Summer 2026 Columbus Bar Lawyers Quarterly

Lawyers COLUMBUS BAR

Quarterly Summer 2026

INTELLECTUAL PROPERTY LAW In this edition, read all about topics related to Intellectual Property Law: copyright, trademarks, patents, trade secrets, and NIL. Plus, find articles about the 250th Anniversary of the Declaration of Independence, Columbus’s pay transparency requirements, and professional wellness.

A publication of the Columbus Bar Association | www.cbalaw.org

TABLE OF CONTENTS

SUMMER

2026

CBA Leadership

Columbus Bar Association Editorial Board

Chair Caitlyn Johnson

Board Members Joshua Cartee Lisa Critser Claire Halffield Matthew Jalandoni Janyce Katz Garth Robotham

Editor & Designer Lexi Foster

Advertising

4

One Simple Investment. One Unified Community.

Melani Tobias-Hunter

You Belong at the CBA

10 Membership, Sustainers, Groups & Networks

Points of Practice Declaration of 17 The Independence: Aspirational or Jurisprudential?

David C. Tryon

Judges Legislate 23 Do from the Bench?

Judge Kristin Boggs

Countdown to 29 The Columbus Pay

Transparency: What Employers Should Be Doing Now Christopher R. Green & Marissa R. Borschke

Promoting Mental Well-Being as a Strength, Not a Stigma Scott R. Mote

Summer ‘26: Intellectual Property Law for Early 57 Guidelines Stages of Intellectual Frank H. Foster & Jason H. Foster

Ownership 63 Protecting of Creative Works,

Inventions, and Branding in the Generative AI Era Todd A. Fichtenberg

and Trinidad: 69 Heppner Old Rules for New Technology Rex W. Miller II & Graham D. Christian

Give It All Away: 75 Don’t Sweeping Copyright Clauses Miranda L. Rife

Brands Stop 81 Can Resale? Lessons from

Better Lawyer Corner: 35 Wellness Lessons from a Baby Brady R. Wilson

Book to Read 40 Another If You Have Time to Read Janyce Katz

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

Ways Lawyers 51 Five Can Lead by Example:

Property Creation

publications@cbalaw.org

Columbus Bar Association 230 West St., Suite 100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

Life Outside the Law (cont.)

Life Outside the Law

Chanel v. The RealReal and the First Sale Doctrine Rachel Smoot

A Litigation 87 Schedule in Intellectual Property Cases: Origins, Controversies, and an Uncertain Future Rachael L. Rodman

Identity Becomes 95 When Currency: Why Athlete

with Artistic 45 Lawyers License:

Intellectual Property Is the Most Undervalued Asset in Sports

Joshua Cartee

Luke A. Fedlam & Marissa R. Borschke

Peter Georgiton

Write for CBA Publications!

Interested in writing?

CLE credit eligible. Have a theme idea? Email publications@cbalaw.org for more information.

The Fall 2026 Issue will feature articles about Law & Finance.

The Winter 2027 Issue will feature articles about The Life of a Lawyer.

CBA Leadership

ONE SIMPLE INVESTMENT. ONE UNIFIED COMMUNITY.

By Melanie Tobias-Hunter

Remember the days when we

collaboration,

sent faxes? Many of us do, but

support. They need a professional

a growing number of attorneys

home that helps them navigate

will never know the frustration

both

of waiting for a fax confirmation

opportunities

sheet, especially under deadline.

changing profession.

From

For more than 150 years, the

the

way

we

conduct

the

mentorship,

challenges of

and rapidly

research and communicate with

Columbus

clients to how we manage our

been that home for lawyers across

practices

Central Ohio.

and

deliver

legal

Bar

a

and

Association

has

services, change is a constant.

Today, that pace of change is accelerating. The legal profession is

ever

evolving

technologies practice

with

new

transforming

the

law.

Client

of

expectations

continue

to

Attorneys

are

balancing

increasing

demands

on

rise. their

time while seeking new ways to remain

connected,

informed,

and competitive.

Yet

amid

all

this

change,

one

truth remains unchanged:

lawyers need community.

They

need

trusted

resources.

As I begin my term as President, I

They need opportunities to learn

am

and

organization that has played such

grow.

They

relationships that foster

need

honored

to

help

lead

an

an important role in the lives and 5 | Columbus Bar Lawyers Quarterly | Summer 2026

careers of so many attorneys,

The

including my own. Like countless

become

members, I have benefited from

Membership should not be.

the

education,

opportunities,

and

sense

belonging

the

Columbus

Bar

of

law

increasingly

has

complex.

relationships,

leadership of

practice

that

provides.

I

am

grateful for the opportunity to help shape its future.

And that future is guided by a simple vision:

That is why we are redefining what membership means.

Too often, attorneys are asked to navigate separate fees, separate subscriptions,

and

separate

programs to access the tools they need to succeed. At a time when lawyers are being asked to do

One Simple Investment.

One Unified Community.

more with less time, the Columbus Bar

is

committed

to

making

professional growth easier, more accessible, and more valuable.

Rather than offering a collection of disconnected creating

a

benefits, unified

we

are

membership

experience that brings together education, networking, leadership development, business resources, practice-area

engagement,

professional

visibility

and under

a single investment.

One membership. One community. One place to connect, learn, and grow.

6 | Columbus Bar Lawyers Quarterly | Summer 2026

The result is simple: members

providing members with access

can

to

focus

less

on

tracking

the

education

they

need

credits

and

registrations

and

without worrying about paying

more

on

developing

the

for individual courses throughout

and

that

the year.

knowledge

skills

strengthen their practices.

But education is only part of the Perhaps the best example of this approach is our all-inclusive CLE model.

For

many

managing

CLE

obligations

become

attorneys,

expensive,

can time-

consuming, and fragmented. Our all-inclusive

CLE

membership

removes those barriers by

equation. The true value of the Columbus Bar comes from the connections that surround that learning

experience.

A

CLE

program can introduce a new idea. A conversation afterward can lead to a referral, a mentor, a

business

opportunity,

or

a

lasting professional relationship.

7 | Columbus Bar Lawyers Quarterly | Summer 2026

That is the power of a unified

Technology can make us more

community. It is found in our

efficient. It can help us work faster

practice groups and networks.

and

It

technology alone cannot replace

is

and

found

at

networking

our

SideBars

events.

It

is

the

serve value

clients of

better.

belonging

But to

a

found in volunteer opportunities,

community of professionals who

leadership

development

understand the unique demands

conversations

of our work.

initiatives,

and

between

colleagues

who

are

willing to share their experiences

The strongest legal communities

and support one another. As our

are built on relationships.

They

profession becomes increasingly

are

and

digital, these connections become

shared experiences. And they are

even more important.

built on a commitment to helping

built

on

mentorship

one another succeed.

8 | Columbus Bar Lawyers Quarterly | Summer 2026

organization they belong to, but as a community they actively engage in — a place where they can develop professionally, build lasting relationships, discover new opportunities, and contribute to something larger than themselves.

Because ultimately, the future of the Columbus Bar Association will not be defined by any single program or service.

It will be defined by the strength of our community. One Simple That commitment will continue to guide the Columbus Bar as we explore

new

ways

to

deliver

value to our members. Whether through

innovative

educational

opportunities,

expanded

networking experiences, or new resources designed to support modern

legal

practice,

our

focus

remains

the

same:

creating

a

membership

experience

that

is

Investment.

One

Unified

Community.

Together,

we

will

continue building a Columbus Bar Association that meets the needs of

today's

lawyers

strengthening

the

that

sustained

have

while

connections our

profession for generations.

I am excited for what lies ahead and look forward to building that future together.

simple,

meaningful, and connected.

My hope for the coming year is that

every

member

sees

the

Melanie Tobias-Hunter Columbus City Attorney Zach Klein’s Office-Criminal Division Chief mrtobias@columbus.gov

Columbus Bar not simply as an 9 | Columbus Bar Lawyers Quarterly | Summer 2026

You Belong at the CBA

WELCOME to the COLUMBUS BAR! Alston Quillin Brodi Knodell Caitlyn Looby Catherine Robertson Deborah Light Ella Todd Emily Hemlinger Erich Guenther Gina Fulton Heather Lang Kellen Whalum Kelli Murphy Laurel Barr Lesley Vanessa Villarreal Macayla Moore Marc Falkoff

Maria McKeon Mary Asomaning Meghana Vallabhaneni Michael Fallings Nicholas Butler Patrick Cummins Russell Gertmenian Ryan Gordon Sean Rhodes Shanna Harrell Skylar McMillan-Gray Sloane Collins Thomas Wood Victoria Falcon-Flansburgh Wendy Celestin

COLUMBUS BAR ASSOCIATION SUSTAINING MEMBERS

THANK YOU Your support makes a difference.

Kelli Jo Amador Jane Stempel Arata George J. Arnold Joanne S. Beasy David S. Bloomfield, Jr. Thomas J. Bonasera Sandra E. Booth James H. Bownas William J. Browning William L. Byers IV Sandra Carrillo W. Jeffrey Cecil Mark C. Collins Ronald E. Davis Shane M. Dawson Richard S. Donahey Robert D. Erney Henry L. Fein John C. Fergus Stephen C. Fitch Ronald A. Fresco Scott N. Friedman Peter John Georgiton Jack G. Gibbs Paul Giorgianni David A. Goldstein Shanna Rae Harrell

Dimitrios G. Hatzifotinos Barron K. Henley Douglas E. Hoover Cynthia Ellis Hvizdos Richard B. Igo Frederick M. Isaac Vicki L. Jenkins John S. Jones Michael S. Jordan Russell A. Kelm Robert W. Kerpsack Russell W. Kessler Allen S. Kinzer Kenneth R. Kline Richard L. Levine Scott T. Lindsey Thomas K. Lindsey Ann Whitlow Lippman David K. Lowe Michael D. Martz Walter W. Messenger David P. Meyer Richard F. Meyer Jay E. Michael Scott R. Mote Stephen A. Moyer John C. Nemeth

Colleen K. Nissl Kimberly D. Nocera David C. Patterson William G. Porter Frank A. Ray Maryellen Reash Susan D. Rector Ronald L. Rowland Philip P. Ryser James A. Saad Charles A. Schneider Keith W. Schneider Carl D. Smallwood Robin L. Strohm Ira B. Sully Thomas M. Taggart Aracely Tagliaventi Mickellea Tennis J. Troy Terakedis David H. Thomas H. Lee Thompson Melanie R. Tobias-Hunter William John Wahoff Charles C. Warner Scott N. Whitlock Bradley B. Wrightsel Benjamin L. Zox

Points of Practice

THE DECLARATION OF INDEPENDENCE: ASPIRATIONAL OR JURISPRUDENTIAL?

By David C. Tryon 17 | Columbus Bar Lawyers Quarterly | Summer 2026

“Where there is no vision, the

promise

people perish...”

institutions to that “promissory

— Proverbs 29:18 (King James)

note to which every American

by

holding

our

was to fall heir.”[4] As President Calvin Coolidge recognized The

Declaration

Independence:

A

Vision

of

our

of

anniversary, “[g]overnments do not

Freedom and Equality

Declaration’s

on

make

ideals,

150th but

ideals

make governments.”[5] Margaret Thatcher once correctly said of the United States, “No

A Vision That Informs American

other nation has been built upon

Jurisprudence

an idea — the idea of liberty.”[1] reflect

Despite “read[ing] like a legal

their own history, language, and

document,”[6] the Declaration of

geography,

Independence is not law.[7] As

Most

nations

primarily

but

America

was

founded on a mission statement

Chief

announced

explained, “[t]he Declaration of

famously

by

“the

Justice

Roberts was

greatest sentence ever crafted

Independence

by human hand”[2]: “that all men

remains today, a statement of

are created equal, that they are

national

endowed by their Creator with

codification of enforceable legal

certain unalienable Rights, that

obligations.”[8] Recognizing that a

among these are Life, Liberty,

new

and the pursuit of Happiness.”[3]

necessary

to

Declaration’s

aspirations,

national

then,

has and

not

a

charter

was

sustain

the

principles,[9]

the

That new vision of liberty makes

Framers drafted the Constitution

the United States of America

as the binding fulfillment of the

unique among the nations and

Declaration’s promise.[10] Thus,

has

the Declaration has long been

inspired

generations

of

Americans and people around the

valuable

world to live up to its great

jurisprudence because, although

18 | Columbus Bar Lawyers Quarterly | Summer 2026

for

informing

our

its “principles may not have the

the

force of organic law ... it is always

remains useful to our modern

safe to read the letter of the

judicial understanding.

Constitution in the spirit of the

Declaration’s

explanation

Declaration of Independence.”[11]

Many states, for their part, have

Courts

the Declaration into their own

have

looked

Declaration

as

sources

the

of

“one

to of

the many

Constitution’s

original meaning”[12] and have used

it

to

illuminate

“the

understandings of the American people

from

the

pertinent

ratification era,” which provide “strong

evidence”

of

the

Constitution’s meaning.[13] The Declaration,

for

informed

the

example,

has

judiciary’s

constitutional interpretation of the Bill of Rights by listing “America’s many [pre-ratification] objections to British laws and the system of oppressive British rule over the Colonies.”[14] The American revolution erupted in no small part due to Britain’s “long train of of

abuses” repeated

and

its

“history

injuries

and

usurpations.”[15] And because the Constitution’s

subsequent

legal

protections were meant to guard

adopted

key

language

from

state constitutions.[16] The Ohio Constitution,

for

instance,

declares: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending

life

and

liberty,

acquiring,

possessing,

and

protecting property, and seeking and

obtaining

safety.”[17]

happiness

Regrettably,

and Ohio

courts have failed to give this constitutional provision more than aspirational weight, calling it “a statement of fundamental ideals” rather than accepting it as “an independent

source

of

self-

protecting protections.”[18] That view may yet succumb to legal challenge, and the Declaration itself reminds us of our right and duty to use legal tools to resist overbearing and unjust laws in our courts and voting booths.[19]

against those abusive injuries, 19 | Columbus Bar Lawyers Quarterly | Summer 2026

A Cause for Gratitude and Hope

Though we may be “heirs” to “the magnificent

As

we

celebrate

the

words

of

the

nation’s

Constitution and the Declaration

250th birthday, we do well to

of Independence,”[23] we must

remember

always

that

America’s

remember

that

“[t]he

founding was no mere accident.

real

“It has a philosophical cause,”[20]

Government depends upon the

and so despite our many trials

heart of the people. It is from that

and tribulations, “[a]mid all the

source that we must look for all

clash

of

interests,

genuine reform. It is to that cause

[and]

amid

welter

of

that we must ascribe all our

partisan politics, every American

results.”[24] So as we hope for an

can

and

even greater fulfillment of the

Declaration

Declaration’s unique and laudable

and

the

vision, Thomas Jefferson’s own

Constitution ... with the assurance

reflections still ring true: “I like the

and confidence that those two

dreams of the future better than

great charters of freedom and

the history of the past.”[25]

conflicting

turn

consolation of

all

the

for to

solace the

Independence

justice

remain

unshaken.”[21]

firm And

that

heart

of

the

American

and is

because, as President Coolidge reminded us 100 years ago, there is a reassuring finality to the Declaration’s truths: “If all men are created equal, that is final. If they are

endowed

with

inalienable

rights, that is final. If governments derive their just powers from the consent of the governed, that is final.”[22]

20 | Columbus Bar Lawyers Quarterly | Summer 2026

David C. Tryon The Buckeye Institute info@buckeyeinstitute.org

1. Margaret Thatcher, Speech at Hoover Institution Lunch (Mar. 8, 1991).

2. John G. Roberts, Jr., 2025 Year End Report on the Federal Judiciary 3 (Dec. 31, 2025), quoting Walter Isaacson, The Greatest Sentence Ever Written 2 (2025).

3. Declaration of Independence ¶ 2.

4. Martin Luther King, Jr., I Have a Dream, Address on the Steps of the Lincoln Memorial (Aug. 28, 1963).

5. Calvin Coolidge, Address at the Celebration of the 150th Anniversary of the Declaration of Independence in Philadelphia, Pennsylvania (July 5, 1926).

6. Roberts, supra note 2, at 4.

7. See United States v. Rahimi, 602 U.S. 680, 721 (2024); Troxel v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) (“The Declaration of Independence . . . is not a legal prescription conferring powers upon the courts . . . .”); Mark Graber, The Declaration of Independence and Contemporary Constitutional Pedagogy, 89 S.Cal.L.Rev. 509, 515 (Mar. 2016).

8. Roberts, supra note 2, at 5.

9. Alexander Tsesis, The Declaration of Independence and Constitutional Interpretation, 89 S.Cal.L.Rev. 369, 372 (2016).

10. Charles Alan Wright, In Memoriam: Warren Burger: A Young Friend Remembers, 74 Tex.L.Rev. 213, 219 (1995) (quoting Chief Justice Warren Burger).

11. Gulf, Colo. & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 160 (1897).

12. Lee J. Strang, Originalism, the Declaration of Independence, and the Constitution: A Unique Role in Constitutional Interpretation?, 111 Penn St.L.Rev. 413, 414 (2006).

13. United States v. Rahimi, 602 U.S. 680, 719 (2024).

14. Id. at 721.

15. Declaration of Independence ¶ 2.

16. See, e.g., Fid. & Cas. Co. of New York v.

Union Savs. Bank Co., 29 Ohio App. 154, 156 (1928); Perez v. Sharp, 32 Cal.2d 711, 733–34 (1948), citing Inglis v. Trustees of the Sailor’s Snug Harbor, 28 U.S. 99 (1830).

17. Ohio Const., art. I, § 1.

18. State v. Williams, 88 Ohio St.3d 513, 523 (2000).

19. See Abraham Lincoln, The Perpetuation of Our Political Institutions Address Before the Young Men’s Lyceum of Springfield, Illinois (Jan. 27, 1838).

20. Abraham Lincoln, Fragment on the Constitution and Union (Jan. 1861).

21. Coolidge, supra note 5.

22. Id. 23. King, supra note 4.

24. Coolidge, supra note 5.

25. Thomas Jefferson, Letter to John Adams (Aug. 1, 1816).

21 | Columbus Bar Lawyers Quarterly | Summer 2026

Do Judges Legislate from the Bench?

By Judge Kristin Boggs

“We don’t want judges who will

My curiosity piqued, I pressed

legislate from the bench,” said my

her further. “What do you mean?”

doctor. It was 2012, and I was

I asked.

working as an Assistant Attorney General. I was surprised to see a

“We

don’t

want

campaign poster in her office

use

their

position

endorsing a slate of candidates

policy.

running for the Ohio Supreme

job,” she answered.

That’s

the

judges to

who make

legislature’s

Court. I assumed she personally knew one of them — I did not

I couldn’t disagree, but I still didn’t

expect her response when I asked

understand. “So, I’m working on

about the poster.

this case.” I explained, “A city 23 | Columbus Bar Lawyers Quarterly | Summer 2026

passed

a

local

ordinance

to

The Supreme Court would not test

prohibit residences from having

this power again for another 54

more than two ‘vicious’ dogs.

years,

Plaintiffs

claim

term

Sandford, which, in part, held that

‘vicious’

is

unconstitutional

Congress lacked the constitutional

because

it’s

that too

the

vague

and

until

Dred

Scott

v.

authority to abolish slavery in

ambiguous to enforce. Would a

federal

judge

the

Abraham Lincoln urged Americans

bench if they uphold the statute,

not to accept this decision while

or would they be legislating from

rallying for the adoption of the

the bench if they strike it down?”

13th and 14th amendments to the

be

legislating

from

territories.[2]

Constitution “I

don’t

know,”

my

—

President

proving

that

doctor

judicial decisions could yield to

answered honestly. “You’re the

the will of the people. But it wasn’t

only person to ever ask about the

until the 1930s when President

poster.” She was done with the

Franklin D. Roosevelt used his

conversation, but it left me still

Fireside Chats (The first podcast

wondering: When did this phrase

influencer!)

to

accuse

become so mainstream that it

Supreme

Court

of

reached my doctor?

inappropriately as a policy-making body

because

it

the acting

repeatedly

Questioning judicial overreach is

thwarted his New Deal legislation.

not

The

Since then, the notion of judges

Constitution does not explicitly

legislating from the bench has

give judges the power to strike

become increasingly common.

a

new

concept.

down laws passed by Congress for

being

unconstitutional.

In

2016,

I

left

the

Attorney

However, in 1803 Chief Justice

General’s Office and was elected

John

to

Marshall

Marbury

v.

reasoned

Madison

that

in the

the

Ohio

Representatives.

House In

2022,

of I

existence of such power can be

decided to run for the 10th District

inferred from the Constitution.[1]

Court of Appeals. I knew I would

24 | Columbus Bar Lawyers Quarterly | Summer 2026

face scrutiny about whether I

intentions. For starters, the Ohio

would be inclined to legislate

House

from the bench after serving as

combined

a

legislator.

Ohio

covert

has

many

first

motivations. The notion of 132

served in the legislative branch

people having a unified intent is

before

illusive.

However, judges

being

who

elected

to

the

and

Senate

have

a

132

members

with

agendas

and

unique

While

disagreeing

bench. I believe this experience

intensely, the most conservative

fosters a better understanding

and most progressive members

of

have voted the same way: one

the

difference

adjudicating

and

between

legislating.

It

because a bill goes too far and the

also provides unique insight into

other because it doesn’t go far

the legislative process that helps

enough.

shape how to interpret vague and

decipher intent when the vote

unclear statutes.

casted is the same but for very

So

how

does

one

different reasons?

Most judges accept the “plain meaning

rule.”

That

is,

if

a

Further, I know firsthand that

statute can be interpreted and

vagueness

applied

unintentional.

through

its

plain

is

not

always

Sometimes

unambiguous text, then it must be

statutory language is deliberately

applied as written.

vague because clarifying it would

However, if

the language is unclear, judges

cost

are urged to consider the intent

legislature

of

power to the executive branch to

the

legislature

and

strive

votes

the

or

wants policy

because

the

to

the

yield

to uphold the law in a way

shape

through

the

that fulfills the purpose for which

executive rulemaking process. I

the law was enacted.

also now understand that when a bill comes to the floor for a vote,

After being a legislator, however, I

only a few legislators have fully

recognize

read it. Legislators rely heavily on

the

difficulty

determining a legislative body’s

in

policy aides and the Legislative 25 | Columbus Bar Lawyers Quarterly | Summer 2026

Service

Commission

to

precisely

the

problem.

After

summarize and answer questions

traversing all three branches of

regarding each bill — meaning

state government, I have come

those staff interpretations carry

to believe that “legislating from

enormous

the

weight.

Republicans

bench”

is

often

an

and Democrats employ different

intentionally vague criticism used

policy staff who can easily have

to arouse hostility toward the

different interpretations of a bill

judiciary.

and

operation

advise

their

respective

caucuses accordingly.

Questioning of

the

government

—

including the judicial branch — is undeniably

a

powerful

and

reasons,

trying

to

essential tool in our democracy.

legislative

intent

is

Unfortunately, I expect that as our

Yet

the

courts increasingly become the

courts must still fulfill their duty

arenas in which deeply divisive

to interpret and apply — not

issues

rewrite — the laws enacted by

branch will continue to be the

the legislature. Even so, judges’

target of the same disapproving

longstanding

frustration

For

these

ascertain

exceedingly

difficult.

history

of

are decided, the judicial

people

interpreting legislative intent in

towards

the face of ambiguous statutory

legislative branches.

text

isn’t

framework

the

of

through judges

executive

and

appropriate which

people should rally against the notion

the

express

1. Marbury v. Madison, 5 U.S. 137 (1803).

2. Scott v. Sandford, 60 U.S. 39 (1857).

“legislating

from the bench.”

So, what does the phrase mean?

If my doctor’s answer is any indication, most people can’t say — and that ambiguity, as vexing as any legislative vagueness, is 26 | Columbus Bar Lawyers Quarterly | Summer 2026

Judge Kristin Boggs 10th District Court of Appeals

The Countdown to Columbus Pay Transparency: What Employers Should Be Doing Now

By Christopher R. Green and Marissa R. Borschke

Employers operating in Columbus, Ohio, have less than six months left to prepare for a significant change in hiring practices.

Effective January 1, 2027, the City of Columbus will begin enforcing its pay transparency requirements under Ordinance 2898-2025, which will require covered employers to include a "reasonable salary range or scale" in employment postings.

While some employers may view this as a simple change to job advertisements, the reality is that pay transparency laws often expose broader compensation, equity, and compliance issues that organizations should address before salary ranges become public.

Columbus Joins National Trend

a

Growing

Columbus is not alone. Over the past several years, states and municipalities across the country have adopted pay transparency laws requiring employers to disclose compensation information during the hiring process.

Jurisdictions such as Colorado, California, New York, Washington, and Illinois have enacted various forms of salary disclosure requirements, reflecting a broader policy movement aimed at promoting pay equity and reducing wage disparities.

As more states adopt these laws, employers with multi-state operations are increasingly finding that maintaining separate 29 | Columbus Bar Lawyers Quarterly | Summer 2026

recruiting practices for different jurisdictions is becoming administratively burdensome.

Many organizations have instead elected to implement nationwide pay transparency practices, using consistent salary disclosure standards across their workforce.

For employers with operations in Columbus, the new ordinance may present an opportunity to evaluate whether a localized compliance strategy or a broader company-wide approach makes the most sense.

What the Columbus Ordinance Requires The ordinance applies to employers with 15 or more employees and requires a reasonable salary range or scale to be included in employment postings for positions covered by the ordinance. The ordinance identifies several factors that may be considered when determining whether a salary range is reasonable, including: Budget flexibility 30 | Columbus Bar Lawyers Quarterly | Summer 2026

The anticipated experience level of applicants Variations responsibilities

in

job

Growth opportunities within the position Geographic considerations

cost-of-living

Market data for comparable positions Notably, the ordinance does not prescribe a specific percentage spread or formula for establishing salary ranges. Instead, employers must be prepared to demonstrate that their ranges are grounded in legitimate business considerations and are reasonably related to the position being advertised.

The ordinance also builds upon Columbus's existing restrictions regarding salary history inquiries.

Covered employers generally may not inquire about an applicant's salary history, screen applicants based on prior compensation, or rely solely on salary history when making compensation decisions.

Why 2026 Is the Time to Prepare Although enforcement does not begin until January 1, 2027, employers should consider using the remainder of 2026 to evaluate their compensation practices and recruiting procedures.

Develop a Defensible Method for Pay Ranges One of the most significant questions raised by the ordinance is what constitutes a "reasonable" salary range. Employers should ensure that compensation ranges are supported by objective business factors, such as market surveys, internal compensation structures, experience requirements, geographic differentials, and budgetary considerations. Employers that cannot explain how a range was developed may face increased scrutiny if a complaint arises.

Evaluate Internal Pay Equity and Compression Risks Public salary ranges often lead employees to compare their

compensation with posted ranges for similar positions. As a result, employers frequently discover pay compression issues, inconsistencies between departments, or legacy compensation decisions that become difficult to explain once ranges are publicly available.

Conducting an internal compensation review before implementation can help identify and address potential concerns before they become employee relations issues or litigation risks.

Review Recruiting Processes

and

Hiring

Employers should review job posting templates, recruiting platforms, applicant tracking systems, and hiring workflows to ensure salary ranges are consistently included where required.

Human resources personnel, recruiters, and hiring managers should also be trained regarding the ordinance's continued restrictions on salary history inquiries and appropriate compensation discussions during the hiring process.

31 | Columbus Bar Lawyers Quarterly | Summer 2026

Consider Multi-State Compliance Strategies For employers operating in multiple jurisdictions, Columbus's ordinance may be another reason to reassess recruiting practices on a broader scale. Many employers are finding that uniform compensation disclosure practices are easier to administer than maintaining different requirements for different locations. However, because transparency laws vary significantly across jurisdictions, employers should carefully evaluate whether a nationwide approach creates unintended compliance issues elsewhere.

Looking Ahead The trend toward pay transparency shows little sign of slowing. What began as a handful of state and local requirements has evolved into a nationwide movement that continues to reshape recruiting and compensation practices.

32 | Columbus Bar Lawyers Quarterly | Summer 2026

While including a salary range in a job posting may seem straightforward, the legal and practical implications often extend far beyond the posting itself.

Compensation structures, internal equity, recruiting practices, and employee relations considerations should all be evaluated as part of a comprehensive compliance strategy.

Employers should consider taking proactive steps now to position themselves for compliance and minimize potential risk in 2027.

Christopher R. Green Amundsen Davis LLC cgreen@amundsendavislaw.com

Marissa R. Borschke Amundsen Davis LLC mborschke@amundsendavislaw.com

Better Lawyer

Wellness Corner: Lessons from a Baby

By Brady R. Wilson

Da-Da

Watching my one-year-old son

da” means there is a dog nearby

has changed my perspective on

that he needs to get a better look

wellness. Wellness can be as

at. I’ve learned a lot about him

simple as doing the things that

through this communication. For

make us happy and avoiding the

example, he likes going outside,

things that don’t.

riding the bike, chasing dogs’ tails, and reading the book about cows

Babies tell you how they feel. For

a few times a night. Conversely,

my son, that communication is

he dislikes going inside, getting

straightforward:

crying

means

off the bike, seeing the dogs run

something

right,

smiling

away from him, and hearing that it

isn’t

means everything is right, and “da

is time for bed.

35 | Columbus Bar Lawyers Quarterly | Summer 2026

His reactions are transparent and

to get out of the office and into

immediate. His goal is simply to

courtrooms

tell me what is working and what

regularly

is not. As I have reflected during

lawyers bouncing around the state

his life, it is easy to notice how

or country to conduct a dozen

often adults — especially lawyers

depositions, discovering a new

— ignore our own signals and put

restaurant near the courthouse

off

the

things

happiness.

We

and

hear

client war

sites.

stories

I of

that

bring

us

where they spent weeks at, or

often

put

our

spending

days

with

a

client

needs behind work and accept

combing through physical filing

temporary discomfort. We drink

cabinets for discovery. I have

another cup of coffee to push

only practiced since COVID-19.

through

the

and

tell

However,

everything

will

changes brought about by the

slow down next week. It’s easy

pandemic, the majority of my work

to think that our needs can wait,

is online. Those same depositions

that we’ll rest or recharge later, or

are now on Zoom. The status

that skipping out on hobbies is no

conferences that drew attorneys

big deal.

to the courthouse are now over

ourselves

fatigue

that

the

because

phone.

of

Discovery

the

tools,

My solution after watching my

thankfully, have largely eliminated

son is simple: recognize what

onsite

makes me happy and prioritize

changes, many of the reasons for

that.

a young litigator to get out of the

Our

lives

are

more

complicated than my toddler’s.

Each of us has things that we don’t

care

for

but

must

do,

whether at work or otherwise. For me, I spend more time inside in front of my screen than I would like. I was drawn to litigation, in part, because of the opportunities 36 | Columbus Bar Lawyers Quarterly | Summer 2026

review.

With

office are less common.

these

Without some of these built-in

These

reasons to get away from the

overnight. It took a few years

screen, I have had to make a

for me to figure out the things

conscious effort to find ways to

that

step away from the screen and

productivity normally dips in the

get

is

late afternoon. A couple of years

walking around the corner to

ago, I would have just pushed

grab

through. Now, I know that taking a

outside. coffee

heading

out

Whether

it

with

a

friend,

early

during

steps

work.

didn’t

For

happen

example,

my

the

15-minute walk will give me the

Ohio winter to squeeze in a run

second wind I need to refocus

before sunset, or working from

and

finish

the porch on a Friday afternoon,

Of

course,

I have found ways to integrate

practice

time outside into my practice.

“emergencies” that would have kept

me

the

helps up

day

more

time

too. as

strong.

The a

in

same

first-year

attorney are now just another box to check on the proverbial to-do list.

37 | Columbus Bar Lawyers Quarterly | Summer 2026

My suggestion to other attorneys is simple: take stock of the things that bring you happiness and make the effort to do those things.

This

perspective

isn’t

perfect. It doesn’t come with clear lines or boundaries. Although I find myself thinking about a case when we’re at the park, checking off my mental to-do list while out on a run, and leaving my parents’ house early to get back online, it is appealing to me because of its obviousness: the more things I do that make me happy, the happier I will be.

Unlike a toddler, I don’t have tantrums

to

tell

me

when

something isn’t going right. But when I start to feel the scales tipping away from the things that I enjoy, it is time to reprioritize and incorporate the things that bring me happiness into my day. On a busy day, that might mean simply logging off for a bit to sit on the porch with my son and watch some big dogs pass by.

Brady R. Wilson Vorys, Sater, Seymour and Pease LLP bradyrw@umich.edu

38 | Columbus Bar Lawyers Quarterly | Summer 2026

ANOTHER BOOK TO READ IF YOU HAVE TIME TO READ

By Janyce Katz

40 | Columbus Bar Lawyers Quarterly | Summer 2026

Freddy the Politician or, as it was

about leaving their farm with no

named when it was first printed in

one to watch over and run it. To

1939, Wiggins for President, is the

prove to Mr. and Mrs. Bean that

sixth of the 26 books Walter

that they could take care of the

Brook wrote about Freddy the

farm’s finances as well as the

Pig. It is a political satire that

other farm responsibilities, the

critiques elections, banks, legal

animals decide to set up a bank.

manipulation, and dictators trying to

use

laws

to

ensure

they

control power.

Freddy the pig and Jinx the black cat lead the establishment of a bank. Jinx just wants to put up a

Freddy and the other animals

sign that says “bank” and start the

living on Mr. Bean’s farm speak

bank.

English, and some of them can

practical advice, and the First

both read and write. Mr. and Mrs.

Animal Bank opens. Mr. Bean,

Bean are humans and the owners

angry at the regular bank, puts all

of the farm. They want to head off

his assets into the First Animal

to Europe but are concerned

Bank, and he and his wife go off

Freddy

follows

more

to Europe.

John

Quincy,

from

a

a

woodpecker

distinguished

family

residing

around

White

House,

accidentally

course

and

the flies

stumbles,

off

rather

bedraggled, into the Beans’ farm.

The animals welcome Quincy, and he gradually regains his health.

With

his

knowledge

and

experience, Quincy joins Freddy, Jinx, and a few others on the board of the bank.

41 | Columbus Bar Lawyers Quarterly | Summer 2026

After Jinx quits, Quincy brings in

The

his

with

father,

replacement.

Grover,

as

The

refined

two

a

woodpeckers,

in

coalition

the rats, run Grover as

their candidate.

woodpeckers play dirty. In one instance, they use real dirt to

The woodpecker-rat alliance may

block the bank entrance through

have entered Marcus into the

which Freddy and other larger

race primarily to siphon votes

animals could fit through.

from Mrs. Wiggins. Mrs. Wiggins

After a woodpecker-led meeting excludes animals they

Freddy from

cannot

and

voting enter

other because

the

bank,

control of the bank soon turns into

a

broader

struggle

for

political power, and Freddy and his allies decide the farm needs a president. Mrs. Wiggins, a cow known

for

her

wit,

common

sense, and warmth, is Freddy and most of the other animals’ first choice. Freddy nominates Mrs. Wiggins for the top position in the First National Animal Republic on a farm deep in the state of New York.

is

also

derided

because

has

an

unusual

laugh,

which

believe

makes

some

animals

her

insufficiently

dignified

she

for

the presidency.

As only those living on the farm could

vote,

the

make

another

woodpeckers rule-breaking

move: they corral nearby birds to vote.

The

woodpeckers

also

extend their influence to animals on neighboring farms that cannot speak human language, as an attempt to expand their control into a wider empire.

Freddy attempts to break into the First Animal Bank to call other animals for a vote. The

The race for president becomes

woodpeckers trap him.

complicated as Simon the rat pushes

a

questionable

rabbit,

Marcus, for the position.

42 | Columbus Bar Lawyers Quarterly | Summer 2026

And then . . . I won’t spoil the ending by saying what happens.

However, I will say that I found,

Allegedly,

George

read, and loved all the Freddy the

influenced by Brooks’ Freddy the

Pig books that the nearby library

Politician when he wrote Animal

had during the summer when I

Farm. First published in 1945,

was nine years old. It wasn’t until

Orwell used talking farm animals

after I got my law license and

to tell his story

started working in Columbus that

for equality for all animals. The

I found ten Freddy the Pig books,

farm

reread them, and discovered the

overthrow the cruel farm owner’s

satire and subtle critiques of the

treatment and, in a parody of

issues of the time when the books

what happened in Russia, the

were written.

pigs (Stalin) gradually take over

animals

in

Orwell

was

about a quest Animal

Farm

while the loyal horse is sent to the glue factory. The pigs had by then altered the slogan “all animals

are

equal”

by

adding

“but some animals are more equal than others.”

Janyce C. Katz General Innovations and Goods, Inc. janyce.c.katz@gmail.com

43 | Columbus Bar Lawyers Quarterly | Summer 2026

Life Outside the Law

LAWYERS WITH ARTISTIC LICENSE: Peter Georgiton

By Joshua Cartee

“Violin was part of my life from

as a small child and trying to play

the very beginning,” said Peter

it — a hard task given it had no

Georgiton as we settled into our

strings! He soon began playing the

coffee

violin

at

The

Roosevelt

Coffeehouse on Long Street.

in

first

grade,

at

the

prompting of his father. Peter stuck

with

lessons

because

Peter’s father, John, is a longtime

playing “came naturally” and was

fiddler in bluegrass bands. Peter

enjoyable — though practicing

recalled picking up a spare violin

took a little getting used to. He 45 | Columbus Bar Lawyers Quarterly | Summer 2026

continued private lessons through

Orchestra and in a folk-rock band

high school. He also played with

named

the Columbus Symphony Cadet

wrote all of its own music and

and Youth Orchestras at venues

included

including Capital University and

guitarist, a second singer, a bass

Weigel Hall at The Ohio State

player, a drummer, and Peter on

University, performing some of

the violin. The band did some

the

recording

same

repertoire

as

the

Glimmerbox. a

at

The

band

singer-songwriter-

The

RecW,

a

professional orchestra. Being part

professional recording studio in

of the orchestras allowed Peter to

Massieville, Ohio. Peter mostly

gain an even greater appreciation

played by ear and, on occasion,

of musical compositions and the

took audience requests during

composers

synthesized

Glimmerbox gigs, something he

different instrument parts into a

viewed as a fun challenge. Peter

cohesive whole. Peter recalled

said

Symphony No. 2 in D major by

Blossom

Jean Sibelius and Appalachian

by

Spring

crowd pleaser.

by

who

Aaron

Copland

as

the

fiddle

tune

Special,”

Johnny

Cash,

“Orange

popularized was

a

having profound impacts on his musical these

development. classical

Playing

One

lesson

Peter

took

from

masterpieces

playing in the band was that, in

with a full orchestra, Peter says,

music as in life, you must be

“was

nimble. “Things don’t always line

a

different

way

to

experience music.”

up neatly on stage,” he says. “You have to be prepared for whatever

Before graduated

law

school, from

Peter

gets thrown at you.”

Wittenberg

University in Springfield, Ohio,

Today, Peter manages a busy

with a degree in history in 1999.

commercial and tort litigation and

At Wittenberg, Peter continued to

insurance coverage practice at

play the violin. He played in the

Dinsmore & Shohl, where he has

Wittenberg University Chamber

practiced law since graduating

46 | Columbus Bar Lawyers Quarterly | Summer 2026

from The Ohio State University Moritz College of Law in 2002.

He at

began

his

legal

Dinsmore’s

career

Cincinnati

headquarters before moving to Dublin in 2016 and joining the firm’s Columbus office. There, he serves on the firm’s Professional Development

Committee,

gives

presentations for the American Bar

Association’s

Insurance

Peter teaching his daughters the violin.

Coverage Litigation Committee, and handles a wide array of insurance coverage matters for

has tried to impart to his children

clients such as State Farm.

that he wants them to enjoy music and

doesn’t

expect

them

to

Although Peter has developed a

become

thriving legal practice, he noted

performers.

that the “challenge of being a

daughters, Maggie and Abby, play

lawyer is that there is often not

in their school orchestra and have

enough time to practice music

taken up additional instruments:

beyond personal enjoyment.” Still,

Abby plays the viola, and Maggie

after a few years’ hiatus from

plays electric and acoustic guitar.

serious playing, Peter rekindled

His eldest daughter, Katie, has

his love for violin (and practicing)

played

following

his

Chamber Orchestra and intends to

daughters, Katie (18) and twins

continue playing music when she

Maggie (15) and Abby (15).

attends the College of Wooster

the

births

of

in

virtuoso

concert

His

youngest

the

Dublin

Coffman

next year. One of Peter’s fondest All three daughters began violin

memories is when he was pressed

lessons when they were young,

into service at the last minute to

and all continued to play. Peter

accompany his daughters on violin 47 | Columbus Bar Lawyers Quarterly | Summer 2026

Peter with Maggie, Katie, and Abby at their recital.

at their music recital. Being able

string octave mandolin, which is a

to make music with his daughters

mandolin on a guitar body that

“was a very special experience,”

plays eight notes (an octave)

Peter said.

lower than a regular mandolin. The latter instrument is a favorite of

Recently, Peter has expanded his

American singer-songwriter Sarah

own musical repertoire. In the

Jarosz, whose 2010 rendition of

past few years, he has learned

“Come On Up To The House” at

the mandolin, which has the same

Austin City Limits is the gold

fingerings as the violin but the

standard.

strings are doubled and plucked

agreed

instead of played with a bow. He

disrespect intended to the Tom

has also picked up the four-string

Waits original.)

Irish tenor banjo and the eight48 | Columbus Bar Lawyers Quarterly | Summer 2026

(Both on

this

Peter

and

point;

I no

Peter also enjoys playing violin

reaction

with his father, who got him

riding their bikes by his house.

started

on

After Peter moved back to the

Together,

they

sessions

in

a

the

instrument.

played

Columbus

bluegrass

from

jam

and

at

though, his father came over to

at

Peter’s

Denison University.

area

classmates

in

workshop

Columbus

his

as

an

adult,

home

to

watch

his

granddaughters.

As

Peter

was

pulling up to the house after a day at work, what else did he see

but

his

dad

once

again

serenading the neighborhood to a boombox track on the front porch.

“It was a full-circle moment,” Peter says, smiling.

Music has provided Peter with a lifelong passion, connection to family

members,

valuable

life

lessons.

Perhaps

and

several

experiences the

and most

important lesson of all is that “you get out of something what you put into it,” he says.

Peter playing a jam session.

When Peter was a kid, his father would set out a boombox on

As in music, so in life.

the front porch of their house, turn it on, and serenade the neighborhood At little

the

time,

with

his

Peter

embarrassed

fiddle. was

by

a the

Joshua Cartee Columbus City Attorney’s Office jmcartee@columbus.gov

performances, afraid of the 49 | Columbus Bar Lawyers Quarterly | Summer 2026

Five Ways litigators, in-house counsel, solo Lawyers practitioners, public defenders, government attorneys, etc. They Can Lead come from different backgrounds, serve in different settings, and handle vastly different pressures.

by Example: But there’s one thing I hear over and over, from lawyers at all Promoting levels of success: “I feel like I’m barely holding it together, but I Mental can’t let anyone see that.”

Well-Being That feeling is more common than you think. And the silence around as a it? That’s part of the problem.

In a profession built on high Strength, standards and long hours, many lawyers have internalized Not a the belief that stress, burnout, and anxiety are weaknesses. Stigma I’ve worked with lawyers in every corner

of

But

mindset

that

and dangerous.

the

profession:

is

outdated

By Scott R. Mote

51 | Columbus Bar Lawyers Quarterly | Summer 2026

The truth is, mental well-being is

Even a simple comment like the

a strength. It helps you think

above examples can change the

clearly,

culture in your office or firm.

act

communicate

ethically,

effectively,

and

It

tells

colleagues,

younger

sustain your performance over

lawyers, and staff that it’s okay to

time. And the more we treat it

feel stress

that way, the better off our entire

about it.

and it’s okay to talk

profession will be.

Here

are

five

ways

lawyers

can lead by example and send a clear message that prioritizing mental health isn’t just allowed — it’s essential.

But

being

honest

are more likely to seek support before problems escalate. That’s good for people and for practice.

Without Guilt

You don’t have to share your personal

mental health is acknowledged

Model Boundaries and Self-Care

Talk About Stress

deepest

Lawyers in environments where

experiences. about

the

demands of this work can go a

I know this is difficult. The law often demands long hours, tight deadlines,

and

urgent

client

long way.

needs. But if you never step

Try this:

never

away, never protect your time, say

no,

you

will

find

yourself running on fumes.

“This case has taken a lot out of me. I’ve had to be intentional

Healthy lawyers do things like:

about staying grounded.”

“I’ve learned the hard way

Take a real lunch break.

that if I don’t take care of my mental

health,

my

work

suffers.”

52 | Columbus Bar Lawyers Quarterly | Summer 2026

Set

office

hours

or

communication windows.

client

Say “no” to new matters when

when they’re struggling. They pay

capacity is full.

attention to what you normalize.

Use vacation time to unplug.

You

can

foster

a

healthier

workplace by: Get

exercise,

sleep,

and

support — not just in theory, but in practice.

None of this makes you less committed. It makes you more effective.

It

shows

Checking in after long trials or tough weeks.

Encouraging people to take time off without guilt.

others,

especially junior lawyers or law

Respecting

students, that success doesn’t

Don’t

have to mean self-sacrifice.

behavior as heroic.

Your well-being isn’t something

Talking

openly

to

manage

contacting

OLAP

It’s

the

clear

judgment,

in

the

margins.

foundation client

of

service,

personal

praise

“always

time. on”

about or

other

mental health support when someone seems off.

and professionalism.

It’s not about being everyone’s Support Mental Health in Your

therapist. It’s about being human

Colleagues and Staff

and creating space for others to be human too.

You might not think of yourself as a leader, but if you’ve been

A culture of empathy doesn’t

practicing for a while, then you

happen by accident. It starts

are one. People watch how you

with how we treat each other in

handle

the everyday.

stress.

They

notice

whether you’re approachable 53 | Columbus Bar Lawyers Quarterly | Summer 2026

Push Back Against the “Tough It

Resilience isn’t about powering

Out” Myth

through

at

all

costs.

It’s

about knowing when and how There’s still a persistent idea that

to recover.

great lawyers are emotionless, sleepless machines who never

Use Your Voice to Normalize

need help. But let me tell you:

Wellness in the Profession

some of the best lawyers I’ve worked with are the ones who

Every time you speak up about

know when to pause, reflect,

wellness,

and recalibrate.

association event, CLE seminar, law

whether

school

talk,

at or

a even

bar on

You can help dismantle that toxic

LinkedIn, you help reshape what

“tough it out” myth by:

it means to be a lawyer.

Admitting when you’re feeling

Try this:

stretched thin.

Mention mental health in CLE Saying you’ve contacted OLAP

presentations.

or have gone to therapy and it helped.

Write

or

share

burnout Encouraging newer lawyers to

or

articles

on

work-life

integration.

build support systems early.

Support wellness programs at Valuing boundaries,

collaboration, and

emotional

your firm, bar association, or alma mater.

intelligence as much as raw intellect.

Speak during Mental Health Awareness Month about your own journey.

54 | Columbus Bar Lawyers Quarterly | Summer 2026

You don’t have to become an

If you’re feeling overwhelmed,

advocate. Just be honest. Be real.

disconnected, or unsure where

Be someone who shows that

to

success and self-care can go

OLAP

is here for you. We’re

hand in hand.

100%

confidential,

start,

please

reach

out.

completely

free, and judgment-free. We’ve Lawyers clarity,

who ethics,

lead and

with

empathy

are the future of this profession,

helped hundreds of Ohio lawyers over

the

years,

and

we

can

help you too.

and mental health is part of that equation.

Because taking care of yourself is not a detour from being a great

You Don’t Have to Be Invincible

lawyer. It’s part of the job.

to Be Respected Call OLAP at (800) 348-4343 or The

greatest

lawyers

I

know

aren’t the loudest, the flashiest, or

visit www.ohiolap.org. All inquiries are confidential.

the ones who pull all-nighters until collapse. They are the ones who stayed grounded. Who know their limits. Who make decisions

You’re not alone. And you don’t have to go it alone.

with care and presence because they

aren’t

burned

out

and

running on empty.

Scott R. Mote, Esq. Ohio Lawyers Assistance Program smote@ohiolap.org

They have people. They have practices. They have perspective.

You deserve those things too.

55 | Columbus Bar Lawyers Quarterly | Summer 2026

Summer ‘26: Intellectual Property Law

Guidelines for Early Stages of Intellectual Property Creation

By Frank H. Foster and Jason H. Foster

When a new business or project might

include

a

Patents and Inventions

patentable

invention or a new trademark, the

Public Disclosure. Avoid disclosing

following

an invention to the public and

legal

summarizes

principles.

relevant

Knowledge

of

avoid offering an invented product

these principles will help avoid

for

negatively affecting legal rights or

application is filed. If a business

increasing legal expenses.

plan requires that a new product

sale

before

a

patent

57 | Columbus Bar Lawyers Quarterly | Summer 2026

be disclosed to someone, enter

early filing date. If a provisional

into

patent application is filed, the

a

confidential

disclosure

agreement. The public disclosure

most

of an invention or an offer (even if

include is what the invention is

secret)

and how it works. The invention’s

to

sell

a

product

important

information

embodying the invention more

advantages

than one year before a patent

existing products can be included

application

likely

but are of minor importance. Most

destroy the right to obtain a

important is providing a detailed

patent. A disclosure or offer to

explanation of how to construct a

sell less than one year before

physical invention and how to

filing a patent application can be

perform a method or process

harmful in some circumstances.

invention. The description of the

is

filed

will

over

to

previously

invention must enable a skilled Experiments.

If

laboratory

person to make and use the

experiments or field testing of

invention. Do not try to avoid

prototypes

being

are

performed

to

specific

or

to

avoid

improve or perfect an invention,

disclosing details in the mistaken

maintain written records of the

belief that doing so will give the

experiment

invention a broader scope or keep

or test. Include a

description of each experiment or

some details secret.

test, the test results and data, and conclusions reached as a

Model or Prototype. For almost all

result of the experiment or test.

inventions, it is not necessary to construct a model or prototype or

Provisional

Patent

Application.

to perform a method or process

The date a patent application is

before filing a patent application.

filed with the U.S. Patent and

However, the U.S. Patent and

Trademark Office can determine

Trademark Office may require one

whether the applicant is entitled

if the invention appears to violate

to a patent. Filing a provisional

accepted principles of science

patent application can provide an

and technology.

58 | Columbus Bar Lawyers Quarterly | Summer 2026

Trademarks and Brands

Choose a Distinct and Memorable Trademark. The strength of your

A trademark is a brand used by a

legal

company that sells goods and/or

depends

on

services or provides them as a

including

your

free public service. A trademark

trademark,

how

can be a common word or a

trademark, and whether you own

coined (made-up) word. It can be

and maintain a U.S. trademark

a graphical feature such as a

registration. That legal strength is

symbol. It can be a combination of

also

both words and symbols. It can

extent to which others use similar

even be a sound, a fragrance, or a

trademarks. You want a trademark

package design, although those

that

are more difficult to protect. A

trademarks used by others for

trademark indicates the origin or

your type of products to ensure

source of goods or services to

that

prospective

the

distinguishes the origin of your

same way that a country’s flag

products from the origin of the

indicates the relationship of a

products of others. You also want

territory

to select a trademark that is easily

customers

to

Trademarks

in

a

government.

help

customers

rights

highly

is

in

a

several you

dependent

by

use

on

enough

trademark

remembered

things,

choice

different

your

trademark of that

the

from

strongly

prospective

select products that come from a

customers so they will look for

company they believe provides

your brand when shopping.

quality products. They also help a company that sells quality goods

Avoid Descriptive Words, Phrases,

and services increase sales to

or Images. The most common

customers who want quality.

mistake is selecting a word or phrase

for

a

trademark

that

help

describes an ingredient, quality,

avoid the most common problems

characteristic, function, feature,

that

purpose, or use of the goods or

The

following arise

a trademark.

guidelines when

creating

services for which the trademark 59 | Columbus Bar Lawyers Quarterly | Summer 2026

is used. The law makes it difficult

descriptive

because

it

has

or

acquired

distinctiveness.

That

descriptive words or images to

trademark

is

and

receive trademark protection. The

registrable.

reason is that all competitors in a

American Airlines described an

free market need to be able to

airline based in America; Holiday

use

Inn described an inn to stay in

impossible

words

for

or

merely

images

that

For

example:

describe their goods and services

during

to

customers.

described the kind of purchase

Consider a few examples: BED &

every buyer wants. If you select a

BREAKFAST

descriptive

prospective

REGISTRY

was

a

protectable

holiday;

word,

Best

phrase,

Buy

or

considered merely descriptive of

image as your trademark, there is

lodging

a

reservations

SUPERJAWS

was

services; considered

substantial

risk

that

your

trademark may begin with weak

merely descriptive of a variety of

or

machine

that

infringers. Trying to protect or

included jaws. Trademarks exist

enforce your trademark can cause

that appear to be an exception to

excessive legal costs. There is the

the prohibition against descriptive

risk that, despite substantial legal

trademarks but, upon analysis,

expense, you may never be able

they are not. They result from a

to prove that your trademark has

change in customer perceptions.

acquired distinctiveness. In that

A word, phrase, or image can be

case, other companies may have

used in commerce for a long

a right to use your trademark and

enough time and be promoted

you may not be able to register

extensively

your trademark.

and

hand

tools

enough

that

no

legal

rights

to

stop

customers come to recognize it is

Avoid Surnames. A surname is a

sufficient evidence that the public

last name or family name. The law

associates the trademark with a

makes

specific source, a trademark is no

impossible

longer considered merely

receive trademark protection. The

as

a

trademark.

If

there

60 | Columbus Bar Lawyers Quarterly | Summer 2026

it

more for

difficult

or

surnames

to

reason is that courts recognized

A name, portrait, or signature

long ago that all people should

identifying a particular living

be able to use their surnames

individual

in

written consent, or the name,

the

their

business.

same

acquired

However,

except

by

his

exception

for

signature, or portrait of a

distinctiveness

exists

deceased President of the

for surnames.

United States during the life of his widow, if any, except

Avoid Trademarks Prohibited by

by the written consent of

Statute.

the widow.

The

U.S

trademark

statute prohibits registration of a

trademark

that

consists

of

or comprises: Immoral,

deceptive,

or

Frank H. Foster Kremblas & Foster ffoster@ohiopatent.com

scandalous matter; or matter which

may

disparage

or

falsely suggest a connection with persons, living or dead, institutions,

beliefs,

or

national symbols, or bring

Jason H. Foster Kremblas & Foster

them

jfoster@ohiopatent.com

into

contempt,

disrepute;

or

geographical

indication

or

some for

some particular goods.

The flag or coat of arms or other insignia of the United States, or of any state or municipality,

or

of

any

foreign nation, or of any simulation thereof.

61 | Columbus Bar Lawyers Quarterly | Summer 2026

Protecting Ownership of Creative Works, Inventions, and Branding in the Generative AI Era

By Todd A. Fichtenberg When

discussing

artificial

tangible medium of expression.”[1]

intelligence (AI), much of the

“The U.S. Copyright Office will

focus is on how generative AI can

register

be helpful tools or hallucinate

authorship, provided that the work

fake cases. An overlooked aspect

was

about

being.”[2] Prior to the ubiquity of

AI

is

how

it

impacts

an

original

created

by

a

of

human

ownership of intellectual property.

generative

Humans

must

to

groups argued Naruto, a crested

maintain

ownership

their

macaque who took a selfie, could

take

steps of

creative and inventive works.

claim

AI,

work

ownership

animal

of

the

rights

selfie

and sued on his behalf. The For

a

creative

work

to

be

Ninth Circuit held that animals, as

protected under U.S. copyright

non-humans,

law,

standing to sue under the U.S.

it

must

be

an

“original

work[]of authorship fixed in any

lacked

statutory

Copyright Act.[3] 63 | Columbus Bar Lawyers Quarterly | Summer 2026

This

reasoning

has

been

stating,

“Human

a

era. The U.S. Copyright Office has

copyright.”[7] The U.S. Court of

steadfastly refused to register

Appeals

works drafted by generative AI. In

affirmed.[8] The U.S. Supreme

one case, Ankit Sahni combined

Court

an

case, effectively leaving in place

photograph

with

for

requirement

is

extended into the generative AI

original

bedrock

authorship

the

declined

D.C. to

of

Circuit

take

Vincent Van Gogh’s The Starry

the

Night using AI. The Copyright

interpretation that works created

Office Review Board affirmed the

by

refusal

registrable because they are not

to

register

the

work,

reasoning that because Mr. Sahni

Copyright

the

generative

Office’s

AI

are

not

created by humans.[9]

only “provided three inputs” to a computer, the “app, not Mr. Sahni,

The Copyright Office has left the

was responsible for determining

door

how to interpolate the base and

works authored by both humans

style images in accordance with

and generative AI as long as there

the style transfer value.”[4]

is a disclaimer of the AI-generated

open

to

registration

for

material. Jason M. Allen created a In another case, Steven Thaler

work using Midjourney, a text-to-

created a work entitled “A Recent

image

Entrance to Paradise” that “was

revising prompts at least 624

autonomously

a

times before finding a satisfactory

computer algorithm running on

image.[10] Mr. Allen further used

a

Adobe Photoshop to modify the

machine,”

created and

Mr.

by

Thaler

generative

AI

platform,

sought to register it as a work-

image.[11]

for-hire.[5]

Board

refused registration because the

affirmed the refusal to register

work contained “more than a de

the work.[6] Mr. Thaler appealed

minimis amount of AI-generated

the decision, and the U.S. District

content,” and Mr. Allen refused

Court for the District Columbia

to

affirmed the refusal to register,

content.[12] For a copyright

The

Review

64 | Columbus Bar Lawyers Quarterly | Summer 2026

The

disclaim

the

Review

Board

AI-generated

registration to be supported by

inventor,

the Constitution, the work must

permanent idea of the complete

have “independent creation plus a

and operative invention, as it is

modicum of creativity.”[13] This

hereafter

is a low threshold, and the U.S.

practice.”[16] In other words, if

Supreme Court left unanswered

humans conceive of an invention,

for another day the question of

they can use generative AI as a

how much human authorship is “a

tool and still protect their AI-

modicum

assisted inventions.

of

creativity”

when

of

a

to

definite

be

and

applied

in

using generative AI. The USPTO also issued direction The concept of human as creator

regarding examination of design

extends into the realm of patents.

patent

According to the U.S. Court of

computer-generated

interfaces

Appeals for the Federal Circuit,

and

Although

only

be

historically, a picture was not

inventors.[14] The U.S. Patent and

patent eligible under 35 U.S.C.

Trademark

natural

acknowledged

persons

can

applications

related

icons.[17]

the

USPTO

to

Office

(USPTO)

171,

provided

“AI

systems,

guidance for how a computer-

including generative AI and other

generated

interface

or

icon

computational

could

be

patent

eligible

in

certain

circumstances.[18]

instruments

models, used

by

are human

The

inventors. They are analogous to

USPTO has had to evolve to keep

laboratory equipment, computer

up

software, research databases, or

exponential growth.

with

generative

AI’s

any other tool that assists in the inventive

process.”[15]

Thus,

Trademarks should not be left out

when a human being is involved in

of the conversation. Unlike patent

inventing, the question is whether

and copyright, no law requires a

the

trademark

to

be

invention. Conception means “the

humans

to

entitle

formation in the mind of the

registration. However, to obtain

human

conceived

the

created it

by to

65 | Columbus Bar Lawyers Quarterly | Summer 2026

federal trademark protection, an

careful to advise our clients to not

owner must use the trademark in

so easily and unwittingly give

commerce. To demonstrate use in

away rights to a machine.

commerce, an owner must submit a specimen showing the mark as used in commerce to the USPTO. “Particular care should be taken to

avoid

submitting

any

AI-

generated specimens, which do not

show

actual

use

of

Todd Fichtenberg Emerson, Thomson & Bennett taf@etblaw.com

the

trademark in commerce.”[19] A photograph is a better way to show use in commerce.

In

the

context

of

authorship,

inventorship, and proving use of branding in commerce, generative AI is neutral, neither good nor bad. Intellectual property is an area

of

keeping

law up

advances.

accustomed

with

to

technological

However,

uses

and

capabilities of generative AI are advancing at such a rate that intellectual property lawyers must be able to advise clients on how much, or how little, generative AI to use in protecting their works of art,

inventions,

and

branding.

Creativity and ingenuity remain uniquely human, and we must be 66 | Columbus Bar Lawyers Quarterly | Summer 2026

1. 17 U.S.C. 102(a).

2. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d Ed. 2021).

3. Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018).

4. U.S. Copyright Office Review Board, Second Request for Reconsideration for Refusal to Register SURYAST (SR # 1-11016599571; Correspondence ID: 1-5PR2XKJ) at 7 (Dec. 11, 2023) (refusal affirmed), available at https://www.copyright.gov/rulingsfilings/review-board/docs/SURYAST.pdf.

5. U.S. Copyright Office Review Board, Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (SR # 17100387071; Correspondence ID: 1-3ZPC6C3) at 1–2 (Feb. 14, 2022) (refusal affirmed), available at https://www.copyright.gov/rulingsfilings/review-board/docs/a-recent-entranceto-paradise.pdf.

6. Id. at 7.

7. Thaler v. Perlmutter, 687 F.Supp.3d 140, 146 (D.D.C. Aug. 18, 2023).

8. Thaler v. Perlmutter, 130 F.4th 1039, 1041 (D.C.Cir. Mar. 18, 2025), cert. denied, 146 S.Ct. 1777 (2026).

9. Thaler v. Perlmutter, 146 S.Ct. 1777 (2026).

10. U.S. Copyright Office Review Board, Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (SR # 111743923581; Correspondence ID: 1-5T5320R) at 2 (Sept. 5, 2023) (refusal affirmed), available at https://www.copyright.gov/rulingsfilings/review-board/docs/Theatre-DoperaSpatial.pdf.

11. Id. 12. Id. at 3.

13. Feist Publications, Inc. v. Rural Tel. Serv.

Co., 499 U.S. 340, 346 (1991).

14. Thaler v. Vidal, 43 F.4th 1207, 1212 (Fed.Cir. 2022).

15. U.S. Patent and Trademark Office, Revised Inventorship Guidance for AI-Assisted Inventions, 90 Fed.Reg. 54636 (Nov. 28, 2025) (Docket No. PTO-P-2025-0014), available at https://www.federalregister.gov/documents/20 25/11/28/2025-21457/revised-inventorshipguidance-for-ai-assisted-inventions.

16. (Citation omitted). Id. 17. U.S. Patent and Trademark Office, Supplemental Guidance for Examination of Design Patent Applications Related to Computer-Generated Interfaces and Icons, 91 Fed.Reg. 12394 (Mar. 13, 2026) (Docket No. PTO-P-2026-0133), available at https://www.federalregister.gov/documents/20 26/03/13/2026-04987/supplemental-guidancefor-examination-of-design-patent-applicationsrelated-to-computer-generated.

18. Id. 19. U.S. Patent and Trademark Office, Guidance on the Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office, 89 Fed.Reg. 25609 (Apr. 11, 2024) (Docket No. PTO-P-2024-0013), available at https://www.federalregister.gov/documents/20 24/04/11/2024-07629/guidance-on-use-ofartificial-intelligence-based-tools-in-practicebefore-the-united-states-patent.

67 | Columbus Bar Lawyers Quarterly | Summer 2026

Heppner and Trinidad: Old Rules for New Technology

By Rex W. Miller II and Graham D. Christian

The impact of AI on the legal

technology. Or as Judge Rakoff

profession

be

succinctly stated in United States

understated. Seemingly every day

v. Heppner: “AI’s novelty does not

brings

creating

mean that its use is not subject to

both new opportunities and new

longstanding legal principles….”[1]

new

cannot advances

challenges. While much attention is rightfully paid to the rapid

In United States v. Heppner, the

technological advancement, two

Southern District of New York

recent

held that a criminal defendant’s

federal

district

court

decisions demonstrate that old

exchanges

with

Anthropic’s

rules continue to apply to new

Claude were protected by neither 69 | Columbus Bar Lawyers Quarterly | Summer 2026

attorney-client privilege nor the

accompanying

work product doctrine because

available AI-platforms may not

the

communications

with

a

lawyer,

the

were

not

be

literary

were

not

are

essential

of

the

confidentiality

light

publicly-

masterpieces

but

reading

confidential

in

platform’s

privacy

policy

and

both cases, the providers’ terms

training/disclosure

terms,

and

of

service

is

at

when

factored

stake. heavily

In in

were not created at counsel’s

the courts’ analyses. In Heppner,

direction or reflective of counsel’s

the court relied on Claude’s policy

strategy. In Trinidad v. OpenAI

of

Inc.,[2] the Northern District of

training, and potential disclosure

California

of

dismissed

with

open

data

inputs

and

collection, outputs,

use, which

prejudice a plaintiff’s claims that

undercut

any

OpenAI misappropriated alleged

expectation

of

AI-related trade secrets claimed

defendant’s communications with

to have been developed using

the platform. In Trinidad, the court

ChatGPT, holding that the plaintiff

analyzed the terms of use to

voluntarily disclosed the alleged

conclude

secrets to OpenAI, thereby failing

consented to the disclosure of the

to

information

alleged trade secret. As these

as secret, and thus no trade

holdings demonstrate, one must

secret existed.

question how much confidentiality

maintain

the

is

that

surrendered

reasonable privacy

the

in

the

plaintiff

when

using

These cases demonstrate how

publicly-available AI-platforms to

courts

apply

develop or analyze information for

principles

which confidential treatment may

can

and

will

long-standing

legal

to

technologies

emergent

leave

a

great

number

but

be sought.

of

questions unresolved.

Another aspect of Trinidad is that the voluntary disclosure of the

Terms of Service Matter. The

alleged trade secret was made to

fine print and legal terms

OpenAI, the same party the

70 | Columbus Bar Lawyers Quarterly | Summer 2026

plaintiff

alleged

have

trap. Limiting use of publicly-

misappropriated the trade secret.

available AI tools to only non-

If

confidential information may be

the

plaintiff

to had

alleged

misappropriation by a party other

one

option

than OpenAI, would the voluntary

risks.

In

disclosure to OpenAI still have

expect

undercut the claim based on the

confidentiality

plaintiff’s

private, secure AI platforms, that

failure

to

maintain

to

mitigate

addition, courts

one

to

include

appropriate

established,

service

and

plaintiff

must

would

recognize

protections

information as secret? As is well a

these

of

terms

privacy

of

terms

plausibly plead that a trade secret

maintaining the confidentiality of

actually existed, which requires a

user inputs and outputs. This

showing that the information was

outcome

subject to reasonable measures

longstanding

to

information

respecting

confidential. Where information is

obligations

disclosed to or developed with a

applicable to many technologies.

public AI tool without adequate

The

confidentiality protection, a user

remain required reading.

keep

the

fine

would

respect

legal

principles

confidentiality used print,

with

and

however,

will

may inadvertently extinguish the very secrecy required to support

Privilege and Work Product. The

a trade secret against a third

traditional

party. When faced with a trade

determining whether the attorney-

secret claim, discovery, including

client

electronic

privilege

or

the

for work

of

the

product

owner’s

use

information from disclosure apply

of AI tools and the corresponding

consistently regardless of whether

terms

an AI tool was used. In Heppner,

trade

discovery

requirements

secret of

service,

may

become commonplace.

the

court

doctrine

reiterated

protect

these

requirements: For privilege, courts The casual use of public AI tools

ask if a communication was made

thus poses a serious potential

(and kept) between attorney and 71 | Columbus Bar Lawyers Quarterly | Summer 2026

client, if it was intended to be

important

confidential

cases for advising clients in either

and

actually

kept

questions or

civil

for

future

confidential, and if it was made

criminal

matters.

For

for the purpose of obtaining or

example,

would

an

tool

providing legal advice. For work

functioning

and

having

product, courts focus on whether

confidentiality protections as a

the materials were prepared by or

secure litigation support platform

at the direction of counsel and

preserve

whether they reflected counsel’s

privacy

strategy or mental impressions.

materials generated? Would an

AI

similar

confidentiality protections

and

for

the

attorney’s direction for a client to The requirements for privilege

use such a tool indicate the

and/or work product protection

generated material was for the

for the defendant’s AI-generated

purpose of obtaining legal advice?

materials were not met for several

The specific facts of each case

reasons. First, the AI tool in

will vary, however, maintaining

question,

confidentiality

Claude,

“is

not

an

and

privacy

attorney” and expressly disclaims

protections, both technologically

providing legal advice. Second,

and through appropriate terms of

the communications with Claude

use, will be essential to ensure

were not confidential given that

that the use of AI tools does not

the terms of use allowed use and

undermine expected privilege and

disclosure

work product projections.

of

the

information.

Finally, the defendant acted on his

own,

direction,

not

at

counsel’s

undermining

his

Who Holds the Information. In Heppner,

the

defendant

argument that the purpose was

documented its communications

for obtaining legal advice.

with

Claude,

and

these

documents were seized from the While the Heppner decision is

defendant’s home. If Heppner had

consistent

not synthesized and stored the

with

traditional

privilege analysis, it leaves open 72 | Columbus Bar Lawyers Quarterly | Summer 2026

communications and, instead, the

communications were stored, if at

a

all, only on a Claude server, it is

counsel-directed

use,

likely those communications could

infrastructure,

restrictions

still have been obtained by the

provider

government.

Assuming

the

documented

government

obtained

the

protections,

the

arguments a party will have for

information

from

arguments

to

Claude,

assert

privilege

specific

situation

access,

maintaining

indicate private

and

on well-

confidentiality the

stronger

the

confidential

and/or work product protection

information as confidential. Even

would

further

as the technology evolves, courts

weakened. Whether information is

are likely to continue applying

sought by the government in

these

criminal proceedings or by an

principles as parties continue to

opposing party in civil matters,

test the boundaries for use of the

procedures

AI tools.

have

been

for

producing

retaining relevant

and

longstanding

legal

AI

communications will be needed, adding yet further complexity to electronic discovery.

1. United States v. Heppner, 820 F.Supp.3d 292, 299 (S.D.N.Y. 2026).

2. Trinidad v. OpenAI Inc., No. 25-cv-06328, 2026 U.S. Dist. LEXIS 1129 (N.D.Cal. Jan. 5, 2026).

Summary. AI has quickly become and will continue to be a powerful and increasingly accessible tool for both attorneys and clients.

However,

as

Heppner

and

Rex W. Miller II Vorys, Sater, Seymour and Pease LLP rwmiller@vorys.com

Trinidad demonstrate, public AI platforms

are

environments confidential, material,

not

for or

privileged,

trade

especially

safe secret

where

the

provider’s terms permit training or

Graham D. Christian Vorys, Sater, Seymour and Pease LLP gdchristian@vorys.com

disclosure. The more the facts of 73 | Columbus Bar Lawyers Quarterly | Summer 2026

Don’t Give It All Away: Sweeping Copyright Clauses

By Miranda L. Rife

For

creative

clients,

careful

career

defining,

dictating

how

attention is required to any clause

they can use or profit off their

in a contract that grants a license

own works for years to come.

for copyrighted works. For these types of clients, their intellectual

Many contracts that creatives are

property

is

valuable sign

their

most

asked to sign seek broad rights

asset.

Creatives

who

and are drafted to capture any

contracts

without

fully

protectable intellectual property.

risk

When

understanding

often

the

terms

a

work

is

specifically

giving away all rights to their

commissioned, this may be in line

works, with little recourse. Early

with the creative’s expectations.

contracts for musicians, writers,

In other cases, creatives may be

and other types of artists can be

shocked to find that they are 75 | Columbus Bar Lawyers Quarterly | Summer 2026

being all

asked

rights

to

to

sign

their

away

creations

in perpetuity.

However,

many

creatives

participate in the gig economy, rarely practicing their preferred creative

Initial Copyright Ownership

pursuits

through

traditional full-time employment.

Copyright ownership vests with the author of a creative work at

Work for Hire Agreements

the

Work for hire agreements can also

time

it

is

created.

This

ensures that the artist generally

alter

holds the copyright immediately

ownership

upon fixation, even if they do not

copyright ownership vesting with

register

someone other than the person

it.

In

contrast,

two

the

default rule,

copyright

resulting

in

situations can alter this general

who

rule of authorship, resulting in a

agreements can only be made for

work for hire.

certain types of work and require an

Employer-Employee

created

express,

the

work.

written

Such

contract

signed by both parties.

Relationships Creative

works

made

by

an

Many

creatives

employee within the scope of

independent

their

agreements,

employment

generally

work

under contract

which

put

them

become the legal property of the

outside of a traditional employer-

employer

considered

employee relationship that would

works made for hire. For creatives

result in works made for hire.

who work a traditional 9-5 job

Even outside the types of work

(for example, designing patterns

eligible for commission under a

to be printed on fabric for a

work

design

and

are

for

hire

never

hold

sweeping

works

they

included in contracts may create

create on the job with company

licenses or assignments dictating

tools. Those rights vest with the

that while they remain the author,

employer upon creation.

any rights they have to the piece

agency)

ownership

in

the

76 | Columbus Bar Lawyers Quarterly | Summer 2026

copyright

agreement, clauses

have been signed away before

A Dangerous Formula

the work is even created.

A dangerous set of intellectual property

Know

What

Your

Client

Is

Giving Away

clauses

creatives),

often

(for

follows

the

following structure:

If the price is right for the work, your client may not be concerned

Define Intellectual Property as

that they are handing over all

Broadly as Possible

their

rights.

an

artist

First, a clause defines intellectual

copyrightable

work

property under the contract to

at the direction of someone else,

include all copyrightable material,

it may not fit their larger body

trademarks,

patents,

of creative work or hold other

secrets,

other

value for them. In many cases,

property. This casts a board net,

however, creatives are shocked

ensuring that a creative cannot

to learn that contract language

claim ownership under a different

prohibits

intellectual property regime.

creates

their

a

them

own

purpose,

When

from

works

sometimes

using

for even

or

trade

intellectual

any in

Consider It All “Work Product”

their own portfolio when seeking

Next, the contract will define work

other work.

product under the agreement as not just copyrightable material,

Any lawyer dealing with contract

but as anything created under the

clauses

agreement,

related

to

intellectual

whether

or

not

it

property has a duty to fully inform

meets the legal definition of a

their client about what they are

copyrightable work.

giving away. Intellectual property clauses are often drafted to seek

Exclusive, Unrestricted License

the broadest possible grant of

Next,

rights,

exclusive, unrestricted license to

even

where

language is brief.

the

legal

use

a any

clause work

grants product

an in

perpetuity. A legally 77 | Columbus Bar Lawyers Quarterly | Summer 2026

unsophisticated client may not

property clause leaves the creator

recognize that language means

of a work with little to no recourse

they are signing away the rights

if they regret their decision to

to use the work in any manner, for

sign. As with all areas of the law, it

any purpose, forever.

is

Assign

Any

Remaining

Ownership Rights Finally, a clause states that all works eligible to be considered works for hire shall be treated as such, and for any works not considered works for hire, the artist or author grants, for no additional consideration, all their rights and ownership related to the work.

understand

that

what

clients

they

are

agreeing to when they sign a contract,

as

a

court

will

not

intervene to save them from an unfair deal.

Creative clients may be especially at risk of accepting a bad deal due

to

undervaluing

the

systematic

of

intangible

intellectual property and creative works, paired with a lack of

An assignment of all related rights effectively situation

essential

creates as

a

the

work

for

same hire

agreement, despite the statutory hesitancy to allow ownership to vest with someone other than the work’s creator, evidenced by the strict limits placed on contracted works for hire.

understanding of the nuances of intellectual property law. Lawyers must be vigilant when reviewing intellectual property clauses and ensure

their

clients

are

fully

informed as to what rights they are giving away and what they are getting in return, so they can decide if it is worth it.

Any of these clauses alone can create a significant grant of rights that may leave an artist feeling robbed. Used together, this type of multilayered intellectual 78 | Columbus Bar Lawyers Quarterly | Summer 2026

Miranda L. Rife Rife Law, LLC miranda@rifelawllc.com

Can Brands Stop Resale?

Lessons from Chanel v.

The RealReal and the First Sale Doctrine

By Rachel Smoot For more than 100 years, the first sale

doctrine

has

limited

the

rights of trademark owners to police their marks following the sale

of

genuine,

authorized

products. Following an authorized sale, a buyer can resell genuine trademarked

goods

and

even

incorporate

them

into

new

products, provided the use of the mark does not create a likelihood

products and avoid misleading

of confusion. As gray markets and

presentations

discount resellers became more

advertising,

they

common, courts refined the first

without

serious

sale doctrine to stress that it only

trademark liability. But a pending

protects the resale of “genuine

case in the U.S. District Court for

goods

mark.”

the Southern District of New York

Essentially, as long as secondary

may fundamentally alter the first

markets like discount retailers,

sale doctrine as well as how

online marketplaces, and resellers

trademark owners may defend

deal in genuine, authorized

against secondary markets.

bearing

a

true

a

such

as

may

false do

so

threat

of

81 | Columbus Bar Lawyers Quarterly | Summer 2026

Background and Current Status

based

on

Chanel’s

purported

efforts to restrict competition in In November 2018, Chanel filed a

the

lawsuit

particular, TRR alleged that it was

alleging

trademark

secondary

market.[5]

In

infringement and related claims,

unable

including

to

Neiman Marcus, Saks, New York

items,

Magazine, The New York Times,

against The RealReal (TRR), a

and Vogue because of Chanel’s

luxury

interference in 2015 and 2016.[6]

allegations

purportedly

tied

counterfeit

resale

business

platform.[1]

TRR

inventory

primarily

and

sources

sales

through

and

strategic

partnerships, and claims to use a rigorous authentication process for each item before listing it on TRR’s website.[2] Chanel claimed that

TRR’s

guarantees

are

authentication misleading

to

customers and that only Chanel could

definitively

determine

authenticity of its goods.[3] TRR responded

with

a

motion

to

dismiss and an answer that, in part, relied heavily on the first sale doctrine, alleging that it deals in genuine, pre-owned goods and merely uses Chanel’s marks to identify those goods.[4] TRR also subsequently filed counterclaims accusing

Chanel

of

do

business

with

its

individual consignors, as well as estate

to

violating

federal and state antitrust laws 82 | Columbus Bar Lawyers Quarterly | Summer 2026

Although

the

presiding

partially

granted

and

judge partially

denied TRR’s motion to dismiss, the court recognized that the resale

of

genuine

goods

is

generally permissible and that nominative use of Chanel’s marks to identify Chanel products is allowed in principle.[7] As the case has continued, practitioners and legal scholars have treated Chanel v. TRR (as well as Chanel’s separate ongoing case against secondary-market platform What Goes Around Comes Around) as an ongoing bellwether case for luxury resale.

Until stayed

recently,

the

pending

settlement

case

was

a

potential

agreement

between

the parties. However, in early

2026, following a breakdown in

that the first sale doctrine is still

negotiations, the case resumed,

alive and well, the fact that the

and the court disposed of TRR’s

case continues reinforces that the

counterclaims, finding, in part,

doctrine itself is conditional, not

that TRR’s counterclaims were

absolute. The doctrine protects

time-barred or otherwise failed to

resellers

state a claim upon which relief

genuine goods and avoid creating

could be granted but permitting

new confusion, but it offers no

TRR to seek leave to amend its

shelter for counterfeit sales or

counterclaims.[8] TRR has now

misleading claims about affiliation

done so, alleging that Chanel is

and

leveraging its relationships with

where luxury resale is on the rise,

publications such as Women’s

secondary markets may start to

Wear Daily to block or restrict

see more challenges as courts

TRR’s advertising and therefore

become

limiting TRR’s access to ad space

scrutinize

as well as channels that legitimize

guarantees,”

secondary resellers.[9] TRR has

authentication”

also

prominent

alleged

that

Chanel

has

when

they

authentication.

At

increasingly

handle

a

time

willing

to

“authenticity “expert claims, brand

and forward

blacklisted some of its customers

presentations as potential sources

to prevent them from buying and

of confusion that erode first sale

reselling or consigning Chanel

protection. As a result, to preserve

goods.[10]

a first-sale defense, secondary-

Essentially,

TRR

alleges that Chanel is influencing

market

participants

not only the circumstances of

exercise

additional

luxury

ensure

that

resale

but

also

the

available inventory itself.

counterfeiting

should

caution

to

their

anti-

measures

are

robust and any representations First Sale Doctrine Implications

about

authentication

are

carefully crafted.

Although the court’s decision on TRR’s motion to dismiss indicated 83 | Columbus Bar Lawyers Quarterly | Summer 2026

But,

practically

speaking,

this

strategies, including control over

dispute highlights the strategic

advertising

use of peripheral doctrines that

anticompetitive restraints on the

shape the terrain on which first

secondary market. While those

sale

antitrust theories are distinct from

operates,

nominative

including

fair

use,

space,

to

create

false

first sale doctrine, they reinforce

advertising, and antitrust. In other

the policy narrative that first sale

words, how far can brands go in

doctrine

shaping

secondary

resale?

luxury

brands

Traditionally, have

created

exists

overreach

to

protect

markets

from

by

primary-market

carefully

curated

collections,

brand holders, especially when

restricted

access

to

the

certain

brand

holders

combine

channels (e.g., Hermes and its

trademark suits with distribution

alleged

sales

quotas),

and

pressure

how

products

are

investments to chill resale.

influenced

and

strategic

presented in person and online to build trust among the brand’s

Although courts and practitioners

consumers.

But

court

are already drawing from the case

permits

TRR’s

amended

regarding the limitations of the

counterclaims to proceed, the

first sale doctrine, it remains to be

case

seen if the case has an effect on

could

if

the

effectively

force

reevaluate

limiting

how their enforcement efforts

as well.

luxury

brands

to

enforcement

strategies

are evaluated.

Through its antitrust allegations, TRR

is

framing

Chanel’s

enforcement efforts as part of a broader attempt to monopolize the

market

for

“investment-

grade” handbags as well as an effort to use anti-resale 84 | Columbus Bar Lawyers Quarterly | Summer 2026

Rachel Smoot Taft Stettinius & Hollister LLP rsmoot@taftlaw.com

1. Chanel, Inc., v. The RealReal, Inc., No. 1:18-cv10626 (S.D.N.Y.).

2. The RealReal, Inc., The RealReal’s 2025 Resale Report (Sept.

4, 2025), https://investor.therealreal.com/node/11426/pdf.

3. Chanel v. The RealReal, supra note 1.

4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 9. Id. 10. Id.

85 | Columbus Bar Lawyers Quarterly | Summer 2026

Schedule A Litigation in Intellectual Property Cases: Origins, Controversies, and an Uncertain Future

By Rachael L. Rodman

Over the past decade, so-called “Schedule

A”

transformed

litigation how

has

intellectual

property owners combat online counterfeiting.

By

allowing

a

single plaintiff to sue dozens or even

hundreds

of

anonymous

online sellers in one federal action, these cases have become one of the

most

powerful,

and

controversial, tools in modern IP enforcement. As judicial scrutiny intensifies, grapple

practitioners

with

a

must

fundamental

tension: the need for efficient enforcement digital

in

a

marketplace

borderless versus

the

procedural safeguards that anchor the American judicial system.

87 | Columbus Bar Lawyers Quarterly | Summer 2026

Origin and History

Identified on Schedule A.” The approach

drew

on

the

Schedule A litigation emerged in

longstanding use of “John Doe”

the early 2010s as a response to

complaints, adapting them for the

the

digital

explosive

growth

of

age

through

omnibus

counterfeit goods on e-commerce

filings targeting large numbers of

platforms such as Amazon, eBay,

anonymous defendants.

and

AliExpress.

Counterfeiters

exploited marketplace anonymity,

The typical case follows a well-

setting

selling

established playbook: the rights

infringing products, disappearing,

holder files a complaint under seal

and

with an ex parte motion for a

up

storefronts,

re-emerging

identities.

under

Filing

new

individual

temporary

restraining

order

lawsuits against each seller was

(TRO). If granted, the TRO is

impractical given the volume of

served on e-commerce platforms

infringers and the difficulty of

and payment processors, who

identifying

freeze

foreign

operators.

accounts

Traditional enforcement felt like a

infringing

listings.

game of “whack-a-mole.”

process

on

and

remove

Service

of

defendants

is

conducted electronically pursuant The term “Schedule A” derives

to Federal Rule of Civil Procedure

from the exhibit attached to the

4(f)(3). Most defendants never

complaint

defendant

respond, and default judgments

sellers or storefronts accused of

follow. While initially concentrated

infringement.

Because

the

in trademark counterfeiting cases

individuals

entities

behind

under the Lanham Act, the model

often

has expanded to copyright and

these

or

all

storefronts

unknown, name

listing

are

complaints

them

as

typically

“Individuals,

Corporations,

Limited

Liability

Companies,

Partnerships,

and

Unincorporated Associations 88 | Columbus Bar Lawyers Quarterly | Summer 2026

patent infringement actions.

Popular Jurisdictions

The Southern District of Florida has

more

recently

The Northern District of Illinois is

significant

Schedule

the

owing to the Eleventh Circuit’s

undisputed

epicenter

of

attracted A

filings,

From

favorable

personal

January 2013 through May 2026,

precedent

and

approximately 9,634 Schedule A

experience with international IP

cases were filed there, based on a

disputes.[3]

Other

Lex Machina search for “identified

including

Southern

in Schedule A” for case types of

of New York, see these filings

copyright, trademark, and patent.

as well.[4]

Schedule

A

litigation.

the

jurisdiction

that

district’s districts, District

As one judge observed, “[i]t has become the Northern District of

Judicial Handling

Illinois vs. The Internet.”[1] Despite the model’s popularity, Schedule A litigation has come this

under increasing judicial scrutiny

that

regarding procedural due process,

district developed early familiarity

ex parte relief, asset freezes,

with

e-commerce

and joinder.

and

certain

Several

factors

concentration.

explain

Judges

in

infringement,

judges

provided

streamlined

In December 2023, Judge Steven

procedures for TROs and default

Seeger of the Northern District of

judgments. Ex parte TROs also

Illinois

denied

were

against

310

templates

and

routinely

Seventh

Circuit’s

granted. decision

The in

defendants,

a

TRO

motion

Schedule

writing

that

A the

HANWJH further cemented the

plaintiffs “want to sneak up on the

forum

by

affirming

that

a

defendants and strike a blow to

single

sale

of

infringing

their counterfeiting operations . . .

product to Illinois sufficed for

under the cover of darkness.”[5]

personal jurisdiction.[2]

He

an

found

that

boilerplate

justifications for sealing and ex 89 | Columbus Bar Lawyers Quarterly | Summer 2026

were

selling similar products lack the

insufficient and inappropriate in

common transaction required by

cases

Rule 20(a).[10]

parte

proceedings where

the

plaintiffs

ultimately

sought

statutory

damages,

not

equitable

Future Viability and Potential for

monetary relief.[6]

Supreme Court Review

Judge John F. Kness took the

Schedule A litigation as a broad

most

enforcement

dramatic

step

to

date,

strategy

faces

headwinds.

Judge

staying more than 50 Schedule A

genuine

cases to evaluate the propriety of

Kness’s ruling signals that courts

ex

may

parte

proceedings,

routine

begin

to

demand

sealing, TRO grants, prejudgment

particularized

asset

mass

narrower joinder, and remedies

joinder.[7] He then ruled that

aligned with equitable principles.

boilerplate allegations and secret

The growing divergence among

proceedings do not meet Rule

district courts — and even among

65(b)’s specificity requirements

judges

and

standards,

courthouse — creates precisely

making it “all but impossible” to

the inconsistency that can draw

assess

appellate

restraints,

due

and

process

likelihood

of

success

fact-finding,

within

and

without adversarial input.[8]

Court attention.

Joinder

Several

has

flashpoint,

proven

even

another

within

the

issues

the

same

U.S.

Supreme

could

provide

vehicles for higher court review.

Northern District of Illinois. In one

Personal

case, the court found joinder

a

proper based on the “swarm”

purchase

behavior of counterfeiters aided

while the U.S. Supreme Court

by internet anonymity.[9] Other

denied

certiorari

in

courts,

the

question

will

however,

have

held

that defendants independently 90 | Columbus Bar Lawyers Quarterly | Summer 2026

jurisdiction

single

based

on

investigator-initiated remains

contested; HANWJH,

resurface as circuits develop

likely

potentially conflicting precedent.

for

Ex parte asset freezes to secure

courts

statutory damages — a remedy at

foundational assumptions — from

law

ex parte secrecy to mass joinder

—

implicate

equitable

foundational

reexamine

But

the

as

model’s

to prejudgment asset restraints —

Supreme Court has addressed in

the era of largely unchallenged

related

Schedule A filings may be ending.

contexts.[11] begun

findings by

the

owners.

U.S.

have

principles

brand

Judges

scrutinizing

underpinning

email.

Whether the practice survives in

service

reformed form or faces a more

permissible

fundamental

reckoning

Rule

20

depend

how

are

unrelated

appellate courts, and perhaps the

beyond infringing the same IP

U.S. Supreme Court, resolve the

rights is deeply contested.

procedural

joinder

And

the

under

defendants

when

questions For now, Schedule A litigation continues

nationwide.

on

and this

the

may federal

constitutional

litigation

model

has created.

But

practitioners should expect more rigorous evidentiary requirements for

ex

joinder,

parte

relief,

greater

narrower

jurisdictional

Rachael L. Rodman Thompson Hine LLP rachael.rodman@thompsonhine.com

variation, and a heightened risk that

procedural

shortcuts

will

invite judicial rebuke.

Conclusion Schedule A litigation is a creative adaptation of existing procedural tools to meet the realities of global online counterfeiting, and it has delivered undeniable results 91 | Columbus Bar Lawyers Quarterly | Summer 2026

1. Brabus GmbH v. Individuals, No. 20-cv03720, 2022 U.S. Dist. LEXIS 187302, *2 (N.D. Ill. Oct. 13, 2022).

2. NBA Properties, Inc. v. HANWJH, 46 F.4th 614, 624 (7th Cir. 2022). The U.S. Supreme Court denied certiorari in January 2023. See HANWJH v. NBA Properties, Inc., 143 S.Ct. 577 (2023).

3. See, e.g., Ross v. Archer Publications Ltd., No. 24-20991-CIV, 2025 U.S. Dist. LEXIS 9817, *10-11 (S.D. Fla. Jan. 18, 2025) (noting that the 11th Circuit has not decided whether a single sale is sufficient minimum contacts for personal jurisdiction but finding HANWJH persuasive).

4. See Am. Girl, LLC v. Zembrka, 118 F.4th 271, 278 (2d Cir. 2024) (holding that a single transaction supports personal jurisdiction even without a shipment).

5. Zorro Prods., Inc. v. Individuals, No. 23-cv5761, 2023 U.S. Dist. LEXIS 226550, *2 (N.D. Ill. Dec. 20, 2023).

6. Id. at *11.

7. See, e.g., Eicher Motors Ltd. v. Partnerships, 794 F.Supp.3d 543, 546 (N.D. Ill. 2022).

8. Id. at 547.

9. Bose Corp. v. Partnerships, 334 F.R.D. 511, 517 (N.D. Ill. 2020).

10. See, e.g., Zaful Hong Kong Ltd. v.

Individuals, No. 24-cv-11111, 2025 U.S. Dist.

LEXIS 5156, (N.D. Ill. Jan. 10, 2025).

11. See Grupo Mexicano de Desarrollo S.A. v.

Alliance Bond Fund, Inc., 527 U.S. 308, 333 (1999) (holding that district courts have “no authority to issue a preliminary injunction preventing [a defendant] from disposing of their assets pending adjudication of [plaintiff’s] contract claim for money damages”).

92 | Columbus Bar Lawyers Quarterly | Summer 2026

When Identity Becomes Currency: Why Athlete Intellectual Property Is the Most Undervalued Asset in Sports

By Luke A. Fedlam and Marissa R. Borschke

95 | Columbus Bar Lawyers Quarterly | Summer 2026

On a Friday night, a high school

That is the next frontier. And it is

athlete makes a play that travels

where the real stakes lie.

farther than the stadium lights can reach. By the next morning,

Identity as Currency, Intellectual

the

Property as the Asset

video

has

been

clipped,

branded,

and

The phrase “identity is currency”

monetized in ways the athlete

is often used as a rhetorical

never authorized and may never

device.

even see. By the end of the week,

environment,

someone has filed a trademark

understood

as

an

economic

on the nickname attached to

reality.

athlete’s

identity

that moment.

functions

reposted,

In

today’s

NIL

is

better

it

An

as

a

revenue-

generating engine across multiple The

athlete

created

the

channels

value. The system distributed it.

drives

Others captured it. This is not a

purchasing

failure

brand

of effort. It is a failure

of understanding.

simultaneously.

engagement,

influences

behavior,

campaigns,

It

anchors

and

fuels

content ecosystems that extend well beyond the athlete’s direct

We have entered an era where

control. The market has already

identity is currency, yet many of

recognized this. The question is

the individuals whose identities

whether

fuel the marketplace have little

around them fully have.

athletes

and

those

awareness of how that currency is created, commercialized, or

To understand the magnitude of

protected.

this

Name,

Image,

and

shift,

it

is

necessary

to

Likeness (NIL) has opened the

reframe how we think about NIL.

door to economic participation,

It is not simply a right to be

but it has not yet built the

compensated. It is a portfolio of

framework necessary to ensure

intellectual

that participation translates into

capable of generating long-term

ownership and control.

commercial value.

96 | Columbus Bar Lawyers Quarterly | Summer 2026

property

assets

That asset class includes the

immediate.

athlete’s name and likeness, but

worth?

it

payment?

does

not

stop

there.

encompasses

It

nicknames,

slogans, logos, digital content, social

media

presence,

and

increasingly, the data and digital representations associated with the athlete. Each component has independent

and

compounding

value.

can

be

Each

replicated,

and

licensed,

monetized

in

ways that extend far beyond a single deal.

this nature are identified early, deliberately,

and

managed strategically. In sports, that mindset is only beginning to develop.

The

the

deal

much

is

the

will

the

When

check arrive?

Those

are

valid

important

questions.

and

But

they

contrast,

are

are incomplete.

Markets,

by

structured to think in terms of scalability

and

longevity.

A

brand does not simply evaluate what

a

piece

of

content

is

that

content

can

be

reused,

repurposed, and integrated into broader campaigns over time. It considers

how

the

athlete’s

identity

can

be

leveraged

across

platforms,

audiences,

and products.

Fundamental

Athletes

How

is

worth today. It evaluates how

In every other sector, assets of protected

What

Think

Disconnect: in

Checks,

Markets Think in Assets

The

result

is

a

subtle

but

significant imbalance.

consistent

An athlete may receive a one-

patterns in the NIL ecosystem is

time payment for a campaign

the

how

while granting rights that allow

opportunities

the brand to derive ongoing value

One

of

the

most

disconnect

athletes

evaluate

between

and how markets extract value

from

that

same

asset.

The

from them. Athletes are often

athlete’s compensation is finite.

conditioned to focus on the

The brand’s opportunity is not.

97 | Columbus Bar Lawyers Quarterly | Summer 2026

This is not inherently inequitable.

This is not a reflection of ability.

It

becomes

the

athlete

problematic

when

It is a reflection of exposure,

does

fully

education, and access.

not

understand the scope, duration, or future value of the rights

Athletes are trained to perform, to

being exchanged.

compete,

and

increasingly,

to

engage with fans and brands.

If identity is currency, then every

They

agreement

a

trained to understand the legal

that

and economic frameworks that

is

transaction

fundamentally involving

currency. And like any transaction involving

valuable

assets,

are

not

systematically

govern the value they create.

the

critical issue is not simply what is

As a result, many athletes do not

being paid but what is being

fully appreciate which aspects of

surrendered in return. Without

their

clarity

protectable intellectual property,

on

that

exchange,

it

identity

becomes difficult to determine

how

whether the transaction is fair,

secured, or what happens when

strategic, or sustainable.

they are not. They may not realize that

The

Knowledge

Gap:

Participating in an IP Economy Without IP Fluency A

critical

space

is

challenge

in

that

athletes

most

this

are operating in an intellectual property working

economy

without

understanding

a of

intellectual property itself.

those

constitute

a

protections

nickname

can

are

be

trademarked, that content created during a campaign may not belong to them, or that their likeness can be used in ways that extend beyond the original context in which they were captured.

This

knowledge

gap

has

consequences. In any market, the party with the least information is often the party most likely to concede value. In the NIL market,

98 | Columbus Bar Lawyers Quarterly | Summer 2026

that

value

is

frequently

tied

directly to the athlete’s identity.

These doctrines have existed for decades. What has changed is the speed and complexity of modern

The Legal Tools Are Established.

athlete commercialization.

The Strategic Application Is Not The irony of the current moment

A single NIL activation may involve

is

multiple

that

the

legal

frameworks

layers

of

intellectual

athlete

property rights, each governed by

intellectual property are not new.

a different body of law. A highlight

The problem is not the absence

clip

of

necessary

to

legal

but

protect

protection

the

available

absence

of

may

implicate

copyright

ownership.

The

athlete’s

appearance

triggers

publicity

rights.

strategic understanding.

A

slogan

used

in

the

campaign may raise trademark The right of publicity provides

considerations.

a

agreements

mechanism

to

challenge

Yet

many

NIL

continue

to

treat

unauthorized commercial use of

these issues as secondary, if they

identity,

address them at all.

as

Restatement

reflected of

the

Law

in 3d,

Unfair Competition, § 46 (1995).

This is where risk accumulates.

Trademark law under the Lanham Act, 15 U.S.C. 1051 et seq. offers

The NIL economy is moving faster

protection for names, logos, and

than the strategic infrastructure

brand identifiers. Copyright law,

surrounding it. Content is created

under 17 U.S.C. 102, governs

instantly,

ownership

of

original

works,

repurposed

including

the

photos,

videos,

monetized repeatedly. Rights that

distributed

globally,

continuously,

insignificant

in

and

graphics, and digital media that

appear

the

drive much of the NIL economy.

moment can acquire substantial long-term value once an athlete’s profile expands.

99 | Columbus Bar Lawyers Quarterly | Summer 2026

As the regulatory environment

This dynamic is particularly true in

continues

areas involving content usage and

to

evolve

in

the

wake of decisions like NCAA v.

brand

development.

Alston,[1]

of

drafted

license

will

company to continue using an

clarity

the and

expectation compliance

A

may

allow

a

increase. Informal practices that

athlete’s

once

effectively extending the life of

went

unchallenged

will

likeness

broadly

face greater scrutiny. And the

the

absence of strategic intellectual

compensation.

property planning will become

failure

not

protection for key identifiers can

only

more

visible

but

more consequential.

deal

indefinitely,

to

without

additional

Similarly,

secure

the

trademark

result in third parties establishing rights that constrain the athlete’s

The Hidden Cost of Short-Term Thinking Perhaps

the

most

underappreciated

risk

NIL

is

ecosystem

in

the

the

quiet

long-term

value.

erosion

of

When

athletes

prioritize

immediate compensation without fully

understanding

the

rights

they are transferring, licensing, or

relinquishing,

they

may

inadvertently limit their ability to capitalize on their own identity in the

future.

Agreements

that

appear favorable in the short term can create restrictions that persist long after the initial deal has concluded.

100 | Columbus Bar Lawyers Quarterly | Summer 2026

future opportunities.

The

long-term

cost

is

often

invisible at the time the agreement is

signed.

A

short-term

opportunity

may

seem

economically

beneficial

while

simultaneously diminishing future ownership control. By the time the consequences become apparent, the underlying rights may already be

contractually

restricted

or

legally claimed by others.

The issue is not that athletes should

avoid

monetization.

It

is that monetization should be approached with an

understanding

of

the

They are foundational.

underlying assets.

Equally important is the concept In markets built on intellectual

of

selective

monetization.

property, value is not just created.

every

It is preserved, structured, and

optimized for immediate revenue.

leveraged over time.

Some

opportunity

should

opportunities

should

Not be be

structured to preserve flexibility, A More Sophisticated Approach:

enhance brand equity, or open the

Managing Identity as a Portfolio

door to future partnerships.

If athlete intellectual property is an asset class, then it must be

This is where the concept of

managed with the same level of

identity

discipline valuable begins

with

valuation.

currency

becomes

to

other

most powerful. Currency can be

That

process

spent, saved, or invested. The

applied assets.

as

identification

Athletes

and

and

same

is

true

their

property. Athletes who treat their

intellectual

advisors must take inventory of

identity

what exists. This includes not

deployed strategically, rather than

only obvious elements such as

a series of isolated transactions,

name

will build a more durable and

and

likeness

but

also

emerging components such as digital

content,

branding

elements,

as

of

something

to

be

valuable portfolio over time.

personal and

data-

That gap will not just influence

driven insights.

earnings. It will determine control.

From there, protection becomes

The

essential.

Asset, Elevate the Athlete

filings,

Early clear

trademark

ownership

content,

and

structuring

of

Imperative:

Protect

the

of

At its core, the NIL movement

deliberate

was about creating opportunity.

agreements

are

not optional in a mature market.

The next phase must be about protecting it. Athletes are not 101 | Columbus Bar Lawyers Quarterly | Summer 2026

simply beneficiaries of a new

deals. The priority must be to

revenue stream. They are the

structure those deals in a way that

creators and faces of a rapidly

preserves

ownership,

expanding asset class rooted in

incentives,

and

their identity. Ensuring that they

sustainable value creation.

understand,

protect,

and

strategically manage those assets

If

identity

is

aligns supports

currency,

then

intellectual

property

integrity of the system.

infrastructure

that

That responsibility becomes even

Without that infrastructure, value

is

essential

to

the

long-term

digital

and

AI-driven

technologies

creates

new

opportunities

and

new

challenges.

The

ability

to

replicate and monetize athlete identity in virtual environments, gaming

platforms,

synthetic

media, and AI-generated content will

continue

boundaries

of

to

the

gives

that

currency stability and meaning.

more significant as the expansion of

is

test

the

existing

legal

can be extracted faster than it can be preserved.

The question facing the industry is not whether athletes will continue to generate value. They will. The real question is whether athletes will be positioned to keep it.

1. Natl. Collegiate Athletic Assn. v. Alston, 594 U.S. 69 (2021).

frameworks. In this environment, the

gap

between

those

who

understand the asset nature of

Luke A. Fedlam Amundsen Davis LLC lfedlam@amundsendavislaw.com

athlete IP and those who do not will become more pronounced.

For

lawyers,

executives,

and

administrators, policymakers,

this requires a shift in focus. It is no longer sufficient to facilitate 102 | Columbus Bar Lawyers Quarterly | Summer 2026

Marissa R. Borschke Amundsen Davis LLC mborschke@amundsendavislaw.com

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