Who Owns the Law? The Pro Codes Act’s Copyright Conundrum; The Federalist Society, July 26, 2024

Jill Jacobson , The Federalist Society;  Who Owns the Law? The Pro Codes Act’s Copyright Conundrum

"Voluntary consensus standards have become an essential but unseen part of everyday life. From ensuring your apartment building’s elevator is safe to enabling your router to get online, privately developed standards greatly impact modern life. A bill quietly percolating in Congress may impact this typically quiet intersection of law, policy, and regulation. The Protecting and Enhancing Public Access to Codes Act (“Pro Codes Act” (H.R. 1631)) permits standards development organizations (SDOs) to retain copyright protection when their standards are incorporated by reference into law, so long as they make a free version of the code available online. I take no position on this legislation and acknowledge the thoughtful arguments on both sides of this debate. I instead write to highlight how this below-the-radar legislation raises interesting and unintended intellectual property and takings issues with potentially far-reaching consequences.

The key players here are SDOs—typically private groups of industry experts who draft technical standards. Given the expertise that goes into drafting these standards, local, state, and federal governments often incorporate them into regulations by reference. Often, SDOs do not write standards for government use; many standards are authored for private sector guidance. Many SDOs derive significant revenues from licensing or selling copies of the standards. For example, many standards are only available for private viewing behind paywalls. However, government agencies may incorporate these same standards into regulations without the SDOs’ knowledge or consent. This creates tension between SDOs’ understandable wish to be compensated for the fruits of their labor and the regulated public’s need for open access to these standards.

SDOs also face uncertainty about whether the government edicts doctrine—which denies copyright protection to works created by government officials—extends to private entities’ work when it is incorporated into government regulations. At least some cases suggest it may. As the D.C. Circuit stated in American Society for Testing and Materials v. Public.Resource.Org, legal text “falls plainly outside the realm of copyright protection.”

On the surface, the Pro Codes Act aims to strike a fair balance between competing concerns over fair compensation and public access."

Troy professor copyrights creative writing style; News4, May 15, 2024

 News4; Troy professor copyrights creative writing style

"Business professor Dr. Rodger Morrison now has a copyright for a tokenization regarding artificial intelligence."

AI-Created Art Isn’t Copyrightable, Judge Says in Ruling That Could Give Hollywood Studios Pause; The Hollywood Reporter, August 18, 2023

Winston Cho, The Hollywood Reporter ; AI-Created Art Isn’t Copyrightable, Judge Says in Ruling That Could Give Hollywood Studios Pause

"A federal judge on Friday upheld a finding from the U.S. Copyright Office that a piece of art created by AI is not open to protection. The ruling was delivered in an order turning down Stephen Thaler’s bid challenging the government’s position refusing to register works made by AI. Copyright law has “never stretched so far” to “protect works generated by new forms of technology operating absent any guiding human hand,” U.S. District Judge Beryl Howell found."

Can You Copyright a Photograph of Your AI Art?; Make Use Of, August 3, 2023

CRAIG BOEHMAN, Make Use Of; Can You Copyright a Photograph of Your AI Art?

"So you've created an AI-generated artwork. You've used only prompts. And by law, you can't copyright it, so what do you do?

You take a picture of it!

By taking a picture of the work, not only do you own the copyright of the photo, but you also enjoy all the other protections of copyright, including the right to use your photo commercially."

Copyright Office: Sorry, but you probably can’t protect your AI-generated art; Fast Company, June 30, 2023

JESUS DIAZ, Fast Company; Copyright Office: Sorry, but you probably can’t protect your AI-generated art

"Well, there’s nothing to see here, folks. You don’t need any of the generative AI tools in our weekly roundup because they will produce stuff you don’t really own. At least that’s what the United States Copyright Office (USCO) says. The federal agency doubled down on its AI doctrine during a recent webinar, labeling anything produced by AI as “unclaimable material.”

In other words, anything that comes out of an AI program can’t be protected under copyright law and will not be accepted even if it’s included in a work created by a human. So those extra trees and mountains you added to your landscape photo with Photoshop Firefly beta? They are not yours, sorry.”

Robert Kasunic of the USCO says, “The Office will refuse to register works entirely generated by AI. Human authorship is a precondition to copyrightability.” But it’s more complicated than that. As Petapixel reports, USCO will register your images if they are modified with AI, but you will have to declare which parts are made using AI, making them “unclaimable, essentially discounting them” from the copyright protection. Kasunic went on to say that USCO believes that using any AI to generate content is akin to giving instructions to a commissioned artist.

How will USCO enforce this policy in a world where generative AI work is practically undetectable? It’s a question that only has one obvious answer: LOL."

Who Owns the Copyright in A Tattoo?; Lexology, October 17, 2022

McKee Voorhees & Sease PLC - Brandon W. Clark, Lexology; Who Owns the Copyright in A Tattoo?

"In this, the first ever case of its kind to reach a jury, the jury found in favor of Alexander. However, the decision was something of a hollow victory for Alexander as the jury only awarded damages of $3,750. This case illustrates many of the issues with putting a copyright case in front of a jury as the court removed many of Take Two’s potential defenses from the jury’s consideration including de minimus use, an implied license, and waiver.

While the issues are novel and some of the case specific facts are fascinating, the outcome of the case could have a significant impact on copyrights and licensing for video games, television, motion pictures, and photographs. It is too early to tell what specific impact the result could have, and the minimal damages award will likely prevent an onslaught of similar cases, but the result does indicate a potential increase in risk when using someone’s name, image, and likeness, and will likely change the way these licenses are drafted in the future.

From a practical perspective, since copyright rights can only be transferred via a signed writing, the one sure way to avoid this risk is to ensure that tattoo artists sign a copyright assignment at the time the work is completed."

Explainer: who owns the copyright to your tattoo?; The Conversation, August 10, 2020

Marie Hadley, The Conversation; Explainer: who owns the copyright to your tattoo?

"So, why don’t tattooists sue over copying?

In some art industries, there can be a big gap between holding rights and exercising them. 

To tattooists, appropriation is mostly seen as a matter of ethics or manners rather than law...

These norms aside, copyright law does apply to tattoos. Whether or not more tattoo enthusiasts will seek an appropriate licence, as occurred in the case of Jarrangini (buffalo), or a copyright owner will sue for a rights violation, is another matter."

Legal Counsel: Can you copyright a tweet?; The Oklahoman, August 19, 2018

Terry L. Watt, PhD, The Oklahoman; Legal Counsel: Can you copyright a tweet?

"Although there is no clear rule concerning the ability to copyright tweets, it is likely that in most cases they are not eligible. Still, when in doubt, getting permission from the author is always advised."

Can You Change Two Words To A Song And Claim A New Copyright?; Above The Law, August 10, 2017

Krista L. Cox, Above The Law; 

Can You Change Two Words To A Song And Claim A New Copyright?

"In order to be copyrightable as a derivative work, the new work must “add new original copyrightable authorship.” We will (shall?) see whether these small changes were big enough to warrant copyright protection. And if a court indeed finds that it is, well, I guess that means it’s time for me to start marketing “Ringing Bells.”"

Can An AI Algorithm Copyright What It Creates?; Forbes, August 2, 2017

Kalev Leetaru, Forbes; Can An AI Algorithm Copyright What It Creates?

"Today AI systems are still largely human guided, meaning that even creative algorithms like Google’s Deep Dream are still dependent on the input of a human artist to select both the training images to build the neural network and the image to manipulate. What happens, however, as deep learning algorithms become increasingly capable, eventually operating more and more without human oversight?

Imagine a future version of Deep Dream that is fully autonomous and sits by itself coming up with completely novel imagery that has never been seen by human eyes and which was not guided or suggested by any human. Who owns the rights to these images? If an art company uses such an algorithm to produce new works, can it copyright those works for itself or are the works entirely unprotectable? Or could the AI itself own those works and generate profit from them that it could use to improve itself?"

"Phonebooks"; Pearls Before Swine, GoComics, 9/28/16

Stephan Pastis, Pearls Before Swine, Go Comic; "Phone Books" :

[Kip Currier: Yesterday in my IP and "Open" Movements course, I was talking about the landmark U.S. Supreme Court copyright case, Feist Publications v. Rural Telephone Service Co. (involving discussion of whether the White Pages and Yellow Pages phone books were "original" works subject to copyright protection), and checked with my students to make sure everyone knew what a "phone book" was. They did. Timely seeing this "Pearls Before Swine" comic strip today.]

Publisher Seeks to Overcome Copyright Suit Over Famous Civil Rights Song; Hollywood Reporter, 7/18/16

Ashley Cullins, Hollywood Reporter; Publisher Seeks to Overcome Copyright Suit Over Famous Civil Rights Song:

"A documentary filmmaker, suing as the We Shall Overcome Foundation, filed a putative class action in April against Ludlow Music and the Richmond Organization, seeking a judgment that the song isn't copyrightable and that licensing fees collected for it must be returned. The lawsuit came after the filmmaker was denied a synch license to use an a cappella version of the song. In June, Lee Daniels' The Butler entered the fray, joining the suit because defendants had tried to charge $100,000 for use of the song in that film.

Plaintiffs argue "We Shall Overcome" is an adaptation of an African-American spiritual which is virtually identical to a 1948 composition called "We Will Overcome," the copyright for which expired in 1976. Therefore, they argue, that's when the unofficial anthem of the civil rights movement became part of the public domain."

Political Art in a Fractious Election Year; New York Times, 7/17/16

Randy Kennedy, New York Times; Political Art in a Fractious Election Year:

"Recently, bumper stickers and T-shirts began showing up around the country with a logo not for Hillary Clinton or Donald J. Trump but for a long-shot campaign: “Giant Meteor 2016: Just End It Already.”

The graphic, by Preston Whited, a production planner at a kayak-paddle company north of Seattle, was a lark that grew out of a Facebook chat among Mr. Whited and his friends. “We have a pretty dark sense of humor,” he said in a phone interview. “We came up with it, and I just took a Bernie ad and redid it on Excel and put it out there.” He added that, besides having no real graphic art experience, “I really don’t have any political faith in anything.”

A few weeks after he put the logo on Facebook, enterprising souls elsewhere on the web picked it up and began selling it on bumper stickers, shirts and hats. “Which is cool with me,” Mr. Whited, 30, said. “If I’d tried to copyright it and claim it, it never would have had the exposure it’s had. Now I see it all over. And I can go buy it and put it on my car.”"

Bastille Day Fireworks and Copyright; Trademark & Copyright Law Blog, 7/13/16

Alice Berendes, Trademark & Copyright Law Blog; Bastille Day Fireworks and Copyright:

"When the 100th anniversary of the building of the Eiffel Tower was commemorated, the French Supreme Court, or Cour de Cassation, held (in its Judgment of March 3, 1992, Case No. 90-18081) that a show “consisting of lighting effects of the tower by a combination of ramps and projectors, along with image projections and fireworks” is a work of art protected by copyright. In making this holding, the Court affirmed a lower court’s decision that a publisher cannot sell postcards reproducing photographs of the show without the show designer’s prior authorization.

The Supreme Court’s ruling is a good illustration of how extensive the notion of copyrightable work is under French law. Article 112-1 of the French Intellectual Property Code, states that works are protected by copyright “whatever their kind, form of expression, merit or purpose.”"

A Fight Over Cheerleading Uniforms Is Heading to the Supreme Court; Fortune, 5/2/16

Chris Morris, Fortune; A Fight Over Cheerleading Uniforms Is Heading to the Supreme Court:

"The high court has agreed to hear a case over whether stripes, zigzags and colors worn on uniforms by cheerleaders can be copyrighted under federal law. While it’s a case that might sound unusual, it’s one that could have far-reaching effects.

At issue is an August 2015 ruling by the 6th Circuit Court of Appeals in Cincinnati. That decision allowed Varsity Brand to pursue a copyright claim against Star Athletica, based on similar uniform designs. Justices said the stripes, chevrons, zigzags, and color blocks in the outfits were more than aesthetic touches – and, in fact, made the outfit a cheerleading uniform.

The 6th Circuit Court Justices, in a split opinion, said the original ruling, which found that the designs weren’t subject to copyright laws “would render nearly all artwork unprotectable.” Also at issue, they wrote, could be designs on laminate flooring as well as the decorative base on some lamps...

Copyright law, when it comes to clothing, is less protective than you might think. Fabric designs are covered, but aspects like sleeve styles, pockets and necklines are not copyrightable, since they’re considered inseparable from the chief purpose of the outfit – to cover your body."

The Blue Wars: A Report from the Front; Harvard Law Record, 3/21/16

Carl Malamud, Harvard Law Record; The Blue Wars: A Report from the Front:

"The subject of this legal inquisition is a work you all know well: The Bluebook: A Uniform System of Citation. A series of letters from Ropes & Gray LLP firmly asserted and repeatedly reminded me of the legal protections surrounding this work including trademark and copyright protections. THE BLUEBOOK A UNIFORM SYSTEM OF CITATION, Registration No. 3,886,986; THE BLUEBOOK, Registration No. 3,756,727; The Bluebook A Uniform System of Citation, 20th edition, Copyright Registration No. TX0008140199 (June 5, 2015).

The Blue Wars started in 2009 when Frank Bennett, a law professor at Nagoya University in Japan, was working on some open source software for legal citation. Professor Bennett wanted to build in a resolution mechanism for common abbreviations, for example mapping the court name “Temporary Emergency Court of Appeals” to the designated abbreviation (“Temp. Emer. Ct. App.”). The Bluebook: A Uniform System of Citation 234 tbl.T.1 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

Professor Bennett applied to the Harv. L. Rev. Ass’n for permission to use the rudimentary Bluebook web site and grab the abbreviations. He was firmly rebuffed. Being an open source acolyte, Professor Bennett felt he was entitled to use those common and obvious abbreviations, so he wrote to his spiritual leader [Lawrence Lessig] for help...

These are the challenges in front of us all. What is at stake is not the future of a $36 book, it is the question of how we communicate the law so that we all understand each other; so that our system of justice can be transparent and clear; so that we all know what we’re talking about when we refer to a source. I hope we can do this together."

Crosswords and copyright; Washington Post, 3/15/16

David Post, Washington Post; Crosswords and copyright:

"What’s interesting, to me, in all this, aside from the light it sheds on puzzle construction, is that it illustrates how “plagiarism,” though it is often conflated with copyright infringement, actually covers very different territory and involves very different interests. A crossword’s “theme” is probably one element of the puzzle-creator’s work that is not protected by copyright; copyright law doesn’t protect “ideas,” only the expression of ideas, and a puzzle’s theme is, in my opinion, just such an unprotectable “idea,” free for the taking (as far as copyright law is concerned). But it’s precisely this kind of taking — theme theft — that gets the angriest response from those in the puzzle-writing business.

This has a direct parallel in academic writing. There, too, the plagiarism norms focus on a kind of borrowing that the law of copyright deems permissible: taking another’s ideas or expression without attribution. Nobody in the academic world will complain if you use their ideas or quote their work — in fact, that’s very much the whole point of the enterprise. But to do so without citation — that will get you into the hottest of hot water. [Just ask Doris Kearns Goodwin, or Stephen Ambrose or Joseph Ellis]. Yet copyright law gives an author no enforceable right to have his/her work properly attributed to him/her — a fact that surprised the hell out of many of my law prof colleagues when they first learned of it (insofar as proper attribution was really the only thing they cared about)."

‘Let’s Take a #Selfie,’ Said the Monkey: A Case of Questionable Copyrights; Wired, 9/18/14

Anderson J. Duff, Wired; ‘Let’s Take a #Selfie,’ Said the Monkey: A Case of Questionable Copyrights:

"The United States Copyright Office chimed in with its two cents in the recently published third edition of the Compendium of U.S. Copyright Office Practices – the first revision in over two decades. While prior publications were largely internal, the third edition is a push to make the practices and standards of the Copyright Office more timely and transparent while providing guidance on some fundamental principles of copyright law. Its verdict? Monkey selfies can’t be copyrighted.

In the age of hyperconnected, always-on, muploads, likes and hashtags, how does intellectual property fit into the equation? How do we define “ownership” when pieces of content — especially images — are continuously created and uploaded into the public domain in a matter of seconds? As preteens, celebrities, President Obama, the Pope — and now, yes, even monkeys — jump on the selfie train, we may not think twice before uploading photos to Instagram or Facebook. But one filter we rarely consider is looking at the world through copyrights."