0.2: We’re Viral
THIS WEEK: A fight over social media, a Supreme Court round-up, and some new headaches for the realtors.
The music stops for a cosmetics company. Last week, Sony and others filed a lawsuit (on Halloween, very scary) against OFRA Cosmetics for using copyrighted music in Instagram and TikTok ads. Before we jump into this one, I want to share a video I made several days before this lawsuit was filed.
I should pick lottery numbers… Anyways, let’s jump in. OFRA has purportedly amassed 1.7M followers on Instagram. A decent amount of the videos on the page (we didn’t go through all 9,200) feature OFRA’s makeup, beauty, and skincare products. According to Sony, at least 329 of those videos feature copyrighted sound recordings.
Now this isn’t the end of Sony’s copyright infringement tune: they are also going after OFRA for the influencers that were paid to feature OFRA products on their pages (sponsored content).
Whether the claims are meritorious or not, send this one to your marketing department and give them a heads-up.
SCOTUS Too Big
Can a guy trademark the phrase “Trump Too Small” on T-shirts to be sold in novelty shops across this wonderful country of ours? Can politicians rage-block their critics on social media? These are some of the great questions of our time being tackled by the Supreme Court of the United States this week.
Let’s start small. Despite your best efforts to forget, you may recall the 2016 exchange between Marco Rubio and Donald Trump regarding the size of Trump’s hands. Rubio mocked Trump’s hands as small. To which Trump responded with: “Look at these hands, are these small hands? […] If they're small, something else must be small. I guarantee you there's no problem. I guarantee."
Fast forward to 2018, and attorney and part-time political activist, Steve Elster applied to trademark the phrase "TRUMP TOO SMALL" for use on T-shirts. The Patent and Trademark Office rejected the application citing a requirement that no living person’s name can be trademarked without their consent. The USPTO said that Elster (and anyone else) can use the phrase but without a trademark.
Mr. Elster didn’t go softly into his goodnight, arguing that he was denied important rights and benefits that burdened his right to speak about a public figure. The US Court of Appeals ruled in his favor, finding that the denial was a First Amendment violation.
During oral arguments, there seemed to be nary a believer amongst the Justices. Justice Sotomayor summarized the general sentiment: "The question is, is this an infringement on speech? And the answer is no…He can sell as many shirts with this saying as he wants." Things aren’t looking good for Mr. Elster.
Another SCOTUS highlight this week:
Realtors Round Two
If you missed it, the National Association of Realtors and some residential brokerages were hit with a (approx.) 1.8 billion dollar verdict for artificially inflating commissions. While a massive story, that’s not what we are talking about today. We’re talking about the aftermath. And if you guessed “multiple class actions,” well, you win the prize for the week.
Two class actions were filed last week against a number of brokerages over the practice of requiring sellers to pay the commission, sometimes upwards of 5% to 6%, to brokers representing the buyers in a home sale. Yep, a second round of antitrust.
While these all unfold, it’s likely that the 1.8 billion dollar verdict will be appealed. Maybe the appellate court will buy the National Association of Realtors arguments? Time will tell.
The White House issued an executive order on artificial intelligence. Did ChatGPT write that one up?
After the departure of ~30 of its partners for Hogan Lovells, Stroock & Stroock & Lavan will be going out of business after 147 years.