Issues and developments related to Intellectual Property (e.g. Copyright, Fair Use, Patents, Trademarks, Trade Secrets) and Open Movements (e.g. Open Access, Open Data, Open Educational Resources (OER)), examined in the "Intellectual Property and Open Movements" and "Ethics of Data, Information, and Emerging Technologies" graduate courses I teach at the University of Pittsburgh School of Computing and Information. -- Kip Currier, PhD, JD
"While the courts may take years to decide whether generative AI models are fair use, the litigation underway is many steps ahead of Congress, which hasn’t yet enacted legislation to regulate the burgeoning technology. In the meantime, some observers see peril for the AI industry.
“Copyright law is the only law that’s already in existence that could bring generative AI systems to their knees,”Pamela Samuelson, a copyright law professor at the University of California Berkeley, said at a lecture on AI last month. “If the court says ingesting is infringement, the whole thing can be destroyed.”
"Reactions to the Supreme Court ruling are mixed. Noah Feldman, a scholar of law at Harvard, writes in Bloombergthat the decision helps artists but harms creativity.
“The upshot is that little-guy artists win, because they now have more rights than they had before to claim credit for works reused by others,” he writes. “But art as a whole loses, because the decision restricts how artists generate creativity by sampling and remixing existing works.”
Carroll tells the Times that the ruling leaves a lot of room for conflicting interpretations, and the legal battle has only just begun.
“Is it really just about competitive licensing use, or is it more broadly about creating derivative works?” he adds. “I think what you’ll see is lower courts reading it each way, and then eventually this issue is going to find its way back to the Supreme Court.”"
"That’s why, Sink believes, “I don’t think this is going to open any floodgates of artistic repression,” he said. “I feel like that this case falls into its own category because it was a work-for-hire situation.”
The Andy Warhol Foundation issued a statement saying it was important to note that the ruling “did not question the legality of Andy Warhol's creation of the Prince series."
The case is, to put it mildly, “a very complicated, double-edge sword for artists,” Sink said. But two things he’s sure of: 1. “It really is the Wild West out there now” when it comes to these quickly evolving issues. And 2. Warhol (who died in 1987) would beloooooving this."
"The Arkansas Registered Trademark Search is an online tool provided by the Arkansas Secretary of State’s office that allows individuals to search for and view registered trademarks in Arkansas.
Users can search for trademarks by the name of the mark, the owner of the mark, the registration number, or the description of goods or services associated with the mark. The search results provide information on the status of the trademark, including its registration number, registration date, and expiration date."
"Many thought the latest Supreme Court decision might more clearly delineate what qualifies a work as transformative. But the justices chose instead to focus on how the Warhol portrait had been used, namely to illustrate an article about the musician. The court found that such a use was not distinct enough from the “purpose and character” of Goldsmith’s photo, which had been licensed to Vanity Fair years earlier to help illustrate an article about Prince.
“It was the licensing use, not the creative use, that was at issue,” said Michael W. Carroll, a professor at American University Washington College of Law."
"Walt Disney Co’s Marvel and the estate of artist Steve Ditko both asked a Manhattan federal judge on Friday to hand them a win without waiting for trial in their copyright dispute over rights to superheroes Spider-Man and Doctor Strange."
"Denmark’s Supreme Court on Wednesday overruled two lower courts, saying a cartoon depicting Copenhagen’s The Little Mermaid statue as a zombie and a photo of it with a face mask did not violate the copyright of the famous bronze...
Copenhagen’s district court and the Eastern High Court found in 2020 and 2022 that the cartoon and the photo were infringements of the Danish Copyright Act, and ordered the newspaper — one of Denmark’s largest — to pay the heirs of Danish sculptor Edvard Eriksen thousands of kroner in compensation.
On Wednesday, the Supreme Court said “that neither the caricature drawing nor the photograph of The Little Mermaid with a mask on, which was brought to Berlingske in connection with newspaper articles, infringed the copyright of the heirs to the sculpture The Little Mermaid...
The heirs are rigorous in enforcing the copyright to the sculpture, which runs until 2029, 70 years after Eriksen’s 1959 death. Several publications have been charged with copyright infringement over the years after publishing pictures of the artwork."
"Soler added the Supreme Court's ruling is likely to have a big impact on cases involving the "sampling" of existing artworks in the future.
"This supreme court case opens up the floodgates for many copyright infringement lawsuits against many artists," said Soler. "The analysis is going to come down to whether or not it's transformative in nature. Does the new work have a different purpose?"
Wu disagrees about the ruling's importance. "It's a narrow opinion focused primarily on very famous artists and their use of other people's work," Wu said. "I don't think it's a broad reaching opinion.""
"Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38."
Photographer Lynn Goldsmith alleged copyright infringement, after the Andy Warhol Foundation granted Vanity Fair a license to use one of the pop artist’s Prince silkscreens in 2016, decades after the images were first created using her photograph.
The court rejected arguments made by the Andy Warhol Foundation that the artist didn’t violate copyright laws because he sufficiently transformed Goldsmith’s original shot.
Justice Sonia Sotomayor wrote that Goldsmith’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
The dissenting opinion, written by Justice Elena Kagan and joined by Chief Justice John Roberts, argued that the court’s decision against Warhol “will stifle creativity of every sort” and “will impede new art and music and literature.”"
Both the National Press Photographers Association (NPPA) and the ASMP are celebrating the ruling as a win for photographers.
“The importance here cannot be overstated,” Thomas Maddrey, Chief Legal Officer and Head of National Content and Education at ASMP,says.
“The last case that the US Supreme Court fully opined on transformation and fair use was more than 25 years ago in Campbell v. Acuff-Rose. Here, the Court has added much needed guidance to when a use is truly ‘fair’ and when it is an impermissible usurpation of the rights of the copyright holder.”
Maddrey says that the case will likely have wide-ranging implications in not only the arts community, but also across all intellectual property areas.
“Copyright practitioners have long sought clarification on what “transformation” actually means in the context of a fair use analysis.”
'The court has clearly identified the boundaries of what constitutes transformation in the context of fair use analysis.""
"In a ruling that could have vast implications in the copyright world, the Supreme Court ruled on Thursday that images of Prince created by Andy Warhol that were based on photos taken by Lynn Goldsmith violated her copyright, according to CNN and multiple news outlets.
The ruling was 7-2.
The court rejected arguments made by the late Warhol’s foundation that the work was sufficiently transformative and did not violate copyright laws. While the work was created in the 1980s, Thursday’s ruling arrives against the backdrop of AI, which has created vast copyright implications over what constitutes originality. Warhol freely coopted many photographs, logos and other forms of artwork — ranging from soap boxes to iconic photos — into his works."
"The Supreme Courtruled on Thursdaythat Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of thefair-use defenseto copyright infringement in the realm of visual art.
The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”"
"Patents must also sufficiently describe the invention so as to enable a person of ordinary skill in the art to carry out the invention. This is uniquely challenging for AI inventions, due to the “black box” nature of some AI engines. There is potential for near-term evolution in this area of patent law. How can businesses ensure that patent applications filed today will meet future standards? Companies should be aware of these potential shifts and adapt their IP strategies accordingly.
Copyrighting AI-generated content is also topical. Presently, whether AI-generated subject matter is copyrightable may bear on the level of human contribution. Moreover, determining who owns the copyright may depend on contractual provisions (e.g., website terms of service)."
"OpenAI CEO Sam Altman said Friday that last week's White House AI summit discussed laws mandating AIs reveal themselves, and added that his firm is working on new ChatGPT models that respect copyright...
On copyright, Altman positioned himselfon the side of copyright systems that ensure creators are paid for the value they create: "We're trying to work on new models where if an AI system is using your content, or if it's using your style, you get paid for that," he said."
"1. Sheeran’s victory maintains music copyright’s status quo.
Anopinion piece in The Washington Post called the lawsuit “a threat to Western civilization.” Sheeran’s lawyers were less hyperbolic but still argued that a loss would have a devastating impact on songwriters by privatizing parts of the public domain.
“Creativity would be stifled for fear of being sued,” Ilene S. Farkas said in her closing statement.
Sheeran’s win means that music’s wider legal landscape remains largely undisturbed. After the shock of the “Blurred Lines” verdict in 2015, in which Robin Thicke and Pharrell Williams were ordered to pay more than $5 million to Gaye’s family — a case that many experts felt was wrongly decided — Led Zeppelin prevailed in a suit involving “Stairway to Heaven,” sending the pendulum back to a more neutral position."
"“Fox Corp., the parent company of Fox News, has sent a cease-and-desist letter to Media Matters for America over its publication of leaked videos showing Tucker Carlson, a former host at the network, making crude and offensive comments off the air...
That unaired footage is Fox’s confidential intellectual property; Fox did not consent to its distribution or publication; and Fox does not consent to its further distribution or publication.”
The network’s lawyers said the videos were given to the liberal media watchdog group “without Fox’s authorization” and demanded it “cease and desist from distribution, publication, and misuse of Fox’s misappropriated proprietary footage, which you are now on notice was unlawfully obtained.”
In a statement to The Hill on Friday, Angelo Carusone, president of Media Matters said “reporting on newsworthy leaked material is a cornerstone of journalism. For Fox to argue otherwise is absurd and further dispels any pretense that they’re a news operation.”"
"Imagine a painter in their studio, preparing for an exhibition. The painter is working on a landscape. The sky is midnight blue. The valley is Kelly green. Mountains loom in the back, a spectacular hue reflecting off a brilliant sunset. The painter reaches for vermillion and then pauses. Wait a second, they think: Does someone own the copyright to this shade of red? Am I going to get sued for this?
That would be crazy, right? Regrettably and amazingly, in the music industry the aesthetic equivalent of this thought process is no longer as insane as it sounds."
"A federal jury found on Thursday that the pop singer Ed Sheeran did not copy Marvin Gaye’s classic “Let’s Get It On” for his 2014 hit “Thinking Out Loud,” in the music industry’s highest-profile copyright case in years...
Besides Mr. Sheeran, the defendants included his label, Atlantic Records, and his publisher, Sony Music Publishing.
For the wider music industry, Mr. Sheeran’s victory preserves a status quo about copyright. After the disruption of the “Blurred Lines” case, many commentators viewed Led Zeppelin’s win as steering copyright cases back into more familiar territory. Katy Perry and her collaborators on the song “Dark Horse” were immediate beneficiaries of that ruling.
Last year, after successfully defending himself in Britain in an infringement case involving his hit “Shape of You,” Mr. Sheeran released a video onsocial media. “There’s only so many notes and very few chords used in pop music,” he said. “Coincidence is bound to happen if 60,000 are being released every day on Spotify.”"
"Tyler Ochoa, a professor in the Law department at Santa Clara University in California, told The Register he fully expects to see lawsuits against the makers of large language models that generate text, including OpenAI, Google, and others.
Ochoa said the copyright issues with AI text generation are exactly the same as the issues with AI image generation. First: is copying large amounts of text or images for training the model fair use? The answer to that, he said, is probably yes.
Second: if the model generates output that's too similar to the input – what the paper refers to as "memorization" – is that copyright infringement? The answer to that, he said, is almost certainly yes.
And third: if the output of an AI text generator is not a copy of an existing text, is it protected by copyright?
Under current law, said Ochoa, the answer is no – because US copyright law requires human creativity, though some countries will disagree and will protect AI-generated works. However, he added, activities like selecting, arranging, and modifying AI model output makes copyright protection more plausible."
"After all, the whole history of music (and the arts more broadly) is the history of taking what came before and reworking it. I don’t think it’s even possible to create something entirely original. Even the seemingly most original artists were often “original” in part because they were creative and eclectic thieves, taking from a diverse range of influences."
"Sheeran said he’s heard from other singers since the trial began last week because they share his worries about litigation resulting from their songwriting. He didn’t identify any of them, but said they’re cheering him on — grateful that he’s standing up against what all songwriters view as a threat to their work.
“When you write songs, somebody comes after you,” Sheeran said."
"As artists, composers, and other “content creators” and intellectual property owners use generative AI tools or decry their development, many legal and ethical issues arise. In this panel discussion, a copyright law expert, an AI researcher who is also a composer and music performer, and a multi-disciplinary visual artist (all of whom teach at Santa Clara University) will address some of those questions–from training data collection to fair use, impact on creativity and creative labor, the balancing of various rights, and our ability to assess and respond to fast-moving technologies."
"More than 40 editors have resigned from two leading neuroscience journals in protest against what the editors say are excessively high article-processing charges (APCs) set by the publisher. They say that the fees, which publishers use to cover publishing services and in some cases make money, are unethical. The publisher, Dutch company Elsevier, says that its fees provide researchers with publishing services that are above average quality for below average price. The editors plan to start a new journal hosted by the non-profit publisher MIT Press.
The decision to resign came about after many discussions among the editors, says Stephen Smith, a neuroscientist at the University of Oxford, UK, and editor-in-chief of one of the journals, NeuroImage. “Everyone agreed that the APC was unethical and unsustainable,” says Smith, who will lead the editorial team of the new journal, Imaging Neuroscience, when it launches.
The 42 academics who made up the editorial teams at NeuroImage and its companion journal NeuroImage: Reportsannounced their resignations on 17 April. The journals are open access and require authors to pay a fee for publishing services. The APC for NeuroImage is US$3,450; NeuroImage: Reports charges $900, which will double to $1,800 from 31 May. Elsevier, based in Amsterdam, says that the APCs cover the costs associated with publishing an article in an open-access journal, including editorial and peer-review services, copyediting, typesetting archiving, indexing, marketing and administrative costs. Andrew Davis, Elsevier’s vice-president of corporate communications, says that NeuroImage’s fee is less than that of the nearest comparable journal in its field, and that the publisher’s APCs are “set in line with our policy [of] providing above average quality for below average price”."
"At theBureau of Economic and Business Affairs, we advocate against unfair trade practices and push for a level playing field for U.S. businesses, workers, goods, and services. Success is protecting innovators around the world, regardless of race, social standing, or gender.
The World Intellectual Property Organization (WIPO) Secretariat in Geneva, Switzerland chooses a theme that allows us to view intellectual property through a different lens. The event takes place every April 26, the same date on which the United Nations Convention establishing WIPO entered into force in 1970. The United States is a member of WIPO, and we also promote World IP Day across all our U.S. Missions around the world.
This year’s theme is “Women and IP: Accelerating Innovation and Creativity.”
Around the world, our embassies will host roundtables, panel discussions, events, lectures, forums with women innovators, debates on local TV and radio, and many other events highlighting the importance of intellectual property rights.
WIPO leaders chose this year’s theme to celebrate the “can do” attitude of women innovators, creators, and entrepreneurs around the world and their ground-breaking work. We’re also highlighting the role of IP rights in securing the new technologies, materials, and products patented by women."
"To help better understand the nuances of a copyright infringement trial, Variety revisits five of the most talked-about intellectual property lawsuits against musicians and songwriters that actually went all the way to a verdict… (and, in the case of appeals and judicial reversals, sometimes much further still)."
"The Copyright Office’s position is wrong. It misunderstands authorship and ignores thecopyright clause’sgoal of promoting “progress” by offering authors incentives to create new works, including with new technologies.
Its decision also misunderstands the creative process."
"Earlier this month, an anonymous TikTok user shared a song called “Heart On My Sleeve,” which featured AI-generated vocals that sounded like Drake and the Weeknd. The song was pulled from streaming services for copyright infringement, but not before it racked up millions of plays. Plenty of people find this uncanny-valley thing to be weird and creepy, but Grimes is into it.
Last night on Twitter, Grimes posted a screenshot of a New York Times article about the fake Drake/Weeknd song, and she tweeted that she wants people to try to use her voice for AI purposes: “I’ll split 50% royalties on any successful AI generated song that uses my voice. Same deal as I would with any artist i collab with. Feel free to use my voice without penalty. I have no label and no legal bindings… I think it’s cool to be fused w a machine and I like the idea of open sourcing all art and killing copyright.""
"Companies deploying generative AI tools, such as ChatGPT, will have to disclose any copyrighted material used to develop their systems, according to an early EU agreement that could pave the way for the world's first comprehensive laws governing the technology."
"Here is a guide to some of the most consequential music copyright cases in recent decades, along with excerpts from their recordings.
But remember: It can be tricky, and even misleading, to compare recordings alone. In cases like these, the only material in question are the songs’ underlying compositions: the melodies, chords and lyrics that can be notated on paper. Elements specific to the performance captured in a particular recording — like the tempo, or the timbre of an instrument — are irrelevant.
Juries must decide not only if one song copies another, but whether the earlier song was original and distinctive enough to be protected by copyright.
“The problem with cases like this is that people ask the wrong question,” said Joe Bennett, a professor at the Berklee College of Music who works as a forensic musicologist in legal cases. “They ask the question, ‘How similar is song B to song A,’ whereas what they should be asking is how original is song A.”
Got that? In that case, put your headphones on and judge for yourself."
Women and IP: Accelerating innovation and creativity
"In 2023, we celebrate the “can do” attitude of women inventors, creators and entrepreneurs around the world and their ground-breaking work.
Women in all regions are shaping the world through their imagination, ingenuity and hard work, but often face significant challenges in accessing the knowledge, skills, resources and support they need to thrive."
"“Copyright is a monopoly, and fair use is the safety valve,” says Art Neill, director of the New Media Rights Program at California Western School of Law. Everything from true-crime podcasts to Twitter dunks rely on fair use. It’s the doctrine that makes possible every “ENDING EXPLAINED!!1!” video you’ve watched after killing a bottle of pinot on Sunday night. It’s also why Americans can share videos of police brutality. Cara Gagliano, staff attorney at the Electronic Frontier Foundation, calls it “a particularly important tool for anyone who speaks truth to power.” The EFF filed an amicus brief in the case, siding with the Warhol Foundation. “It protects your right to criticize and critique the works of others.”"
"A closely watched music copyright trial is set to begin Monday in federal court in Manhattan, where a jury will decide a lawsuit accusing Ed Sheeran of copying his Grammy-winning ballad “Thinking Out Loud” from Marvin Gaye’s soul classic “Let’s Get It On.”...
The music industry is keenly interested in the outcome. Over the last decade, the business has been rocked by a series of infringement suits that have involved questions of just how much or how little of the work of pop songwriters can be protected by copyright, and how vulnerable they are to legal challenges."
"Intellectual property, such as inventions, creative content and brands, is created by people. These are people with amazing ideas, creative passions, and desires to improve communities around the world. But it often takes time, money, and personal sacrifices to move these ideas, passions, and desired impacts from conception to reality. When we see these finished products, creative works, or impactful companies, what is their value?
During this year's World Intellectual Property Day celebration, with a global theme of "Women in IP: Accelerating Innovation and Creativity", we will revisit this idea about how we value intellectual property. We will look through the eyes of the women who have made countless sacrifices, overcame hurdles others did not have to face, and yet succeeded and made their companies, inventions and creative works into a thriving reality. This month we will feature incredible women across the U.S. and learn about their years of education, hours spent calling new customers, late nights researching after a full day of work, and money spent for studio time, all so that they can bring their intellectual property to us. These important sacrifices together equals The Value of Her IP!
The Value of Her IP event
The United States Patent and Trademark Office (USPTO) will celebrate World IP Day 2023, centering on the theme of "The Value of Her IP" on Wednesday, April 26, 2023, from 4:30-7:30 p.m. ET., at the U.S. Capitol building's Senate Visitors Center. The focus of the program will be hearing from women business owners, creators and inventors about the financial, time, and personal sacrifices that were necessary for them to create their intellectual property. Their stories will illustrate why it was critical to protect their investments through IP protections such as patents, trademarks, copyrights, and trade secrets. The program will also stress the importance of increasing women's participation in the IP eco-system."
"Machine-learning is exponentially faster, though; it’s usually achieved by feeding millions, even billions of so-called “inputs” into an AI model to build its musical vocabulary. Due to the sheer scale of data needed to train current systems that almost always includes the work of professionals, and to many copyright owners’ dismay, almost no one asks their permission to use it.
Countries around the world have various ways of regulating what’s allowed when it comes to what’s called the text and data mining of copyrighted material for AI training. And some territories are concluding that fewer rules will lead to more business.
China, Israel, Japan, South Korea and Singapore are among the countries that have largely positioned themselves as safe havens for AI companies in terms of industry-friendly regulation. In January, Israel’s Ministry of Justice defined its stance on the issue, saying that “lifting the copyright uncertainties that surround this issue [of training AI generators] can spur innovation and maximize the competitiveness of Israeli-based enterprises in both [machine-learning] and content creation.”"
Trademark scams are on the rise, and bad actors are using increasingly devious and creative means to fool USPTO customers. Whether you're a trademark owner, applicant, or practitioner, you'll want to register for this important webinar on April 27, from 2-3:30 p.m. ET.
During an engaging panel discussion, our experts will give you practical tips for protecting yourself, your brand, and your clients from bad actors who:
Trick trademark owners into paying unnecessary fees
Engage in unauthorized conduct
Spoof legitimate attorneys and entities
Commit other fraudulent activities
A 30-minute question-and-answer session will follow the panel discussion. You may submit your questions before the event to TMWebinar@uspto.gov
We'll post a recording of this event to this page within three weeks of the event. All registrants will receive an email with the video link when it is ready.