July 7, 2026
By Emily Poler
A couple of months ago, I wrote about a case brought by big movie studios, including Disney, against Nanoble Pte. Ltd. over its Hailou AI app, which allows users to generate short videos in response to prompts. The media empires’ problem with Hailou AI, which Nanoble markets as “a Hollywood studio in your pocket,” is that it can be used to generate videos featuring Star Wars, Marvel, and other well-known, copyrighted characters — videos like the ones Plaintiffs themselves created with Hailou AI to submit as evidence with their filing. And that’s where things suddenly get interesting.
Recently, Nanoble answered the studios’ complaint with an unexpected salvo: a counterclaim alleging the studios breached Nanoble’s terms of service by creating those sample videos and, thus, to the extent Nanoble is found liable for copyright infringement, the studios themselves will have to pay Nanoble’s damages and its attorneys’ fees. In other words, in this seemingly bizarre scenario, if the studios win, they themselves could be liable for any monetary judgments against Nanoble. Talk about hoisted by their own petard! (I think I finally understand what that expression means, even if I still don’t know what a petard is).
How does this make sense? Well, as is generally stated by the terms of service for the apps and websites we all routinely and thoughtlessly sign, by using that service, a user accepts its terms. Here, Hailou AI’s terms of service say users will not use the app in a way that violates applicable law or may expose Nanoble to liability. Notably, Hailou AI’s terms of service provide that if a user violates its terms, that user has to “defend, indemnify, and hold harmless Nanoble against claims, losses, costs, expenses, and fees, including reasonable attorneys’ fees, arising out of or relating to the user’s violation . . . .” In plain English, Nanoble is saying that, because the studios used Hailou AI to create outputs that infringe on their own copyrights, the studios violated Nanoble’s terms of service and are responsible for any monetary judgments against Nanoble.
The studios have responded with a bunch of arguments that amount to saying, in a variety of different ways, that Hailou AI’s terms of service are unenforceable because it would be dumb to allow someone to escape any responsibility for their own actions in this way. They’ve raised a whole host of defenses, including that the counterclaims fail because they violate the California Civil Code which states that “contracts which have for their object, directly or indirectly, to exempt any one from responsibility for … violation of law, whether willful or negligent, are against the policy of the law.” They also assert the counterclaims fail because “Nanoble’s interpretation of its Terms of Use is contrary to the public policies behind Federal Rules of Civil Procedure Rule 11 for pre-lawsuit investigations and the Copyright Act’s policy against copyright infringement and internet service providers interfering with standard technical measures to police infringement online.”
Interestingly, the studios are not claiming that the outputs they created in their Hailou AI videos are not, in fact, infringing, since they own the copyrights to the characters they generated; there are prior decisions holding that a copyright owner can’t infringe on its own copyrights. Going this route could get the studios out of any claim that they breached Nanoble’s terms of service by creating infringing works. However, it would also mean that they couldn’t use the works they generated as a basis for a claim of copyright infringement, which is at the heart of their case. There is also precedent recognizing that the use of copyrighted work in litigation is fair use, but again, doing so could lead a court to hold that since there is no infringement, the studios have no case. See how tricky this is?
One obvious question I have: Couldn’t the studios have found user-generated infringing videos produced using Hailou AI to enter as evidence? Don’t people make Darth Vader videos and post them on YouTube or TikTok? (According to my 14-year-old, yes, duh.)
So where is all this going? Well, Nanoble’s argument is certainly creative. However, I think it’s going to be hard for a court to swallow the idea that a party can basically remove itself from any possibility of liability by a contract. With that said, Nanoble’s arguments significantly increase the studio’s potential exposure, since even if they win, they face the prospect of having to pay Nanoble’s damages and its legal fees. The risk of this may well give the studios incentives to settle and walk away from the whole mess, which seems unfair but may well be better than what would amount to a very 21st-century Pyrrhic victory.
June 29, 2026
By Emily Poler
If you weren’t alive in the 00s or have chosen to blank out some of the era’s cultural lowlights, America’s Next Top Model was a reality competition series that debuted in 2003. Breezily abbreviated as “ANTM,” the show was a huge hit that ran until 2018 and, according to creator, executive producer, and former model Tyra Banks, revolutionized the modeling industry by broadening the scope of who could be a model. A real change agent for female empowerment, to be sure. Except there was apparently a fair bit of darkness behind the glittering scrim: Models were asked to portray other races or ethnicities in photoshoots, the judges’ criticism sometimes crossed over into bullying, and contestants faced challenges that put their physical and mental well-being at risk.
Earlier this year, Netflix released a documentary called Reality Check: Inside America’s Next Top Model that, among other revelations, included an interview with a former contestant — Shandi Sullivan — who claimed she was sexually assaulted during filming and that the production team did nothing to stop it. Since I’m writing this, you know what that means: litigation!
Tyra Banks has filed a lawsuit against Netflix and the documentary’s producers. In the lawsuit, she claims, among other things, that the documentary is defamatory because it creates the false implication that Banks knew, but forgot about Sullivan’s allegations of sexual assault. Banks also alleges that the documentary made her appear “evasive and dishonest” by contrasting her statement that she was not involved in production, and thus powerless to ensure contestants were not put in danger, with her on-screen title of creator and executive producer. All told, Banks is alleging false light, defamation by implication, breach of contract, and false endorsement under the Lanham Act.
One of her key complaints is that when asked, “You remember the story with Shandi?” Banks nods and replies, “I do remember her story,” then says, “um” and looks upward. The documentary producers edited the answer so that in response to the question, Banks just says “um” and looks up. Cut to black. The complaint says “Defendants edited the Netflix series to make it appear that Ms. Banks knew she was being asked about a sexual assault and was intentionally trying to evade the topic.”
Ok, so that could, theoretically, be a legit complaint.
With that said. Banks has a heavy burden here. To prevail on her claim of defamation by implication, she will have to show that the documentary created an implication that Banks knew about the sexual assault but had forgotten about it, and they knew that the implication was false, but created the narrative anyway. That’s not going to be easy. Moreover, it seems like discovery about the exact nature of her role in ANTM and its problems might be something that Banks would want to avoid, as it’s probably going to revive interest in ANTM and not in a good way.
Regardless of how this particular lawsuit turns out, as we’ve seen over the past few years (and I’ve written about on this blog), Netflix has had chronic problems with litigation like this. They should probably have someone vet their shows before they air to make sure they’re not obviously baiting people to sue them for defamation, as often seems to be the case.
June 9, 2026
By Emily Poler
It’s June, so happy Pride! I certainly hope this month’s events will be full of fun for everyone who honors and rejoices in the celebrations, although I worry about one drag superstar who is currently embroiled in a trademark infringement case. It’s blowing up on social media at the moment and, unfortunately, I don’t think it is going to end well for her.
Pattie Gonia is an activist, performer and hiking enthusiast who uses her Instagram and TikTok to promote LGBTQ+ and environmental causes to almost three million followers. She’s also the defendant in a lawsuit brought by — you guessed it — outdoor apparel brand Patagonia, which accuses her of appropriating its trademark.
The “Pattie Gonia” persona was created by Wyn Wiley in 2018, who says the name was inspired by the region in South America, and not a parody of the clothing company. During her initial rise to fame she accomplished feats like hiking the California coast in high heels, with her various adventures raising millions for environmental nonprofits. Patagonia was apparently aware of and cool with her name in connection with such advocacy. That changed in early 2022, when the company learned Pattie Gonia was planning fundraising partnerships with Hydro Flask and The North Face — two of Patagonia’s competitors. The parties met and, according to Patagonia, came up with an agreement that, from Patagonia’s point of view, provided that Pattie Gonia would not use Patagonia’s logos, fonts, or designs that mimic Patagonia’s in her visual materials or use “Pattie Gonia” in any form on any product. These understandings were subsequently memorialized in emails. According to Patagonia, the idea here was to both protect Patagonia’s brand and “leave some space for Pattie Gonia’s fundraising in support of environmental causes.”
Fast forward a few years and we have this:
And, perhaps more egregiously (look at the logo on the gloves):
What’s more, in September 2025 Pattie Gonia sought to register a trademark for “Pattie Gonia” for drag shows and t-shirts, as well as promotion of goods and services on social media.
Unsurprisingly, Patagonia sued, asserting claims for, among other things, trademark infringement, unfair competition, and trademark dilution. The company has made clear in its statements that it recognizes both parties share the same devotion to environmentalism, going on to say, “we wish this lawsuit had not been necessary, and we want to acknowledge any hurt it has caused, especially in the LGBTQ+ community.” The company is only seeking to recover $1 from Pattie Gonia, instead asking her to “withdraw all trademark applications,” “stop using our logos” and “stop selling and promoting apparel and other products as Pattie Gonia.”
Pattie Gonia, through her lawyers, answered the complaint by denying the allegations and asking for a trial. The dispute has flown pretty much under the radar since the suit was filed in January, but last month she took her case to social media, insisting “no deal” and inspiring her upset followers to demand Patagonia drop the suit. She also responded through an open letter to Patagonia’s CEO, Board of Directors and others, concluding with a plea to “make peace and get back to our common love of the planet including our namesake region in South America named Patagonia.” She also denied ever using the Patagonia brand, logo or font on her merch, claiming “the lawsuit cherry-picks a few examples of playful parody and fan art and tries to spin those into some kind of vast use of their logo.”
Pattie Gonia says she’s willing to drop her trademark registration filing and “never parody their logo ever again,” but she’s standing firm on Patagonia’s third demand — that she stop selling Pattie Gonia branded product — saying it would eliminate “the partnership work with other brands that I’ve done for years to pay for education, advocacy and activism that me and my team do. If I can’t do partnerships as Pattie Gonia, it breaks the whole ecosystem of advocacy and community engagement.”
As much as my heart is very much with Pattie Gonia, I have a couple of observations about this lawsuit, some of which may give her and her followers some hope, but ultimately point to a bad end for the performer:
- For those in the back (and everyone else), if you have an agreement, get it in writing. The emails Patagonia is relying on may be enough here, but it would definitely have been better to create a written document. In fact, while Patagonia repeatedly says it had an agreement with Pattie Gonia delineating what each of them could and could not do, Patagonia itself doesn’t seem to think that there’s anything enforceable here because, notably, it doesn’t bring a breach of contract claim;
- There’s a decent argument that Pattie Gonia’s merch without anything resembling Patagonia’s very recognizable logo isn’t infringing;
- WIth that said, an alternative spelling that is pronounced the same or similarly to an existing mark can be the basis for trademark infringement;
- Also, to the extent that consumers think that Pattie Gonia is somehow affiliated with or endorsed by Patagonia, that’s a basis for liability;
- The fact that both Patagonia and Pattie Gonia are based on an actual place doesn’t change the analysis because it’s pretty safe to say that many consumers associate the word with the company;
- To the extent there’s a defense of parody to claims of trademark infringement, it could theoretically apply to drag shows, but it’s not going to apply to Pattie Gonia’s sale of t-shirts and other merch; and
- Regardless of whether Pattie Gonia is promoting causes Patagonia supports, Patagonia has to enforce its trademark rights or else it risks losing them.
At the heart of Patagonia’s suit is, of course, the question of whether “Pattie Gonia” is likely to cause confusion or dilute Patagonia’s brand by causing consumers to think Patagonia has sponsored or approved any of Pattie Gonia’s products. And looking at the pictures above, it seems pretty likely.
June 3, 2026
By Laura Trachtman
One of my favorite scenes from Legally Blonde is when Elle and Paulette go to retrieve Paulette’s bulldog Rufus. If you’ve seen the movie, you know what I mean: Elle confronts Paulette’s ex, Dewey, pelts him with legal jargon that’s totally inapplicable to the situation, and then gets down to business. Elle tells Dewey that as he has kept the residence he and Paulette formerly shared, Paulette is entitled to full canine property ownership. As Dewey stares at Paulette and Elle blankly, Paulette snaps, “I’m taking the dog, dumbass!”
While seeing Paulette and Elle drive off with furbaby Rufus (and Bruiser, of course) warms the cockles of my dog-loving heart, what they did is not actually legal. Setting aside jurisdictional issues, mainly because I’m not barred in Massachusetts where the movie is set, the correct way to recover Baby Rufus is to initiate an action for the recovery of chattel, which just means personal (as opposed to real) property. This is known in common law as replevin.
Replevin, along with most of our legal terminology, comes from the Latin: in this instance the verb plebere, to give surety. Somewhere down the line, the French turned it into replevir, from re- + plevir, which has the same meaning. And that’s enough linguistics for a law blog.
To demonstrate one’s entitlement to replevin, there are a few procedural steps which must be followed. First, the true owner of the chattel must demand its return. That’s when the three-year statute of limitations starts running. As an interesting aside, this is only applicable in situations where a good-faith possessor of the chattel is actually in possession; if a thief has the chattel, the statute of limitations runs from the time of the theft.
Getting back to Legally Blonde: if Dewey wanted to keep Rufus, then Paulette should sue Dewey for replevin. In so doing, she would have to demonstrate that she is the owner of the precious baby Rufus. She could do this by providing a receipt for Rufus’ adoption or purchase. Paulette would also have to demonstrate that Dewey has unlawfully withheld Rufus from Paulette.
I know what you’re thinking: once she files the complaint, is Paulette required to wait for ages while the court determines that Rufus legally should be home with her? Nope! Paulette could immediately make a motion for prejudgment seizure. In order to obtain an Order of Seizure, Paulette would have to move pursuant to CPLR § 7101 for said Order, supply an affidavit clearly setting forth the facts upon which Paulette bases her entitlement to Rufus, as well clearly identify Rufus (in case there’s another bulldog at the trailer, for example). Paulette, as the plaintiff, would also have to demonstrate that she has met all of the detailed requirements set forth in CPLR §§ 7102(c) and (d)(1). That includes posting a bond in the amount of Rufus’ value, and explaining why it is probable that Paulette will succeed on the merits, in other words, prevail. Obviously, Paulette must also put Dewey on notice that she is making this motion. (There is a way to make the motion without notice, but I’ve already digressed enough.) If Paulette shoulders this burden, the court is well within its discretion to grant an Order of Seizure.
Dewey can oppose Paulette’s motion for prejudgment seizure by interposing defenses. In so doing, should Dewey assert a superior claim to Rufus, he could defeat the provisional remedy that Paulette seeks. Dewey may also seek to reclaim Rufus via CPLR § 7103. But, Dewey doesn’t seem to be a successful man based on his appearance and poor personal hygiene, so I doubt he’d make many motions.
So long as Paulette can legally demonstrate that Rufus is indeed her personal property, she’ll be able to keep him forever and ever and throw him a birthday party each year for the rest of his life. What, like it’s hard?
May 26, 2026
By Emily Poler
In an era where a lot of people have a problem taking responsibility — or, as is more weirdly said nowadays, “accountability” — for their actions and mistakes, institutions and large corporations are no different. Witness Samsung’s shrug of a response to a complaint filed against it earlier this month by pop star Dua Lipa, which essentially boils down to “someone told us what we were doing was OK.”
It’s a pretty simple suit. The Seoul-based electronics manufacturer and its US subsidiary has been selling televisions in boxes adorned with this image of the English entertainer:
According to Ms. Lipa’s complaint, filed in California this month, the photo was taken backstage at the 2024 Austin City Limits Festival and shared in this post on her official Instagram account. The complaint further says that Dua Lipa has a registered copyright in the image, and thus asserts copyright and trademark infringement claims against Samsung, along with violation of Dua Lipa’s right of publicity.
The copyright claims are based on Samsung’s use of a copyrighted image without permission. The trademark claims are based on assertions that, by using her image to market televisions, Samsung is implying that she is endorsing its products. The right of publicity claims are based on Samsung’s use of her extremely valuable image in a commercial setting without permission.
Does this really matter? Well, according to Lipa’s team, shortly after the box appeared her fans began calling it the “Dua Lipa TV Box” on their socials, and the lawsuit cites specific Instagram comments like one user saying they would “get that TV just because Dua is on it,” and “if you need anything selling just put a picture of Dua Lipa on it.”
So yeah, it matters. Naturally, as with any modern celebrity, Ms. Lipa has legitimate sponsorship agreements with brands like Puma, Versace, and Yves Saint Laurent. She does not work with Samsung, and it seems obvious that someone in Dua Lipa’s organization would be aware of whether she gave anyone permission to use her photo on their product packaging.
The complaint goes on to say that Dua Lipa’s lawyers approached Samsung about trying to resolve this matter and Samsung refused, ignoring “repeated demands” to “cease and desist from infringing on her rights.” In other words, shrug, because hey, sue me.
Samsung did eventually issue a statement, saying the photo was “originally provided by a content partner for our free streaming service Samsung TV Plus. The image was used only after receiving explicit assurance from the content partner that permission had been secured, including for the retail boxes. Given this assurance, we deny any allegations of intentional misuse.” So far Samsung has not named that third-party “content partner.”
In my view this is not a great defense. Notably, Samsung doesn’t say “oh, hey, we have this written agreement that lets us use this image.” Nor does it say, “once we found out there was an issue we immediately took steps to correct this problem.” Rather, this sounds an awful lot like a teenager saying, “gosh, my friend’s parents told me I could!” when caught doing something they weren’t supposed to do. (Also, I have a teenager at home, so maybe I’m just seeing everything in terms of how a modern kid might see the world.)
Samsung’s statement goes on: “We have actively sought and remain open to a constructive resolution with Ms. Lipa’s team.” Here’s a suggestion for a constructive resolution: take the darn picture off the boxes when asked instead of (allegedly) ignoring her requests to do so and then claiming you have been assured you have the rights to use the image. Seems simple, no?
All that said, Samsung hasn’t formally answered the complaint yet, so it will be interesting to see what it says when they do. Unless it can explain exactly how it has rights to use the photo at issue, I don’t see this getting a whole lot better for the company, especially because at least some of Dua Lipa’s claims allow her to shift her attorneys’ fees onto Samsung if she prevails, on top of the $15 million her suit is seeking.
But hey, I guess a multinational giant like Samsung can just shrug that off, too.
