On October 12, 2022, the Supreme Court heard oral arguments for The Andy Warhol Foundation for the Visual Arts, Inc.(AWF) vs. Lynn Goldsmith, et al.[1] The main issue revolves around “transformative” use under the Copyright Act[2] and how transformative the work must be to be protected by the doctrine of Fair Use and not infringe another’s copyright.[3] In 1994, the Supreme Court considered a case regarding transformative use, Campbell v. Acuff-Rose Music, Inc., in which the Court held that 2 Live Crew’s parody on Roy Orbison’s song, “Oh, Pretty Woman,” was protected under fair use and that the lower court erred in finding otherwise because they solely looked at the commercial nature without weighing the other fair use factors.[4] The Court also defined “transformative” as “add[ing] something new, with a further purpose or different character, altering the first with [a] new expression, meaning, or message.”[5] The more a work transforms the original, the less the other fair use factors will weigh in the analysis because transforming a work emphasizes “the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”[6] Transformative use also came up in 2020 with Google LLC v. Oracle America, Inc., where the Court found Google’s use of a portion of code from the Sun Java API, a computer program using Java programming language, to be “new” and “transformative” enough to constitute fair use.[7]Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00IntellectualPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngIntellectualProperty2022-11-10 15:02:282022-11-10 15:15:40Transforming Transformative Use: A Synopsis of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
In general, operating a business through an entity can provide limited liability in the event the entity is insolvent or goes out of business. Limited liability applies even to business taxes owed by an entity such as a C corporation. Some taxpayers have attempted to take advantage of that by causing a corporation to transfer to its shareholders assets that should be used to pay taxes. Such shareholders liquidate the corporation and ignore IRS attempts to collect. Absent Section 6901, the IRS might have no ability to collect the corporate taxes from the owners of the corporation. However, Section 6901 imposes transferee liability on the owners of the business who received such assets. Read more
Greetings and happy autumn from the Pro Bono Committee of the Dispute Resolution Section!
Our team has been busy organizing for another successful bar year, and we invite you to participate.
The Pro Bono Committee works to identify projects and programs that provide members of the Dispute Resolution Section meaningful opportunities to use their skills and training to serve the public; support the creation of new pro bono DR opportunities and programs; and encourage section members to engage in pro bono service.
The tool is probably most often used by criminal law practitioners, but all administrative law practitioners should be aware of it:
1. Check its accuracy regarding collateral consequences and your department, agency, board or commission and let the SOG know if there are issues.
2. Consider using the tool to assess collateral consequences when thinking about negotiating settlements and penalties of administrative law cases affecting a licensee, permittee, registrant or client.
Here is how the article describes the most significant changes to the tool:
“The revised C-CAT addresses these needs and includes a complete overhaul of the tool’s search functions as well as a comprehensive update of the tool’s data. Users will also notice added features, such as the ability to bookmark repeated searches, a simpler interface for use on smart phones, and expanded resources linked from the tool, including the annual reports of occupational licensing boards’ treatment of people with a criminal history.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Administrativehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAdministrative2022-11-07 12:35:442022-11-07 12:35:44SOG Has Updated Its Collateral Consequences Tool – Check It Out
College football season is upon us, and The Ohio State University is in the hunt for the playoffs. As good as they have been on the field, the school’s first win came before the season started. In June, the United States Patent and Trademark Office granted Ohio State an unusual trademark: the word “The.”
For those unfamiliar with Ohio State, the attempt to claim ownership of a definite article may seem absurd, but the word “The” holds a special place in the heart of Buckeyes everywhere. While it has been a part of the school’s name since 1878, the university made a push in the 1980s to emphasize the word “The” as part of the college’s brand and to distinguish it from other OSU colleges such as Oregon State University and Oklahoma State University. Since then, the word has appeared on Ohio State merchandise, promotional materials, and is emphasized in the pre-game introductions of Buckeyes competing in professional sports. The school’s first application for the trademark was denied, since the USPTO was skeptical that the word was being used as an indication of source, but their second attempt was approved after demonstrating the sheer amount of marketing and advertising they had poured into creating a link between the word and the Ohio State brand.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00SportsandEntertainmenthttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngSportsandEntertainment2022-11-01 09:19:392023-01-09 17:00:47“The” Ohio State University and the Trademark Protection of Cultural Identity
At the Administrative Law Section Council Meeting on October 27, 2022, we were honored to have Representative Sarah Stevens speak to the Council. She outlined that she believed that the Administrative Procedure Oversight Committee will be focused on three issues concerning Administrative Law this upcoming session. They are:
1. Do all occupational licensing boards need to have the requirement of a license?
2. Do some licensing boards need to be merged together because of common purposes?
3. Are all administrative agencies and boards acting within their statutory authority?
Representative Stevens indicated that it appears that the Legislature does not want to require an overarching regulatory agency under which all boards and commissions would operate. Instead, the legislature would evaluate administrative agencies and commissions using the three outlined concerns above. Read more
As lawyers, our time has value. I don’t mean just the indefinite notion that our time is valuable but a specific dollar amount attached to every six minute increment of our day.
When I started billing by the hour, normal tasks took on a new significance. That traffic jam – $65; my kid’s trip to the dentist – $225; laundry . . . I have a family of five, so I don’t even want to think about that cost. The paradigm shift forced me to answer, “Is it worth my time?” before adding anything to my schedule, and more often than ever before, the answer was “No.” Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA YLDhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA YLD2022-10-31 12:09:072022-10-31 12:10:05Pro Bono Is Worth My Time
Jill Jackson has been a staple of the family law community in North Carolina for over 20 years.
You may know her as a fierce litigator, a seasoned negotiator, or literally a Wonder Woman™. (Ask her about this if you don’t know the reference.)
In addition to these wonderful things, Jill has an excellent perspective on how to keep our heads in the game without losing our heads! Listen to this short video about Jill’s view on navigating the waters of our profession.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2022-10-28 09:00:072022-10-28 09:40:50Meet the Leaders, Part 1: Jill Jackson
By Jennifer Spyker, Grant Osborne and Members of the Communications Committee of the Labor & Employment Law Section Council
It’s not too late to register for the 38th Annual North Carolina/South Carolina Labor and Employment Law CLE, being held November 4-5, 2022, at the Renaissance in Downtown Asheville. Come join us in person for fall vibes, time with colleagues whom you may not have seen for quite a while, and an excellent speaker lineup! The CLE is also available via live webcast.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Laborhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLabor2022-10-27 12:04:442022-10-27 12:04:4438th Annual North Carolina/South Carolina Labor and Employment Law CLE
As we get into the busy holiday season, don’t forget to take time to give back to your community. The Corporate Counsel Section is hosting an in-person volunteer opportunity at the Food Bank of Central and Eastern North Carolina’s Raleigh branch (1924 Capital Blvd) on Friday, November 18, 2022, from 9 a.m. until noon. Volunteers will provide assistance in various activities, including sorting out produce and food donations, creating Commodity Supplemental Food Program and Disaster Relief boxes, packing food items such as cereal, pasta, eggs, and other dry food.
The Food Bank of Central and Eastern North Carolina serves 34 counties and is the largest food bank in the state. Nearly 600,000 people in the Food Bank’s service area are food insecure. Last fiscal year the Food Bank provided 115 million meals with the support of 134,988 volunteer hours, which is the equivalent of 65 full-time employees. Come join your fellow Corporate Counsel Section members in supporting hunger relief for our community!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00CorporateCounselhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngCorporateCounsel2022-10-27 09:04:072022-10-27 09:28:36Join Us for a Food Bank Service Project on November 18!
Transforming Transformative Use: A Synopsis of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Intellectual Property Law SectionOn October 12, 2022, the Supreme Court heard oral arguments for The Andy Warhol Foundation for the Visual Arts, Inc.(AWF) vs. Lynn Goldsmith, et al.[1] The main issue revolves around “transformative” use under the Copyright Act[2] and how transformative the work must be to be protected by the doctrine of Fair Use and not infringe another’s copyright.[3] In 1994, the Supreme Court considered a case regarding transformative use, Campbell v. Acuff-Rose Music, Inc., in which the Court held that 2 Live Crew’s parody on Roy Orbison’s song, “Oh, Pretty Woman,” was protected under fair use and that the lower court erred in finding otherwise because they solely looked at the commercial nature without weighing the other fair use factors.[4] The Court also defined “transformative” as “add[ing] something new, with a further purpose or different character, altering the first with [a] new expression, meaning, or message.”[5] The more a work transforms the original, the less the other fair use factors will weigh in the analysis because transforming a work emphasizes “the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”[6] Transformative use also came up in 2020 with Google LLC v. Oracle America, Inc., where the Court found Google’s use of a portion of code from the Sun Java API, a computer program using Java programming language, to be “new” and “transformative” enough to constitute fair use.[7] Read more
Transferee Liability Under Section 6901
Tax SectionIn general, operating a business through an entity can provide limited liability in the event the entity is insolvent or goes out of business. Limited liability applies even to business taxes owed by an entity such as a C corporation. Some taxpayers have attempted to take advantage of that by causing a corporation to transfer to its shareholders assets that should be used to pay taxes. Such shareholders liquidate the corporation and ignore IRS attempts to collect. Absent Section 6901, the IRS might have no ability to collect the corporate taxes from the owners of the corporation. However, Section 6901 imposes transferee liability on the owners of the business who received such assets. Read more
Pro Bono Committee Update
Dispute Resolution SectionBy
Sean Vitrano
Greetings and happy autumn from the Pro Bono Committee of the Dispute Resolution Section!
Our team has been busy organizing for another successful bar year, and we invite you to participate.
The Pro Bono Committee works to identify projects and programs that provide members of the Dispute Resolution Section meaningful opportunities to use their skills and training to serve the public; support the creation of new pro bono DR opportunities and programs; and encourage section members to engage in pro bono service.
Read more
SOG Has Updated Its Collateral Consequences Tool – Check It Out
Administrative LawBy Ann Wall
The School of Government has updated its Collateral Consequences tool and published an article on the Criminal Law Blog about what the update entails:
C-CAT 2.0 Is Here!
The tool is probably most often used by criminal law practitioners, but all administrative law practitioners should be aware of it:
1. Check its accuracy regarding collateral consequences and your department, agency, board or commission and let the SOG know if there are issues.
2. Consider using the tool to assess collateral consequences when thinking about negotiating settlements and penalties of administrative law cases affecting a licensee, permittee, registrant or client.
Here is how the article describes the most significant changes to the tool:
“The revised C-CAT addresses these needs and includes a complete overhaul of the tool’s search functions as well as a comprehensive update of the tool’s data. Users will also notice added features, such as the ability to bookmark repeated searches, a simpler interface for use on smart phones, and expanded resources linked from the tool, including the annual reports of occupational licensing boards’ treatment of people with a criminal history.”
“The” Ohio State University and the Trademark Protection of Cultural Identity
Sports & Entertainment Law SectionCollege football season is upon us, and The Ohio State University is in the hunt for the playoffs. As good as they have been on the field, the school’s first win came before the season started. In June, the United States Patent and Trademark Office granted Ohio State an unusual trademark: the word “The.”
For those unfamiliar with Ohio State, the attempt to claim ownership of a definite article may seem absurd, but the word “The” holds a special place in the heart of Buckeyes everywhere. While it has been a part of the school’s name since 1878, the university made a push in the 1980s to emphasize the word “The” as part of the college’s brand and to distinguish it from other OSU colleges such as Oregon State University and Oklahoma State University. Since then, the word has appeared on Ohio State merchandise, promotional materials, and is emphasized in the pre-game introductions of Buckeyes competing in professional sports. The school’s first application for the trademark was denied, since the USPTO was skeptical that the word was being used as an indication of source, but their second attempt was approved after demonstrating the sheer amount of marketing and advertising they had poured into creating a link between the word and the Ohio State brand.
Read more
The Administrative Law Section Council’s 2023 Legislative Discussion
Administrative LawAt the Administrative Law Section Council Meeting on October 27, 2022, we were honored to have Representative Sarah Stevens speak to the Council. She outlined that she believed that the Administrative Procedure Oversight Committee will be focused on three issues concerning Administrative Law this upcoming session. They are:
1. Do all occupational licensing boards need to have the requirement of a license?
2. Do some licensing boards need to be merged together because of common purposes?
3. Are all administrative agencies and boards acting within their statutory authority?
Representative Stevens indicated that it appears that the Legislature does not want to require an overarching regulatory agency under which all boards and commissions would operate. Instead, the legislature would evaluate administrative agencies and commissions using the three outlined concerns above. Read more
Pro Bono Is Worth My Time
Young Lawyers DivisionBy Janelle Cline
As lawyers, our time has value. I don’t mean just the indefinite notion that our time is valuable but a specific dollar amount attached to every six minute increment of our day.
When I started billing by the hour, normal tasks took on a new significance. That traffic jam – $65; my kid’s trip to the dentist – $225; laundry . . . I have a family of five, so I don’t even want to think about that cost. The paradigm shift forced me to answer, “Is it worth my time?” before adding anything to my schedule, and more often than ever before, the answer was “No.” Read more
Meet the Leaders, Part 1: Jill Jackson
Family Law SectionJill Jackson has been a staple of the family law community in North Carolina for over 20 years.
You may know her as a fierce litigator, a seasoned negotiator, or literally a Wonder Woman™. (Ask her about this if you don’t know the reference.)
In addition to these wonderful things, Jill has an excellent perspective on how to keep our heads in the game without losing our heads! Listen to this short video about Jill’s view on navigating the waters of our profession.
38th Annual North Carolina/South Carolina Labor and Employment Law CLE
Labor & Employment LawJennifer Spyker
Grant Osborne
By Jennifer Spyker, Grant Osborne and Members of the Communications Committee of the Labor & Employment Law Section Council
It’s not too late to register for the 38th Annual North Carolina/South Carolina Labor and Employment Law CLE, being held November 4-5, 2022, at the Renaissance in Downtown Asheville. Come join us in person for fall vibes, time with colleagues whom you may not have seen for quite a while, and an excellent speaker lineup! The CLE is also available via live webcast.
The agenda and registration information are available here.
Join Us for a Food Bank Service Project on November 18!
Corporate CounselBy Tracy M. Wright and Jane Yumi Paksoy
As we get into the busy holiday season, don’t forget to take time to give back to your community. The Corporate Counsel Section is hosting an in-person volunteer opportunity at the Food Bank of Central and Eastern North Carolina’s Raleigh branch (1924 Capital Blvd) on Friday, November 18, 2022, from 9 a.m. until noon. Volunteers will provide assistance in various activities, including sorting out produce and food donations, creating Commodity Supplemental Food Program and Disaster Relief boxes, packing food items such as cereal, pasta, eggs, and other dry food.
The Food Bank of Central and Eastern North Carolina serves 34 counties and is the largest food bank in the state. Nearly 600,000 people in the Food Bank’s service area are food insecure. Last fiscal year the Food Bank provided 115 million meals with the support of 134,988 volunteer hours, which is the equivalent of 65 full-time employees. Come join your fellow Corporate Counsel Section members in supporting hunger relief for our community!
Kids 12+ are welcome to join.
Register today.
Date & Time | Friday, November 18 | 9 a.m. until noon
Location | Food Bank, 1924 Capital Blvd | Raleigh