Tag: Legal

Copyright, Entertainment, Infringement, Law, Patent, Trademarks

Ping® by Adlerlaw August 2025 Don’t Monkey With NFTs & Nintendo’s Aggressive IP Tactics

Yuga Labs NFT Trademark Dispute Continues.

A jury must decide if the spoofed monkey-themed NFTs misled consumers in the case against Ryder Ripps. NFTs are digital assets. Yuga Labs launched Bored Ape Yacht Club in April 2021. These NFTs are digital images of cartoon apes with various traits and accessories, residing on the Ethereum blockchain. BAYC is known for its exclusivity, limited access, and influence within the NFT space. NFT trading has surged recently, reaching Billion Dollar valuations. Read more here: [LINK]

Nintendo Demonstrates Aggressive IP Tactics

Digital content creators should pay attention to Nintendo’s ongoing lawsuit against Palworld alleging the Pokemon-inspired survival game had infringed on several of Nintendo’s patents revolving around various game mechanics. Nintendo just recently filed corrections on three of the patents involved in a lawsuit with the Japan Patent Office revising the wording of game mechanics Nintendo. Nintendo’s last-minute patent changes have provoked outrage. Read more here: [LINK]

AV Voice Text Clones & Copyright Law

On a related note, AV voice text clones do not violate copyright laws. The Southern District of New York issued ruled in Lehrman et al v. Lovo, Inc., 1-24-cv-03770 (SDNY Jul. 10, 2025) that actors’ voice recordings used to create AI-generated voice clones “identical to” the Plaintiffs’ voices as part of a text-to-speech service was not copyright infringement.

Corporate Law, Entertainment, Law, Legislation, llinois

Boost Your Legal Knowledge with Ping® by Adlerlaw

Hi! Welcome to Ping®! I hope you stay with us.

Ping® started over 25 years ago. It grew from my experiences running the Entrepreneurial & Start-up Ventures Committee and the Media, Arts & Entertainment Committee of the Chicago Bar Association. I also gained insights from public speaking in the areas of intellectual property, information technology, privacy, security, and social media.

Every forum meeting or presentation ended with in-depth questions from the audience. Since I rarely had time to answer these questions or provide any depth to my response, I decided to publish Ping®. These articles share my knowledge and educate creative professionals to be better consumers of legal services.

This month Ping® by Adlerlaw looks at new laws in Illinois, as well as upcoming Interior Design CEUs. See more here.

Business, Corporate Law, Corporations, LLCs, Small Business, Start-ups, Uncategorized

Ping® by Adlerlaw Should My LLC Be Taxed As An S Corporation And Why?

It has become customary for many businesses to set up a limited liability company (LLC). Especially when it is a 1 or 2-person business.  Among the many advantages of LLCs are simple default tax classifications: sole proprietor for 1 member, partnership for more than 1 member, also known as “pass-through.” This is the same regardless of the type of member. However, have you asked your lawyer, accountant, or business advisor if it makes sense to simply take the default classification? Small businesses should consider whether making the election to be treated as a “S-corporation” makes sense.

Read the full article here.

If you are unsure about the benefits or the choices discussed above, feel free to contact us by email or by calling 1-866-734-2568. For over 27 years, we have guided business owners in this important depiction-making process.

Branding, Copyright, Entertainment, Influencer Marketing, Trademarks, Unfair Competition

Kardashian YouTube Video of Office Furniture Prompts Lawsuit Against Celeb & Interior Designer

How Can Designers Protect Their Intellectual Property?

Interior Design and knockoff furniture made headlines in a recent New York Times article, most likely due to the celebrity attached to the controversy. The complaint filed by the Judd Foundation against interior design firm Clements Design, Inc. and the designer’s client, Kim Kardashian, alleges claims for trademark infringement, copyright infringement, unfair competition, false advertising, and false endorsement related to the sale and promotion of allegedly knockoff Donald Judd designed furniture.

Filed in California, the Judd Foundation brings its unfair competition claims primarily under 15 USC 1125(a) based upon Clements Design’s and Kardashian’s use of alleged Judd Design knock-off, publicized on Kardashian’s YouTube channel in August 2022.

For more information about this lawsuit, please check out this Business of Home podcast in which I’m honored to be mentioned. That podcast is available here.

Designers take note: the Judd Foundation (in-artfully) alleges the Designer’s use of a photograph of a Judd-designed table in the Designer’s proposal to Kardashian is copyright infringement leading to unfair competition.

Contact Us Today

We have more than 25 years of experience representing clients in state and federal courts, and in the United States Patent & Trademark Office.

Adler Law Group is located in Chicago, Illinois, but serves clients throughout the United States including New York, as well as international clients.

Reach out today for all your trademark, copyright, licensing, litigation and business issues.

Advertising, Branding, Business, Entertainment, Privacy, Publicity Rights

Ping® by Adlerlaw January 2024 – A Brief Comparison of NY and IL NIL laws.

This month’s issue of Ping® highlights some trends in digital advertising. On June 29th, 2021, Illinois passed a Name, Image, Likeness (NIL) law for their colleges and institutions allowing a student-athlete to earn compensation commensurate with market value while enrolled at a postsecondary educational institution, and obtain and retain a certified agent for any matter or activity relating to such compensation.  This has prompted some discussions around different states treatment of right of publicity laws. This month’s issue of Ping® briefly compares NY and IL NIL laws.

Illinois vs New York Right of Publicity Acts: Key Differences and Protections

A Brief Comparison of the Illinois & New York Right of Publicity Acts

The Illinois Right of Publicity Act

The Illinois Right of Publicity Act is a state law that protects the commercial value of an individual’s identity. It prohibits the unauthorized use of an individual’s “Identity,” which means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice. The act also allows individuals to transfer their right of publicity to their heirs after death. However, the Illinois law is unique in that it provides for a broad definition of “commercial purpose,” which includes any use that is “primarily intended for commercial advantage or monetary gain.” This means that even non-commercial uses of an individual’s identity could be considered a violation of the law if they are intended to promote a product or service.

Learn More About Illinois Right of Publicity Act

The New York Right of Publicity Act

The New York Right of Publicity Act is another state law that protects an individual’s right to control the commercial use of their name, image, or likeness. However, unlike the Illinois law, New York’s law only applies to uses for advertising or trade purposes. This means that individuals in New York may have less protection against non-commercial uses of their identity. Additionally, the New York law does not provide for the transfer of an individual’s right of publicity after death, meaning that the right to control the commercial use of their identity ends when they pass away.

However, the New York Act provides some post-mortem protection for certain commercial exploitations of individuals’ rights of publicity for 40 years after death for those persons whose publicity rights had commercial value, at the time of or due to, their death. There are a number of other limitations, exceptions and nuances, including that protections only arise from deaths after May 29, 2021.

Learn More About New York Right of Publicity Act

Business, Compliance, Contracts, Entrepreneurs, New York

Ping® By AdlerLaw – NYC Written Contracts & Freelance Workers

Ping® by Adlerlaw Reminder: NYC Requires Written Contracts For Freelance Workers

New York City’s Freelance Isn’t Free Act defines freelance workers as any individual hired or retained as an independent contractor by a hiring party to provide services for compensation. Commonly referred to as gigs, tasks, projects, side or contingent work, working on contract or spec, freelancing, contracting, subcontracting, consulting, moonlighting, entrepreneurship, alternative arrangements, self-employment, etc., you can contact DCWP if you have questions about classification as a freelance worker, independent contractor, or employee.

If you employ independent contractors in New York City (NYC), you may need to have written contracts with your workers. Since May 15, 2017, NYC’s Freelance Isn’t Free Act (the “Act” or “FIFA”) established and enhanced protections for freelance workers, a/k/a “independent contractors.” The Act provides the right to a written contract between the hiring party and the contractor, the right to be paid timely and in full, and the right to be free of retaliation. The key terms that must be included in the written contract are (1) the work to be performed, (2) the pay for the work, and (3) the date payment will be made. The contractor and the hiring party must keep a copy of the written contract.

To read the full Article, go to adler-law.com or click here.

Copyright, Creative Content, Entertainment, Photography

Ping® by Adlerlaw – Warhol Loses Copyright Fair Use Defense of Photo at SCOTUS

In Warhol v. Goldsmith, Opinion located here, the estate of deceased pop artist Andy Warhol argued its use of the photo at issue was fair use under the first of the four Fair Use test factors (the “purpose and character of the use”), because Warhol’s contributions were transformative, adding new expression, meaning, or message. The Court countered that while relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive. It must be weighed against other considerations, like commercialism. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same commercial purpose.

In 2016, the Andy Warhol Foundation (AWF) licensed an image of “Orange Prince”—an orange silkscreen portrait of the musician Prince created by pop artist Andy Warhol to Condé Nast for $10,000 to appear on a magazine cover. The image is one of 16 works (the Prince Series) derived from a copyrighted photograph taken in 1981 by Lynn Goldsmith, who had been commissioned by Newsweek in 1981 to photograph musician named Prince Rogers Nelson.

Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400. 

After Prince died in 2016, Vanity Fair’s parent company (Condé Nast) asked AWF about reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince. When Condé Nast learned about the other Prince Series images, it opted instead to purchase a license from AWF to publish Orange Prince. Goldsmith did not know about the Prince Series until 2016, when she saw Orange Prince on the cover of Condé Nast’s magazine. Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith for a declaratory judgment of noninfringement or in the alternative, fair use. Goldsmith counterclaimed for infringement. 

The District Court granted AWF summary judgment on its defense of fair use. The Court of Appeals reversed, finding that all four fair use factors favored Goldsmith. In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast.Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38.

Advertising, Branding, Business, Design, Infringement, Law, Trademarks

Ping® By Adlerlaw – The Importance of Trademarks for Lighting Designers.

A recent Trademark Trial and Appeal Board (TTAB) decision is noteworthy for the lighting-design industry. This trademark application rejection sheds light on strategies for lighting designers seeking to protect their trademarks. This begins with the approach to the application process itself. 

In In re B-K Lighting, Inc., Serial No. 88769422 (January 27, 2023) [not precedential], the USPTO refused to register “AGI2” for “lighting fixtures,” finding confusion likely with the registered mark “AGI & Design” for lights, lighting assemblies, and light fixtures for architectural signage. As is often the case, applicant B-K Lighting was left scrambling to distinguish its trademark from the cited “AGI & Design” registration. The TTAB’s analysis of nature and relatedness of the goods, the trade channels, and the classes of purchasers, may be helpful to other brands in the lighting industry when trying to protect their trademarks.

Read the full article here.

Business, Contracts, interior design

Ping® by AdlerLaw – Structuring Interior Design Purchasing Fees

I originally intended to call this article Challenges For Structuring Interior Design Purchasing Fees and Mark-ups, but felt that might be too alarmist.

Nevertheless, Interior Designers often find it challenging to craft the best structure and find the right way to charge clients for interior design services, as well as related services like purchasing and project management. Whether you plan to start up an interior design business or you are already a seasoned interior designer, having clear terms on charges for art, furniture, finishings, fixtures, and other decorative items (sometimes generally referred to as “FF&E” for convenience), will avoid problems in the future. I find a lot of designers tend to skew toward vague and general terms about how marks-ups are calculated and charged.

Another wrinkle arises if the Designer obtains items exclusively through trade-only sources, since there is no “retail” equivalent. The Designer has developed relationships with vendors and service providers enabling Designer to receive pricing and availability not accessible to the public at large. 

Interior Design contracts cases rarely make headlines. That’s why a recent case in Virginia is worth noting.  In the U.S. District Court for the Eastern Dist. of Virginia case of Tanya M. Johnson v. Robert Shields Interiors, Inc., the contract for interior design and decorating services, including purchasing furniture, authorized a ten percent (10%) markup on shipping and related services but did not provide for any other markups, commissions, or fees. Johnson v. Robert Shields Interiors, Inc., Civ. No. 1:15cv820, 20 (E.D. Va. May. 11, 2016)

At trial, plaintiff proved that the designer never provided any receipts, vendor invoices, or purchase orders, to show commissions or rebates received from the vendors, and the designer further refused to provide proof of the furniture charges and shipping costs when asked. Discovery revealed that the designer was secretly marking up most of the furniture sourced for the client by anywhere from 35 to 100 percent. Although the Court entered a default judgment for the plaintiff for the defendant’s failure to appear at trial to defend himself, the court did analyze the breach of contract claim and did state that the designer’s “undisclosed markups on items procured for plaintiff are a breach of the Agreement.”

Also worth noting is the Court’s analysis of the claim for violation of the Virginia Consumer Protection Act (VCPA). The Court stated that the failure to disclose “rebate and commission arrangements with its vendors” and “charg[ing] … undisclosed markups for many of the furniture items procured,” such as “$4,800.00 for a lounge that only cost $2,481.00, and $11,000.00 for a table that only cost $5,999.40” satisfied the VCPA’s prohibition against using deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.” 

Link https://casetext.com/case/johnson-v-robert-shields-interiors-inc

Given my experience working with interior designers, the designer in the Johnson case no doubt believed that because the contract was silent on the amount of the mark-up that he could charge, he had discretion to charge whatever mark-up he chose.

To avoid these headaches, it is important to be clear about how purchasing fees are structured. This can be done several ways. First, if you intend to charge for your time spent during the purchasing process, then include that in your contract. For example “Designer shall charge it standard hourly rate for all time spent on the procurement of furniture and decorative items.” 

Second, if you intend to charge a flat fee for the purchasing process, then be clear about whether that fee includes your fees. For example, the following clause comes from another case [Marcus v. Marlene Dennis Design, LLC] https://www.virginiabusinesslitigationlawyer.com/wp-content/uploads/sites/52/2022/07/Marcus-Complaint.pdf that also made headlines.

Here is the clause at issue:

“Furnishings, rugs, artwork, decorative lighting and accessories not to exceed $250,000. Designer and client to review Furniture Plan and agree on the items to be re-purposed and to confirm that $250,000 is an appropriate amount given the items required.”

This clause is simply too vague. For example, it is unclear what is included in the $250,000 sum.

Key Take Away:

Contract language that governs fees on purchasing services, commissions on the goods, and/or third-party services, must be clear and unambiguous as to how the fee is calculated, what purchases are subject to the fee, whether discounts are available, and how they’re applied, if at all.

For answers to these and other mission-critical business issues faced by designers, please contact us today for a no-fee, limited, no-obligation consultation. (866) 734-2568. http://www.adler-law.com

Business, Contracts, Design, Entrepreneurs, Law, Legislation, llinois, New York

Ping® by AdlerLaw July 2022 – Recent State Laws in Illinois & New York Affect Contractors, Interior Designers

This month’s issue of Ping® highlights recent changes in State laws in Illinois and New York. Effective January 1, 2023, Illinois joins at least 18 other states to have a Title Act authorizing Registered Interior Designers to seal any bound set or loose sheets of technical submissions. This change can only benefit everyone in the industry including, designers, tradespersons, and most importantly, consumers. Also noteworthy is New York’s legislative approval of NY State Senate Bill S8369B relating to protections for freelance workers. The Freelance Isn’t Free Act (the “Act”) if signed, would amend the New York Labor Law to establish rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation. 

Illinois: Legislation relating to Registration & the Scope of Practice of Interior Designers

Effective January 1, 2023, Illinois joins at least 18 other states to have a Title Act authorizing Registered Interior Designers to seal any bound set or loose sheets of technical submissions. This change can only benefit everyone in the industry, designers, tradespersons and most importantly, consumers as it will expedite some customary but often needlessly duplicated tasks.

The Title Act puts no stumbling blocks before those who wish be interior designers. These statutory provisions and rules do not regulate the practice of interior design – anyone can offer to provide and provide interior design services in Illinois. The Illinois act only regulates the use of a specific title – “Illinois Registered Interior Designer.”

Illinois is one of 19 states, including neighboring Minnesota, Wisconsin and Iowa, that have voluntary title registration for interior designers with no permitting authority. In addition, 21 other states, including Michigan, have no title laws or permitting authority for interior designers at all. Proponents of regulating interior design submit that interior designer registration requires industry recognized credentialing and rigorous testing.

If you have questions about the Act’s application to your business, or about the pros/cons of becoming a Registered Interior Designer, or if you need assistance navigating the credentialing process, please feel to contact me for more information. (866)734-2568 and David [at] adler-law.com.

New York: State Legislature Approves Statutory Protections For Independent Contractors

New York’s legislative approval of NY State Senate Bill S8369B relating to protections for freelance workers. The Freelance Isn’t Free Act, if signed, would amend the New York Labor Law to establish rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation. 

The Act establishes protections for certain freelance workers providing services for entities located in the City. The New York State Legislature had earlier this month approved a bill providing similar protections to freelance workers throughout the state. If signed by the Governor, the Act will take effect 180 days after signing and apply to contracts entered into with certain independent contractors on or after that effective date. The Act mirrors the City-specific text in almost all respects and amends the New York Labor Law to establish protections for covered freelance workers, including establishing rights for covered freelance workers such as the rights to receive a written contract, receive timely and full payment, and freedom from retaliation.

Independent Contractors

If you or your business is contracted to perform specific work for an “employer,” according to your own process, using your own resources, and outside the daily control of the employer, you are an independent contractor. Independent contractors are not considered employees. This creates risk and benefits for both parties. Considered self-employed, independent contractors do not receive most of the rights and benefits that employees receive from employers or by virtue of federal and state employment laws, particularly the Fair Labor Standards Act. In addition, independent contractors are responsible for paying all applicable federal, state and local taxes from the income you receive. However, civil rights law does apply to independent contractors in their relationship to employers. Independent contractors go by many names, including, freelancer, contractor, or consultant.

However, unlike an employee, the terms of the relationship between an independent contractor and the employer are subject to negotiation and may not always be presumed or mutually understood. For example, the terms of your work assignment, and who owns the finished (or in process) work product. For example, if you are a photographer working as an independent contractor, you retain the copyright to your photos even after delivering it to the employer, unless you have a written agreement explicitly stating the services are “work-made-for-hire,” specially commissioned, or otherwise assigned away. As an independent contractor, you will be paid according to the terms of your agreement, not according to the employer’s customary payroll. One of the biggest challenges for independent contractors is getting paid, but these risks can be addressed by properly considering  this issue prior to commencing work.

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 Law Group is a boutique Entertainment, Intellectual Property & Media law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their 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.