Intellectual Property Insights
Analysis and practical guides on intellectual property.
446 articles, checklists, and guides on intellectual property law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Licensing and Protecting Name, Image, and Likeness: A Practical Guide
Name, image, and likeness work divides into two jobs that look similar and require different skills: licensing an identity so it produces revenue without giving away more than intended, and clearing third-party identities so a campaign does not generate claims. This guide covers both. It walks through the individual's side—entity structure, category definition, approval mechanics, digital replica consent, morals clauses, and the compliance overlay in college athletics—and the user's side, including release drafting, stock imagery restrictions, deceased individuals, and the escalation rules that keep advertising out of trouble. It closes with enforcement: how to evaluate an unauthorized use, what a demand letter should say, and when the claim is worth pursuing.
The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself
The right of publicity protects a person's commercial interest in their own identity, and it is the most jurisdictionally fragmented area of American intellectual property law. This article explains what the right covers, where it comes from, and why fifty different state answers produce genuine practical difficulty for anyone operating nationally. It covers the elements of a claim, the defenses that matter most—newsworthiness, expressive use, and copyright preemption—and the two developments reshaping the field: the collapse of amateurism in college athletics and the arrival of technology that can generate a convincing replica of anyone's face or voice. It closes with how the right interacts with trademark false endorsement claims and what a workable clearance practice looks like.
Patent Litigation Toolkit: A Roadmap and Research Guide
This toolkit is a high-level roadmap and curated library guide to U.S. patent infringement litigation, from pre-suit investigation through appeal and international strategy. It walks each stage: pre-suit investigation, venue and forum selection, pleadings, claim construction (Markman), discovery, infringement and defenses, invalidity including inter partes review at the PTAB, damages, trial, appeal to the Federal Circuit, and cross-border considerations. At each stage it links to mclaw.io articles and checklists plus primary and official authorities including 35 U.S.C. Sections 271/281/284, PACER, CourtListener, and leading cases. This is general information, not legal advice; verify current rules and case law before acting.
Fair Use Toolkit: Analysis Memoranda, Clearance Decisions, and Litigation Positions
This toolkit collects the documents a fair use practice actually produces, from the intake form that converts a vague request into an answerable question to the discovery requests a defendant serves when the use is challenged. Each template is annotated with its purpose, its owner, and the specific failure it prevents. The materials serve both the clearance function and the litigation posture, and several do double duty—the memorandum template structures advice before the use and becomes the good-faith record afterward. They are structures to adapt, not forms to fill in.
Copyright Fair Use Checklist: A Practical Checklist
Fair use analysis goes wrong in a small number of predictable ways, and nearly all of them are failures of intake rather than failures of doctrine. This checklist runs the analysis in the order that produces the clearest answer: converting a vague request into a specified use, screening for protectability and registration, characterizing the purpose, mapping the owner's markets, running the four factors, weighing them, assigning a risk tier, and identifying mitigations. It includes a separate section for each of the common clearance contexts and a closing reference table of the failures each step exists to prevent. It separates the clearance decision from the litigation posture, because the questions differ. Every item is written so that a "no" tells you what to do next.
Conducting a Fair Use Analysis: A Practical Guide
Fair use questions arrive as yes-or-no requests and have to be answered as risk assessments, which is why a repeatable analytical workflow matters more than familiarity with the case law. This guide sets out that workflow: identifying exactly what is being used and for what purpose, gathering the facts each factor actually requires, running the four factors in the order that produces the clearest answer, and writing a memorandum that will hold up if the use is challenged. It covers the specific clearance contexts that generate most fair use questions—documentary film, publishing, education, software, marketing, and machine learning—and includes an escalation framework, a risk-tier vocabulary, and guidance on when to license instead. A worked analysis walks a real-shaped clearance decision from intake through a written memorandum. It also explains how to document the analysis so it holds up if the use is later challenged.
International Trademark Filing Strategy Checklist: A Practical Checklist
This checklist turns the decision of where and how to protect a trademark outside the United States into a sequence of concrete tasks. It starts with mapping where the business makes, sells, and licenses its products, then covers foreign clearance and linguistic checks, the choice between Madrid, national, and regional filings, and the six-month Paris priority window. Further phases address specifications and classes (including China's subclass system), translations and local-script marks, budgeting, contract terms that keep distributors and manufacturers from filing the brand, customs recordation at home and abroad, and the watch and maintenance program that keeps the portfolio alive. Red-flag boxes mark the situations that call for immediate filing or escalation, and a deadlines table collects the clocks that matter. A short worked example and a list of common failure points close the checklist.
Copyright Fair Use: The Four Factors, Transformative Use, and What Warhol Changed
Fair use is the most consequential and least predictable doctrine in copyright law, and the Supreme Court's 2023 decision in Warhol changed how the central question is framed. This article explains the statutory four-factor test, the history that produced it, and how courts actually weigh the factors against each other rather than counting them. It traces the rise of transformative use from Campbell through Google v. Oracle and the discipline Warhol imposed on it, and it explains why the first factor now turns on whether the new use competes with the original rather than on whether it looks different. It covers the recurring contexts where fair use is litigated—parody, criticism, news reporting, education, software interoperability, search, and machine learning—and closes with how to give and receive fair use advice.
ITC Section 337 Toolkit: Complaints, Domestic Industry Proof, and Remedy Briefing
This toolkit collects the documents that a Section 337 investigation actually runs on, from the pre-filing domestic industry allocation worksheet through the enforcement package a complainant hands to Customs after an order issues. Each template is annotated with its purpose, its owner, and the failure it prevents, and most serve both sides—the allocation worksheet builds the complainant's case and structures the respondent's attack on it. The materials assume the Commission's Rules of Practice and Procedure and note where individual administrative law judges' ground rules will control. Each template carries drafting notes on what the language does and where filings commonly fail. Adapt everything to the technology, the accused products, and the Commission's current practice.
ITC Section 337 Checklist: A Practical Checklist
Section 337 practice punishes omissions more than errors, because the Commission's schedule leaves no room to recover. This checklist is organized by role and phase: the complainant's pre-filing build, the complaint's mandatory contents, the respondent's first thirty days, discovery under ground rules, hearing preparation and the prehearing brief that waives anything left out of it, remedy and bond briefing, and the border enforcement work that follows an order. Items note where complainant and respondent tasks diverge, and each section closes with the failure it exists to prevent. Separate sections address the complainant's pre-filing work and the respondent's first sixty days. Every item is written so that a "no" tells you what to do next.
Litigating a Section 337 Investigation at the ITC: A Practical Guide
Section 337 practice compresses a full patent trial into roughly nine months and adds a domestic industry case that most complainants have never had to prove. This guide walks through the work in sequence for both complainants and respondents: pre-filing preparation and the financial data collection that must precede it, complaint drafting, the first thirty days after institution, discovery under ALJ ground rules, the evidentiary hearing, post-hearing briefing, Commission review, remedy and bond briefing, presidential review, and the border enforcement work that begins after the order issues. It includes a working calendar, a staffing model, budget guidance, and the errors that most reliably cost cases at the Commission. The compressed ITC schedule is treated as the organizing constraint, with a week-by-week working timeline. It also covers the district court companion case and when to stay it.
Common-Law Rights, the Supplemental Register, and the Principal Register: A Practical Guide
People often assume a trademark either is registered or it is not, but U.S. law actually offers three distinct tiers of protection: common-law rights that arise automatically from use, registration on the Supplemental Register, and registration on the Principal Register. Each tier protects a different kind of mark and confers a very different bundle of rights. This guide explains, for lawyers and business owners alike, how rights arise from use, what marks qualify for each tier, the geographic reach of each, and the presumptions and remedies they provide. It details the benefits the Principal Register offers that nothing else does—constructive notice under Section 22, nationwide constructive use under Section 7(c), prima facie validity under Section 7(b), and incontestability under Sections 15 and 33(b)—and explains exactly what the Supplemental Register withholds and what it still delivers. It traces how a descriptive mark climbs from common law to Supplemental to Principal as it acquires secondary meaning under Section 2(f), and it closes with worked examples, a strategy section, and a practical FAQ.