ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note discusses the fair use defense in US copyright law, including the preamble and the four statutory fair use factors set forth in 17 U.S.C. § 107, and leading fair use cases from the United States Supreme Court and the Courts of Appeals. It also provides guidance on advising clients who wish to use copyrighted works on whether a particular use is a fair use. Overview of Fair Use Defense Fair use is probably the most oft-invoked defense to copyright infringement. Encoded in section 107 of the Copyright Act, the defense provides that even if a protected work is used without the permission of the copyright holder, the unauthorized use will not constitute an infringement if the use is fair. The burden of establishing that a use is fair generally rests with the fair use proponent. Whether

This Practice Note provides an overview of insurance bad faith claims, including the insured's rights under an insurance policy, claim triggers, and benefits of bringing a claim. To the extent that a jurisdiction's statutory law prescribes actions, omissions, delays, or business practices that can be the basis of a bad faith claim or requires a complainant to satisfy conditions precedent to a bad faith claim, they will be mentioned. Except to the extent that state-specific examples are given, this Practice Note is non-jurisdictional. For more information on the common grounds for insurance bad faith claims and bad faith litigation issues, see Practice Note: US—insurance bad faith coverage litigation. What is an insurance bad faith claim? Under the insurance contract or policy, insurance companies (insurers) have many duties to the person(s) they insure, the policyholder (insured), and to persons making claims against their insureds (claimants). In performing their duties, insurers owe duties to the insured and to the claimant to act in good faith and to deal fairly with them, particularly in the claim evaluation and

This Practice Note sets out common grounds for insurance bad faith claims. It also considers bad faith litigation issues, including jurisdiction-specific bad faith standards, insurer defences, discovery points, and considerations related to available types of damages. For additional guidance on insurance bad faith claims, see Practice Note: US—insurance bad faith claims. Insurance policies, like all contracts, imply the signatories hold a duty of good faith and fair dealing in relation to one another. This concept has driven courts and legislatures to fashion standards detailing the specific obligations insurers owe to their policyholders. The resulting legal framework allows policyholders to potentially seek recovery from insurers for ‘bad faith’ in certain prescribed situations. Bad faith generally Contracts generally imply a duty of good faith and fair dealing, such that each party must not do anything to injure the other party's right to receive the benefit of their agreement. In the context of insurance contracts, a framework of jurisdiction-specific common law, as well as statutory law, has evolved

This Practice Note addresses the potential for liability of insurance representatives to third parties where a claimant asserts a claim against a representative for failing to procure insurance or obtain insurance in a sufficient amount or proper type for a tortfeasor. An individual or entity that has sustained damage because of the negligence of another usually pursues a claim for damages against the wrongdoer. The action is frequently grounded in negligence but may also be in contract. Topics discussed include circumstances when a representative may be liable to a third party, common defences for an insurance representative to a third-party claim, and issues involving policy limits. A third party is an individual or entity with whom the insurance representative does not have a direct contractual relationship to procure insurance. The definition does not include an individual or entity to whom the representative seeks to sell insurance on behalf of an insurer. Some jurisdictions have direct action statutes that allow the claimant to make a claim directly against the adverse party’s liability insurer,

This Practice Note addresses the standards that the states apply when determining an insurer's duty-to-defend. For additional guidance on the insurer's duty-to-defend, see Practice Note: US—Duty to defend and duty to indemnify and US—duty to defend and duty to indemnify—checklist. Overview If coverage issues were stocks, the duty-to-defend would be Blue Chip. Just as investors purchase such stocks in hopes of steady and consistent returns, the rules concerning an insurer's duty-to-defend have long been unwavering. This is why it comes as a surprise to no one when a court states that the duty-to-defend is broader than the duty to indemnify. After all, this has been the case for decades. See: Goldberg v Lumber Mut. Cas. Ins. Co. of N.Y., 77 N.E.2d 131, 133 (N.Y. 1948)—‘The courts have frequently remarked that the duty to defend is broader than the duty to pay.’ Likewise, it does not make news when a court declares that an insurer is obligated

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note discusses joint authorship and ownership of copyrights under US federal law, including the elements of joint authorship, the default rules that apply to joint authors, and drafting considerations for collaboration agreements. Joint authorship overview Before delving into the nuances of joint authorship, it is helpful to understand some basic copyright principles and how these principles pertain to authorship. Basic copyright principles The Copyright Act grants to authors of original works of authorship that are fixed in a tangible medium of expression a bundle of exclusive rights (ie a copyright) in their works for a statutorily prescribed period (ie copyright term or duration). For more on exclusive rights, see Practice Note: US—exclusive rights of copyright owners [Archived]. For more on copyright duration, see Practice Note: US—copyright duration chart [Archived]. Breaking this apart, to be copyrightable, a work must be: • original—to be original, a work must be independently created (rather

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note discusses common agreements in the music industry and drafting considerations for such agreements, including music licenses (such as mechanical licenses, master use licenses, synch licenses, and public performance licenses), work-for-hire agreements, exclusive recording contracts and 360 agreements, online distribution agreements, and live performance contracts, as well as a basic understanding of the sale of music catalogs as well as non-fungible tokens and artificial intelligence (AI) issues. This Practice Note also discusses relevant copyright considerations, including termination rights and laws that govern music licensing (such as the Music Modernization Act or MMA). Copyright considerations and registration To understand the various types of music licenses discussed in this Practice Note, it is first necessary to have a basic understanding of copyright law, including: • the exclusive rights of a copyright owner • how long those rights last (copyright duration) • the importance of copyright registration • relevant defenses to infringement

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. What is a patent? A patent is granted under the US Patent Act 1952 (Patents Act) by the US Patent and Trademark Office (USPTO). The owner of a patent has the right to exclude others from practicing the invention claimed in the patent in the United States for a limited period of time. Patent eligibility Far and away the most common patent is the utility patent, which, generally, claims as an invention a physical thing or series of steps. However, one may also obtain a design patent to protect an ornamental design for an article of manufacture or a plant patent to protect a plant variety produced through grafting, budding, and the like (rather than a seed). Notably, the patent claim itself must recite eligible subject matter; it is not enough that the specification disclose eligible subject matter that is covered by the claim. See Two-Way Media Ltd v Comcast Cable Communs, LLC, 874

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note answers fundamental questions about the courts and other tribunals that decide patent disputes in the United States. It provides essential foundational information for attorneys who may be researching or dealing with US patent law for the first time and serves as a quick introduction to the topic. What are the following? Answer US district courts • In the United States, there are two principal court systems. The first is the state court system which is unique to each state. The second is the US (federal) court system, which is the judicial branch of the federal government. • The US district courts are general federal courts of first instance and are located in each state. They have subject matter jurisdiction over all cases that arise under the patent laws. This means that patent infringement and validity cases are tried in US district courts. • In district court trials, juries commonly

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note explains the meaning of commonly used terminology in the field of patent law in the United States. It provides essential foundational information for attorneys who may be researching or dealing with US patent law for the time. Terms are explained in a logical sequence rather than alphabetically. What are the following? Answer Art —the term ‘art’ is used in US patent law to refer to particular fields of technology and technical knowledge in the field Prior art —‘prior art’ is the available knowledge in the technical field of the invention, as defined in the Patent Act, that is used to determine whether an invention is new (ie novel) and more than a trivial improvement (ie non-obvious)—prior art is defined in section 102 of the Patent Act. See 35 U.S.C. § 102. It includes published material (eg patents, articles, books, or product manuals), and certain publicly accessible

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note discusses the patent litigation process and key issues to consider if your client decides to pursue litigation or is accused of patent infringement. Patent litigation is a lengthy, time-consuming process that may take years to complete, racking up significant costs in legal fees and diverting both human and capital resources from all parties involved. It may also put the plaintiff’s patent(s) at risk, as alleged infringers commonly challenge the validity and/or enforceability of patents by asserting affirmative defenses or counterclaims in the infringement action or by bringing a concurrent administrative proceeding before the Patent Trial and Appeal Board (PTAB), such as an inter partes review (IPR). On the other hand, litigation is a powerful enforcement strategy that, if successful, can result in a significant damages award and deter future infringement. Key issues that you should consider include: • Instituting a litigation hold as soon as litigation is reasonably

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally written for Lexis Practice Advisor®, in the US. This Practice Note provides an introduction to the Leahy-Smith America Invents Act (AIA), which is the first major overhaul of the US patent system since the Patent Act of 1952. It converts the US patent system from a first-to-invent to a first-to-file system for patents with an effective filing date on or after March 16, 2013. A first-to-file system awards the patent to the inventor who first files the application, as opposed to the inventor who first reduces the invention to practice. This encourages prompt application filings and in most cases eliminates the need to resolve disputes as to who is the first inventor. Moving to a first-to-file system also harmonizes the US patent system with foreign patent systems, which are nearly all first-to-file. In addition to switching to the first-to-file system, the AIA also: • expanded the procedures available in the US Patent and Trademark Office (USPTO) for patent review and