This issue of Ping® looks at 3 issues that come up often for innovators in both the technical and creative arts: 1) Transformative Use, 2) Stopping Knock-offs and 3) Cybersecurity. First, what does it mean to “transform” an original work? Next, stopping knock-offs: changes to USPTO procedures give stakeholders new tools to protect trademarks. Lastly, October was Cybersecurity Awareness Month. Read more below.
Boundaries of Transformative Use in Copyright At Issue in Supreme Court

We are all familiar with the refrain "Change is constant." Benjamin Disraeli famously said: “Change is inevitable. Change is constant.” The world of intellectual property hasn’t changed. It’s changing right before our eyes.
Fair Use in Copyright - Judges and Artistic Interpretation

One area of copyright law currently under scrutiny at the US Supreme Court is the question "What does it mean to “transform” an original work enough such that one may invoke the fair use doctrine as a defense to a copyright infringement claim?" The Supreme Court recently granted review of a decision from the US Court of Appeals for the Second Circuit in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith that could provide definitive guidance to this question.

In his “Prince Series” artwork, Warhol doctored celebrity photographer Lynn Goldsmith’s copyrighted photograph of Prince multiple times—all without requesting permission for its use. Goldsmith sued for copyright infringement but lost in district court, where the artwork was found to be “transformative” because it freshly portrayed Prince as an “iconic, larger-than-life figure” compared to the original work’s depiction of Prince as “vulnerable.”
Stopping Knockoffs and Infringements


The bipartisan Trademark Modernization Act of 2020 (TMA), launched “modern” procedures intended to reduce cluttering on the federal register and clear the path for new applications. The primary new tools are expungement and reexamination proceedings which allow third parties to bring nonuse of registered marks to the attention of the USPTO.

The TMA allows challenges to unused registered trademarks. The USPTO identified some emerging best practices that help evaluate evidence and efficiently determine when to institute proceedings. There are limitations on the proceedings and how they may impact petitioners. Please feel free to contact us if you have questions about these new trademark protection tools.
October is Cybersecurity Awareness Month

Since 2004, the President of the United States and Congress have declared October to be Cybersecurity Awareness Month, helping individuals protect themselves online as threats to technology and confidential data become more commonplace. The Cybersecurity and Infrastructure Security Agency (CISA) and the National Cybersecurity Alliance (NCA) lead a collaborative effort between government and industry to raise cybersecurity awareness nationally and internationally. 

This year’s campaign theme — “See Yourself in Cyber” — demonstrates that while cybersecurity may seem like a complex subject, ultimately, it’s really all about people . This October will focus on the “people” part of cybersecurity, providing information and resources to help educate CISA partners and the public, and ensure all individuals and organizations make smart decisions whether on the job, at home or at school – now and in the future. We encourage each of you to engage in this year’s efforts by creating your own cyber awareness campaigns and sharing this messaging with your peers.

4 Things You Can Do As Suggested By CISA)

Key action steps that everyone should take:
  • Think Before You Click: Recognize and Report Phishing: If a link looks a little off, think before you click. It could be an attempt to get sensitive information or install malware. 
  • Update Your Software: Don't delay -- If you see a software update notification, act promptly. Better yet, turn on automatic updates.
  • Use Strong Passwords: Use passwords that are long, unique, and randomly generated. Use password managers to generate and remember different, complex passwords for each of your accounts. A passwords manager will encrypt passwords securing them for you!
  • Enable Multi-Factor Authentication: You need more than a password to protect your online accounts, and enabling MFA makes you significantly less likely to get hacked.

Focus | Vision | Perspective | Passion

Executives and creative professionals face an often confusing and dynamic set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today's complex and inconstant legal and regulatory environment.

Adler LLC is a law firm focused on Arts, Entertainment, Intellectual Property & Media law, created with a specific mission in mind: to provide businesses with a competitive advantage by leveraging intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Although we are a highly-specialized law firm, we counsel on a broad range of interconnected issues by leveraging synergies created where Intellectual Property Law, Contract Law and Corporate Law overlap.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.


David Adler