Women's Entrepreneurship event: How to identify and protect your intellectual property (IP) for business success; United States Patent and Trademark Office

United States Patent and Trademark Office ; Women's Entrepreneurship event: How to identify and protect your intellectual property (IP) for business success

"Save the date for this #WEWednesday event!

Join us at our next Women’s Entrepreneurship (WE) event on January 18, 2023, virtually and in Naples, Florida. We will welcome leaders in the intellectual property (IP) community and women entrepreneurs who will share their stories and tips on why protecting your IP—via patents, trademarks, copyrights, or trade secrets—is key to starting and maintaining a successful business.

Confirmed speakers:

• The Honorable Kate O'Malley (Ret.), U.S. Court of Appeals for the Federal Circuit; Of Counsel, Irell & Manella
• Chrissybil Boulin, Founder, Jump Start Tutoring Center
• Vaishali Udupa, Vice President, Associate General Counsel of Litigation, Hewlett Packard Enterprise; incoming Commissioner for Patents, USPTO (January 17, 2023)
• Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO

Register to attend in person or virtually here: Women's Entrepreneurship (WE) Wednesday Event

This series welcomes all entrepreneurs and aspiring entrepreneurs who are interested in learning more about succeeding in business, including information on identifying and protecting your intellectual property, securing options for funding, and expanding your network.

The USPTO and Department of Commerce recently launched WE, a community-focused, collaborative, and creative initiative to inspire women and tap their potential to meaningfully increase equity, job creation, and economic prosperity. WE includes a new online hub for aspiring women entrepreneurs to obtain key information on how to get started, identifying and protecting their intellectual property, options for securing funding, and building and maintaining a network. For questions about this initiative, contact we@uspto.gov"

Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince; Forbes, January 7, 2023

 Schuyler Moore, Forbes; Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince

"For the second time in two years, the Supreme Court has taken up the challenge of adding clarity to the "fair use" defense to a copyright infringement claim. The prior attempt was in Google vs. OracleORCL +1.6%, which left the defense more muddled than ever by permitting extensive verbatim copying on specious grounds. In the latest foray, the Supreme Court is going to decide in a pending case whether Andy Warhol's colorized painting of a photograph of Prince is protected by the fair use defense against a copyright infringement claim brought by the photographer.

The decision in this case will have far-ranging critical implications for Hollywood, and it will be cited for decades to come. If history be our guide, it is almost certain that the Supreme Court will add yet more mud to a muddy issue. In order to avoid that result, and with the aim of impartiality, I humbly offer the Supreme Court drafts of the two opposing opinions it could issue for this case:"

IBM Loses Top Patent Spot After Decades as IP Leader; Bloomberg Law, January 6, 2023

Brody Ford, Bloomberg Law; IBM Loses Top Patent Spot After Decades as IP Leader

"International Business Machines Corp. dropped from the top spot for US patents in 2022, the first time in decades Big Blue hasn’t claimed the most in a year, signaling a strategy shift at the longtime intellectual property leader."

Mickey Mouse's Impending Copyright Expiration Explained; Screen Rant, January 8, 2023

CLOTILDE CHINNICI, Screen Rant; Mickey Mouse's Impending Copyright Expiration Explained

"It seems likely that Disney will maintain its copyright over Mickey Mouse for the foreseeable future. In particular, Mickey Mouse will remain under Disney's property because it is a registered trademark. In fact, this would let Disney keep ownership of Mickey Mouse as its trademark potentially forever, thus allowing Mickey Mouse to feature in future and upcoming Disney films. Unlike copyright, which expires after a certain amount of years, trademark protection can endure in perpetuity, as long as Disney can claim that the character of Mickey Mouse is associated with the Walt Disney company itself.

Ultimately, Mickey Mouse will still to be a legally protected Disney product. The strong association between Disney and Mickey Mouse, one that the company itself has invested in, represents a strong protection for Disney as the trademark will not expire any time soon, giving Disney control over Mickey Mouse. Despite the copyright law and Steamboat Willie's copyright expiration, Disney's approval is still required for others to use Mickey Mouse material, even the one that will eventually become public domain, in anything outside of fair use, thanks to the mouse's trademark protection."

This Year is Poised to Be a Landmark One for Tattoo Copyright Litigation; IP Watchdog, January 7, 2023

ADRIENNE KENDRICK, IP Watchdog; This Year is Poised to Be a Landmark One for Tattoo Copyright Litigation

"Tattoos have been around for millennia, but their popularity is increasing significantly. According to 2021 data, roughly 13% of Baby Boomers had at least one tattoo, compared to 32% of Generation X and 41% of Millennials. Other than disagreements about the appropriateness of visible tattoos in certain workplaces, tattoos generally cause few headaches for their owners, and certainly not legal headaches. That may no longer be the case, however, as tattoos become more common among celebrities and other high-profile individuals whose likenesses are commonly portrayed in digital media.

While there has been relatively little litigation concerning tattoo copyrights, 2023 could be the year that changes."

Canada enters a public domain pause as copyright laws change to match other nations; CBC, January 7, 2023

Joseph Pugh , CBC; Canada enters a public domain pause as copyright laws change to match other nations

No additional content will be added to the public domain in Canada until 2043

"When the copyright on a work expires anyone is free to use it without needing to seek permission. This is known as public domain. In Canada, copyright laws meant that books, films, songs or other works entered public domain 50 years after the death of the creator.

But last week, the country updated those laws, tacking on an extra 20 years, so works don't enter the public domain until 70 years after the creator's death. This means additional content will not enter the public domain in Canada until at least 2043. So the copyright on the works of fantasy author J.R.R. Tolkien, who died in 1973, will now expire in 2043, meaning the Lord of the Rings trilogy and many of his other works will become public domain on Jan. 1, 2044. 

The change brings Canada in line with other jurisdictions that lengthened their copyright terms decades ago. Some artists and creative unions welcome the change, while others feel the duration hampers public access to artistic works."

Trademarks in the metaverse — artistic expression or commercial product?; Reuters, January 5, 2023

Dorothy R. Auth

, Howard Wizenfeld

 and A.J. Harris

, Reuters; Trademarks in the metaverse — artistic expression or commercial product?

"While the Rogers decision was initially limited to movie titles, courts have variously expanded its application to books, songs, video games, and even commercial items such as dog toys, with particular expansion occurring in the 9th U.S. Circuit Court of Appeals. The extent of its scope is now at issue at the U.S. Supreme Court. While virtual goods present issues different from physical goods, how courts determine the metes and bounds of the Rogers test will be determinative of how NFTs are analyzed."

Trying to Trademark ‘Rigged Election,’ and Other Revelations From the Jan. 6 Transcripts; The New York Times, January 2, 2023

Luke Broadwater, Maggie Haberman, Alan Feuer and Emily Cochrane, The New York Times; Trying to Trademark ‘Rigged Election,’ and Other Revelations From the Jan. 6 Transcripts

The Jan. 6 committee released a whirlwind of documents in its final days and wrapped up its work on Monday. 

"Mr. Trump himself saw the push to overturn the 2020 election as a financial opportunity, moving to trademark the phrase “Rigged Election.”

These were among the latest revelations from the House Jan. 6 committee, which released a whirlwind of documents in its final days and wrapped up its work on Monday."

The Top 10 Library Stories of 2022; Publishers Weekly, December 9, 2023

Andrew Albanese, Publishers Weekly; The Top 10 Library Stories of 2022

PW looks back at the library stories that captivated the publishing world this year, and what they portend for 2023

"6. A Federal Judge Blocks Maryland’s Library E-book Law

It was big news in 2021 when legislators in Maryland unanimously passed a law to protect libraries in the digital marketplace. But after the Association of American Publishers sued, a federal court struck the law down in February 2022.

Introduced in January 2021, the Maryland law emerged after more than a decade of tension in the library e-book market,with librarians complaining of non-negotiated, unsustainable prices for digital licenses. More specifically, the law came as a direct response to Macmillan’s controversial (and since-abandoned) 2019 embargo on frontlist e-book titles in libraries, which librarians rejected as fundamentally inequitable.

From the outset, however, the AAP insisted that Maryland’s law was preempted by the federal Copyright Act. And on February 16, federal judge Deborah Boardman agreed. “The State’s characterization of the Act as a regulation of unfair trade practices notwithstanding, the Act frustrates the objectives and purposes of the Copyright Act,” Boardman concluded in a 28-page opinion. In a subsequent June 13 opinion and order, Boardman issued a declaratory judgment deeming the Maryland law “unconstitutional and unenforceable.”

The decision, combined with an 11th-hour veto of a similar bill in New York in December 2021, has served the AAP’s aim, all but shutting down similar legislative efforts in at least six other states. But the library e-book market remains contentious, and as 2022 draws to a close, library advocates in several states tell PW they have not given up the fight and are working on revised legislative language that won’t run afoul of federal copyright law.

7. Lawsuit over Internet Archive’s Book Scanning and Lending Advances

After more than two years of legal wrangling, a federal judge in New York City is now ready to hear arguments for summary judgment in a contentious copyright case filed by four major publishers against the Internet Archive over its program that scans and lends digital scans of library books using a method known as controlled digital lending (CDL).

In a final round of briefs filed on October 7, attorneys for the publishers reiterated their contention that the IA’s program is blatant copyright infringement on a massive scale. “In the end, the Internet Archive asks this Court to adopt a radical proposition that would turn copyright law upside down by allowing IA to convert millions of physical books into e-book formats and distribute them worldwide without paying rights holders,” the publisher brief states.

Internet Archive lawyers counter that its scanning and lending of legally acquired books is legal, and that the evidence shows no market harm to the publishers. “All CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron,” the IA brief states. “What the publishers who have coordinated to bring this lawsuit hope to obtain from this Court is not protection from harm to their existing rights. Instead, they seek a new right foreign to American copyright law: the right to control how libraries lend books.”

With the cross-motions for summary judgment now fully briefed, a hearing before Judge John G. Koeltl is likely the next step. But barring a settlement, the case will probably not be resolved anytime soon. If neither side prevails at the summary judgment stage, the case heads to a trial. And however the summary judgment ruling goes, an appeal is almost certain."

USPTO and Copyright Office Announce Joint Study and Request for Comment on the Impact of NFTs on Intellectual Property Rights; Ropes & Gray, December 23, 2023

Ropes & Gray; USPTO and Copyright Office Announce Joint Study and Request for Comment on the Impact of NFTs on Intellectual Property Rights

"An NFT is a unit of data stored on a blockchain that offers a unique certificate of ownership of a digital asset. They frequently represent real-world assets like art, music, and videos protected by intellectual property rights.

The interplay between NFTs and intellectual property rights has been the subject of a flurry of lawsuits over the last few years. Nike is embroiled in litigation with StockX in the Southern District of New York (S.D.N.Y) based on allegations that StockX created NFTs displaying Nike’s trademarks without authorization. Another S.D.N.Y. court recently denied an artist’s motion to dismiss trademark infringement, dilution, and cybersquatting claims brought by fashion brand Hermès over the creation of NFTs that depict the company’s Birkin bags and are branded as “MetaBirkins.” In November 2021, production company Miramax brought copyright and trademark infringement allegations against director Quentin Tarantino in the Central District of California over Tarantino’s alleged plans to auction off “exclusive scenes” from the 1994 movie Pulp Fiction in the form of NFTs. In another California lawsuit, rapper Lil Yachty claims that two music companies used his name and likeness without his permission to raise $6.5 million in venture capital funds for a line of NFTs. Yuga Labs, the creators of the popular Bored Ape Yacht Club (BAYC) NFTs, brought trademark infringement allegations in the Central District of California against another NFT creator for creating and selling a line of NFTs using BAYC imagery.

In June, the top two members of the Senate’s intellectual property subcommittee, Sens. Patrick Leahy, D-Vt., and Thom Tillis, R-N.C., called for the USPTO and Copyright Office to study NFTs and their impact on intellectual property rights in light of their growing popularity. “NFTs can be found in nearly all spheres — from academia to entertainment to medicine, art and beyond,” the letter states. “Thus, it is imperative that we understand how NFTs fit into the world of intellectual property rights — as said rights stand today and as they may evolve as we move into the future.”"

Freedom Quilting Bee Legacy offering workshop on copyright in Alberta on Jan. 16; Selma Sun, January 4, 2023

Nathan Prewett, Selma Sun; Freedom Quilting Bee Legacy offering workshop on copyright in Alberta on Jan. 16

"Freedom Quilting Bee Legacy is offering a workshop for quilting artists and other artist on copyright on Jan. 16 from 10 a.m. to 12 p.m. 

"The workshop is designed for local and regional artists to learn about copyright and intellectual property, licensing, advocacy and artist representation," said a flyer for the event."

"Additionally, participants will learn about the legal concerns of artists' rights for planning for estates and/or incapacity, rights and royalties in the State of Alabama." 

The fee for the workshop is $15 and includes lunch. To register, call 334-573-2065."

Canadian copyright protection term extended to 70 years; Lexology, January 3, 2023

Gowling WLG - Stéphane Caron and Kasia Donovan, Lexology; Canadian copyright protection term extended to 70 years

"Last year, Bill C-19, the Budget Implementation Act, 2022, No.1, received Royal Assent. The bill included amendments to the Copyright Act to extend the term of copyright protection for literary, dramatic, musical, and artistic works from 50 years to 70 years, after the end of the calendar year of the author's death. These amendments came into force on Dec. 30, 2022...

The decision to extend the term of copyright protection fulfills one of Canada's commitments under the Canada-United States-Mexico Agreement (CUSMA)...

By extending the term of copyright protection from 50 to 70 years, Canada will be in line with many of its major trading partners, including: the United States, United Kingdom, Japan and the European Union."

Find Sports in Copyright; Library of Congress, January 5, 2023

Alison Hall, Library of Congress; Find Sports in Copyright

"When you think of sports and creativity, you might think of cool moves on the field, or maybe you think of music, books, photos, or movies about a sport, team, or famous athlete. While athletic moves or goal celebrations are creative, they are not protected by copyright law. According to section 805.5(B)(3) of the Compendium of U.S. Copyright Practices, Third Edition, “The Office cannot register claims to copyright in athletic activities or competitive maneuvers as such, because they do not constitute copyrightable subject matter under section 102(a)(4) of the Copyright Act.” Section 805.5(B)(3) also states that football plays, slam dunking maneuvers, and skateboarding or snowboarding activities are not protected by copyright.

Other works inspired by sports, however, may be protected by copyright."

Here’s How the Supreme Court Could Impact Creative Trademark Use; Bloomberg Law, December 29, 2022

Dorothy Auth, Cadwalader, Wickersham & Taft, Howard Wizenfeld, Cadwalader, Wickersham & Taft, Bloomberg Law; Here’s How the Supreme Court Could Impact Creative Trademark Use

"The upcoming term for the US Supreme Court includes an ambitious schedule of intellectual property cases, spanning patent, trademark, and copyright law...

Jack Daniel’s

Jack Daniel’s Properties, Inc. v. VIP Products LLC addresses creative works in the context of trademark law, asking whether humorous use of another’s trademark is protected by the First Amendment. 

Under normal circumstances, a trademark infringement is determined based on whether the use of another’s mark is “likely to cause confusion” with that of the trademark owner.

However, when a mark is used in an artistic manner, courts instead use the Rogers test, which is intended to protect the free speech. Unlike the likelihood-of-confusion test in the Lanham Act (Trademark Act of 1946), the Rogers test allows use of another’s mark as an expressive work unless the use contains no artistic relevance or explicitly misleads about the source or content of the work.

As a result, the Rogers test narrows the scope of protection for the mark. Here, VIP created a squeaky toy named “Bad Spaniels,” closely resembling Jack Daniel’s famous whiskey bottle and label.

While the original bottle has the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey,” the toy humorously proclaims, “The Old No. 2 on Your Tennessee Carpet” which is “43% Poo by Vol” and “100% Smelly.” 

Should the court affirm the squeaky toy is an expressive work, for being humorous, under the Rogers test, or should a traditional Lanham Act analysis be applied? The court’s answer may have significant implications for companies that sell items with a humorous message based on another’s trademark."

United States: Art And Artificial Intelligence Collide With Copyright Law; Mondaq, December 29, 2022

Marc D. Ostrow and  Carlianna Dengel, Romano Law , Mondaq; United States: Art And Artificial Intelligence Collide With Copyright Law

"US Copyright law protects "original works of authorship." And at least since the famous "Monkey Selfie" case, the Copyright Office's Compendium of Office Practices III states at section 313.2, "[t]o qualify as a work of 'authorship' the work must be created by a human being." The first example cited in this section as a work that will not be granted a copyright registration is a "photograph taken by a monkey."

This principle has been applied to AI-generated works in both the patent and copyright arenas. Stephen Thaler, the creator of the AI platform, DABUS, an acronym for Device for the Autonomous Bootstrapping of Unified Sentience, had previously applied for patent protection for a DABUS-created invention. The USPTO denied Thaler's application and he appealed that denial as far as the US Court of Appeals for the Federal Circuit. In October, that court rejected on the grounds that an inventor must be an individual.

Dr. Thaler had also applied for a copyright registration for artwork created by his computer program, "Creativity Machine." His 2018 application was rejected, and Thaler appealed that refusal to the Copyright Review Board (CRB). In a lengthy letter to Dr. Thaler's counsel dated February 14, 2022 and signed by the Register of Copyrights, the CRB, citing the Compendium III and prior Supreme Court precedent, affirmed the refusal to register the work on the basis that the "author" of the work is not human.

Given the proliferation of open-source AI platforms to generate all manner of creative works, including visual art, poetry and songs and the exponentially increasing number of AI-created works, copyright law may need to be more flexible as to what AI-generated (or partially generated) works may be registered and by whom. Other thorny issues that will need to be addressed either by legislation, regulation or litigation are the use of copyright or trademark protected works to train AI applications or the incorporation of such works into AI-generated creations."

How does copyright law affect the sale and distribution of NFTs? (rerun); Marketplace, January 2, 2023

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."

Copyright Office Sets Sights on Artificial Intelligence in 2023; Bloomberg Law, December 29, 2022

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."

The Copyright Death (and Rebirth) of Mickey Mouse; Puck, January 2, 2023

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."

Something is afoot with copyright this Public Domain Day; The Guardian, January 1, 2023

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."

January 1, 2023 is Public Domain Day: Works from 1927 are open to all!; Duke Law's Center for the Study of the Public Domain, January 1, 2023

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 FlashDocs to Examine Taylor Swift “Shake It Off” Copyright Lawsuit in “Taking On Taylor Swift” Premiering Friday, December 23 at 9PM ET

CNN; CNN FlashDocs to Examine Taylor Swift “Shake It Off” Copyright Lawsuit in “Taking On Taylor Swift” Premiering Friday, December 23 at 9PM ET

"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."

Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues; Bloomberg Law, December 28, 2022

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 Google LLC illegally scraped lyrics from the crowd-sourced lyric annotation website Genius. 

“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." 

Green trademarks and the risk of greenwashing; WIPO Magazine, December 2022

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."

Congress Passes The Protecting American Intellectual Property Act of 2022; JD Supra, December 28, 2022

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."

Sherlock Holmes will finally escape copyright this weekend; The Verge, December 28, 2022

 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."

Mickey’s Copyright Adventure: Early Disney Creation Will Soon Be Public Property; The New York Times, December 27, 2022

 Brooks Barnes, 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.”"

U.S. Supreme Court has busy year ahead for intellectual property law; Reuters, December 22, 2022

 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."

5 famous music copyright cases; CNN, December 22, 2022

Lisa Respers France, 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:..."

AI-Created Comic Has Been Deemed Ineligible for Copyright Protection; CBR, December 20, 2022

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.”"

Some of Trump’s New NFTs Look Like Photoshops of Google Search Results; PetaPixel, December 16, 2022

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." 

Can Trade Secret Laws Protect Algorithm-Based Intellectual Property? 6 Steps for Employers to Consider; FisherPhillips, December 16, 2022

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."