Insights

Analysis from the front lines of IP & technology law.

Our attorneys write about the developments shaping intellectual property — from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.

Intellectual PropertyCopyright

Registering a Copyright in a Song: A Practical Checklist

Every recorded song contains two distinct copyrights, the musical work (the composition) and the sound recording (the master), and each must be registered separately. This checklist walks a band, songwriter, or adviser through sorting out authorship and ownership, papering the producer and session players, registering both copyrights through the eCO system using the single, standard, GRAM, and unpublished-works options, preparing the right deposit, and timing the filing to preserve statutory damages and attorney's fees. It also flags the royalty-collection registrations, the PRO and the MLC for the composition and SoundExchange for the master, that legal registration alone does not handle. Verify current fees, group caps, and royalty rates at copyright.gov and with the collecting organizations.

Casey Scott McKayMay 2, 20248 min read

Labor and EmploymentWage and Hour

Preparing for a Department of Labor Wage and Hour Audit

A Wage and Hour Division investigation is a document-driven examination in which the employer's own records determine the outcome, and where the absence of records is resolved against the employer. Most investigations begin with a single employee complaint and expand to the entire workforce, the entire location, and in some cases every location the employer operates. This guide covers what triggers an investigation, what the investigator has authority to demand and what they do not, how the process unfolds from the opening conference to the closing conference, what the recurring findings actually are, how back wages and liquidated damages and penalties are computed, how to negotiate a resolution and what a supervised settlement does and does not release, and what a self-audit conducted before any of that should look like. It closes with the program that survives examination, the adjacent audits a wage finding can trigger, and the posture that determines how much a resolution actually costs.

Casey Scott McKayMay 2, 202425 min read

Wills and EstatesTrust Administration

Administering a Trust After the Grantor's Death: A Practical Guide

When the grantor of a revocable trust dies, the trust becomes irrevocable and the successor trustee assumes fiduciary duties to a group of beneficiaries who did not choose them. The work that follows runs on deadlines that are easy to miss and difficult to cure: a notice that starts a short contest period, a portability election that requires filing an estate tax return no estate tax is owed on, a disclaimer window that closes in nine months, and elections on the fiduciary income tax return that materially change what beneficiaries receive. The administration divides into distinct phases — securing assets and giving notice, marshaling and valuing, paying claims and taxes, dividing the trust into subtrusts, and distributing — each with its own documentation requirements. This guide walks the sequence and the decisions at each stage.

Casey Scott McKayMay 2, 202426 min read

Wills and EstatesEstate Planning

Who Will Inherit Your Intellectual Property?

Intellectual property is one of the most valuable and most forgotten categories of assets in an estate. Copyrights survive an author by seventy years and can throw off royalties for decades; patents, trademarks, trade secrets, royalty streams, and the right of publicity each pass to heirs under their own peculiar rules. This article explains how each type of IP is inherited, why the non-waivable copyright termination rights under 17 U.S.C. 203 and 304 can override your will, how the post-mortem right of publicity varies wildly from state to state and turns on domicile at death, and which estate-planning tools-wills, trusts, holding entities, and beneficiary designations-best protect these intangible treasures. It also covers the often-overlooked tax traps, including the rule that a creator's copyright is not a capital asset under 26 U.S.C. 1221, how the step-up in basis changes that at death, and income in respect of a decedent. Finally it addresses the digital-assets problem under RUFADAA and the Stored Communications Act. The goal is a plan that gets the right IP to the right people and keeps it earning.

Casey Scott McKayMay 1, 202454 min read

Wills and EstatesTrust Administration

Trust and Estate Administration Toolkit

Estate and trust administration is a sequence of deadlines, notices, and fiduciary obligations in which the expensive failures are almost always procedural rather than substantive. A portability election missed because no return was filed. A creditor claim period never started, leaving the estate open for years. A concentrated position held without a written analysis. Annual reports never sent, which leaves a trustee exposed for five years instead of one. This toolkit covers both roles in parallel: opening an estate and qualifying the personal representative, marshaling assets and handling creditors, the tax filings and elections, distribution and closing — and for a trustee, acceptance and the statutory notices, the investment and impartiality duties, the distribution protocol, the reporting that starts a one-year limitations clock, and the protections available to a fiduciary who wants finality.

Casey Scott McKayMay 1, 202415 min read

Intellectual PropertyTrademark

Trademark Rights Under Common Law

Common law trademark rights arise automatically from using a brand name, logo, slogan, or other source identifier in commerce, even with no registration anywhere. This article explains how those rights are born, why "first to use" usually beats "first to file" in the United States, and how the geographic reach of unregistered rights is famously narrow under the Tea Rose-Rectanus doctrine drawn from Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916), and United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918). It covers the proper use of the TM and SM symbols, how common law rights collide with—and are partly frozen by—a later federal registration's constructive notice, how concurrent-use battles get resolved, and the surprising ways unregistered rights can be lost. Worked hypotheticals walk through priority disputes, the "good faith remote user" defense, analogous-use priority, and proof-of-first-use problems. The piece closes with practical guidance on when an unregistered mark is enough and when federal registration is worth the cost, plus a FAQ and links to related mclaw.io resources.

Casey Scott McKayApril 26, 202440 min read

CommercialInsurance Claims and Coverage

Negotiating a Commercial Insurance Program: A Practical Guide

An insurance program is a contract portfolio that most companies buy the way they buy office supplies, and then discover the terms of only after a loss. This guide approaches it as a negotiation. It starts with the risk assessment that determines what to buy and how much, then works through the lines of coverage and what each actually does, how brokers are selected and compensated and why that matters to the outcome, how to prepare a submission that produces better terms, the policy provisions worth negotiating and the endorsements worth buying, and how the contractual insurance requirements in leases and vendor agreements have to be reconciled with the program that actually exists. It closes with renewal strategy and what to do when a claim arrives.

Casey Scott McKayApril 23, 202425 min read

FinanceBankruptcy

Filing a Subchapter V Small Business Reorganization: A Practical Guide

Subchapter V was created because ordinary Chapter 11 does not work for a company with three million dollars of debt and no ability to fund a six-figure professional budget. It removes the disclosure statement, the creditors' committee, the quarterly fees, and — most importantly — the absolute priority rule, so an owner can keep the business without paying creditors in full or bringing new value. This guide walks through eligibility, the pre-filing preparation that determines whether the case succeeds, the first-day motions and the early status conference, how a plan is built around projected disposable income, the difference between consensual and nonconsensual confirmation and why it decides when the discharge issues, and what happens after confirmation. It closes with the mistakes that cause these cases to convert or dismiss.

Casey Scott McKayApril 20, 202426 min read

LitigationCivil Procedure

Federal Civil Litigation Toolkit: A Roadmap and Resource Guide

This toolkit is a high-level roadmap through a federal civil lawsuit from first client call to appeal, designed for litigators, in-house counsel, and small-business defendants who need to understand the whole arc and where each task fits. It walks each phase—case evaluation, pre-suit demand, pleadings and filings, service of process, discovery, motions, trial, post-trial, and appeal—and at every step links to detailed mclaw.io checklists and articles plus the governing Federal Rules and the research tools (PACER, CourtListener, uscourts.gov) practitioners actually use. It is a navigation guide to the process and its resources, not a substitute for jurisdiction-specific advice; local rules and standing orders vary by court and judge. Use it to orient a new matter, to brief a client on what is coming, or to find the right deeper resource at the moment a particular task lands on the calendar.

Casey Scott McKayApril 20, 202415 min read

FinanceLending

Personal Guaranties and Suretyship Defenses: Drafting, Enforcing, and Escaping

A personal guaranty converts a business debt into a family problem, and it does so with a document most guarantors sign without reading and most lenders draft from a form. The law of suretyship gives a guarantor a surprising number of defenses — impairment of collateral, material modification of the underlying obligation, release of the principal — and modern guaranty forms waive essentially all of them, which is why the enforceable scope of those waivers matters more than the defenses themselves. This article covers the anatomy of a guaranty, the distinctions that determine when a lender may sue, the classical suretyship defenses and the statutes that survive a waiver, the anti-deficiency and one-action rules that reshape enforcement in several states, and the discrimination rules that void spousal guaranties. It closes with negotiation points for guarantors and drafting points for lenders.

Casey Scott McKayApril 19, 202426 min read

TechnologyInternet

Website Terms of Service and Online Contract Formation: Clickwrap, Browsewrap, and Enforceable Arbitration

Almost every consumer relationship online is governed by a contract nobody read, and whether that contract exists at all turns on interface design rather than on legal drafting. This article explains how courts decide whether a website or app user agreed to terms: the spectrum from clickwrap through sign-in wrap to browsewrap, the reasonable notice and manifestation of assent standards applied in Specht, Nguyen, Meyer, Berman, and Oberstein, and the specific design features that decide cases, including button proximity, hyperlink contrast, font size, scroll position, and the wording of the assent notice. It then covers what those terms can and cannot accomplish: arbitration clauses and class waivers under the Federal Arbitration Act, delegation clauses and who decides arbitrability, the mass arbitration problem that has made these clauses double-edged, forum selection and choice of law, limitations of liability, unilateral modification and the illusory promise problem, and the consumer protection overlay for auto-renewal and cancellation. It closes with an interface and drafting checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayApril 18, 202426 min read

LitigationDepositions

The Art of Defending Depositions in Federal Court: A Comprehensive Guide

Defending a deposition in federal court is one of the most consequential and least understood skills in civil litigation, because harmful testimony can decide a case on summary judgment or in settlement long before trial. This comprehensive guide explains the defending attorney's role from the witness preparation session through the errata sheet, with close attention to the ethical line between legitimate preparation and improper coaching. It analyzes the objection regime of Federal Rule of Civil Procedure 30(c)(2) -- objections noted on the record while examination proceeds, the distinction between form and substance, and the prohibition on speaking and suggestive objections under Hall v. Clifton Precision. It covers the three narrow grounds for instructing a witness not to answer, the contested question of whether counsel may confer with a witness during questioning, the special burdens of defending a Rule 30(b)(6) corporate witness, an expert, or a high-level executive, the Fifth Amendment in civil depositions, the circuit split over substantive errata corrections, the mechanics of terminating or limiting an abusive deposition under Rule 30(d)(3), and the procedural skirmishes that precede the testimony -- short-notice depositions, second depositions, Rule 29 stipulations, and the "no knowledge" witness. Worked dialogue examples illustrate each principle, and the article closes with a defending-counsel checklist, an FAQ, and key takeaways for litigators and clients alike.

Casey Scott McKayApril 18, 202461 min read