KIMBERLY ADAMS AND SASHA FERNANDEZ, Marketplace; How does copyright law affect the sale and distribution of NFTs? (rerun)
"Non-fungible tokens exist in a gray area of copyright law … for now. “I think most of the people buying NFTs have no idea what it is they're actually buying,” says Aram Sinnreich of American University."
Riddhi Setty, Bloomberg Law; Copyright Office Sets Sights on Artificial Intelligence in 2023
"The US Copyright Office over the next year will focus on addressing legal gray areas that surround copyright protections and artificial intelligence, amid increasing concerns that IP policy is lagging behind technology.
“Developments are happening so quickly and so pervasively in so many different fields that I think in a way that is taking up most of the oxygen in the room these days,” Shira Perlmutter, register of copyrights and the office’s director, told Bloomberg Law in an interview."
Eriq Gardner, Puck; The Copyright Death (and Rebirth) of Mickey Mouse
"Another wrinkle is that the passing of copyrights into the public domain doesn’t necessarily mean there are fewer copyrighted works. On the contrary, it usually leads to more copyrights for each new remake. Consider the Sherlock Holmes canon: Warner Bros. has copyrights to its Robert Downey Jr. movies; the BBC has copyrights for its Sherlock episodes; CBS has them for Elementary, and so on. Netflix created an entirely new Sherlock-adjacent character, and now enjoys copyrights for its Enola Holmes films. Of course, only those elements that are truly original are eligible for new protections, which is why the BBC considered suing CBS over its own contemporary spin on the detective series (before thinking better of it).
After all, Hollywood studios are sued all the time for allegedly ripping off others. Fortunately for these studios, copyright lawsuits almost always fail because the law only protects original expression, not generic, time-worn genre tropes. Studios tend to be well represented and are usually adept at giving judges sound arguments for why their works don’t infringe. Nevertheless, with more people playing in the same sandboxes comes the increasing prospect of studios being sued for using famous characters in a particular way. So I’ll end with a prediction: There will come a time when Disney gets sued for infringing some new version of Mickey Mouse—and the studio defends itself by pointing to what’s in the public domain."
John Naughton, The Guardian; Something is afoot with copyright this Public Domain Day
"The issue highlighted by Public Domain Day is not that intellectual property is evil but that aspects of it – especially copyright – have been monopolised and weaponised by corporate interests and that legislators have been supine in the face of their lobbying. Authors and inventors need protection against being ripped off. It’s obviously important that clever people are rewarded for their creativity and the patent system does that quite well. But if a patent only lasts for 20 years, why on earth should copyright last for life plus 70 years for a novel? You only have to ask the question to realise that the founders of the American republic at least got that one right. Happy new year."
Jennifer Jenkins, Director; Duke Law's Center for the Study of the Public Domain ; January 1, 2023 is Public Domain Day: Works from 1927 are open to all!
"On January 1, 2023, copyrighted works from 1927 will enter the US public domain. 1 They will be free for all to copy, share, and build upon. These include Virginia Woolf’s To The Lighthouse and the final Sherlock Holmes stories by Arthur Conan Doyle, the German science-fiction film Metropolis and Alfred Hitchcock’s first thriller, compositions by Louis Armstrong and Fats Waller, and a novelty song about ice cream. Please note that this site is only about US law; the copyright terms in other countries are different."
"CNN will investigate the copyright lawsuit brought by songwriters Sean Hall and Nathan Butler against Taylor Swift for her hit song “Shake it Off” in Taking On Taylor Swift. The case was settled and subsequently dismissed on December 12, 2022. Produced by the CNN FlashDocs unit, the hour-long special asks larger questions about creators’ rights and originality in an industry rocked by multiple lawsuits targeting some of the world’s biggest pop stars."
Isaiah Poritz, Bloomberg Law; Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues
"How copyright law applies to the fast-growing generative artificial intelligence industry, and the US Supreme Court’s ruling in a case concerning Andy Warhol’s artistic use of a photograph of Prince are among the most important copyright issues heading into 2023.
Other major copyright cases in the new year include the high court’s expected decision on whether to hear a multimillion-dollar dispute involving allegations that
“Never before has content and intellectual property been so important and we are starting to see that now in terms of the Supreme Court’s docket,” said copyright attorney Scott Burroughs of the firm Doniger Burroughs PC, which helped write a friend-of-the-court brief asking the justices to take the lyrics case.
In one of the most active federal appeals courts for copyright law, two photographers are challenging the 15-year-old “server test.” That precedent holds that a website displaying an embedded Instagram post can’t be held liable for copyright infringement because the image isn’t hosted on the website’s servers."
Kathryn Park , WIPO Magazine; Green trademarks and the risk of greenwashing
"Beware the green sheen – the perils of greenwashing
Guidelines promulgated by the Federal Trade Commission in the United States in the Green Guidesand by the European Union in its directive on Unfair Commercial Practices, offer clear guidance on what constitutes misleading information. Under both regimes, using vague terms such as “sustainable,” “green,” “eco,” and the like, are not acceptable if false or misleading. Additionally, claims need to be supported by clear factual evidence and qualified so as not to overstate their benefits. Moreover, the environmental benefit claim must pertain directly to the product as manufactured or used.
While regulators pursue companies that run afoul of consumer protection laws, claims are also pursued by non-governmental entities. Competitors may also sue, as will consumers who are misled, often as part of a consumer class action...
So what constitutes actionable greenwashing? An example is labeling something as compostable, such as a garbage bag that is destined for a landfill where it will not break down. Claiming that something is recyclable when the infrastructure supports only a fraction of the recycling that would be required to remove the environmental harm ─ think plastic water and soda bottles ─ may also constitute greenwashing. There have been a number of lawsuits in the United States in the past year against Coca-Cola, Blue Triton Brands (which manufactures Poland Spring, Deer Park and other water brands), and others, for making broad sustainability claims despite the fact the vast majority of their bottles end up in landfills and are not recycled. These lawsuits have been filed by various environmental advocacy groups like the Sierra Club."
Corey Bauer, Houston Harbaugh, P.C.; Congress Passes The Protecting American Intellectual Property Act of 2022
"In furtherance of the U.S. Government’s effort to protect American intellectual property, the House of Representatives passed the Protecting American Intellectual Property Act on December 22, 2022. This quickly followed the Senate’s passing of the Act on December 20, 2022. The Act now goes to President Biden’s desk to be entered into law or vetoed. See Text of the Enrolled Bill here.
The Protecting American Intellectual Property Act requires that the President periodically report “a list of foreign individuals and entities that have knowingly engaged in, benefited from, or assisted in the significant theft of U.S. trade secrets that materially contributed to a significant threat to U.S. national security, foreign policy, or economic health.”[1] The first report will be six (6) months after the Act is entered into law, with an annual report every year thereafter. The report shall also list foreign individuals who are chief executive officers or board members of any foreign entity engaging in the theft identified by any report."
ADI ROBERTSON, The Verge ; Sherlock Holmes will finally escape copyright this weekend
"Watching the copyrights on art expire still feels like a novelty. After all, the US public domain was frozen in time for 20 years, thawing only in 2019. But this weekend’s Public Domain Day will give our cultural commons a few particularly notable new works. As outlined by Duke Law School’s Center for the Study of the Public Domain, the start of 2023 will mark the end of US copyrights on Sir Arthur Conan Doyle’s final Sherlock Holmes stories — along with the seminal science fiction movie Metropolis, Virginia Woolf’s To the Lighthouse, and the first full-length “talkie” film The Jazz Singer."
, The New York Times ; Mickey’s Copyright Adventure: Early Disney Creation Will Soon Be Public Property
"Ms. Ginsburg said she was watching closely to see if Disney and other entertainment companies tried to apply trademark law as a substitute for or extension of copyright — as she put it, “apply a separate protection to get to the same place.” In a Supreme Court intellectual property case from 2003 involving 20th Century Fox, Justice Antonin Scalia, writing for the court, warned of using trademarks to generate “a species of mutant copyright law.”"
Blake Brittain, Reuters; U.S. Supreme Court has busy year ahead for intellectual property law
"After a relatively quiet year for intellectual property cases at the U.S. Supreme Court, the justices are set to consider several important issues in copyright, patent and trademark law in 2023."
, CNN ; 5 famous music copyright cases
"Throughout the history of the music industry, there have been incidents of artists accused of ripping off the works of others...
Here are five other famous copyright cases:..."
BRIAN CRONIN, CBR; AI-Created Comic Has Been Deemed Ineligible for Copyright Protection
"The United States Copyright Office (USCO) reversed an earlier decision to grant a copyright to a comic book that was created using "A.I. art," and announced that the copyright protection on the comic book will be revoked, stating that copyrighted works must be created by humans to gain official copyright protection.
In September, Kris Kashtanova announced that they had received a U.S. copyright on his comic book, Zarya of the Dawn, a comic book inspired by their late grandmother that she created with the text-to-image engine Midjourney. Kashtanova referred to herself as a "prompt engineer" and explained at the time that she went to get the copyright so that she could “make a case that we do own copyright when we make something using AI.”"
JARON SCHNEIDER, PetaPixel; Some of Trump’s New NFTs Look Like Photoshops of Google Search Results
"After hyping a major announcement, Donald Trump revealed his next major project: NFTs. But reverse image searches of some of the “digital trading cards” revealed them to be edits of clothing easily found in Google search, raising copyright questions...
While these images aren’t what most would consider to be the height of photographic art, they are still photos that are presumably owned by a manufacturer and using images — even e-commerce photos — without permission in this manner brings up copyright questions: it may not be legal, not to mention unethical, to just take photos off web stores, turn them into “art,” and then sell them for $99 each.
Gizmodo says it reached out to the manufacturer of both pieces of clothing to ask if either granted the former U.S. President permission to use their images, but neither immediately responded."
FisherPhillips ; Can Trade Secret Laws Protect Algorithm-Based Intellectual Property? 6 Steps for Employers to Consider
"Trade Secrets Can Offer Protections to Guard Algorithm-Based Intellectual Property
Algorithm-based AI is well-suited for trade secret protections. It can be difficult to reverse engineer AI. Additionally, protections afforded by patent law are not necessarily the best option due to the length of time required to achieve protections. Rather, consider trade secret protections. They last as long as the secret remains a secret. Simply put, a license can continue indefinitely without an expiration date so long as the conditions of the license remain a trade secret.
Certain aspects of algorithm-based AI, such as raw data, is not patent eligible. Similarly, information and data sets used for machine-based learning or training models is also not protectable under patent law. The information may, however, be protected as trade secrets. Trade secret laws can protect your company’s data and models and also protect how the company intends to use the information.
You may also be able to protect knowledge about what does not work. Companies create a valuable base of knowledge from failed actions. Notably, failed knowledge is not eligible for patent protection, but it is eligible to be protected under trade secret as a “negative trade secret.” Think of a negative trade secret as the knowledge of what does not work. If another company were to obtain and utilize such knowledge, it would allow them to potentially omit years of research and development, as the correct path of what works would be readily available to the competitor.
Trade secret protections also take immediate effect. There is no lengthy process or specific amount of time or expense required to protect a trade secret. So long as there are “active actions” — rather than passive actions — taken to protect a trade secret, that trade secret can take effect immediately. “Active actions” could include obtaining a non-disclosure or non-compete agreement, but it may be as simple as marketing in a way that prevents disclosure."
Falkner Werkhaven, Mondaq; United States: New Trademark Office Action Deadlines Initiated 12/3/2022
"While those of you who frequently work with trademarks are already aware, the USPTO new three month deadline to respond to Trademark Office Actions began last Saturday, December 3. For those of you who do not frequently work with Trademark Applications, this new deadline may be news to you and is half the response time of the previous six month deadline. The vast majority of Office Actions now issued will have three month response times.
Two major exceptions apply to this rule."
Rachel, Treisman, NPR; Mariah Carey can't be the only 'Queen of Christmas,' the trademark agency rules
"Earlier this week, the Trial Trademark and Appeal Board finally made a "judgment by default," rejecting Carey's trademark request."
Dylan Smith, Digital Music News; UMG, BMG, and Concord Name Altice USA In $1 Billion+ Copyright Suit, Claim the ISP ‘Deliberately Turned a Blind Eye to Its Subscribers’ Infringement’
"Estimating based upon the maximum $150,000 in statutory damages for each of the allegedly infringed compositions and recordings as well as a staggering 176 pages’ worth of purportedly infringed works, UMG, Concord, and BMG are seeking over $1 billion from the Optimum owner."
Mike Loukides,O'Reilly ; What Does Copyright Say about Generative Models? Not much.
"In any AI application, the training data is at least as important to the final product as the algorithms, if not more important. Should the rights of the authors of the training data be taken into account when a model is built from their work, even if the model never reproduces their work verbatim? Copyright does not adequately address the inputs to the algorithm at all."
Blake Brittain, Reuters ; Supreme Court asks for Biden administration's views in Google copyright case
"The U.S. Supreme Court on Monday asked the Biden administration to weigh in on song-lyric website Genius' attempt to revive a lawsuit over Google's alleged theft of its work.
The justices are considering whether to hear ML Genius Holdings LLC's bid to overturn a U.S. appeals court's ruling that its case against Google LLC was preempted by federal copyright law.
The Supreme Court often asks for the solicitor general's input on cases in which the U.S. government may have an interest."
Mikael Thalen, daily dot; Artists fed up with AI-image generators use Mickey Mouse to goad copyright lawsuits
"The issue surrounding AI art has already led to widespread protest and pushback from the art community. Just this week, artists on the art-hosting platform ArtStation began uploading identical images en masse that featured the caption “NO TO AI GENERATED IMAGES.”
Given just how new the technology is, it remains unclear what guidelines, if any, will be created to balance the rights of artists against the ever-expanding capabilities of AI."
PESALA BANDARA, PetaPixel ; Photographer Sues Gannett for $34 Million For Copyright Infringement
"Photographer Stephanie Campbell filed a copyright infringement lawsuit against major media company Gannett and more than 220 Gannett news outlets on Friday, reports Rochester Beacon.
In the lawsuit, Campbell alleges that hundreds of Gannett’s news titles published her photo of former NFL coach Katie Sowers without seeking the photographer’s permission...
[Kip Currier: The photographs, as described in the article, would be registered with the U.S. Copyright Office as copyrightable subject matter, not with the U.S. Patent and Trademark Office, which, as its eponymous name indicates, has jurisdiction over patents and trademarks.] Campbell registered the photographs of Sowers with the U.S. Patent and Trademarks office...
According to the Rochester Beacon, Campbell is seeking damages of up to $150,000 for each alleged infringement, a sum that, if each supposedly infringing publication used the Sowers photo only once, could see the photographer winning $34 million."
Shira Ovide, The Washington Post; Your selfies are helping AI learn. You did not consent to this.
"My colleague Tatum Hunter spent time evaluating Lensa, an app that transforms a handful of selfies you provide into artistic portraits. And people have been using the new chatbot ChatGPT to generate silly poems or professional emails that seem like they were written by a human. These AI technologies could be profoundly helpful but they also come with a bunch of thorny ethical issues.
Tatum reported that Lensa’s portrait wizardly comes from the styles of artists whose work was included in a giant database for coaching image-generating computers. The artists didn’t give their permission to do this, and they aren’t being paid. In other words, your fun portraits are built on work ripped off from artists. ChatGPT learned to mimic humans by analyzing your recipes, social media posts, product reviews and other text from everyone on the internet...
Hany Farid, a computer science professor at the University of California at Berkeley, told me that individuals, government officials, many technology executives, journalists and educators like him are far more attuned than they were a few years ago to the potential positive and negative consequences of emerging technologies like AI. The hard part, he said, is knowing what to do to effectively limit the harms and maximize the benefits."
Eunice Alpasan, WTTW; Popular Photo App Lensa Spurs Debate Over Ethics of Artificial Intelligence in Art
"For a few dollars, users can submit photos of themselves that the app will use to generate multiple self-portraits in different art styles using artificial intelligence technology.
But the app has also reignited concerns about the ethics regarding the use of artificial intelligence in art.
A.I. algorithms work by going into large datasets of work posted online from various sources to help photo apps like Lensa generate self-portraits for users in different styles, said Jennifer deWinter, dean of Lewis College of Science and Letters at Illinois Tech.
DeWinter said this presents a copyright issue, but because it’s a computer program generating the images, it makes it hard to trace back who is actually culpable. “It’s a problem of a giant, diffused system of multiple actors,” she said.
Kennedy Freeman, a student in fine arts at Columbia College and founder of the Black fem art collective HourNine, said seeing these generated portraits spreading on social media made her concerned about how her art and those of other artists are being used without permission to help train A.I. generators."
Susan D'Agostino, Inside Higher Ed; Is a Deal Between 44 Texas Colleges and Elsevier ‘Historic’?
"As pandemic-weary U.S. colleges face strained library budgets, many seek creative ways to lower costs and preserve access to scholarly content. That shared goal brought 44 colleges in Texas together to negotiate a deal with Elsevier, the behemoth publisher of over 2,500 scientific journals, including The Lancet and Cell.
The consortium—known as the Texas Library Coalition for United Action—announced last month that it had reached a deal with Elsevier that is expected to improve access to scholarship, afford researchers greater control over their work and save the member institutions millions. Some laud the agreement as historic. Others say it falls short of long-sought-after goals. If nothing else, the deal offers one example of how a collection of colleges is moving forward in a tense academic publishing ecosystem."
American University Intellectual Property Brief;
Andrew Hutchinson, SocialMediaToday; Music Labels are Ramping Up Enforcement Unlicensed Music in Brand Social Media Posts
"The increasing enforcement of copyright for social media usage flags a new focus for the major labels. In recent years, big recording companies have employed entire teams to scour the online landscape for unlicensed usage of their clients’ work.
That’s been most present on YouTube, where labels had up till recently been able to claim revenue on any video that used their licensed music, providing an additional revenue stream within itself. YouTube has since changed its process, and now gives creators the opportunity to remove violative segments of their uploads, as opposed to simply reverting ad revenue to the labels. But the increased emphasis on music copyright infringement has made this a higher priority for rights-holding organizations.
And TikTok is now their key focus.
The short-form video platform has become a key avenue for music promotion, with popular tracks playing a big part in many viral trends, and even sparking entire careers off the back of TikTok momentum."
MICHAEL HILTZIK, Los Angeles Times; Column: Here’s why you can’t ‘own’ your ebooks
"What’s really happening here is that everyone involved — publishers, online distributors, authors and readers — is trying to come to terms with the capacity of digital technology to overthrow the traditional models of printing, selling and buying readable content.
Publishers and authors are predictably, and rightly, fearful that they’ll lose out financially; but it’s also quite possible that, properly managed, the technological revolution will make them more money."
JON BLISTEIN, Rolling Stone; CNN Accused of Using Hundreds of Songs Without Permission in New Lawsuit
"CNN IS FACING a $17 million lawsuit accusing it of using hundreds of songs in international broadcast segments without acquiring a license or paying the proper fees.
The lawsuit was filed by Freeplay Music, a production music library company with a catalog of over 50,000 songs to be licensed and used in everything from television broadcasts to advertisements to YouTube videos. According to the suit, obtained by Rolling Stone, several CNN outposts around the world — including the Philippines, Indonesia, and Chile — treated Freeplay’s library like “their own personal cookie jar,” allegedly using over 115 copyrighted works in over 280 segments over the past few years."
Marketplace; YouTube and content creators clash over the platform’s automated copyright tool
"Every minute, people upload more than 500 hours of video to YouTube — cat videos, music videos, even videos of people recording their audio podcasts.
And some of those clips include content the people uploading them don’t own, like clips of music from popular songs.
YouTube, and its owner, Google, have an automated technology called Content ID that regularly scans for copyrighted material — including music — and flags it for copyright holders.
Marketplace’s Kimberly Adams spoke about this with Marketplace’s Peter Balonon-Rosen, who explained why the system has some musicians frustrated."
Traple Konarski Podrecki & Partners - Tomasz Targosz, Lexology ; NFTs in Copyright
"Frequently, whenever some new technology-related trend emerges, papers that attempt to juxtapose it with various fields of intellectual property law abound, according to the principle X and …. law. Often there is very little that is new behind this, and the described legal “issues” are formulated in an artificial way and are not difficult to solve. A text regarding NFTs in copyright could also be classed as a text of this kind, but in this case there are at least a few questions that need to be addressed. Even if NFTs do not have great practical significance, as some people believe, this category will probably not disappear entirely. Therefore it is worth examining the issue of the areas in which copyright law and NFTs might come into contact, and what implications this has (or doesn’t have, which is no less important).
The simplest way to describe NFTs is information in a blockchain, representing some resource (digital goods). The distinction between an NFT (non-fungible token) and fungible tokens is not so much that they cannot be exchanged (notably, ‘trading’ in NFTs is one of the reasons for which they exist) but that they are unique (no two data chains are alike). This feature means that NFTs bring to the digital world something rare that is known in the physical world. A good example is a genuine work of sculpture of which there is only one. NFTs and copyright converge because the item that can be represented by the token may be an item that qualifies as creative, i.e. is a work as defined in copyright law, although of course this is not essential (for example Twitter founder Jack Dorsey’s first tweet, “converted” into an NFT, sold for almost USD 3 million and is not a work). If an NFT is not linked to a work, it will not be a matter of interest in copyright law. For this reason, we will focus on cases that do involve a work, such as a digital file containing a photograph, video, etc.)."
Brian McNeill, VCU News; This VCU Libraries initiative has saved VCU students more than $7M in textbook costs
"“One of the things that’s been most exciting to me since coming to VCU is just the interest [in open and affordable content] from faculty,” said Jessica Kirschner, the open educational resources librarian who leads VCU Libraries’ textbook affordability efforts. “We’ve had a record number of applications for our grant program over the past two years, which blew me out of the water. Our faculty are engaged and interested and by and large realize the impact that this work can have on their students.”
Through the initiative, Kirschner works to assist in the creation of new resources, as well as locating, adopting and adapting existing course materials, including library materials and open educational resources.
Open course materials not only support students by eliminating costs, they also can enable better learning experiences and optimize academic outcomes for instructors and students, Kirschner said. Rather than relying on a textbook, she said, a professor can draw from various open resources to customize their class in a way that makes students more engaged.
“When I talk to faculty, I always like to say: ‘Why form your class around the textbook when you can form a textbook around your class?’” she said."
JAMIE DURRANI, Chemistry World; Royal Society of Chemistry will make all its journals open access
"The Royal Society of Chemistry (RSC) has committed to making all of its journals open access within the next five years. It is the first chemistry publisher to commit to a 100% open access model and hopes to fund the move in a way that will avoid individual authors having to pay article processing charges (APCs)."
