As intellectual property continues its important role in the American economy, the Court continues to decide a steady stream of IP cases. Andy Warhol Foundation v. Goldsmith grappled with the scope of “fair use” of copyrighted works and held that Andy Warhol’s use of the plaintiff’s photograph of Prince was not a fair use. It remains to be seen how much remains of fair use beyond truly transformative noncommercial uses. In Warner Chappell Music v. Neely, the Court permitted copyright plaintiffs to recover damages incurred before the limitations period. Jack Daniels Properties v. VIP Products held that a parody is not immune from claims for trademark infringement or dilution. That case involved a dog toy designed to look like a Jack Daniels bottle, complete with humorous text. But the parodic humor did not insulate the product from claims under the Lanham Act. And Vidal v. Elster held that the Patent and Trademark Office did not violate the First Amendment by rejecting registration of “Trump Too Small” as a trademark; the Lanham Act’s caution not to register the name of a living person as a trademark was not unconstitutional. The plaintiff still had the right to use “Trump Too Small” as a slogan, but he couldn’t register it.
Securities law issues also were addressed. Slack Technologies v. Pirani held that, in a direct listing, only holders of securities sold under a registration statement could assert claims under § 11 of the Securities Act of 1933. In a separate case, Macquarie Infrastructure v. MOAB Partners, the Court held that securities fraud claims under § 10(b) of the Securities Exchange Act of 1934 and associated Rule 10b-5 cannot be premised on pure omissions Instead, some statement had to be misleading for a plaintiff to be able to sue.
Employment issues also featured on the Court’s docket. Groff v. DeJoy clarified that an employer can defeat a religious discrimination claim under Title VII by showing that a “reasonable accommodation” would impose a substantial cost; a mere de minimis cost is not enough. On the other hand, a Title VII plaintiff challenging a transfer need show only some harm even if not “significant,” under Muldrow v. City of St. Louis. And a plaintiff who seeks whistleblower protection under the Sarbanes-Oxley Act need prove only that his or her protected activity was a contributing factor to the adverse job action, with no need to prove retaliatory intent, per Murray v. UBS Securities.
Another perennial business topic for the Court is arbitration. Smith v. Spizziri held that when a court holds a dispute is arbitrable, the case is not dismissed but stayed. Coinbase v. Bielski held that when a court holds a dispute is not arbitrable, the case does not proceed to discovery while an appeal is pending. Instead the case in the lower court is stayed pending decision of the appeal. Coinbase v. Suski is an object lesson for drafters of contracts. When there is more than one arguably governing dispute resolution provision—one calling for arbitration and another for litigation—it is for a court rather than an arbitrator to decide which one governs, because the issue is whether there was an agreement to arbitrate at all.
The Commerce Clause came into play in interesting ways. National Pork Producers v. Ross held that California did not violate the dormant Commerce Clause by requiring that any pork sold in California was required to have been raised in specified humane conditions, even though almost all pork is raised outside California. Mallory v. Norfolk Southern upheld against a due process challenge a Pennsylvania statute under which a corporation that registers to do business in the state must consent to personal jurisdiction in the state for all purposes (but whether this passes Commerce Clause muster was left for another day).
Property rights also made an appearance. In Sheetz v. El Dorado County, the Court held that the Takings Clause can be violated by legislatively imposed fees and conditions that are not linked to the impact or conditions of a particular project. As a result, the owner of a newly built prefabricated home could challenge, as a Fifth Amendment taking, California’s imposition of various statutory charges in connection with the construction of his home.
Numerous other cases, including especially those concerning administrative law and Title VI, are likely to have substantial impact on business as well. The long-term impact of the Court’s recent decisions will become apparent in the marketplace and in follow-up litigation in the Court in coming years.
