stanley Travel Cup is tied to Stanley Black & Decker? A lawsuit is brewing over trademark rights and branding disputes. Is PMI overstepping, or is Stanley Black & Decker overreaching? Weintraub Tobin attorneys Scott Hervey and Tara Sattler discuss the legal battle over the iconic cup on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott Most people who have spent any time in a Home Depot, a Lowe’s, or an Ace Hardware are well aware of Stanley Black & Decker Company. They’re a manufacturer of a wide variety of tools and equipment. Well, did you know that the very popular Stanley Travel Cup is manufactured in connection with an agreement with Stanley Black & Decker? Well, I didn’t know of this relationship. Well, it seems that that relationship is soured, and there’s some trouble brewing in that Stanley insulated Stanley Black & Decker, which has filed a lawsuit against the Cupmaker Pacific Market International for trademark infringement and breach of contract. I’m Scott Herbie, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Tara Sattler. We’re going to talk about this case and some issues related to Stanley Black & Decker’s claims on this installment of the briefing. Tara, welcome back to the briefing. Tara Hi, Scott. Always great to be here. Scott Do you own a Stanley Cup? Tara I do. I have one sitting right here on my desk out of the screen. Scott I have one as well. Okay, so that’s why I picked this case for us to talk about because I think everybody has a Stanley Cup. Let’s set the stage here. Stanley, Black & Decker, let’s just refer to them as Stanley. They were founded way back in 1843 and built a solid reputation over nearly two centuries. They have a family of trademarks associated with Stanley, many of which have become incontestable. Tara Now, Pacific Market International’s predecessor, Aladdin Industries, started selling Stanley-branded insulated containers in 1913 when William Stanley Jr. Developed the revolutionary vacuum flask. The complaint alleges that beginning in 1966, Stanley and Aladdin entered into a series of agreements which sought to limit Aladdin’s use of the Stanley trademark. Scott These agreements, at least as it’s alleged in the complaint, restricted Aladdin and the company that bought Aladdin, Pacific Market International, we’ll just call them PMI, their use of Stanley to specific goods. Fast forward to 2012, the parties entered into another agreement to address PMIs, then allegedly non-use of Stanley, which exceeded the scope of the previous agreement. This new agreement, according to the complaint, again further limited PMI’s use of the mark to insulate food and beverage containers and placed requirements on how Aladdin and PMI could use the Stanley name in advertising and online. Tara Okay, so then what triggered Stanley to file a complaint? Scott Well, according to the complaint, PMI has been willfully and intentionally disregarding the 2012 agreement. Specifically, Stanley accused PMI of dropping PMI in its company name, that it changed its company name to just Stanley. Stanley also says PMI expanded its product offerings beyond food and beverage containers to include items such as apparel. Tara The 2012 Agreement expressly limits PMI’s use of Stanley solely to use as a trademark to promote and sell insulated and non-insulated containers for food or beverages and carrying cases for transporting the same. Scott Right, that’s what the complaint says. The complaint also accuses PMI of using the domain name www.stanley1913.com without prominently displaying PMI, and also failing to include PMI prominently in advertising materials and on products, including point-of-sale displays. Tara It sounds like Stanley Black & Decker is claiming PMI essentially tried to rebrand themselves as just Stanley in order to capitalize on the brand recognition. Scott Exactly. That’s what the complaint essentially says. That lines up with the allegations that PMI stopped, including PMI and its company name, and changed its name to Jess Stanley. Tara The complaint also goes on to say that PMI’s actions have caused negative press associating Stanley with things like lead poisoning and burn hazards and a recall of 2. 6 million travel months. Scott Right. Let’s break down the specific allegations. Stanley, Black & Decker is claiming that PMI breached the 2012 agreement by using Stanley as a company name, violated restrictions on advertising and product marketing, expanded product offerings beyond food and beverage containers, as was restricted in the 2012 agreement, failed to properly identify itself as PMI in advertising and in press releases, and use social media in a that infringes on Stanley’s trademark rights. Tara The legal claims brought by Stanley based on PMI’s actions are a breach of contract, alleging PMI violated the 2012 agreement, unfair competition, claiming PMI’s actions create confusion among consumers, trademark infringement, asserting PMI is using the Stanley trademark without authorization, or Connecticut Common Law claims. For trademark infringement, management, and unfair competition under state law in Connecticut. Scott Right. And this is the relief that Stanley is seeking. So, they want PMI to stop using Stanley in ways that violate the 2012 agreement or infringe on their trademarks. They want a court order for PMI to comply with the 2012 agreement. They want a court order requiring PMI to issue statements clarifying the relationship between the two companies. They want damages, including actual enhanced punitive damages, as well as attorney’s fees. Tara So then it seems pretty straightforward, doesn’t it? Scott It does, but we all know that disputes are never straightforward, and companies only present one side of the story. So, let me break it down. It appears that PMI actually owns a number of federally registered trademarks that incorporate Stanley. This includes the mark Stanley, and Stanley since 1913 with the winged bear logo for insulated food and and beverage containers, both of which have been registered since 2014 and 2020, respectively. Now, the complaint alleges that PMI breached the 2012 agreement by not using PMI on its products. PMI contends that Stanley is overreaching and trying to prevent PMI from using its registered and incontestable trademarks. Tara The complaint didn’t include a copy of the 2012 agreement, so it is tough to assess the breach of contract claims. But Scott, what are your thoughts on the trademark claims? Scott It’s interesting, right? Stanley owns a number of trademarks as well, but they’re all related to tools and building-type products. I didn’t see any trademarks covering goods that are related to food or beverage containers. And I don’t think that an insulated beverage container or a food container is related to hand tools or power tools. I don’t see Stanley’s trademark claim for those goods, for the insulated cups and the insulated food and beverage goods. However, Stanley does own a trademark for Stanley covering work clothing. PMI’s use of its mark Stanley for clothing could potentially be problematic. Tara In a press release, PMI said the companies have distinct market positions, customer segments, and marketing approaches. PMI claims it has grown Stanley into a global lifestyle brand with a focus on innovative food and beverage containers. In contrast, according to its annual report, Fouled the SEC, Stanley holds itself out as a global provider of hand tools, power tools, outdoor products, and related accessories. PMI claims the difference between these two companies and their brands is pretty stark. Scott Right. I guess PMI said that it will vigorously defend the suit. It’s yet to file an answer. This probably isn’t the las...
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