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Sullivan’s Content Clearance Group advises studios, production companies, independent filmmakers, advertising agencies and major brands on clearance of news, documentary, feature film and advertising video content for television and digital broadcast.

Our team reviews content for distribution on all types of platforms including premium cable, streaming services such as Netflix and Hulu, film festivals, YouTube, Instagram, Facebook, Snapchat, websites and native video platforms.

Our multi-disciplinary team has a deep knowledge and experience advising on copyright fair use, trademark, First Amendment, publicity and privacy issues, and litigation. We work collaboratively with our clients to provide tailored recommendations to reduce risk and overcome obstacles to publication. We draft and review releases, licenses and permissions, and we issue copyright fair use opinions. We also advise our clients on acquiring errors and omissions insurance.

We regularly advise our clients’ in-house legal and creative teams about the use of trademarks and titles in creative works, including the complex interplay between trademark rights and First Amendment protection. We evaluate global trademark, title and entertainment searches and prepare title clearance search opinions to help our clients satisfy their errors and omissions insurance requirements and comply with their production and distribution obligations. We also evaluate trademarks and slogans for use in advertising campaigns in the U.S. and around the world.

Representative Client Work

  • Clearance of news and documentary video content for editorial publication
  • Pre-publication review of advertising and white label content for major brands, such as Google, IBM, Nike, Adidas, Geico, L’Oréal Urban Decay, Harley Davidson, Callaway, Olympic Channel, National Association of Realtors, Cazadores, Alienware, MailChimp, Visit Seattle, DraftKings and MedMen
  • Represented filmmaker Ian McFarland in copyright fair use, license and release review for the Showtime feature-length music documentary, The Godfathers of Hardcore
  • Title clearance for the Viceland cable television network
  • Clearance of marks and slogans for use by brands in advertising campaigns, including Delta (Launchpad), Lululemon (This is Yoga) and MGM (Missed Connections)
Viewpoints
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Federal Circuit Holding in Crocs v. Effervescent Puts the Shoe on the Other Foot
On October 3, 2024, in Crocs, Inc. v. Effervescent, Inc., the U.S. Court of Appeals for the Federal Circuit (“CAFC”) issued a precedential opinion ruling that a brand’s false claim of patent ownership in a product advertisement may give rise to a deceptive advertising claim under the Lanham Act. This precedent could have significant implications for advertisers, as promotional materials touting patents may now face heightened scrutiny and could lead to potential legal repercussions. Background and Procedural History The dispute harkens back to 2006 when Crocs, Inc. (“Crocs”) sued Double Diamond Distribution, Ltd., U.S.A. Dawgs Inc., Mojave Desert Holdings, LLC (collectively, “Dawgs”), and several other shoe distributors for patent infringement in the U.S. District Court for the District of Colorado. In 2016, Dawgs counterclaimed, alleging that Crocs violated the Lanham Act’s prohibition against false or misleading descriptions of goods or services that (1) obfuscate or cause confusion as to the origin of goods or services or (2) mispresent “the nature, characteristics, qualities, or geographic origin” of goods, services, or commercial activities. Dawgs alleged that Crocs misleadingly marketed the foam material of its shoes, branded “Croslite,” by advertising it as “patented,” “proprietary,” and “exclusive,” despite the fact that Croslite had never been patented. Dawgs claimed that this misrepresentation gave consumers the impression that Crocs’ shoes were made from a material that was distinct from other footwear brands’ and, in doing so, implied that competitors’ products were “made of inferior material.” The primary issue at summary judgement before the District Court was whether Crocs’ representations that Croslite was “patented,” “proprietary,” and “exclusive” merely reflected the inventorship of the material, which would be insufficient to give rise to a Lanham Act claim, or if this language influenced consumer perception of the nature, characteristics, qualities, or origin of the product, which would support a false advertising claim. The District Court held that Crocs was entitled to summary judgement, noting that, while Dawgs alleged that Crocs falsely claimed to invent the Croslite material, which is used widely by other footwear companies around the world, there was no disagreement that Crocs actually produced Croslite and the shoes it offered for sale. Further, even assuming Crocs misrepresented that it was the exclusive source of the Croslite material, such deception was not a misrepresentation of the nature, characteristics, or qualities of Crocs-brand shoes. According to the Court, Dawgs had limited its argument by suggesting that it was Crocs’ claim of invention that implied Dawgs’ brand was inferior, rather than any comparison to specific attributes. Moreover, any claims of superiority were mere puffery. As such, the District Court held that Dawgs failed to assert an actionable Lanham Act claim. Dawgs appealed to the CAFC. Federal Circuit Decision The CAFC reversed the District Court’s decision, ruling that Crocs’ advertising was in fact directed at the nature, characteristics, or qualities of its footwear and that, as a result, Dawgs had a basis to assert a Lanham Act claim. The CAFC ruled that, when a party falsely claims that it possesses a patent on a product feature, “and advertises that product feature in a manner that causes consumers to be misled about the nature, characteristics, or qualities of its product,” a cause of action arises under the Lanham Act. The CAFC disagreed with the District Court’s conclusion that “[f]alsely claiming to have ‘patented’ something is akin to claiming to have ‘invented’ it.” Key to the CAFC’s analysis was evidence demonstrating that Crocs’ false patent claim was intertwined with promotional materials touting Croslite’s tangible benefits. This advertising, the CAFC concluded, deceptively suggested that Croslite possessed unique attributes that made Crocs’ footwear superior to other brands’. By linking these misleading advertisements directly to the false claim of having patented Croslite, consumers may have been misled not only about the existence of a patent but also about the actual characteristics or qualities of Croslite and Crocs’ shoes. Comments The CAFC’s decision is a stark reminder of the importance of pre-publication clearance and review for advertisers. Companies should ensure close cooperation between their marketing and legal teams to evaluate ad copy for compliance with applicable law. As this ruling makes clear, an activity that may be permissible under one area of law may be impermissible under another. For example, marking a product with an expired patent does not constitute false marking under patent law; however, following Crocs v. Effervescent, continuing to advertise that same product as patented, in conjunction with other statements that speak to the benefits or characteristics of the product, could give rise to a false advertising claim under the Lanham Act. Therefore, brands should implement a careful review process to ensure that product advertising does not run afoul of false advertising prohibitions, including carefully reviewing for accuracy materials that reference intellectual property rights and scrutinizing statements that may amount to puffery to ensure they do not cross the line into fallacy. *** The case is Crocs, Inc. v. Effervescent, Inc., No. 22-2160 (Fed. Cir. 2024). The opinion is available here. If you have any questions or would like to discuss this Client Alert, please contact one of the Sullivan lawyers listed above.
Intellectual Property Right Assignments Q&A: U.S.
The Q&A provides U.S.-focused commentary on the key issues in cross-border intellectual property rights assignments. The Q&A comments specifically on the following form documents made available through the Practical Law Cross-Border Resource Center: Assignment of intellectual property rights: Cross-border Assignment of trademarks: Cross-border Assignment of copyright: Cross-border Assignment of patents: Cross-border Assignment of industrial designs: Cross-border Waiver of moral rights: Cross-border Letter confirming assignment of intellectual property rights: Cross-border Click here to view a PDF of the Q&A, or visit Practical Law (subs. req'd.). Reproduced from Practical Law with the permission of the publishers. For further information, visit practicallaw.com.
Illinois Cases To Watch In 2024: Midyear Report
Michael Palmisciano was quoted in the article, "Illinois Cases To Watch In 2024: Midyear Report," which was published by Law360 [sub. req’d] on July 26, 2024. The article outlines key legal cases to watch in Illinois for the rest of 2024, focusing on public corruption, trade secret disputes and copyright issues.  With respect to sound recording, the Seventh Circuit has an opportunity to set precedent regarding proof standards for sound recording copyright claims, as it reviews hip-hop artist French Montana's victory over allegations he illegally sampled a California artist's song to make one of his own. “That includes having the court possibly weigh in regarding whether probative similarity is the appropriate test for considering sound recording copyright claims,” Mike said. He also noted that “the Seventh Circuit's review of French Montana’s case could set important precedent on proof standards for sound recording copyright claims.”
Influencer Style Case Risks More Stolen Vibe Suits From Creators
Michael Palmisciano was quoted in the article "Influencer Style Case Risks More Stolen Vibe Suits From Creators," published by Bloomberg Law [sub. req.d] on July 10, 2024. The article discusses how a Texan content creator has sued a TikTok creator in the U.S. District Court for the Western District of Texas for copyright infringement of her photos and videos, trade dress infringement of her monochrome, minimal style and misappropriation of her likeness. It’s clear “that the defendant has completely ripped off the plaintiff here,” said Mike, but “some of these photos are literally photos of the products, and so to say that another photo of the same product is infringing on the original photographer’s rights in that original photograph seems like a stretch because what’s being copied is the idea of that photograph.”