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Lawyer Detail

Leo Kittay

Practice Description
Mr. Kittay is an associate in Fross Zelnick’s litigation practice, focusing on litigation in the areas of copyright, trademark, and unfair competition. He represents clients on matters related to intellectual property rights across a range of industries, including publishing, fashion, entertainment, pharmaceuticals, and consumer products.

Prior to joining Fross Zelnick, Mr. Kittay was an associate in the litigation department of a leading New York law firm. Before law school, Mr. Kittay was a theater and television actor.

Princeton University, A.B. in Philosophy (1996), cum laude, The Class of 1869 Prize in Ethics; Brooklyn Law School, J.D., magna cum laude (2008), Order of the Coif, Donald W. Matheson Memorial Prize, Faculty Scholar, Prince Scholar, Gerald Shargel Scholarship for Excellence in Criminal Law, Brooklyn Law Review (Articles Editor).

Professional Activities
Member: Brooklyn Law School Board of Trustees (2012-2014); Law Clerk: Honorable Alvin K. Hellerstein, United States District Court for the Southern District of New York (2008-2009); Legal Intern: United States Attorney’s Office for the Eastern District of New York (2007), New York County District Attorney’s Office (2006), Honorable Barbara S. Jones, United States District Court for the Southern District of New York (2006).

Super Lawyers® 2017 New York Metro Rising Stars

New York State
United States District Court for the Southern and Eastern Districts of New York

Selected Cases

802 F.3d 1012 (9th Cir. 2015), cert. denied, 136 S.Ct. 1390 (2016)

On behalf of client DC Comics, the Firm prevailed in a decision by the U.S. Court of Appeals for the Ninth Circuit holding that the Batmobile, Batman’s famous car, was subject to copyright protection as a character.  In reaching its decision, the Court set forth a new, three-part test for determining protection of a character appearing in comic books, television programs or films under the 1976 Copyright Act, independent of any specific work in which it has appeared and irrespective of whether it “lacks sentient attributes and does not speak.”  Upon finding that the Batmobile met all of the necessary criteria, the Court then held that DC had the right to bring suit because it had reserved all merchandising rights when it granted licenses for the creation of the 1966 Batman television series starring Adam West and the 1989 Batman film starring Michael Keaton.  In the alternative, because the 1966 program and 1989 film were derivative works of the original Batman comics, any infringement of those derivative works also gave rise to a claim for DC, the copyright owner of the underlying works.  Finally, the Court found that the replica Batmobiles created by mechanic Mark Towle infringed DC's in the Batmobile as it appeared in the 1966 program and 1989 film.  The Court also upheld the District Court’s refusal to allow Towle to assert a laches defense on DC’s trademark claims because the infringement was found to be willful.  The U.S. Supreme Court denied Towle's petition for certiorari on March 7, 2016.

2015 WL 4464694, Opp. No. 91194716 (T.T.A.B. July 17, 2015)

On behalf of DC Comics, the Firm successfully opposed two applications to register GOTHAM BATMEN and a batwing design in connection with entertainment and business networking services.  In sustaining the opposition, the Trademark Trial & Appeal Board held that BATMAN was "a famous mark in connection with . . . comic books and movies" and further that such "fame is transferred to a vast array of collateral or merchandising products that are purchased because they bear the BATMAN trademark; that is, consumers have come to associate the fame of BATMAN with the products bearing that mark."

No. 2:10-cv-05371-JLL-CCC, 2011 WL 3236062 (D.N.J. July 27, 2011), aff'd, 465 Fed.Appx. 163 (3d Cir. 2012)

The firm successfully defended our clients, who include Sundance Channel, Mayor Cory A. Booker and the documentary producers, Marc Benjamin and Marc Levin, against a copyright infringement action brought by author, E. Adam Jackson. Jackson’s October 2010 lawsuit alleged that the Sundance Channel’s Emmy Award-winning documentary series Brick City infringed Jackson’s novel of the same name.

Published Works

Ninth Circuit Court of Appeals: Actor May Not Enjoin Film Under Copyright Law - Performance Not Copyrightable

Mondaq, September 23, 2015.

Admissibility of fMRI Lie Detection: The Cultural Bias Against “Mind Reading” Devices

Note, Brooklyn Law Review, Spring 2007

Ninth Circuit of Appeals: The Batmobile is a Character Under Copyright Law - New, Three-Part Test for Determining Character Protection

Mondaq, January 11, 2016.