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NYC Trademark Law Firm, Attorney Jeffrey Jacobson
In the bustling metropolis of New York City, trademark law holds a pivotal role in protecting the intellectual property of businesses, both large and small. Among the myriad of professionals specializing in this field, Jeffrey Jacobson stands out as a prominent attorney. This article explores the significance of trademark law, the services provided by law firms specializing in this area, and the unique contributions of Jeffrey Jacobson to the field.
Understanding Trademark Law
Trademark law is essential for safeguarding a company's brand identity and commercial reputation. It provides the legal framework through which businesses can secure exclusive rights to logos, names, and other distinctive symbols associated with their brand. The protection offered by trademark law is crucial for preventing unauthorized use and ensuring that consumers can distinguish between genuine and counterfeit products.
Role of Trademark Law Firms in NYC
New York City, being a global hub for finance, entertainment, and fashion, is fertile ground for brand innovation and, consequently, trademark disputes. Trademark law firms in NYC offer a range of services to navigate this complex landscape, including:
1. Trademark Registration: Assisting businesses in registering trademarks to ensure legal protection.
2. Litigation Services: Representing clients in cases of trademark infringement or disputes.
3. Brand Management: Advising on brand protection strategies and intellectual property portfolio management.
4. Legal Consultation: Providing guidance on the legal implications of new trademarks and brand initiatives.
Spotlight on Jeffrey Jacobson
Jeffrey Jacobson is a distinguished attorney within the realm of trademark law in New York City. With a robust background in both the theoretical underpinnings and practical applications of trademark law, Jacobson brings a comprehensive approach to his practice. His expertise includes:
- Litigation and Dispute Resolution:** Jacobson has a proven track record in handling complex trademark disputes, demonstrating a keen ability to navigate through the intricacies of litigation to achieve favorable outcomes for his clients.
- Client Counseling:** He is known for his strategic advice, helping clients protect their intellectual assets while aligning with their business objectives.
- Industry Leadership:** Jacobson is often invited to speak at conferences and seminars, contributing to the broader legal community by sharing insights and trends in trademark law.
Why Choose Jeffrey Jacobson?
Choosing an attorney like Jeffrey Jacobson for trademark issues offers numerous advantages:
- **Expertise in Local and International Law:** His understanding of both local New York laws and international trademark laws ensures comprehensive legal coverage.
- **Proven Success:** Jacobson's track record of successfully resolving disputes and securing trademarks adds a layer of reliability for his clients.
- **Strategic Approach:** His ability to craft personalized strategies that reflect the unique needs of each client stands out in a competitive market.
Conclusion
In the fast-paced and ever-evolving landscape of New York City's business world, trademarks are invaluable assets. Law firms specializing in trademark law, backed by the expertise of attorneys like Jeffrey Jacobson, provide essential services that protect these assets and help businesses thrive. With his profound understanding of the law and a commitment to client success, Jeffrey Jacobson remains a key player in NYC's legal scene, ensuring that trademarks are more than just symbols—they are the cornerstones of brand identity and protection.
On October 12, 2020, The #EsportsBizShow aired on Preediction on Professional Gamers with ESPN ESPY winner and professional NBA 2K League gamer, Timothy “oLARRY” Anselimo. In this episode, oLARRY discusses his past esports history, including the NBA 2K Pro-AM tournament for $250,000 and how this tournament led him to pursue a professional gaming career. He...Continue Reading
JEFFREY E. JACOBSON: 35th YEAR OF "Av PREEMINENT ®"
PEER REVIEW RATING FROM MARTINDALE-HUBBELL
(New York, NY) – Jeffrey E. Jacobson continues as “Av Preeminent ®” Peer Review Rated from Martindale-Hubbell. Since 1990, Jeffrey E. Jacobson has consistently received Martindale-Hubbell’s top rating for a period of 35 years. This prestigious honor is awarded based on the opinions of other accredited professionals in the legal community.
Martindale-Hubbell is the facilitator of a peer review rating process. These ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories – legal ability and general ethical standards. “Av Preeminent ® Distinguished™” are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.
(New York, NY) – Jeffrey E. Jacobson, President of The Jacobson Firm, P.C. has been selected again as A Super Lawyer in the 2024 Metro Edition, for the eleventh time in a row. In this role, Mr. Jacobson will be listed in the New York Times as well as on the web as a “Super Lawyer” in Intellectual Property. Only 5% of the attorneys in the New York Metro area are selected to Super Lawyers. For over three decades, this publication has been regarded by both the profession and public as the most credible and definitive guide to legal excellence in the United States. Super Lawyers select attorneys using patented multiphase process consisting of peer nominating and evaluated on 12 indicators of peer recognition and professional achievement to receive this award.
MAN VS MACHINE: ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY
By: Jeffrey E. Jacobson, Esq. with Rachel Cardona
Human creativity transformed into tangible expression is the cornerstone of intellectual property law. Generative AI programs, such as ChatGPT and Midjourney, have rapidly increased our methods of optimization in educational inquiries, business processes, healthcare, content creation, and vast creative endeavors. However, these programs have also given creative people nightmares. No longer do we have to wait for the next movie from your favorite star or album from the singer you love; just create it with an AI program.
As of April 10, 2024, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet continued their three-part hearing exploring the legal implications of artificial intelligence and intellectual property. The recent congressional hearing, entitled “Part III: IP Protection for AI-Assisted Inventions and Creative Works,” emphasized a call for a resolution as to how much human involvement in AI-assisted works is deserving of copyright protection. The Copyright Office has been denying registration to AI created works in addition to photographs created by monkeys. A human creator is an element required for an author of a copyrightable work.
AI and Copyright
The root of copyright issues with AI stems from the traditional notion of authorship because AI systems are not human creators. The AI programmers are not the creative forces entitled to authorship of the output. Therefore, the human facet of training AI to organize.
creative content in a certain order might be granted copyright protection solely for the selection, coordination, and arrangement of the AI-assisted work. As upheld by the Copyright Office and as illuminated in Thaler v. Perlmutter, creative works that are entirely created by AI computer algorithms are not copyrightable. However, AI creations that are significantly “trained” by human input or works that are partially generated with AI may be granted copyright protections in specific circumstances. The author of the comic “Zarya and the Dawn” was only granted limited copyright protection for the text and arrangement of the images, but not the individual comic images. As expressed in the congressional hearing, an appropriate first step in determining human involvement in the AI space involves evaluating 1) whether the creator executed their own original intellectual conception, and 2) whether the creator exercised control and foreseeability over the AI output. Several panelists in the session contested this approach, further amplifying the indeterminate nature of this debate.
AI and the USPTO
Inventors are also utilizing AI to aid in their discoveries. The future involvement of generative AI in innovative processes raises the question of how much AI involvement takes away the human element of discovery. Panelists at the congressional hearing cautioned against heavily restrictive patent guidelines for the use of AI as an inventive process. When the digital era first appeared; creators were in a panic. Photographs could be digitally altered without permission from the author as well as other works. Digital watermarks became a solution; however, AI goes beyond this.
SUPREME COURT RULES ON WHETHER COPYRIGHT OWNERS CAN RECOVER DAMAGES BEYOND THE THREE-YEAR STATUTE OF LIMITATIONS?
By: Jeffrey E. Jacobson, Esq. with Rachel Cardona
On May 9, 2024, the United States Supreme Court issued a decision in Warner Chappell Music Inc. v. Sherman Nealy, addressing a circuit split in federal courts as to whether a copyright owner can recover damages beyond the three-year filing statute of limitations.
Background
In 2018, Nealy sued Warner Chappell Music Inc. for copyright infringement, alleging that he held the copyrights to songs by Music Specialist and that the licensing activities by Warner Chappell infringed his rights. The infringing activity began in 2008, ten years before Nealy brought suit. Nealy sought damages and profits for the alleged misconduct. He argued that all his claims were timely under the discovery rule because he was not aware of the infringing conduct until 2016, following his subsequent release from prison and less than three years before he sued.
Analysis
Under the Copyright Act, a plaintiff must file suit “within three years after the claim accrued.” 17 U. S. C. § 507(b). Relying on language from the Petrella decision, the Second Circuit limits damages to three years from the start of the copyright infringement. The Eleventh Circuit permits damages to be recovered for more than three years under the discovery rule. Under the discovery rule, a claim accrues when “the plaintiff discovers, or with due diligence should have discovered,” the infringing act. Unlike Nealy, the plaintiff in Petrella had long known of the infringing conduct at issue, therefore she could not avail herself of the discovery rule.
Here, the District Court held that even if Nealy could sue under the discovery rule for older infringements, he could recover damages or profits for only those occurring in the last three years. The Eleventh Circuit reversed, arguing that damages are distinct from and not barred by the three-year statute of limitations. The majority in the 6-3 opinion agreed with the Eleventh Circuit.
New York, NY – Jeffrey Jacobson has been appointed to the New York City Bar’s Trademarks & Unfair Competition Committee, one of the most respected legal committees in the intellectual
property field.
Jacobson’s new role will involve delving into the complexities of trademark law, contributing to discussions on current issues, and shaping the future of trademark practice through collaborative efforts with fellow committee members. The Committee is renowned for addressing cutting-edge topics such as trends in keyword advertising, the establishment of color marks, and the intricacies of top-level domain name registration.
Jacobson’s extensive background in intellectual property law, coupled with his commitment to professional service, makes him a valuable addition to the Committee. He brings to the table over four decades of experience, notably his ongoing contributions to the Communications and Media Law Committee, as well as the Entertainment Law Committee of the Association of the Bar of the City of New York.
His dedication to mentoring the next generation of attorneys is reflected in his founding of the Urban Intellectual Property Seminars, aligned with the Young Lawyers Division of the American
Bar Association. Jacobson’s academic endeavors include teaching at Hunter College, CUNY, and his previous roles at Ramapo College of New Jersey and Five Towns College in Dix Hills, where
he shared his knowledge on Copyrights, Music Business Contracts, Publishing, Advanced Music Business, and The Business of Music.
Jacobson has also significantly contributed as a Trustee, member of the Executive Committee, and co-chair of the first web committee for the Copyright Society of the USA, and continues to offer his expertise on the CLE faculty and the N2K Task Force. His chairmanship in the Intellectual Property Law section of the American Bar Association and his authoritative reports on vital copyright issues underscore his expertise and dedication to the field.
As a previous member of the Trademark & Unfair Competition Committee and Copyright and Literary Property Law Committee, Jacobson’s reappointment is a testament to his stature in the legal community and his comprehensive understanding of intellectual property challenges and
opportunities.
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About the Jacobson Firm, P.C.: The Jacobson Firm, P.C. has a distinguished history of service in the field of intellectual property law, offering expert legal guidance to a diverse clientele ranging from artists and entrepreneurs to major corporations. With a proven track record for excellence, the firm upholds the highest standards of practice, guided by a commitment to innovation, integrity, and the advancement of the legal profession.
(New York, NY) − Jeffrey E. Jacobson, President of The Jacobson Firm, P.C. has been selected for a tenth year in a row as a 2023 Super Lawyer. In this role, Mr. Jacobson will be listed in the New York Times Magazine as well as on the “Super Lawyer” website under Intellectual Property. Only 5% of the attorneys in the New York Metro area are selected to be listed with Super Lawyers. For over three decades, this publication has been regarded by both the profession and public as the most credible and definitive guide to legal excellence in the United States. Super Lawyers select attorneys using a patented multiphase process consisting of peer nominations and evaluations based on 12 indicators of peer recognition in addition to professional achievement to receive this award.
The Jacobson Firm’s entertainment and music law clients include, or have included, former Rolling Stone Mick Taylor; Latin superstar Juan Luis Guerra; David Cassidy; Toni Braxton; Tisha Michelle Campbell; Jefferson Airplane’s Marty Balin; world-renowned diva Vaneese Thomas; producers Sly & Robbie; reggae artists Inner Circle, Freddie McGregor, and Israel Vibration; rock legends Johnny Winter and The New Riders of The Purple Sage; Spyro Gyra; three-time Grammy nominated Masters at Work; NY Jet Donald Strickland, Green Bay Packer Garry Brown, cutting-edge labels R.O.I.R., Dopewax, Norton, VP, and MAW Records. Corporate and intellectual property clients include: Jewelers Vigilance Committee; The legendary Buffalo Chip Campgrounds in Sturgis, South Dakota; and MOEMS, the Math Olympiads. For more information about trademarks, copyrights, intellectual property, music, film and television law, as well as the entertainment business, please visit www.jacobsonfirm.com or www.copyright.nyc.
Copyright Infringement: Analyzing the Implications of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
By: Jeffrey E. Jacobson with Madelyn Feyko
This Supreme Court copyright case involves not one, but two artists. This is the most recent case where the Supreme Court addresses the fair use defense.
The first artist, Andy Warhol, is well known. His images of products like Campbell’s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol’s
contributions to contemporary art are undeniable. The second, Lynn Goldsmith, is less well known. But she too is a trailblazer. Goldsmith began her career in rock-and-roll photography
when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top.
Background
Goldsmith licensed her studio photograph of, then rising star, Prince to Vanity Fair in 1984. After Prince passed away in 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed an image of “Orange Prince”—an orange silkscreen portrait of the musician Prince created by Andy Warhol—to appear on the cover of a Vanity Fair special edition magazine. AWF created and licensed 15 additional prints using Goldsmith’s photograph, a black and white portrait of Price, at issue in this case.
Copyright Law and Fair Use
Fair use is a flexible concept which is a defense to a copyright infringement claim. Its application will vary depending on context. To determine if a use is a fair use, the court considers
four factors under 17 U.S.C. §107: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value
of the copyrighted work.
Fair Use Doctrine: First Factor Analysis
Although the Court of Appeals had previously analyzed each of the fair use factors, the only issue before the Supreme Court was whether the court below correctly held that the first
factor §107(1) stating “...the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” weighed in Goldsmith’s favor.
The first factor considers the reasons for and nature of the use of a work. The central question asked here is whether the new work transforms the proir work into something with a further purpose or different character. Furthermore, it examines whether the use at issue has a purpose or character different from the original. The greater the difference, the more likely the
first factor weighs in favor of fair use. The smaller the difference, the less likely. A use that has a different character is said to be “transformative.” In 1994, the Court previously found that the 2
Live Crew’s infringement was excused as a “fair use” due to the transformative nature of their song, “Pretty Woman.” The degree of difference must be balanced with the other factors to
determine fair use.
The Court’s Opinion
Supreme Court Decision on Fair Use
Here, the Court decided the specific use of Goldsmith’s original photograph in the original magazine story about Prince and the subsequent use in the special edition were used for
substantially the same purpose resulting in an infringement. Moreover, AWF’s use was of a commercial nature. Even though Orange Prince added new expression to Goldsmith’s
photograph, in the context of the challenged use, the first fair use factor still favored Goldsmith. Notwithstanding, the use of Goldsmith’s licensed work resulted in a significant loss of revenue in
addition to the million dollars in legal fees she incurred. It is yet to be determined if she will recover them.
Ultimately, the Court found that Goldsmith’s original works, like those of other photographers, were entitled to copyright protection and enforced the exclusive rights. Such protection includes the right to prepare derivative works that transform the original. This decision solidifies that economic factors in infringement cases are the most important factors to consider.
Jacobson Named Super Lawyer & “Top Rated Lawyer” by Martindale-Hubbell
Jeffery E. Jacobson, President of The Jacobson Firm, P.C. has been selected for the tenth year in a row as a 2023 Super Lawyer. Jacobson continues to provide exemplary legal services for Intellectual Property, and in Entertainment. The Jacobson firm has clients from varying backgrounds and provides a wide range of legal services for their clients.
Through his years of experience, Jacobson has dealt with clients big and small and throughout widespread areas of his clients. Only 5% of the attorneys in the New York Metro area are selected to be listed with Super Lawyers, and since 2014, Jeffery Jacobson has been selected by Super Lawyer every year. Super Lawyers select attorneys using a patented multiphase process consisting of peer nominations and evaluations based on 12 indicators of peer recognition in addition to professional achievement to receive this award. Jeffery Jacobson will continue to provide the highest level of legal services to his clients and zealously advocate for their rights as he has done since 1982.
2023 Top Rated Lawyer by Martindale-Hubbell
Additionally, Jeffery Jacobson has also been named a 2023 Top Rated Lawyer by Martindale-Hubbell Peer Review Ratings. An AV designation is awarded to only the top attorneys in their respective fields. Martindale-Hubbell recognizes lawyers for their strong legal ability and demonstration of high ethical standards in their practice of law.
Jacobson continues to serve on the prestigious Communications and Media Law Committee of the Association of the Bar of the City of New York and their Entertainment Law Committee.
Jeffery Jacobson is extensively involved in Committees and holds positions in many relevant organizations to enhance his knowledge of Intellectual Property and to mentor young attorneys beginning their careers. For over 40 years he has been a member of the Copyright Society of the USA and has served on the Editorial Board of the Society’s journal since 1989, been a Trustee, sat on the Executive Committee, and co-chaired their first web committee. Jacobson also founded the Urban Intellectual Property Seminars program, which is an extension of the Young Lawyers Division of the American Bar Association.
Jacobson serves on numerous entertainment law committees and is extremely active in the copyright bar. Jacobson teaches in an adjunct capacity at Hunter College, CUNY and has taught at Ramapo College of New Jersey and Five Towns College in Dix Hills for a decade teaching Copyrights and Music Business Contacts, Publishing, Advanced Music Business, and The Business of Music.
He has served on the Trademark & Unfair Competition Committee and Copyright and Literary Property Law Committee. Jacobson also serves on the CLE faculty as well as the N2K Task Force. Jacobson chairs the subcommittee in the Intellectual Property Law section of the American Bar Association and composes reports on topics such as “Satellites,” “Copyright Renewal,” and “Copyright Law Compliance for Authors,” as well as chair for the Broadcasting, Sound Recording and Music Committee. Jacobson also sits on the Advisory Committee of the New York Music Task Force and served as Vice-President of the Performing Arts Unit of B’nai Birth.
On April 26, 2022, the #EsportsBizShow aired on Preediction on Esports Organizations with Chris Lamarucciola of Parabellum Esports. In this episode, Chris spoke about launching esports organization, Parabellum Esports and its related properties. He continues by exploring Parabellum Esports' current competitive teams, such as their Rainbow Six Siege team, an exploration of iRacing as well as mentioning the organization's recent acquisition by React Gaming Group.
Check the full interview here and below.
https://open.spotify.com/episode/32qx9G788NATe6v523HGmu?si=nArpaPJHQEWwyMtH5hN85A
On April 12, 2022, the #EsportsBizShow aired on Preediction on NFTs, Crypto and Play 2 Earn (P2E) in esports and video games with Christopher Gonsalves of Community Gaming. In this episode, Chris spoke about starting Community Gaming New York and his original work in the cryptocurrency, bitcoin and NFT space. He continues by exploring his current work in the NFT and Play 2 Earn gaming space, including Community Gaming's recent investment and pivot to Community Gaming.io, which offers tournaments using its unique event and tournament management software as well as event prize distribution via blockchain and cryptocurrency system.
Check the full interview here and below.
https://open.spotify.com/episode/67vB5JO0SDsWUvHThDbPqy?si=nx5pUH-bSo2mc6Mn6nvNsg
Oh, No! They Rescheduled the Harry Styles Concert! Force Majeure and “Rain or Shine” Language in a Time of Disasters and Pandemics
By Jeremy M. Evans, Esq. and Justin M. Jacobson, Esq.
The sale of many consumer goods, including concert tickets, indicates something along the lines of “rain or shine.” Does this include disasters that occur? What happens if a disaster happens? Do clients have a claim against the seller? How can attorneys advise these clients?
Considering today’s unpredictable weather as well as the ongoing COVID-19 global pandemic, there has been substantial discussion regarding cancellation policies as they relate to commonly used “rain or shine” policies for live events and attractions, as well as the potential usages of “force majeure” language. One way that attorneys have managed the risk for clients is by inserting protection clauses in agreements or other written documents entered into by these individuals or businesses. Some of these provisions include force majeure, indemnification, waivers, protocols, and a seemingly “moving target” approach to handling the continued uncertainty in an ongoing, unprecedented health pandemic. In many ways, states have varied in their approaches to the pandemic, but attorneys have been more consistent in their approach of protecting their clients from lawsuits or unnecessary risk. This article will explore legal approaches to the uncertainty caused by forces outside of each party’s control.
In any attorney-client relationship, trust is paramount. In any attorney-to-attorney or client-to-opposing-party or business relationship, trust is also most important. The parties should like or at least trust each to be flexible to make changes to an agreement as times and circumstances change in a way that benefits or harms both parties. This happened repeatedly during the pandemic when airlines and hotels rebooked and refunded planned trips. Attorneys and clients need to think about contingencies if and when things go wrong and how to make them right. It is a collaborative way of contracting and retaining customers. Parties that are too strict will lose trust and customers, which will affect their overall long-term profitability and sustainability.
The best example is one in the endorsement and sponsorship setting. The parties should want to work together to promote one another. If the parties find that they do not like each other, they should move on, as the relationship usually continues on a downward trend. In terms of business, companies should want customers and should try to be flexible within reason. In this respect, terms and processes should be outlined in detail in written agreements, policies, and “terms and conditions” on websites, backs of admission tickets, or elsewhere so that a purchaser or any other customer is aware of the applicable regulations associated with a specific transaction or purchase. The following are some ways attorneys have addressed some of these issues.
“Rain or Shine” Event Policies
It is common for many consumer goods, such as live sporting events, musical concerts, festivals, and other “ticketed” ventures, to include standard “terms and conditions” that apply to the purchaser of a particular good, such as an admission ticket. While each prospective client or business has its own specific language and necessary protections, there is a trend of live event production entities incorporating something along the lines of a “rain or shine” policy. This means that a specific live event such as an MLB baseball game (see, e.g., https://tinyurl.com/bdfpujhh) or an outdoor music festival (see, e.g., https://foresthillsstadium.com/faq) will occur whether the weather is amenable or if it is less than ideal.
There are, however, exceptions to this industry custom, such as the existence of extreme or severe weather conditions making it “unsafe” or “dangerous” to attend the event. For instance, popular musical artist Harry Styles had to reschedule a live concert due to the “dangerous” road conditions resulting from a hurricane in the area (https://tinyurl.com/2s4x462k). In an attempt to assuage fans, the concert was rescheduled to a later date in the year (https://tinyurl.com/msv7sxnd); this move might not be convenient for every potential customer, but it does provide an opportunity “for the show to go on.” Furthermore, the popular third-party ticket company Ticketmaster has its own established policy as it relates to canceled events (https://tinyurl.com/2p9ay2ar). The entity has gone as far as offering a purchaser event cancellation insurance that covers “the ticket price, taxes, convenience fees and shipping charges along with other eligible event-related items . . . such as parking” (https://www.ticketmaster.com/insurance). In light of today’s uncertain conditions, it is important to be aware of these policies and ensure that clients incorporate them to best protect their financial interest.
Generally, in many of these situations, most parties attempt to mitigate a patron’s loss and maintain public goodwill by rescheduling the event to a later date that hopefully does not encounter similar climate restrictions—sometimes referred to as a “rain check” (see, e.g., https://www.mlb.com/yankees/tickets/raincheck). Conversely, the operator may cancel the event altogether and refund the monies received from a client’s customers (see, e.g., https://electriczoo.com/ticketing-terms). However, in some cases, the amicable approach is not appreciated by all customers, which has resulted in a series of individual as well as class-action lawsuits by ticket purchasers against the event hosts in light of cancellations due to COVID-19 and other uncontrollable disasters (see, e.g., https://tinyurl.com/ypfnnshh; see alsoMcMillan v. StubHub Inc., Case No. 20-cv-06392-HSG (N.D. Cal. Oct. 21, 2020); Bromley v. SXSW, LLC, No. 1:20-cv-439 (W.D. Tex. Apr. 24, 2020)). Therefore, it is crucial that a client has outlined operational procedures related to these types of situations beforehand to best protect themselves.
Force Majeure Clauses
In addition to the inclusion of “rain or shine” and other weather-related policies when crafting an event cancellation policy, attorneys can also advise clients to include contractual language to protect them in the form of a force majeure clause. This provision exists to excuse a party’s nonperformance under a contract when extraordinary events or a specific “triggering event” prevents a party from fulfilling its contractual obligations. Black’s Law Dictionary (10th ed., 2014) defines a force majeure “triggering event” as “an event or effect that can be neither anticipated nor controlled” and “includes both acts of nature such as floods and hurricanes, and acts of people such as riots, strikes, and wars.”
In extraordinary cases where a force majeure clause may be applicable, it is necessary to determine whether a specific event activates this provision, as its operability may eliminate or reduce any potential liability that a party might have for not performing their contractually obligated duty. In most circumstances, the terms of a contract are generally enforceable as written. In general, courts commonly look to and follow the express language contained in a force majeure clause when determining whether a particular event is listed and is therefore covered by this provision (see, e.g., Virginia Power Energy Mktg., Inc v. Apache Corp., 297 S.W.3d 397, 402 (Tex. App. Houston [14th Dist.] 2009, pet. denied) (“As we interpret the parties’ contract, including the force majeure provisions, our primary concern is to determine the parties’ intent”)). In fact, courts generally interpret force majeure clauses narrowly and will only enforce the clause and excuse a party if the provision “specifically includes the event that actually prevents a party’s performance” (see, e.g., Reade v. Stoneybrook Realty, LLC, 63 A.D.3d 433, 434 (2009) (citing Kel Kim Corp. v. Central Mkts., 70 N.Y.2d 900)).
Because many courts commonly rely on the express language of a force majeure clause when determining whether a specific event is covered, it is crucial to ensure that a force majeure clause is incorporated in a client’s contract. Additionally, it is important to ensure that the drafted language explicitly lists all the possible triggering events covered by the provision (see, e.g., Virginia Power Energy Mktg., Inc v. Apache Corp., 297 S.W.3d at 402). This is because the inclusion of more specific language may make it more likely that the provision might be applicable to the specific situation (see, e.g., Perlman v. Pioneer Ltd. Partnership, 918 F.2d 1244, 1248 n.5 (5th Cir. 1990); Virginia Power Energy Mktg., Inc v. Apache Corp., 297 S.W.3d at 402). As a result, it is prudent to ensure a client unambiguously includes and directly mentions applicable force majeure events in the agreement, such as “COVID-19” along with other related verbiage such as “epidemic,” “pandemic,” “public health crisis,” “governmental or regulatory orders,” and/or “governmental restrictions on performance.” This way, a client is properly protected in the event of the occurrence of any of these events. Furthermore, in addition to explicitly stating the various applicable events, a party could also incorporate broad “catchall” language (e.g., “or other similar causes beyond the control of such party”), which might provide arguments for relief for events that were unforeseeable at the time of contracting and those that were not specifically mentioned and incorporated in the force majeure language.
In cases where a client has used a force majeure clause in an agreement that does not include language explicitly referring to COVID-19 or other wording related to a health pandemic, and one or both of the parties’ performances are prevented due to the virus outbreak, one or both parties may look for relief under other interpretations of the language contained in many force majeure clauses such as claiming that the event is an “act of God” or “act of nature.” Black’s Law Dictionary defines an “act of God” as “an overwhelming, unpreventable event caused exclusively by forces of nature, such as an earthquake, flood, or tornado.” This could apply to “unusually severe weather,” which has been described as “adverse weather which at the time of year in which it occurred is unusual for the place in which it occurred” (Allied Contractors, Inc., I.B.C.A. No. 265, 1962 B.C.A. ¶ 3501, 1962 WL 9712 (I.B.C.A. Sept. 26, 1962)). Some courts interpret an “act of God” as one that solely occurs from natural forces, events, or causes (see, e.g., McWilliams v. Masterson, 112 S.W.3d 314, 320 (Tex. App. Amarillo 2003, pet. denied) (“[A]n event may be considered an act of God when it is occasioned exclusively by the violence of nature.”); Nat. Res. Def. Council v. Norton, 236 F. Supp. 3d 1198, 1220 n.9 (E.D. Cal. 2017) (quoting Black’s Law Dictionary 718 (9th ed. 2009); Cal. Civ. Code § 1511(2)).
As a result, these courts might consider “acts of God” as those without any “human intervention,” and it may be argued that humans have been involved in the COVID-19 health crisis (Travelers Ins. Co. v. Williams, 378 S.W.2d 110, 113 (Tex. App.—Amarillo 1964, writ ref’d n.r.e.). However, in light of the unprecedented global health epidemic, some state courts have begun expanding the definition of what qualifies as a “natural disaster,” which is commonly inserted to in these types of provisions (see, e.g., JN Contemporary Art LLC v. Phillips Auctioneers LLC, No. 20-cv-4370, 2020 WL 7405262, at *7 (S.D.N.Y. Dec. 16, 2020)). A New York state court noted that “[a]lthough neither the New York Court of Appeals nor the Second Circuit Court of Appeals has yet addressed whether the COVID-19 pandemic should be classified as a natural disaster, the Second Circuit has identified ‘disease’ as an example of a natural disaster” eligible for force majeure protection in agreements that currently mention “natural disasters” as a potential clause triggering event (Badgley v. Varelas, 729 F.2d 894, 902 (2d Cir. 1984)). It will be interesting to see which other states follow suit as similar cases are decided.
Finally, it is paramount that a client is aware of the listed remedies provided for by a contract’s force majeure provisions. This is because the clause can be drafted to permit the cancellation or termination of the entire contract upon the occurrence of a provision “triggering event.” Alternatively, the agreement might only provide for less severe relief, such as merely excusing the delay and tolling an existing agreement until the incident is resolved. Therefore, it is important in assisting a client in navigating an unforeseen disaster to not only include a force majeure provision in most every agreement but also to ensure that the language has widespread applicability as well as provides the correct relief.
Doctrines of Impossibility, Impracticability, and Frustration of Purpose
In the event that no drafted agreement exists between the parties or if a written document does not contain a force majeure clause at all and does not otherwise address these types of unforeseeable events, there might be other available avenues to protect a client’s interest in the event that a disaster strikes. For instance, some states recognize and enforce a variety of common law defenses, including impossibility, impracticability, and/or frustration of purpose. These doctrines are intended to be applicable when some unforeseen and unexpected event has made the fulfillment of an obligation impossible or impracticable (see, e.g., FP Stores v. Tramontina US, Inc., 513 S.W.3d 684, 693 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); City of Vernon v. City of Los Angeles, 45 Cal. 2d 710, 720 (1955) (“A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost”)).
The doctrine of impossibility may excuse a party’s performance when the destruction of the subject matter of the contract or the means of performance makes the performance objectively impossible. Moreover, the “impossibility” must be produced by an unanticipated event that could not have been foreseen or guarded or otherwise protected against in the contract (see, e.g., 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 (N.Y. 1968)). In addition, some states, such as California, have separately codified a contractual defense of impossibility that excuses performance when it is prevented or delayed “by an irresistible, superhuman cause” (Cal. Civ. Code Section 1511(2)). Similarly, the doctrine of frustration of purpose might be applicable; it does not require the impossibility of performance under a contract but rather may terminate a contract that no longer provides the benefits that the parties bargained for because of intervening unforeseeable events, and the now-frustrated purpose was the primary reason for entering into such contract (see, e.g., U.S. v. Gen. Douglas MacArthur Senior Vill., 508 F.2d 377, 381 (2d Cir.1974)).
It is clear that a disaster—whether it is a hurricane or tornado or a global health pandemic causing businesses to be mandated by the government to close or operate at limited or otherwise restricted capacity—are impossible and impractical to reasonably foresee at the time of contracting; in some cases, these events may frustrate the entire purpose of an agreement.
Indemnification, Waivers, and Dispute Resolution
In addition to the potential contractual provisions as well as some common law protections mentioned above, it is common for the parties to include language that indemnifies or holds the other party harmless against a potential loss or verbiage that solely indemnifies the individual who is taking the risk by organizing the event for another. In this case, there should be written policies and procedures in place prior to the occasion, specifically in production and live event scenarios. Additionally, the talent, attendees, and others should be encouraged to sign waivers of liability and/or give disclosures of symptoms related to COVID-19 as well as following any other state-issued laws or orders. Written policies related to live events should also discuss testing requirements for all attendees. Finally, dispute resolution procedures, such as arbitration or mediation, could be included in a provision in the agreement to help the parties alleviate problems by means short of litigation.
Overall, the potential losses and uncertainty of today’s current business landscape can potentially be mitigated through cooperative efforts between the parties as well as with proper written contracts with appropriate clauses addressing the procedures for a potential unforeseen disaster standing in the way of a performance.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
Please review the article originally posted on the ABA website here (sorry, for ABA members only).
This article was originally published in GPSOLO, Volume 39, Number 2, March/April 2022, (c) 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder
04-05-22 – Jacobson’s esports business and legal textbook “The Essential Guide to the Business & Law of Esports & Professional Video Gaming” has been awarded both the STEM.org Authenticated and STEM.org Reviewed trustmarks
(New York, NY) – Justin M. Jacobson’s esports business and legal textbook, “The Essential Guide to the Business & Law of Esports & Professional Video Gaming” has been awarded both the STEM.org Authenticated and STEM.org Reviewed trustmarks. For further information, the STEM.org Authenticated trustmark streamlines consumer’s ability to identify goods that conform to the organization’s vetted standards, thus assisting with quick decision-making in favor of quality. The STEM.org Reviewed trustmark streamlines consumer’s ability to identify the content and multimedia that conform to the organization’s vetted standards, thus assisting with quick decision-making in favor of quality. STEM.org Educational Research (SER) is the longest continually-operating, privately held STEM education research and credentialing organization in America. STEM.org works closely with pedagogical researchers, an international coalition of educators, administrators, NGO’s, and schools to establish a trusted set of STEM benchmarks. The resources and proven best-practices of this initiative have led to the world’s original and most recognized, blockchain-secured algorithmic STEM credentialing framework: STEM.org Accredited™ for Programs, STEM.org Certified™ for People, and STEM.org Authenticated™ for Products.
On April 4, 2022, the #EsportsBizShow aired on Preediction on Esports Sponsorships and Partnerships with Justin Stefanovic of Misfits Gaming Group. In this episode, Justin spoke about his work in the esports space and gaming space, including his initial work as at an advertising agency. He continues by exploring his current sponsorship and partnership work on behalf of the Misfits Gaming Group, including past and current sponsorships for Misfits Gaming, Florida Mutineers and Florida Mayhem esports teams.
Check the full interview here and below.
https://open.spotify.com/episode/3Q47VrBvGWkCi98p2d7GUK?si=QXzq-p_JTG6nZbTuXJ9AgA
03-31-22 – Jacobson Acts As A Panelist For “The Fashion Industry’s Impact on Gaming” Panel As Part Of Ritual Motion’s Fashion in Gaming Virtual Summit
(New York, NY) – Justin M. Jacobson recently provided insight on “The Fashion Industry’s Impact on Gaming” panel as part of Ritual Motion’s Fashion in Gaming Virtual Summit. This panel explored the intersection between the fashion industry and esports and video gaming. It looked at the growth of crossover between fashion and gaming, including the emergence on new luxury brands activating in the space with professional gamers, streamers, esports organizations and teams, game publishers and developers, and event organizers, including brands such as Gucci,Ralph Lauren, and Balenciaga. The conversation continued by discussing the growth and future of digital fashion, including Louis Vuitton working with Riot Games for League of Legends in-game items and physical merchandise, Burberry creating custom in-game skins for Honor of Kings as well as brands such as Valentino and Marc Jacobs producing digital items for Animal Crossing. Finally, Justin spoke on impact will blockchain authentication have on emerging digital fashion as well as the fashion paradigms that exist due the emergence of the “metaverse.”
On March 28 2022, the #EsportsBizShow aired on Preediction on Youth Esports with Bubba Gaeddert of the Varsity Esports Foundation. In this episode, Bubba spoke about his work in the sports space before transitioning into the esports and gaming space. He continues by exploring his current work with the Varsity Esports Foundation, including how the foundation is working with high school esports programs to provide technology and educational information on the benefits of esports and gaming to students.
Check the full interview here and below.
https://open.spotify.com/episode/3YdCZp62lcnmh9N2gd30rv?si=T9QaXD7NQeaoA0gBd1gv4g
03-15-2022 – JACOBSON GUEST LECTURES FOR SHAWNEE STATE UNIVERSITY’S SPECIAL TOPICS IN GAME DEVELOPMENT CLASS
(New York, NY) – Justin M. Jacobson was a guest lecturer for the Special Topics in Game Development class at Shawnee State University. While speaking to the class, Justin explored a variety of legal considerations for video and software game developers. He highlighted the proper usage of business entities by game developers as well as addressed a few intellectual property protections available for game publishers and developers such as trademarks and copyrights. In addition, he provided some insight on legal matters related to game publisher/game developer licensing agreement, “user generated content,” and licenses with third-party IP owners to include existing IP in a game.
On March 15, 2022, the #EsportsBizShow aired on Preediction with John Davidson of the Davidson Learning Company and Chair of the Esports Trade Association. In this episode, John discussed his work in the esports and gaming space, including his work with Gamestop and how he expanded to work with various other brands in the esports and video game space. He continues by exploring his current work with Davidson Learning Company as a brand consultant, including hosting the DLC Drop podcast as well as his work with the Esports Trade Association.
Check the full interview here and below.
https://open.spotify.com/episode/5k91ttt7OBs1vOb7dEscPn?si=w7nip4omTWOlH8IyRCJlSQ
Some Intellectual Property Law Considerations for Video Game Developers and Publishers
By Justin M. Jacobson, Esq.
Proper protection of intellectual property by game publishers and game developers is of utmost importance. Usage of these protocols are especially critical as international major and independent or “indie” developers and publishers continue to grow their businesses via traditional business models (i.e., digital and physical copy sales), through the “Free-to-play” (F2P) and freemium models, as well as with the emergence of “Play-to-earn” (P2E) game titles and the creation and expansion of digital “metaverses” and associated non-fungible tokens (NFTs). As a result, a video game creator should be aware of and properly protect all of their intellectual property assets, including any relevant trademarks and copyrights.
Trademark Law Protections for Game Developers and Publishers
A major intellectual property protection that exists is trademark law. A trademark registration protects a word, logo, slogan, color, sound, catchphrase, product design, a hashtag, or any combination of these used to differentiate the goods or services that one company provides from those of another. As a result, most major AAA publishers as well as many indie game developers utilize trademark law to protect their intellectual property. In fact, trademark protection can be acquired by a company on a state, federal and/or on an international level. Consequently, it is paramount that a video game or software developer ensures that they are protected in the various jurisdictions that they market, license, distribute and sell their games.
While there are many benefits in obtaining a trademark registration, one of these is that it prevents another party from using the same or a confusing similar mark for the identical or similar goods or services. Similarly, a trademark registration in a name is also a valuable commodity that can be licensed or sold to a third party. The existence of a registered mark also provides the owner with the ability to stop counterfeit or “grey market” goods with the owner’s mark from entering the United States by coordinating with the U.S. Customs and Border department. Finally, another useful benefit of a trademark registration is that it can be used offensively to file infringement claims with various social media platforms to retrieve or to block potentially infringing accounts, including with Facebook, Twitter, and Instagram as well as it may be used during a website domain dispute through ICANN.
While a game development or publishing company has many different trademarks to choose from, some common ones include filing for trademark protection in their game publisher or developer company name as well as in their company logo. For instance, companies such as “Riot Games” (U.S. Reg. No. 4,109,440), “Activision” (U.S. Reg. No. 1,207,377), “Nintendo” (U.S. Reg. No. 1,689,015), “Epic Games” (U.S. Reg. No. 5,712,420), and “Supercell” (U.S. Reg. No. 4,929,916), among many others, have all obtained registered trademarks in their company names as well as, in some cases, their logo. In fact, some of these companies have obtained protection in the United States as well as in other countries. A game creator could also register an individual game title or a gaming console name with their associated game or console logos. In fact, some console names are currently protected by their owners such as “Nintendo 64” (U.S. Reg. No. 2,372,472), “Playstation” (U.S. Reg. No. 2,259,732), “Xbox” (U.S. Reg. No. 2,698,179) and its successor console, “Xbox One” (U.S. Reg. No. 4,557,248). Additionally, some of these companies have also received protection for their gaming console names in the United States as well as internationally. There are also many videogame titles and associated logos that have been protected via trademark law, such as “Valorant” (U.S. Reg. No. 6,286,126), “League of Legends” (U.S. Reg. No. 3,756,125), “The Legend of Zelda Breath Of The Wild” (U.S. Reg. No. 5,277,680), “Clash of Clans” (U.S. Reg. No. 4,643,127), and “Starcraft” (U.S. Reg. No. 2,881,608). Furthermore, subsequent game titles in a specific series may also be eligible for trademark protection. For example, a game publisher has obtained protection in the original game title, “Pokémon” (U.S. Reg. No. 2,514,998) as well as for other sequel titles in the series such as “Pokémon Moon” (U.S. Reg. No. 5,214,916), “Pokémon Sun” (U.S. Reg. No. 5,214,914) and “Pokémon Go” (U.S. Reg. No. 5,646,122) in a variety of different classes and for many unique products. Similarly, the developer for first-person shooter (FPS) title, “Call of Duty” (U.S. Reg. No. 4,035,859) has obtained protection in its original title and in subsequent game names including for “Call of Duty Ghosts” (U.S. Reg. No. 4,766,061) and for “Call of Duty Black Ops” (U.S. Reg. No. 4,029,838).
Finally, in addition to a software development company’s protection of their company name and logo, a game title or video game console, equipment or peripheral name and logo; these companies may also obtain protection in any “in-game” character names. In fact, many iconic game character names are protected under trademark law, including “Super Mario” (U.S. Reg. No. 6,082,304) “Pikachu” (U.S. Reg. No. 2,646,008) and “Sonic The Hedgehog” (U.S. Reg. No. 3,009,472). These entities might also protect any public marketing slogans and any identifiable “catchphrases” associated with their game, with their company, or with a specific in-game character. These companies could also obtain trademark protection for any hashtags used by them in any public marketing and publicity campaigns related to the promotion of a game or of the developer. While these are just a few common trademarkable assets owned by a game developer or publisher, it is important that a company is aware of what might be protected and how to best safeguard their tradenames in the global video game market. These considerations are particularly important if these entities began creating their own digital metaverses or “virtual worlds” as well as if they are incorporating and offering their own protected and transferable in-game items and assets, such as in the form of NFTs.
Copyright Law Protections for Game Developers and Publishers
03-09-22 – Coalition of Parents in Esports (COPE) Announces Addition of Justin M. Jacobson, Esq. to its Industry Advisory Board
(New York, NY) – The Coalition of Parents in Esports (COPE) has announced that Justin M. Jacobson, Esq. has joined its Industry Advisory Board as its President in addition to acting as the organization’s legal counsel. Coalition of Parents in Esports (COPE) is a 501c3 nonprofit founded in 2020 by parents of professional esports players and gaming influencers to combat the outdated negative stigma of gaming. Having seen the positive effects of online gaming and streaming at building the confidence, community, and careers of their own children, the organization wanted more parents and legal guardians to understand that gaming could be an excellent use of interactive screen time. With positive parent involvement like any extracurricular activity, gaming can entertain, inspire, and build transferable business skills applicable to their modern connected world. COPE provides resources and scholarships to help them get there and Justin is proud to join this wonderful charity. He sums it up by stating “As a new parent, an industry professional and academic in the esports and professional gaming world, I’m happy to join COPE.”
Check the full announcement here.
On March 7, 2022, the #EsportsBizShow aired on Preediction on Youth Esports with James O'Hagan of The Academy of Esports and the Director of Digital & Virtual Learning for Racine Unified School District in Wisconsin. In this episode, he discussed his work in the esports and gaming space, including his work in the youth, middle school and high school esports space. He continues by exploring his current work developing and organizing K-12 esports programs, including mentioning some of benefits a program can provide an academic institution as well as articulating some tips for starting an esports program at a school.
Check the full interview here and below.
https://open.spotify.com/episode/0k203EUadLh6uUeD6lO8w6?si=JCHC_Pm2Q2GO5HP036aDyw
On March 7, 2022, Bleave In Sports Law with Jeremy Evans of California Sports Lawyer aired an episode featuring Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview hosted by Jeremy Evans focused on Justin's previous esports and gaming legal and business industry experience, including his work on behalf of musicians, professional athletes, professional gamers, streamers and content creators. Justin spoke on his esports business law book as well as advice for legal protections for professional esports players, casters, coaches and other influencers and the merging of esports and sports business worlds.
Check the full interview here and below.
https://open.spotify.com/episode/2fLftyuQMOMHVc2EckvjnX?si=px8CBMhYTSWKFpNcR3Z-Ag
On February 28, 2022, the #EsportsBizShow aired on Preediction on Esports and Video Game Law with Associate Counsel for Gearbox Software, Veda Cruz, Esq. In this episode, Veda discussed her work in the video game space, including her current work at game publisher and developer, Gearbox Software, who has developed and published many top game titles, including the Borderlands franchise. She continues by exploring the differences between legal matters for game publishers and game developers as well as touched on her PowerUp Books platform.
Check the full interview here and below.
https://open.spotify.com/episode/0jklSGYGyK33TFyikIekUb?si=bRHSRecNRsWeIVLxR22Y0A
On February 21, 2022, the #EsportsBizShow aired on Preediction on Esports Business with Director of Twitch Properties for Esports and Gaming, Christian Bishop. In this episode, Christian discussed his work in the esports and gaming space, including his prior work with esports organization, Method Gaming. He continues by exploring his current work as the Director of Esports and Gaming for Twitch Properties, including information on Twitch Rivals, Twitchcon and other gaming properties operated by Twitch.
Check the full interview here and below.
https://open.spotify.com/episode/5UDZ12eaTBzHIa9EzZPPk5?si=w2_z_SVASDet_cV0TirUdg
On February 18, 2022, Esports Connected hosted by Megan Van Patten and the Esports Trade Association aired an episode featuring Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming legal and business industry experience, including his work on behalf of musicians, professional athletes, professional gamers, streamers and content creators. Justin spoke on his esports business law book as well as advice for legal protections for professional esports players, casters, coaches and other influencers.
Check the full interview here and below.
https://youtu.be/DC10eudiGAM
02-15-22 – JUSTIN M. JACOBSON SPOKE AT A WEBINAR ON SOME COMMON LEGAL PROTECTIONS FOR SMALL BUSINESS OWNERS HOSTED BY THE SMALL BUSINESS UNIVERSITY ONLINE
On February 14, 2022, the #EsportsBizShow aired on Preediction on Professional Esports Organizations with Lead Esports Strategist for New York Islanders, Jordan Zelniker of Isles GT. In this episode, Jordan discussed his work in the esports and gaming space, including working with the eMLS team for D.C. United and with Caps Gaming (NHL esports) and the NBA 2K League franchise team, Wizards District Gaming, during back-to-back championships. He continues by exploring his current work in the hockey esports space on behalf of the New York Islanders, including assisting with the scouting and the launch of the Islanders' esports team, Isles GT.
Check the full interview here and below.
https://open.spotify.com/episode/1ztzNUI5FJqERRwRrRRrTg?si=h7eM49G1TlqR1rvMyiuRyQ
Some Intellectual Property Law Considerations When “Minting” An NFT
By Justin M. Jacobson, Esq.
The current buzz in the entertainment, sports, gaming, fashion, and art worlds as well as in other lifestyle, business, and technology areas are the “metaverse” and “non-fungible tokens” known as “NFTs.” However, it is crucial that an individual or company attempting to launch or “mint” their own NFT or any associated blockchain collection or token is aware of all the relevant legal considerations related to this business transaction. While there are many pertinent ones, including those focused on securities law, tax and other financial regulatory matters, this article will solely explore a variety of relevant intellectual property protections and considerations. This includes examining the benefits of copyright law, trademark law, and the drafting of proper licensing terms related to the ownership and usage of the digital asset. This piece also explores potential ownership rights monitoring and enforcement efforts that a project owner or a NFT purchaser might undertake to protect their virtual asset.
Intellectual Property Law and NFT Creation
While the U.S. government and others around the world are still determining how to best regulate and to effectively tax various NFTs and other associated blockchain “assets,” such as cryptocurrencies and select NFT projects; another paramount legal consideration is the intellectual property rights in the associated digital art as well as matters related to the underlying ownership rights in the specific NFT or other digital blockchain linked asset. Consequently, when a party is creating their own NFT project, whether a single token or an entire multi-piece collection, it is crucial to ensure that the intellectual property related to the project is properly cleared, protected, structured, and the ownership rights are expressed in writing, in order that that a purchaser is fully aware of what they do and do not receive when purchasing a specific cryptotoken.
NFT Contract Law - Drafting and Enforcing NFT Usage and License Terms and "Smart Contracts"
As a result, a company launching an NFT must be aware that an NFT collection drop has two contracts at work, the "smart" contract and the "usages and license" term agreement. The "smart" contract is blockchain linked aspect that automates handles the transfer process, including documenting ownership and transfers of the NFT, distributing and calculating fess and royalties, and anything else the creator programs. In addition to this agreement, a separate contract addressing the use of an NFT is prudent. When crafting these documents, it is crucial to ensure that a valid and clear license exists so that all parties understand what rights are transferred and how the purchaser may or may not use the digital asset. This includes whether a buyer has received the underlying copyright in the work as well as whether they are permitted to undertake any commercial or non-commercial uses of it. A lack of clearly expressed rights and usage terms could lead to potential issues related to the NFT’s ownership which might impact its overall value.
Additionally, since many existing third-party NFT marketplaces, including Opensea, do not provide a minting party with an opportunity to specify which rights are provided to a purchaser in a marketplace listing, it is imperative that both licensor (minter) and licensee (purchaser) know exactly what each party receives in a specific transaction. As a result, the project creator should clarify the exact usages for an NFT, including how wide or narrow the owner’s rights are. In this regard, certain NFT marketplaces and platforms, such as Open Sea, provide a minting party with the opportunity to insert a “third party link to the creator’s website [… and] such website may include [additional] Purchase Terms governing the use of the NFT” which the NFT purchaser “will be required to comply with.” (Section 5 – Third-party Content and Services) This provides the creating party with an opportunity to include additional ownership terms to ensure that both parties in the transaction understand what is acquired and how the buyer can or cannot utilize the NFT.
Consequently, when drafting NFT license terms, a party might include provisions pertaining to the right of the buyer to publicly “display” the NFT, such as a public art piece in a gallery. It could also determine whether or not the purchaser is permitted to create copies or other “derivative works” of the digital asset and whether this can be done for commercial, non-commercial purposes (i.e., only for the owner’s personal use) or both. Terms of use could also address whether the buyer has the right to duplicate or otherwise create copies of the work such as by designing and selling merchandise containing the digital asset. Since the rightsholder owns the digital property, they can dictate the terms and usage of the NFT. As a result, a variety of NFT licensing and usage approaches exist with many variations available. For instance, some platforms prohibit any commercial use by a buyer of an NFT purchased on their platform, such as NBA Top Shot. (Section 4(iv)) In contrast, another approach to NFT ownership are those sales platforms that provide the minter with the ability to override a commercial prohibition if this information is “specified by the Seller of a Crypto Asset in writing,” such as is available on Makers Place. (Section 5(d))
Furthermore, some existing NFTs specifically grant the token purchaser with an “unlimited, worldwide license to use, copy, and display the purchased art for the purpose of creating derivative works based upon the art,” such as the Bored Apes Yacht Club (BAYC). (Ownership – Paragraph iii) As a result, various owners have established their own business ventures utilizing the digital artwork, including the creation of a record label as well as individuals selling their own apparel lines incorporating their NFT design. Finally, other NFT projects may place a set monetary limitation on a purchaser’s commercial usage of an NFT. For example, CryptoKitty places a “$100,000” limit on the amount that an owner of a “Purchased Kitty” can generate from sales related to the digital work. This usage structure gives additional utility and value to the asset owner and may be a way to balance both parties’ rights instead of prohibiting all commercialization of an NFT or providing unlimited commercialization of it. (Section 3(c)(ii))
In addition to confirming that the ownership and usage terms of an NFT are clear; a project’s IP owners must ensure that the party, whether the original owner or the purchaser, has the ability, duty and the contractual right to police and prevent any stolen, fake or “plagiarized” NFTs, including mandating this party to utilize any appropriate DMCA or other copyright infringement procedures to protect the rightsholders’ interest in the NFT. This means that a minter or a purchaser must monitor the active NFT marketplaces for any existing infringements; and, if any are identified, the party must take prompt enforcement action to prevent the unauthorized use. For instance, the individual could reach out directly through the marketplace platform or may utilize other similar takedown notice procedures or other appropriate steps, such as issuing cease and desist and other demand letters, where necessary.
Another provision that is beneficial are those that address and provide indemnification to the minting party for any improper or illicit actions undertaken by the NFT owner. Similarly, a prospective NFT purchaser may desire similar indemnification language as well as some contractually obligation that the NFT creator to polices or provides the NFT holder with the right to pursue any infringements made by a third parties as well as to ensure that the purchaser have proper rights to the acquired digital collectible.
Trademark of NFT Collection Name or Company Name for Metaverse Inclusion or NFT digital items
Another beneficial legal protection for an NFT owner is the usage of trademark law. Similar to other public identifiers, such an artist or performer’s name, a gamer-tag or a band name, an NFT collection name as well as an existing company or a new brand name can receive trademark protection. This protection might apply to a particular project or collection’s name or logo as well as for a company’s name, logo, color, slogan, or hashtag in a variety of digitally focused business categories and goods. This includes potentially applying for protection for digital assets and NFTs, for downloadable virtual goods, or even for retail stores featuring specific virtual goods.
In fact, this has become a new trend with both existing NFT projects as well as for established brands applying for trademark protection in the metaverse and in other digital token-related categories, including McDonald's. Additionally, the retail store Saks applied for protection for its brand name “SAKS” in Class 009 for “digital media, namely, digital collectibles, digital tokens, non-fungible tokens (NFTs) and digital art.” (U.S. Serial No. 90/789,965). Similarly, sportswear company, Nike who had previously activated in the “metaverse” with games such as Roblox, has also applied for protection for its brand name. This includes the company submitting trademark applications to protect its name, “Nike” as well as for its “swoosh” logo (U.S. Serial Nos. 97/095,855 and 97/095,944) in the metaverse. The company has applied in several international classes, including Class 009 for “downloadable virtual goods, namely, computer programs featuring footwear, clothing, headwear, eyewear, bags, sports bags, backpacks, sports equipment, art, toys and accessories for use online and in online virtual worlds,” in Class 031 for “entertainment services, namely, providing on-line, non-downloadable virtual footwear, clothing, headwear, eyewear, bags, sports bags, backpacks, sports equipment, art, toys and accessories for use in virtual environments,” as well as in Class 035 for “retail store services featuring virtual goods, namely, footwear, clothing, headwear, eyewear, sports bags, backpacks, sports equipment, art, toys and accessories for use online; on-line retail store services featuring virtual merchandise, namely, footwear, clothing, headwear, eyewear, bags, sports bags, backpacks, sports equipment, art, toys and accessories.” The brand has gone even further by applying for trademark protection in other IP assets such as its marketing slogan, “Just Do It” (U.S. Serial No. 97/096,236) as well as for another one of its clothing brands, the “Jordan” brand (U.S. Serial No. 97/096,950) in similar classes.
Additionally, a well-known NFT project, “Bored Ape Yacht Club” has applied for protection in a variety of classes for its project name including in Class 016 for “digital collectibles; digital collectibles sold as non-fungible tokens,” in Class 035 to “maintain and record ownership of digital illustrations; maintain and record ownership of digital illustrations represented by non-fungible tokens; providing a website featuring an online marketplace for exchanging digital collectibles” and in Class 045 for “online social networking services provided through a members-only website; computer services, namely, creating an online community for registered users to access a collaborative graffiti board” (U.S. Serial No. 90/739,977). In addition, the same owners have applied for protection of its BAYC logo in several classes for various merchandise such as “jewelry,” “hats,” t-shirts,” “skateboards, and “plush toys.” (U.S. Serial No. 97/015,931) Similarly, another highly successful project, “Cryptopunks” has also applied for protection for various classes for its NFT collection name. (U.S. Serial No. 90587519)
In addition to applying for protection in an NFT project or collection name, proper policing of an existing brand name and other protected IP is crucial for a new company starting in the space as well as for an existing venture expanding into the sale of digital assets and collectibles or other metaverse-related services or products. This means that individuals and businesses must monitor any existing NFT usage related to their company or product name for any potential infringing or other unauthorized use of a protected asset. In fact, there is an existing dispute related to the usage of a protected product name. Currently, the owners of “Birkin” are in an on-going dispute with the creators of the digital “Meta Birkin” NFT project related to the unauthorized usages of their protected trademark in “Birkin” (U.S. Reg. No. 2,991,927).
Copyright Protection For NFT Designs And Collections
02-09-22 – JACOBSON GUEST LECTURES FOR DREXEL UNIVERSITY’S BUSINESS OF ESPORTS CLASS
(New York, NY) – Justin M. Jacobson was a guest lecturer for the Business of Esports class at Drexel University, which is part of their BSBA in Esports Business program. While speaking to the class, Justin explored his trajectory from law school to practicing entertainment and esports law as well as discussed, his esports legal and business industry experience. He spoke about his day-to-day role as an esports attorney working with professional esports players, streamers, content creators, casters, and other gaming personalities. He also highlighted some important contractual clauses that a professional gamer or other gaming talent must be aware of. Finally, he provided some insight on legal matters related to player rights as well as “name and likeness” considerations.
On February 8, 2022, the #EsportsBizShow aired on Preediction on Youth Esports with Chief Learning Officer, Nick "Obi-Wan Nickobi" Schiner of Coalition of Parents In Esports (COPE) and Digital Promise. In this episode, Nick discussed his work in the esports and gaming space, including bringing technology and gaming into the classroom. He continues by exploring his current and future work with COPE, including working to dispel some myths related to esports and playing video games as well as his work at Digital Promise.
Check the full interview here and below.
https://open.spotify.com/episode/14cnzKRxBVimYpMvTVxR8g?si=d2HUF1L0QfOjy6jzTpt2oA
02-02-22 – JACOBSON GUEST LECTURES FOR NORTHWOOD UNIVERSITY’S ESPORTS EVENT MANAGEMENT AND PRODUCTION CLASS
(New York, NY) – Justin M. Jacobson was a guest lecturer for the Esports Event Management and Production class at Northwood University. While speaking to the class, Justin explored his past esports industry experience, including his day-to-day role as an esports attorney working with professional esports players and gamers, streamers, content creators, casters, coaches and other gaming talent. He also highlighted some important legal and business considerations a company or an individual should be aware of when operating and managing an esports event. In addition, he provided some insight on legal matters related to esports tournament and event licensing from game publishers and developers.
On January 26, 2022, the fourth episode of "Ask An Esports Attorney" aired to a live digital audience. The segment was presented by Ritual Motion and hosted by esports attorney and Vice-President at The Jacobson Firm, Justin M. Jacobson, Esq. The fourth episode of program featured Mr. Jacobson fielding questions from the live audience, including exploring legal issues related to working with minors in the esports and gaming space. The viewers were permitted to submit questions in an "Ask Me Anything (AMA)" fashion which Justin fielded as he provided information on social media disclosures, player contractual restrictions as well as exploring trademark protection in "hashtags."
Check the full episode here.
On February 1, 2022, the #EsportsBizShow aired on Preediction on Esports Casting with professional Fortnite caster, host and analyst, LifeWithPanda. In this episode, LifeWithPanda discussed his journey to becoming a professional Fortnite caster and analyst. He continued by exploring his previous work as a professional caster and analyst for various Fortnite events as well as spoke on his role as a co-host of The Fortnite Podcast.
Check the full interview here and below.
https://open.spotify.com/episode/1CuXTiThjVGgoC3GYFF1vb?si=9OAPauWxStmMy0Ud5Me7hg
On January 24, 2022, the #EsportsBizShow aired on Preediction on College Esports with Joey Gawrysiak of Shenandoah University. In this episode, Joey discussed the esports academic program at Shenandoah University, including its various educational courses as well as their internship opportunities such as with professional esports organizations. He continued by exploring the type of education that is beneficial to a student as well as mentioned how the university recruits and determines its competitive esports players.
Check the full interview here and below.
https://open.spotify.com/episode/5pAaaJYGv56qyo09A4WOa8?si=cXm5myhMTS-xSq-PNo22cA
On January 19, 2022, The #EsportsBizShow aired on Preediction on International Esports Academics with Richard Withers of Kajaani University of Applied Sciences. In this episode, Richard discussed his story and how he first got started in the esports and gaming world on the academic and scholastic side. He continues by exploring the esports business academic program at Kajaani University of Applied Sciences in Finland as well as explored the KAMK.gg esports student-run organization and the upcoming Esports University.
Check the full interview here and below.
https://open.spotify.com/episode/7oqDdprQ2OZHmHW4i0octe?si=74rVUX9sTQGYvYAaV_20zw
On January 12, 2022, the third episode of "Ask An Esports Attorney" aired to a live digital audience. The segment was presented by Ritual Motion and hosted by esports attorney and Vice-President at The Jacobson Firm, Justin M. Jacobson, Esq. The third episode of program featured Mr. Jacobson fielding questions from the live audience, including ones focused on proper tax and business protections for professional gamers, content creators, streamers and esports teams. The viewers were permitted to submit questions in an "Ask Me Anything (AMA)" fashion which Justin fielded as he provided information on DMCA take-down procedures, especially in light of the recent wave of individual's streaming live television shows and movies without proper licensing.
Check the full episode here.
On January 11, 2022, The #EsportsBizShow aired on Preediction with the President of North American Collegiate League (NACL), David Chen. In this episode, David discussed his story and how he first got started in the esports and gaming world as an investor in FaZe Clan. He continues by exploring the formation of North American Collegiate League (NACL), including their past work and some current recent events as well as some of their partners such as former NFL player Brian Urlacher and former NHL player Jeremy Roenick.
Check the full interview here and below.
https://open.spotify.com/episode/0GaiWmFRSkkKTLNuT5zSKT?si=RfJmaJFFQxCglt52qO4qDQ
On January 4, 2022, The Sean Trace Show aired Episode 87 featuring Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous music, sports esports and gaming legal and business industry experience, including his work on behalf of musicians, professional athletes, professional gamers, streamers and content creators. Justin spoke on his esports business law book as well as advice for legal protections for creative influencers and talent, including trademarks, copyrights and proper contract assistance.
Check the full interview here and below.
https://youtu.be/eqFoF_GQ5MI
https://open.spotify.com/episode/5LCsDVFzjFKBPX4ZbVZMfa?si=BH8G9iDuTlqYOuoXWcSEPQ
On January 3, 2022, The #EsportsBizShow aired on Preediction on Women in Esports and Gaming with the CEO and Co-Founder of The Gamehers, Rebecca Dixon. In this episode, Rebecca discussed the formation of The Gamehers, including their past work and some current recent projects, including launching their App. She continued by discussing The Gamehers Awards as well as the organization's work in the collegiate and high school esports and gaming space.
Check the full interview here and below.
https://open.spotify.com/episode/0EEUiaVU13mOWeZMGurfi5?si=G7klBMYvTQaJzLldY5KXjg
On December 15, 2021, the second episode of "Ask An Esports Attorney" aired to a live digital audience. The segment was presented by Ritual Motion and hosted by veteran esports attorney and Vice-President at The Jacobson Firm, Justin M. Jacobson, Esq. The second episode of program featured Mr. Jacobson fielding questions from the live audience, including ones focused on professional gamer contracts, intellectual property protections for professional gamers as well as an exploration into esports tournament and event licensing. The viewers were permitted to submit questions in an "Ask Me Anything (AMA)" fashion which Justin fielded and provided information on this as well as many other legal questions as the viewers .
Check the full episode here.
On December 15, 2021, The #EsportsBizShow aired on Preediction on Music and Gaming with the Director of Business Development and Gaming and the Immersive Media Lead at Brett Marks of Columbia Records. In this episode, Brett discussed his background in music and live entertainment and how he transitioned to running the esports and gaming division of Columbia Records. Marks continued by exploring the various gaming and esports work that Columbia Records such a Lil Nas X concert in Robolex.
Check the full interview here and below.
https://open.spotify.com/episode/75EXvBEfaOGOULP7Z9N9MG?si=tW4XFbrpSbS-_2UoGNaolg
12-03-21 – JACOBSON GUEST LECTURES FOR SEVERAL UNIVERSITIES ON ESPORTS BUSINESS AND LAW
(New York, NY) – Justin M. Jacobson was a guest lecturer at four different colleges over the past few months. This includes speaking at an esports marketing class at Seneca College in Canada. He also was a guest lecturer for esports students at Sacred Heart University in Connecticut where he discussed the esports business and law. He also explored the intersections of fashion, entertainment, and the gaming world. Justin then spoke at the La Salle University about his experience as an esports attorney. Most recently, Mr. Jacobson engaged with esports marketing and business students at Harrisburg University about esports law and the role an esports attorney plays in the esports business ecosystem. During all of these speaking engagements, he answered questions and discussed matters related to the esports business and law field, including on NFTs, digital collectibles and pitfalls that professional games may encounter.
On December 1, 2021, the first episode of "Ask An Esports Attorney" aired to a live digital audience. The segment was presented by Ritual Motion and hosted by veteran esports attorney and Vice-President at The Jacobson Firm, Justin M. Jacobson, Esq. The first episode of program featured Mr. Jacobson fielding questions from the live audience, including ones focused on professional gamer contracts, intellectual property protections for NFTs and other digital assets. The viewers were permitted to submit questions in an "Ask Me Anything (AMA)" fashion which Justin fielded and provided information on this as well as many other legal questions as the viewers .
Check the full episode here.
On November 15, 2021, The #EsportsBizShow aired on Preediction on Youth Esports with Chris Aviles of Garden State Esports. In this episode, Chris discussed his background in esports and how he developed the first middle school varsity esports program in New Jersey. Aviles continued by exploring the creation and development of Garden State Esports, including their current work and future plans for the space.
Check the full interview here and below.
https://open.spotify.com/episode/2adn9dc1NkIOH1ZYwvxDVq?si=UcGtJiEnRV6aynOwYi9Gww
On November 12, 2021, The Power Level on Ritual Motionhosted byCrystal Mills, Rebecca DixonofGamehers and Alex Hutchi released an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators and looking at professional gamer contracts. as well as working with professional esports agent. Justin spoke on his esports business law book as well as provided some advice on finding an esports attorney, manager or agent and how to vet and otherwise determine the best fit for a gamer, streamer or content creator.
Check the full interview here and below.
https://open.spotify.com/episode/5GEHVOR9R6oDsqZ2dQp2TA?si=QwxUTAJrSf-3rDhm_ikWmA
11-08-21 – Jacobson hosts “Professional Job In Esports” information session during SIEGE2021 hosted by Georgia Game Developers Association
(New York, NY) – Justin M. Jacobson recently hosted an information session focused on “Professional Jobs in Esports” as part of the SIEGE2021, a conference hosted by the Georgia Game Developers Association. This webinar explored the various professional careers in the esports and competitive gaming world. This includes looking at the variety of jobs that exist as a professional gamer as well as in other esports businesses such as esports teams, event organizers and game developers. The session continued by describing many of the growing other professional occupations that are now servicing the esports world, including esports attorneys, accountants, financial advisors, and other career professionals who are now working in the esports and professional video game world.
On November 2, 2021, The #EsportsBizShow aired on Preediction on Fantasy Esports with Stu Porter and Jack Porter of Clout Fantasy. In this episode, each of them discussed their background in the industry. The Porter brothers continued by exploring the creation and development of Clout Fantasy, including its unique spot as a daily fantasy esports platform.
Check the full interview here and below.
https://open.spotify.com/episode/7utIF045rpS24PYmihZQhN
Trademark Law Update: The Trademark Modernization Act
In March 2020, Congress passed the Trademark Modernization Act of 2020 (“Trademark Modernization Act”). Depending on which side you sit on, this was either a great step forward or backward for trademark owners. If nothing else, this tightens up the practice of registering and keeping registered trademarks; and, aims to prevent those who are merely claiming rights to goods or services which they are not actually providing which may prevent other rightful users from obtaining protection.
As a result of the Trademark Modernization Act, the United States Patent and Trademark Office (U.S.P.T.O.), the government agency responsible for administering registered trademarks in the U.S., have instituted proposed rulemaking related to these changes. These suggested alterations include ex parte proceedings to cancel unused registered marks which could be a way to clear out some inappropriate registrations. Expungement proceedings are also proposed which would allow third parties to request the cancellation of some or all of the goods and/or services covered by an existing registration when the owner is not actually using the mark for the specified goods or services. Third parties may be able to request a re-examination proceeding under the proposed new procedures. That will subject an existing trademark holder to an inspection regarding their actual mark usage. This includes an expansion to permit interested parties to file Letters of Protests on additional grounds than previously existed, including for conflicting prior trademark uses as well as introducing evidence that a mark is not actually in use for the identified goods or services. Finally, under the proposed rules, “applicants (excluding Madrid Section 66(a) applicants) and registrants will be required to respond to office actions within three months.” That means that the response period to an Office Action Letter will be shortened from six months to three months which requires an owner to quickly respond to prevent the loss of their existing application or registration.
These new procedures could go into effect before the end of the year. This reminds everyone to be careful of the claims made in trademark applications and to avoid fiction when dealing with the U.S.P.T.O. This is especially true when claiming a brand in goods or services that an owner is not actually using or intending to use as these could cause an existing application or registration to be cancelled or otherwise prevented.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
(C) 2021 The Jacobson Firm, P.C.
10-06-21 – Jacobson Acts As A Panelist For “They Aren’t Playing Games: The Growth, Challenges and Legal Issues in Esports” Panel As Part of PLI’s Sports Law Program
(New York, NY) – Justin M. Jacobson recently provided insight on “They Aren’t Playing Games: The Growth, Challenges and Legal Issues in eSports” panel as part of the Practising Law Institute’s (PLI) Sports Law 2021 program. In fact, Justin was joined by world-class esports and sports medical doctor, Dr. Melita Moore. This panel explored the various legal issues related to the esports world as well as explored information on advising professional gamers, streamers, and content creators. The panel discussed the growth of esports globally as well as examined a multitude of legal challenges that a professional esports athlete might encounter, including proper brand and trademark protection, visas and immigration, and player and sponsorship contract negotiation matters. It finished by exploring future of esports and gaming law, including the use of NFTs and other digital collectibles in esports and gaming space and touched on how esports will continue to grow at the collegiate, high school and recreation levels.
On October 6, 2021, The DLC Drop hosted by John Davidson released an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators and looking at professional gamer contracts. Justin spoke on his esports business law book as well as what makes the esports business unique from traditional entertainment fields such as music and sports.
Check the full interview here and below.
https://youtu.be/1UdrNASmwcw
https://open.spotify.com/episode/021VMvbSlIIzUXqddqJy65?si=3XdtPgk9R-iTrdrSP_rpJw&dl_branch=1
10-05-2021 – JUSTIN M. JACOBSON NAMED SUPER LAWYER RISING STAR AGAIN
(New York, NY) Justin M. Jacobson, Vice-President of The Jacobson Firm, P.C. has been selected for a sixth year in a row as a 2021 SuperLawyer Rising Star. Mr. Jacobson will be listed in the New York Times Magazine as well as on the “Super Lawyer” website under Intellectual Property. For over three decades, this publication has been regarded by both the profession and public as the most credible and definitive guide to legal excellence in the United States. Super Lawyers select attorneys using a patented multiphase process consisting of peer nominations and evaluations based on 12 indicators of peer recognition in addition to professional achievement to receive this award.
On September 13, 2021, The #EsportsBizShow aired on Preediction on Esports Organizations with President of Immortals Gaming Club, Jordan Sherman. In this episode,he discussed his path from traditional sports at the L.A. Clipper and MLB to Gen. G Esports and eventually to becoming President of Immortals Gaming Club (IGC). Jordan continues by exploring Immortals' future development plans as well as their new "at cost" merchandise and their expansion into competitive mobile4 esports with Wild Rift.
Check the full interview here and below.
https://open.spotify.com/episode/08XI5NucbZfwIpHERsFk5N?si=QOuOB8xoSRS9GbaL5ppNXg&dl_branch=1
On August 17, 2021, Esports Heaven released an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators and how the esports business has changed and become more professionalized. Justin spoke on his esports business law book as well as what makes the esports business unique from traditional entertainment fields such as music and sports.
Check the full interview here.
On August 16, 2021, The Market Madness Podcast presented by WOLF Financial and hosted by Gav Blaxberg aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators and how the esports business has changed and become more professionalized. Gav and Justin speak on his esports business law book as well as the development of collegiate esports business classes and curriculum and how education is evolving in esports.
Check the full interview here or below.
https://open.spotify.com/episode/1h1rqSy1mrMzm4y8uPx42k?si=C-bfxx4pQFSW31MUBayZUQ&dl_branch=1
08-09-21 - JEFFREY E. JACOBSON: 32 YEARS OF “AV PREEMINENT ®” PEER REVIEW RATING FROM MARTINDALE-HUBBELL
(New York, NY) - Jeffrey E. Jacobson recently celebrated 32 years of AV Preeminent ® rating from Martindale-Hubbell—the highest possible rating for attorneys. Since 1990, Jeffrey E. Jacobson has consistently received Martindale-Hubbell’s top rating for a period of 32 years. This prestigious honor is awarded based on the opinions of other accredited professionals in the legal community..
Martindale-Hubbell is the facilitator of a peer review rating process. These ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories - legal ability and general ethical standards. "AV Preeminent ® Distinguished™” are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.
On August 9, 2021, The #EsportsBizShow aired on Preediction on Gaming Content Creators and Streamers with OfficialChiKa. In this episode, she discussed her growth and expansion in esports, streaming and gaming scene. OfficialChika continues by exploring her work in the space on behalf of Women in Games and how she approaches her day-to-day business affairs.
Check the full interview here and below.
https://open.spotify.com/episode/50ts2dkx4CMpWeKrGfVbxM?si=IkMP1Tk1TWyvAO03kmeWyg&dl_branch=1
JEFFREY E.JACOBSON NAMED SUPER LAWYER AGAIN IN 2021
(New York, NY) – Jeffrey E. Jacobson, President of The Jacobson Firm, P.C. has been selected for an eighth year in a row as a 2021 Super Lawyer. In this role, Mr. Jacobson will be listed in the New York Times Magazine as well as on the “Super Lawyer” website under Intellectual Property. Only 5% of the attorneys in the New York Metro area are selected to be listed with Super Lawyers. For over three decades, this publication has been regarded by both the profession and public as the most credible and definitive guide to legal excellence in the United States. Super Lawyers select attorneys using a patented multiphase process consisting of peer nominations and evaluations based on 12 indicators of peer recognition in addition to professional achievement to receive this award.
On July 26, 2021, The #EsportsBizShow aired on Preediction on Music, Esports and Gaming with Strategic Partnerships and Gaming Strategy lead at Atlantic Records, Willie Breslau. In this episode, Mr. Breslau discussed how the growth and expansion of music in esports and gaming scene. Willie continues by exploring how Atlantic Records is proceeding in the space as well as an exploration of music licensing.
Check the full interview here and below.
https://open.spotify.com/episode/23WLP3x17LlGngb99bmGpL?si=OwEaZwgJRFCNX7VFu2OkNw&dl_branch=1
On July 19, 2021, The #EsportsBizShow aired on Preediction on Streaming and Esports teams with streamer and VP of Esports at Chilly Mountain, Sidkitten. In this episode, Sidkitten discussed how she originally began streaming and creating original gaming content. She continues by exploring how she incorporates yoga and fitness into her gaming regime as well as about the esports organization, Chilly Mountain.
Check the full interview here and below.
https://open.spotify.com/episode/0t5XB1BEnwWBA2W2WHP84M?si=8asQxIL1S9SI7NRcNyzypQ&dl_branch=1
On July 12, 2021, The #EsportsBizShow aired on Preediction on NFTs and Crypto in Esports and Gaming with CEO of Spielworks, Adrian Krion. In this episode, Adrian discussed NFTs and the use of crypto-tokens in esports and gaming, including the Womplay platform. He continues exploring the future of NFTs and the use of blockchain technology in gaming.
Check the full interview here and below.
https://open.spotify.com/episode/1Y1982orzoZY5KnIzEIuLn?si=_4KxDKjwS-GH46nLElcDBw&dl_branch=1
On July 6, 2021, The #EsportsBizShow aired on Preediction on Co-Founder and CEO of Allstar, Nick Cuomo. In this episode, Nick discussed the formation and growth of Allstar, including receiving an investment from Mark Cuban. He then explained what makes the product unique and a great fit for upcoming streamers and content creators.
Check the full interview here and below.
https://open.spotify.com/episode/7v9kri7akHGT0q6SbSL8Em?si=TwuoTJa2RKiNR3hdxdtCvg&dl_branch=1
On June 30, 2021, The Esports Observer quoted Justin M. Jacobson, Esq., Vice-President of The Jacobson Firm, P.C. and Manager of Ford Models' Esports and Gaming talent division as part of their article entitled "Ford Models to participate in Esports Fashion Week" In particular, Mr. Jacobson commented on the Ford Models' role in the Esports Fashion Week pilot being launched this month and potential future ways the division can work in the fashion space.
Click here to check out the entire article.
06-30-21 – JACOBSON FIRM ATTORNEYS JUSTIN M. JACOBSON, AND PABLO G. VELEZ SPOKE ON A PANEL ON IMMIGRATION, COPYRIGHT AND TRADEMARK LAW MATTERS FOR ESPORTS TEAMS, PROFESSIONAL GAMERS AND STREAMERS HOSTED BY RITUAL MOTION AND COPE
(New York, NY) – The Jacobson Firm’s lawyers Justin M. Jacobson and Pablo G. Velez recently spoke on a panel titled “Esports Business & Law Information Session: A Look at Visas, IP Law & Tax Matters for Professional Gamers, Streamers and Teams” hosted by Ritual Motion and Coalition for Parents in Esports (COPE). This webinar explored various visa and immigration law concepts related to the esports and professional gaming industry. This discussion included information about visas and immigration for professional gamers, coaches and esports organizations as well as examined some potential evidence that might be beneficial when preparing a visa application. The panel also looked at the benefits of copyright and trademark protection as well as explored how gamers, streamers, content creators and esports teams are currently utilizing trademarks for brand protection. This panel can still be seen here.
On June 29, 2021, Esports Insider quoted Justin M. Jacobson, Esq., Vice-President of The Jacobson Firm, P.C. and Manager of Ford Models' Esports and Gaming talent division as part of their article entitled "Ford Models joins Esports Fashion Week" In particular, Mr. Jacobson commented on the Ford Models' role in the Esports Fashion Week pilot being launched this month.
Click here to check out the entire article.
On June 28, 2021, The #EsportsBizShow aired on Preediction on Esports Events with Director of Business Development for Collegiate Star League (CSL) Esports, Charles O' Donnell. In this episode, Charles discussed Collegiate Star League's various collegiate esports tournaments and their educational offerings for colleges. He then explained some of the unique services that CSL Esports offers high schools and universities across the country including curriculum and facilities development.
Check the full interview here and below.
https://open.spotify.com/episode/034kDfLEEHpEIOWqasYUKq?si=dm83QynkT3GHAwQR2paylw&dl_branch=1
On June 21, 2021, The #EsportsBizShow aired on Preediction on Youth Esports with Christopher Turner of Southern University Lab School. In this episode, Chris discussed how creating and operating youth and high school esports programs. He then explored the potential opportunities in youth and high school esports in HBCUs.
Check the full interview here and below.
https://open.spotify.com/episode/1xWiGA6MRlTVbsBkdAGoPr?si=vzV09ZE2QO60aIp9oTvbPg&dl_branch=1
On June 16, 2021, The Esports Observer quoted Justin M. Jacobson, Esq., Vice-President of The Jacobson Firm, P.C. and Manager of Ford Models' Esports and Gaming talent division as part of their article entitled "Gaming and Esports Talent Come Together in Promoting STEM Careers." In particular, Mr. Jacobson commented on the Ford Models' role in conceptualizing the event as well as his role in securing talent for the Space Jam and Microsoft event.
Click here to check out the entire article.
On June 16, 2021, The EdUp Esports podcast hosted by Jerry Sanchez aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators. He sheds light on his recently released esports business law book as well as the development and expansions of collegiate, high school and youth esports.
Check the full interview here or below.
https://open.spotify.com/episode/2VzY9XVyqT2mL6xb8lNCyE?si=ppNUUAlbSaGjO5Bk8BaK2Q&dl_branch=1
On June 14, 2021, The #EsportsBizShow aired on Preediction on Esports Venues with Co-Founder of BrookLAN, Alec Polsley. In this episode, Alec discussed how he first started in the esports and gaming space and he started throwing local esports events. He then explored how he transitioned into opening New York and Brooklyn's newest gaming arena, BrookLAN.
Check the full interview here and below.
https://open.spotify.com/episode/0MMEFvoPhNZfBA8itqJP4B?si=HQ5_lOhBTHS4ODw4H00IxA&dl_branch=1
On June 10, 2021, ZenSportsBall and Chain podcast hosted by Mark Thomas aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators. He sheds light on his experiences managing esports talent as well as working with different esports organizations as a lawyer, his new book and the future of esports leagues and competitions.
Check the full interview here or below.
https://open.spotify.com/episode/5aJl5why1Ntzw32RYwRMj2?si=oDuq_X7yS_O0vkUzvPKESA&dl_branch=1
On June 7, 2021, The #EsportsBizShow aired on Preediction on Esports Organizations with CEO and Co-Founder, Mark Josey of Kansas City Pioneers. In this episode, Mark discussed how he first started in the esports and gaming space and he originally formed the Kansas City Pioneers. He then explored how the team grew and expanded into multiple titles and even signing professional athletes.
Check the full interview here and below.
https://open.spotify.com/episode/1MLBKHtpP5C0qhQi2op1BZ?si=Vcc9UQ72RRKXARGzQeGVSA
On June 2, 2021, Esports Careers Podcast hosted by Robin Silk aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators. He sheds light on his experiences managing esports talent as well as working with different esports organizations as a lawyer, his new book and thoughts on the formalization of esports education, the intersection of traditional entertainment and gaming and esports, and advice for anyone looking to break into esports as a talent manager or lawyer.
Check the full interview here or below.
https://open.spotify.com/episode/3wmXPPJApV0KMI41SaeRiP?si=vqgz8syrR3acN51ifrDE7w
On June 1, 2021, The #EsportsBizShow aired on Preediction on Esports Marketing with Tatiana Tacca. In this episode, Tatiana discussed how she first started in the esports and gaming space on the marketing and partnership side. She then expanded into how she works with brands to work in the gaming space and how to add value to working in the gaming and esports community.
Check the full interview here and below.
https://open.spotify.com/episode/1Hu6uG4mJhJ6xodvDcSoG4?si=PftuiCl4ThC7_vUNHFfteA
05-28-21 – Jacobson Acts As Panelist For “Esports and the Blockchain: Buzzwords or Innovation?” Panel As Part of the 2021 Inven Global Esports Conference (IGEC)
(New York, NY) – Justin M. Jacobson recently provided insight on “Esports and the Blockchain: Buzzwords or Innovation?” panel as part of the 2021 Inven Global Esports Conference (IGEC). Justin was joined by others including moderator, Freya Fox as well as Co-Founder of Digital Collectibles Inc., Mark Donovan and the COO of Gen.G Esports, Arnold Hur. This panel explored how competitive gaming and esports can make use of blockchain technology and non-fungible tokens (NFTs). The panel also discussed various successful esports block chain activations in addition to how some of the gaming world could incorporate and benefit from cryptocurrency as well as NFTs.
On May 24, 2021, The #EsportsBizShow aired on Preediction on Esports Education with Director of Esports at SPIRE Academy, Robert Skinnion. In this episode, Robert discussed how he first started in the esports and gaming space and how he transitioned to the coaching side of esports. He then explored how he began working as Director of Esports at SPIRE Academy.
Check the full interview here and below.
https://open.spotify.com/episode/45k6iYKmvxZNDDPpIbo4BP?si=NtJEwYGrRQamu6qTrEoqnQ
On May 24, 2021, Fraggin' & Laggin' Podcast hosted by Junkhead and Joaquim Blaze aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators. He continues by explaining his work on behalf of esports and gaming talent and some advice for
Check the full interview here or below.
https://open.spotify.com/episode/4BvuqiTmEaHN6MX5WKQh5f?si=g-aX60eFTOm7fv8CqfE_aA
On May 17, 2021, The #EsportsBizShow aired on Preediction on Esports and Gaming Creators and Streamers with former NFL All-Pro and current esports head coach at Lakeland University, Ahman Green. In this episode, Ahman discussed how he first started in the esports and gaming space after being a star NFL player. He then explored how he began working as the esports head coach for Lakeland University.
Check the full interview here and below.
https://open.spotify.com/episode/10COmlAxziONB1Bq0XOasH?si=kTLkBlxYRKKkd3Wd9-Im3w
On May 10, 2021, The #EsportsBizShow aired on Preediction on Esports Content Licensing with Co-Founder of ESPAT, Mario Prosperino. In this episode, Mario discussed how he first started in the sports licensing space at Getty Images. He then explored how he began working in the esports and gaming space, including the formation and growth of ESPAT.
Check the full interview here and below.
https://open.spotify.com/episode/3WbjdIYRahbDmWMSuFzzyi?si=f_SaxiGZRMCCbp6eVJoq6w
On May 3, 2021, The #EsportsBizShow aired on Preediction on Esports Academics with Dr. Seth Jenny, an Assistant Professor Esports at Slippery Rock University and Founding Member of the Esports Research Network. In this episode, Dr. Jenny discussed how he first started the esports program at Slippery Rock University. He explored creating esports academic curriculum at the university level as well as talked about his involvement in the esports academics and research field.
Check the full interview here and below.
https://open.spotify.com/episode/40Tfm15dauPHVk4i0y8Ru4?si=G7Um-ByJR8uhgkcS_BpgTg
04-27-21 – JEFFREY E. JACOBSON, JUSTIN M. JACOBSON, AND PABLO G. VELEZ ALL SPOKE AT WEBINAR ON VISA AND IMMIGRATION ISSUES FOR MUSICIANS AND MUSIC MAKERS HOSTED BY THE GRAMMY’S MUSICARES
(New York, NY) – Jeffrey E. Jacobson , Justin M. Jacobson, and Pablo G. Velez recently all spoke at a webinar on “Visas and Immigration for Musicians & Music Makers” hosted by the National Academy of Recording Arts and Sciences’ (NARAS) Musicares’ educational program. This webinar explored various visa and immigration law concepts related to the music industry. This discussion included information about visas and immigration support during COVID-19 as well as national and international policy and renewal changes under the new administration.
On April 27, 2021, The HipHopGamerShow onHot 97 hosted by The HipHopGamer aired an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports and gaming industry experience, including his work on behalf of professional gamers, streamers and content creators and some pitfalls that gamers need to avoid when entering into a contract. He continues by discussing his previous esports player and talent representation work, including what makes him unique in his role as the Manager of Ford Models' Esports and Gaming Talent. The piece finishes by exploring the details and contents of his recently released book, "The Essential Guide to the Business & Law of Esports & Professional Video Gaming."
Check the full interview here or below.
https://youtu.be/SmL9GsrLxQg
On April 26, 2021, The #EsportsBizShow aired on Preediction on Esports Business with Co-Founder of 1v1 Me App, Anthony Geranio. In this episode, Anthony discussed how he first started working in the gaming space and about the eventual formation of the 1v1 Me App. He explored what 1v1 Me App is, how a user gets invited to use the App and then went into detail about the recent investment that they received from notable streamers and companies.
Check the full interview here and below.
https://open.spotify.com/episode/1QTpVw8c9G3MoGtD7A0Vqz?si=_kceX1K1Qv2Z_clntaPMrw
On April 25, 2021, the esports show, The #OG2Cents Podcast hosted by OG KING CURT released an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports industry experience, including his work on behalf of professional gamers, streamers and content creators and his journey from college to being an attorney. He continues by discussing his previous esports player and talent representation legal work, including his work as the Manager of Ford Models' Esports and Gaming Talent. The piece finishes by exploring the details and contents of his recently released book, "The Essential Guide to the Business & Law of Esports & Professional Video Gaming."
Check the full interview here or below.
https://youtu.be/AqK3ZcjMkww
https://open.spotify.com/episode/1xyrCsRQQlTUyTRXd2iSCZ?si=30ZvQWl5Q1GOrbMqbsktrg
04-23-21 – JUSTIN M. JACOBSON JOINS THE ESPORTS RESEARCH NETWORK
(New York, NY) – Justin M. Jacobson was approved to join the Esports Research Network. As an Adjunct Professor at University of North Carolina Wilmington, Justin will be providing his unique insight on the professional gaming world with dozens of other industry professionals and academics from across the world. The Esports Research Network is a collaboration of various professionals fostering interdisciplinary research on the emerging phenomenon of esports. The goals of the Esports Research Network are to gain rigorous insights into esports, foster the sustainable growth of esports, shape the role of esports in the society and translate this knowledge to obtain cognition for the digitized world society is growing into. For additional information, visit https://esportsresearch.net.
The recently released, "The Essential Guide to the Business & Law of Esports & Professional Video Gaming" by Justin M. Jacobson, Esq. received coverage on Yellowbrick Learning. The text provides the reader with an in-depth look at the business and legal matters associated with the esports world. This includes coverage of the stakeholders in the esports business ecosystem, including the gaming talent, the esports teams and organizations, the game publishers, and the esports event organizers. The book explores various legal fields involved with esports, including intellectual property, player unions, business investments and vehicles, celebrity investments, immigration and visas for professional gamers and coaches, event operation tips, and social media and on-stream promotions, and much more.
The book is available for purchase here and the feature is here.
On April 15, 2021, esports show, The Wide World of Esports part of the ThinkTech Hawaii hosted by Katharine Nohr released an interview with Justin M. Jacobson, Esq., Vice-President at The Jacobson Firm, P.C. The interview focused on Justin's previous esports industry experience, including his work on behalf of professional gamers, streamers and content creators. He continues by discussing his previous esports player and talent representation legal work, including explaining some important contract provisions a professional gamer or streamer might be aware of. The piece finishes by exploring the details and contents of his recently released book, "The Essential Guide to the Business & Law of Esports & Professional Video Gaming."
Check the full interview here or below.
https://youtu.be/zm-cJ_fak10
On April 12, 2021, The #EsportsBizShow aired on Preediction on Esports Shoutcasters and Hosts with Rob "Reforge" Gonzales. In this episode, Rob discussed how he first started working in the esports casting and hosting space. He explored his previous event casting and hosting work including in a variety of different games.
Check the full interview here and below.
https://open.spotify.com/episode/0cbJi2XcZHhFUMaMlVN9jf?si=G-RUUl0kTxCVKlwFTlEWMQ
04-12-21 – Jacobson Acts As A Panelist For “The Future of Esports and Gaming Law” Panel As Part SULC Esports Summit 2021
(New York, NY) – Justin M. Jacobson recently provided insight on “The Future of Esports and Gaming Law” panel as part of the Southern University Law Center’s (SULC) Esports Summit 2021. In fact, Justin was joined by others including the esports professor at Johnson S. Smith University, Dr. Bernadette Lawson-Williams and esports legal researcher, Nepomuk Nothelfer. This panel explored the various legal issues related to the current esports scene, including as it applies to gaming content creators, streamers, and professional gamers. The panel discussed the future of esports and gaming law, including the use of NFTs in esports and gaming space and how esports player contracts may change over the years.
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On August 9, 2021, The #EsportsBizShow aired on 
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