Issue No. 071
October 30, 2026
New York
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The IP Briefing · by ESCA Legal
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| On October 28, screenwriter Simon Stephenson sued Alexander Payne and other defendants in federal court, alleging The Holdovers copied protected expression from his screenplay Frisco. He alleges Payne read Frisco in 2013 and 2019 and passed both times. As of October 30, no court has decided the merits. |
| § | Stephenson alleges 46 corresponding incidents across the works, including 24 in the same order. | | § | He separately alleges Payne removed or altered the title and author information on copies of Frisco. | | § | He seeks damages, defendants' profits and injunctions against further exploitation of material he says was copied. |
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| § ESCA Takeaway |
| Stephenson alleges Payne removed or altered the title and author information on copies of Frisco, raising the question of whether that counts as removing copyright management information. |
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| More IP Stories |
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| § Copyright · Filed |
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| On October 29, SAG-AFTRA and three other unions moved to file a brief supporting copyright owners in the federal case against OpenAI. The proposed brief argues that unlicensed AI training harms creative workers who rely on licensing revenue. As of October 30, the court has not ruled on the motion, and no court has decided fair use in this case. |
| § | The other filers are the American Federation of Musicians, the Writers Guild of America West and the Writers Guild of America East. | | § | The unions say they collectively represent over 250,000 media and entertainment workers. | | § | The proposed brief asks the court to reject a categorical fair use exemption for AI training. |
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Why it matters
The fair use question includes whether unlicensed training harms the market for copyrighted works. The unions argue that an existing, negotiated market for AI training licenses is part of that market.
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| § Trademark · Update |
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| On October 29, a federal appeals court issued an unpublished, nonprecedential memorandum reversing Sutter Home's summary judgment win against Roar Spirits and sending the trademark registration dispute back. Sutter Home opposed Roar's tequila mark applications, claiming likely confusion with its BANDIT mark. As of October 30, no final determination on likelihood of confusion has been made. |
| § | Roar applied to register EL BANDIDO YANKEE and EL BANDIDO YANKEE TEQUILA COMPANY BLANCO in 2020. | | § | The appeals court held that a reasonable factfinder could find the marks dissimilar in appearance, sound, meaning and overall impression. | | § | The court also faulted the district court for setting aside evidence of years of coexistence with large sales and a survey in which none of 112 consumers identified Sutter Home as the source of Roar's tequila. |
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Why it matters
The open question is whether added words that change a mark's sound, meaning and impression avoid likely confusion with BANDIT. It also includes how much weight to give years of coexistence and survey evidence in a registration challenge.
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| § Copyright · Update |
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| On October 28, the Seventh Circuit affirmed dismissal of Calvin McMillan's copyright complaint against the NFL and Wisconsin Department of Revenue. He alleged lottery tickets copied phrases from Pack Attack and Go Pack Go without authorization. The nonprecedential order held he offered no proof of registration, which was his burden, and the brief phrases lacked copyright protection. |
| § | The NFL licensed the Packers logo to the Wisconsin Department of Revenue for a lottery. | | § | The court held Pack Attack, Pack Is Back and Go Pack Go were too brief and unoriginal for copyright protection. | | § | The nonprecedential order does not establish binding precedent. | | § | The defendants were not served and did not take part in the appeal. |
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Why it matters
The ruling distinguishes copyright in a song from copyright in brief phrases within its lyrics. Registration of each work is also a prerequisite to suing.
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This newsletter is for informational purposes only and does not constitute legal advice. Published by ESCA Legal. Reading it does not create an attorney-client relationship. Attorney advertising; prior results do not guarantee a similar outcome.
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