Intellectual Property Insights

Analysis and practical guides on intellectual property.

265 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.

Intellectual PropertyCopyright

Music Licensing in the Streaming Era: Mechanical Royalties, the MLC, and Direct Licensing Deals

Every time a listener presses play, one stream sets in motion one of the most intricate rights-clearance systems ever built, implicating two separate copyrights, four collective organizations, and reporting obligations across dozens of countries. This article explains how music licensing actually works in the streaming era—what rights exist, who holds them, how they are licensed at statutory and negotiated rates, and what every participant must navigate—by following an independent songwriter and a fictional streaming service through the whole machine. It covers the two copyrights in every recording, the mechanical right and the §115 compulsory license, the disaster that preceded the Music Modernization Act of 2018, the blanket license and the Mechanical Licensing Collective, the performance world of the PROs and the ASCAP/BMI consent decrees, sound-recording licensing and SoundExchange under §114, sync and master-use licensing, controlled composition clauses, and the direct deals running outside the collective system. It incorporates the 2024–2026 developments, including the Phonorecords IV all-in rate (15.1% rising to 15.35% of revenue) running through 2027, the dismissal—and partial revival—of the MLC's bundling suit against Spotify, and the majors' "around-the-bundle" deals.

Casey Scott McKayJanuary 31, 202543 min read

Intellectual PropertyCopyright

Copyright Notice Checklist: A Practical Checklist

A copyright notice is the familiar line, c 2026 Acme Corp., that announces who owns a work and when it was published. For works published after March 1, 1989, notice is optional, but it still delivers concrete legal benefits, chiefly foreclosing an infringer's innocent-infringement plea that can otherwise drop statutory damages to as little as $200 per work. This checklist walks a creator or adviser through composing a complete and correct notice, choosing the right symbol for copies versus sound recordings, naming the actual owner, dating revisions honestly, placing the notice where people look and embedding it in digital files, and handling derivative, collective, and government-work situations. It also pairs notice with timely registration. Confirm the date a work was first published, since the legal effect of notice turns on it.

Casey Scott McKayJanuary 31, 20256 min read

Intellectual PropertyTrade Secret

Protection of Trade Secrets

Trade secrets are the only form of intellectual property you create simply by keeping something valuable secret and guarding it sensibly, and they can last forever if you do. This guide explains what qualifies as a trade secret under the Defend Trade Secrets Act (18 U.S.C. 1836) and the Uniform Trade Secrets Act, how misappropriation works, and the full menu of remedies, including the DTSA's dramatic ex parte civil seizure power and the case law that governs when courts actually grant it. It walks through the practical "reasonable measures" program that separates a protectable secret from an unprotectable one, the enforcement playbook from forensic investigation through injunction, and the tangle of NDAs and non-competes (including the now-dead FTC non-compete rule and the patchwork of state law). It covers the inevitable-disclosure doctrine, the Economic Espionage Act criminal track, the lessons of Waymo v. Uber, and the strategic choice between patenting an invention and keeping it secret. The aim is a single, readable map of U.S. trade secret law that a judge, a lawyer, and a curious founder can all follow.

Casey Scott McKayJanuary 28, 202549 min read

Intellectual PropertyCopyright and Trademark

Intellectual Property Disputes Concerning Superheroes

Superheroes are among the most valuable intellectual property on earth, and the fights over who owns them are some of the most dramatic and consequential battles in copyright and trademark law. This article explains how a fictional character becomes protectable property, why creators and their heirs keep returning to court decades after a character is born, and how copyright and trademark protect a hero from completely different angles. We walk through the marquee disputes: the decades-long Superman termination wars between the Siegel and Shuster heirs and Warner/DC, Marvel's victory over the Jack Kirby estate on work made for hire, the Ninth Circuit's ruling that the Batmobile is itself a copyrightable character in DC Comics v. Towle, the Gaiman-McFarlane fight over Spawn, and the 2024 collapse of Marvel and DC's jointly owned "Super Hero" trademark. Along the way we cover fan works and fair use after Andy Warhol Foundation v. Goldsmith, cosplay and costume copyright after Star Athletica, and what all of it means for ordinary creators. The piece closes with practical takeaways, hypotheticals, a plain-English FAQ, and links to related guides.

Casey Scott McKayJanuary 23, 202551 min read

Intellectual PropertyPatent

How to License Your Patent: From Valuation to Term Sheet

This guide walks the full arc of monetizing a patent through licensing, from honestly assessing whether your patent is a licensing candidate, to valuing it under the cost, market, and income approaches, to structuring and papering the deal. It explains the Georgia-Pacific reasonable-royalty framework and the apportionment rules that constrain it, the choice between exclusive and non-exclusive grants and the field-of-use and territorial hybrids in between, and the royalty architecture of upfronts, running royalties, minimums, and milestones. It covers the protective machinery of audits, representations, warranties, and indemnity, and the doctrinal landmines every licensor must know: the Brulotte/Kimble bar on post-expiration royalties, the Lear right of a licensee to challenge validity, patent exhaustion, and patent misuse. It includes an annotated term sheet and addresses university licensing under Bayh-Dole and standard-essential patents under FRAND. It is educational, not legal advice.

Casey Scott McKayJanuary 23, 202550 min read

Intellectual PropertyCopyright

Copyright Ownership, Joint Authorship, and Termination of Transfers

Copyright vests automatically in the author the moment a work is fixed, and almost everything that goes wrong afterward is a failure to move that ownership deliberately. This article explains who owns a copyright at the moment of creation, how the work made for hire doctrine reassigns that ownership to an employer and why it almost never applies to independent contractors, and what joint authorship actually requires under the divergent tests of Childress v. Taylor and Aalmuhammed v. Lee. It then covers transfers: the strict writing requirement of section 204(a), the implied nonexclusive license that fills the gap when parties forget it, recordation and the priority rules that reward it, and the diligence questions that reveal a broken chain of title. The final part addresses the termination right, an inalienable statutory power that lets authors and their heirs claw back grants after thirty-five years under section 203 or during a five-year window under section 304(c), including the notice mechanics, the derivative works exception of Mills Music v. Snyder, and why the right cannot be waived no matter what the contract says. It closes with a worked example, a diligence checklist, an FAQ, and related reading.

Casey Scott McKayJanuary 17, 202525 min read

Intellectual PropertyTrademark Litigation

Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide

The Lanham Act lets a court award attorney's fees to the prevailing party in "exceptional cases," and since the Supreme Court's 2014 decision in Octane Fitness the meaning of that phrase has been transformed. This guide explains, in plain language for both lawyers and business owners, when a trademark case is "exceptional" enough to shift fees, how the Octane Fitness standard works and why a patent case governs trademark disputes, and how the Second Circuit applies it. It covers the two routes to an exceptional-case finding—the substantive weakness of a party's position and the unreasonable manner in which the case was litigated, including discovery misconduct—who qualifies as a prevailing party, whether fees can be awarded for partial victories, and how a reasonable fee is calculated under the lodestar method with adjustments for degree of success and apportionment to the Lanham Act claims. It closes with worked examples, a FAQ, and practical takeaways for the party seeking fees and the party resisting them.

Casey Scott McKayJanuary 10, 202544 min read

Intellectual PropertyTrademark

The Shield of Good Faith: How Trademark Clearance Searches, Attorney Opinions, and USPTO Approval Protect Against Willful Infringement Claims

Willfulness no longer operates as an absolute precondition to disgorging an infringer's profits after Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020), but a defendant's intent remains the single most important equitable factor courts weigh when deciding whether to award profits, treble damages, and attorney's fees under 15 U.S.C. 1117. This article explains what willful trademark infringement means, why it controls the remedies a brand owner can recover, and how three layers of pre-adoption diligence -- a comprehensive clearance search, a reasoned opinion of counsel, and USPTO examination and registration -- combine to establish good faith and rebut claims of willful conduct. It catalogs the equitable factors courts actually weigh before ordering disgorgement, examines the privilege-waiver tradeoff that comes with asserting reliance on counsel, the evidentiary weight courts give USPTO determinations, the Tea Rose-Rectanus good-faith junior user doctrine, and the willful-blindness limits that prevent businesses from burying their heads in the sand. The discussion is anchored in primary authority, illustrated with a worked hypothetical, and connected to clearance-search and enforcement best practices that brand owners and their counsel can implement before adopting any new mark.

Casey Scott McKayJanuary 1, 202547 min read

Intellectual PropertyPatent

Utility Patent Basics

A utility patent is the workhorse of the patent system—the kind most people mean when they say "patent"—and this guide explains what it covers, what it costs, and how to get one. We walk through the four statutory categories of patentable subject matter under 35 U.S.C. 101, the requirements of usefulness, novelty (Section 102), non-obviousness (Section 103), and adequate disclosure (Section 112), all in plain English with worked examples. We dissect the anatomy of a real utility patent—specification, claims, and drawings—and explain why the claims are the part that actually matters. We compare provisional and nonprovisional applications, walk through examination and the 20-year term, and contrast utility patents with design patents, plant patents, and trade secrets. The goal is a single, trustworthy primer a founder, an inventor, or a curious judge can read start to finish.

Casey Scott McKayDecember 24, 202455 min read

Intellectual PropertyTrademark Litigation

Bench Trial vs. Jury Trial Issues in Trademark Litigation: A Practical Guide

A single trademark case is often part jury trial and part bench trial—some issues go to a jury, others to the judge—and which is which is fixed by the Seventh Amendment line between legal and equitable claims. This guide explains, in plain language for lawyers and business owners alike, how that line is drawn and why it shapes trial strategy from the first draft of the complaint. It maps which trademark issues are jury-triable (actual and statutory damages, and the confusion and validity facts that underlie them) and which are bench-triable (injunctions, the accounting of profits, cancellation, and the equitable defenses), works through the Supreme Court trilogy—Beacon Theatres, Dairy Queen, and Curtis v. Loether—that forces shared facts to the jury first, and confronts the genuinely unsettled question of whether disgorgement of profits carries a jury right after Hard Candy v. Anastasia. It surveys the equitable relief available and the burdens to obtain it (the eBay factors and the Trademark Modernization Act's presumption of irreparable harm), explains how courts bifurcate trials and police that bifurcation, and closes with a worked example, a strategic playbook for each side, and an FAQ.

Casey Scott McKayDecember 4, 202441 min read

Intellectual PropertyPatent and Trademark

Understanding Patent and Trade Dress Marking Requirements: A Comprehensive Guide for Businesses and Practitioners

This guide puts the marking and notice regimes that govern every major category of U.S. intellectual property side by side, so a business owner, an attorney, and a judge can all follow the analysis. It covers utility and design patents under 35 U.S.C. § 287 (constructive notice, the "substantially all" rule, actual notice, virtual marking, and licensee compliance), the false-marking prohibition of § 292 after Forest Group v. Bon Tool and the America Invents Act, federal trademark and trade dress registration notice under 15 U.S.C. § 1111, the TM and SM symbols for unregistered marks, and copyright notice under 17 U.S.C. §§ 401-402 after the Berne Convention. It explains how each regime affects a rights holder's ability to recover damages or profits, the penalties for over-marking, and how the three logics differ. The article then synthesizes everything into a unified marking-compliance program and a fully worked example of a single branded product carrying a utility patent, a design patent, registered trade dress, and copyrighted works, showing exactly how each notice should appear. Primary statutory and case authority is cited throughout.

Casey Scott McKayNovember 27, 202449 min read

Intellectual PropertyTrademark Litigation

Discovery Practice in TTAB Trademark Proceedings: A Comprehensive Guide to Interrogatories, Requests for Production, and Requests for Admissions

This comprehensive guide explains how discovery works in inter partes proceedings before the Trademark Trial and Appeal Board (TTAB), the administrative tribunal that decides oppositions and cancellations within the U.S. Patent and Trademark Office. It walks through the framework set by the Federal Rules of Civil Procedure as modified by 37 C.F.R. § 2.120 and the Trademark Trial and Appeal Board Manual of Procedure (TBMP), including the mandatory discovery conference, initial disclosures, the 180-day discovery period, and the trial-phase structure that follows. The article details each principal discovery device -- interrogatories (capped at 75 including subparts), requests for production (also capped at 75), requests for admission, and the ten-deposition limit -- along with the post-2017 numerical limits, electronic discovery practice, and the Board's distinctive rules on expert disclosure and service timing. It covers motions to compel, the meet-and-confer obligation, discovery sanctions and estoppel, the standard protective order, and how to use discovery to build a persuasive likelihood-of-confusion record under the DuPont factors. Throughout, the guide offers worked examples, model requests, governing case law, and practical strategy for practitioners and self-represented parties alike.

Casey Scott McKayNovember 24, 202460 min read