Kirkland Takes Tech to Triumph at Copyright, Trademark Law Edge

When Take-Two Interactive Software Inc. faced potential copyright trouble over tattoos depicted in its NBA 2K and WWE 2K video games, the company called Kirkland & Ellis LLP.

Guided by the firm, Take-Two in March beat one NBA 2K lawsuit that was brought in Manhattan federal court by a company claiming to own copyrights to tattoo designs inked on Lebron James and other NBA players. It was a decisive win on a thorny issue for video game developers and software companies.

The top companies in tech frequently have turned to Kirkland & Ellis for help handling some of their most challenging copyright and trademark issues over the past decade, in what are often cutting-edge cases.

“We fundamentally live at the edge of the law,” said Dale Cendali, a partner in Kirkland’s New York office and leader of the firm’s copyright, trademark, internet, and advertising practice group. Along with Take-Two, the firm has represented the likes of Apple Inc. and IBM Corp.

Microsoft Corp. has been the most active copyright and trademark litigant of these companies since 2010, according to a Bloomberg Law analysis. Most of the cases were ones Microsoft brought against people or websites allegedly selling counterfeit Microsoft Office software. Many were settled or otherwise resolved within a matter of months.

Handling cases for Microsoft helped put Perkins Coie LLP and Davis Wright Tremaine LLP at the top of the Bloomberg Law ranking for tech copyright and trademark work. Adobe Inc. has filed many similar anti-counterfeiting cases. Johnson & Pham LLP has secured the bulk of Adobe’s work and came out third in the ranking.

Those companies aside, tech firms have about 35 to 45 other cases in district court per year, and the law firm most often turned to is Kirkland, Bloomberg Law survey of the cases show.

Dance Moves, Emojis

Tech companies most frequently turned to WilmerHale and Gibson, Dunn & Crutcher in federal litigation across practice areas this year, according to a Bloomberg Law analysis. Many of those court battles involved intellectual property, but the companies also litigated a number of employment and antitrust disputes.

Intellectual property lawsuits account for a large share of the litigation that tech companies face in district court. And it can be pricey.

Spending on IP litigation among the world’s biggest companies was over $3.3 billion in 2019, up from $1.7 billion 14 years earlier, a Morrison & Foerster LLP study found. This can include some high-stakes copyright and trademark fights.

Apple Inc. has been the most sued, targeted with nearly 100 copyright and trademark lawsuits. Kirkland has been the law firm that the iPhone maker has most often sought out in these cases, which have included copyright claims involving Apple Music and trademark fights over emoji features.

Kirkland also has been a favorite of Take-Two, representing the company in a lawsuit over celebratory dance moves that players use in the NBA 2K game and in a case against a man allegedly selling an unauthorized PC version of the “Red Dead Redemption” game.

A case from the owner of a Cleveland tattoo shop over the company’s NBA 2K game is pending in Ohio district court. Kirkland & Ellis and Take-Two are scheduled to go to trial next year in Illinois in another case over depictions of tattoos on WWE wrestler Randy Orton.

Other notable cases include IBM’s trade secret and copyright suit against a startup created by former IBM employees, and Cadence Design Systems Inc.’s case alleging color TV maker Skyworth “cracked” copies of Cadence’s valuable electronic design automation software.

One thing that may differentiate the copyright and trademark team at Kirkland is they often handle cases from the district court through appeal stage. Cendali said the team will have multiple circuit court arguments in addition to various district court cases in a given year.

“I think that gives us an advantage because we’re able to see the issues from lots of different legal perspectives and see how one feeds to another,” said Cendali, who teaches copyright and trademark litigation at Harvard Law School and who argued a copyright case at the Supreme Court this year.

Other Firms

Oracle Corp. also has been an active litigant. The California company, which is taking on Google in a closely watched software fight, has been locked in copyright disputes with companies like Rimini Street Inc. and Hewlett Packard Enterprise Co. Morgan Lewis & Bockius LLP has handled more of Oracle’s district court cases than any other firm, according to Bloomberg Law data.

Activision Blizzard Inc. has faced numerous cases over its popular “Call of Duty” video game, including from Humvee maker AM General LLC. Activision was the fifth most active copyright and trademark litigant, always on the defense side, according to the data.

The company has frequently turned to Mitchell Silberberg & Knupp LLP, a firm with deep roots in the entertainment industry.

Karin Pagnanelli, co-chair of the firm’s entertainment & IP litigation practice group, said the firm has a group of about 30 lawyers focusing on the video game industry. Their work in this space started early, and Pagnanelli said they “grew up with the video game industry.”

Their work has included a number of cases that handled novel legal issues, including a First Amendment and trademark case against the maker of the Grand Theft Auto video game that led to a landmark 2008 ruling from the U.S. Court of Appeals for the Ninth Circuit in E.S.S. Entertainment v. Rock Star.

When there is a case of first impression, “you know that the case is going to have not just an effect on the parties but on the industry as a whole,” said Pagnanelli, adding that “we want to make sure that we’re creating and expanding the law to benefit the video game industry.”

Another often turned to law firm is Fenwick & West LLP, which is focused on tech and life sciences companies. Fenwick has worked on copyright and trademark litigation involving a range of tech companies, including Electronic Arts Inc., Fiserv Inc., Accenture Plc, HP, and Intel Corp.

Bloomberg Law analyzed lawsuits filed between Jan. 1, 2010, and Nov. 10, 2020, in federal courts in which technology companies were named as either the plaintiff or defendant. For the purpose of this analysis, Bloomberg Law defines a technology company based on its Bloomberg Industry Code sector classification and whether it is included in the S&P 500 as of November. The practice area and the law firms involved were identified using information from the docket. If the docket doesn’t list a case type or a law firm, that case was not included. One exception included cases in the U.S. Court of Appeals for the Federal Circuit where the case type is listed as “Unknown.” The vast majority of these cases were determined to be intellectual property cases and labeled accordingly.

—With assistance from Andrew Wallender and Aaron Kessler.