Louis Perry
Lou Perry represents clients in intellectual property litigation. A member of the firm’s trademark, copyright, advertising and media practice, Lou serves as trial counsel for clients in federal and state courts and the Trademark Trial and Appeal Board.
View the full bio for Louis Perry at the Faegre Drinker website.
Posts by Louis Perry
When celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) tattooed a portrait of Miles Davis on her friend Blake Farmer’s arm as a gift, she used a reference photo created by professional photographer Jeffrey Sedlik to guide her work. This tattoo—which Von D did not charge for—would set off a two-year legal battle that culminated in a jury trial in the Central District of California in early 2024. Sedlik claimed that Von D’s tattoo infringed his copyright in the photo and pointed to shared elements such as hand placement, overall pose, similar furrowed brows, similar lighting, and the direction of Miles Davis’s gaze. Von D, for her part, spent the majority of the litigation arguing that the tattoo was transformative and protected by the doctrine of fair use.
And it seemed that Von D was well on her way to being able to plead her case to a jury. The district court found that Von D had sufficiently shown that the tattoo could have a purpose or meaning distinct from that of the photo “by virtue of the way [Von D] changed its appearance to create what she characterizes as adding movement and a more melancholy aesthetic.” Thus, it denied Sedlik’s motion for summary judgment on the transformative nature of the tattoo and Von D was poised to argue the issue to a California jury.
Continue reading “Avoiding Warhol: How Celebrity Tattoo Artist Kat Von D Turned Defeat Into Victory in the Central District of California”
In 2016, Unicolors, Inc., sued H&M for selling clothing that infringed a Unicolor design. The group registration that Unicolors relied on included designs that had not been published as of the publication date set forth on the registrations. A copyright registration certificate is invalid if the registrant obtained it via the submission of false information that, if known to be false, would have resulted in a refusal to register. 17 U.S.C. §411(b)(2) requires that “the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse the registration.”
Continue reading “SCOTUS to Decide 17 U.S.C. § 411 Referral Questions”
In a year too often filled with unforeseen developments of every kind, a final surprise for many who were not paying close attention has emerged from December’s marathon stimulus and budget negotiations. This week, Congress included a trio of notable and hotly debated intellectual property measures in its multi-trillion-dollar spending and relief package. These bills, if signed into law as expected, could fundamentally alter the manner in which intellectual property owners protect and enforce their rights.
Continue reading “Important New Trademark and Copyright Laws Appear in Stimulus Package”
Nearly a year ago, we previewed the U.S. Supreme Court’s then-upcoming decision in Romag Fasteners, Inc. v. Fossil Group, Inc.—a case set to provide some much needed clarity on the question of whether plaintiffs in trademark infringement cases must demonstrate that defendants acted willfully in order for plaintiffs to recover defendants’ profits.
Justice Gorsuch delivered the opinion of the Court resolving the circuit split on this issue and holding that a plaintiff alleging trademark infringement under § 1125(a) of the Lanham Act is not required to prove willful infringement as a precondition to recovering lost profits. The Court reasoned that the clear and unambiguous language of the Lanham Act’s remedies provision only requires a precondition of willfulness when awarding profits for trademark dilution under § 1125(c), not trademark infringement under § 1125(a). The Court was careful to note that willfulness, though not a precondition to awarding profits, remains an important factor a court should consider when assessing damages. It simply is not, however, an “inflexible” threshold inquiry.
Continue reading “2020 Brings (Some) Clarity to Trademark Profit Awards”
