CHRIS WILLIAMS, Above The Law; Imitation Is The Best Form Of Flattery. Flattery Is Not A Defense To Copyright Infringement.
"Unless you’ve been living under a law library, it would be hard to not take note of the rapid influx of AI art. Face modifying apps, extended shots of events and people that never happened that uncanny only begins to explain their weirdness, you name it. The figure of AI as artist has arrived, but is any of it legal? A small group of artists aim to find out."
Chris Sutcliffe, The Drum; Do brands own the copyright on AI-generated ads?
"Where copyright issues come into play is when there is no demonstrable human interaction – a tricky gray area given that a human is required to at least provide the prompts for the AI to begin with."
Winston Cho, The Hollywood Reporter; AI Art Generators Spark Multiple Copyright Lawsuits
"Whether AI programs, built on models that analyze the patterns of copyrighted works, violate the intellectual property rights of artists is up in the air. Engineers build AI art generators by feeding algorithms large databases of images downloaded from the internet without licenses. The artists’ suit asks whether the AI firms infringed on the copyrights of artists by using copyrighted works to train AI tools and when consumers used the art generators to create new works. It also asks whether the conduct is protected under fair use, which allows for use of protected works without permission as long as they are transformative."
Daniel Piper, Creative Blow; Turns out Sony owns the creepiest TV patent ever
"Patent filings often offer a tantalising glimpse at what weird and wonderful inventions tech brands have up their sleeves. Whether or not they'll ever come to fruition hardly matters – it's just fun to know that Apple is working on teeth-powered AirPods or Sony wants to make controllers with collapsible joy joysticks. But it turns the latter brand has also filed one of the most dystopian patents we've seen.
The 2009 patent, which has recently resurfaced on social media, describes a form of advertising that we hope never, ever becomes the norm. In it, TV viewers are only able to skip an advert by shouting the name of the brand. Yep, crying 'McDonald's!' is the only way to make the Big Mac disappear. (Check out the best Apple patents for some slightly less terrifying ideas.)"
Alex Binley, BBC News; Adidas loses stripes row trademark battle with luxury designer Thom Browne
"While Adidas launched legal action in 2021, the battle between the two companies dates back more than 15 years.
In 2007, Adidas complained that Thom Browne was using a three-stripe design on jackets. Browne agreed to stop using it and added a fourth stripe.
Since then Thom Browne Inc has expanded rapidly and is now sold in more than 300 locations worldwide, and in recent years has been creating more athletics wear...
A spokesperson for Adidas said the company was disappointed but will "continue to vigilantly enforce our intellectual property, including filing any appropriate appeals".
A spokesperson for Thom Browne Inc said the company was pleased with the outcome. Speaking to the Associated Press, the designer said he hoped the case would inspire others whose work is challenged by larger companies.
"It was important to fight and tell my story," he said.
Documents used in the case showed that Adidas has launched more than 90 court battles and signed more than 200 settlement agreements since 2008 related to its trademark."
Min Chen, Artnet News; A Scientist Has Filed Suit Against the U.S. Copyright Office, Arguing His A.I.-Generated Art Should Be Granted Protections
"A computer scientist has filed suit against the U.S. Copyright Office, asking a Washington D.C. federal court to overturn the office’s refusal to grant copyright protection to an artwork created by an A.I. system he built.
The work at the center of the suit is titled A Recent Entrance to Paradise, which was generated in 2012 by DABUS, an A.I. system developed by Stephen Thaler, the founder of Imagination Engines Incorporated, an advanced artificial neural network technology company.
In November 2018, Thaler applied to register the piece with the copyright office, listing DABUS as the author of the work and stating that it was “created autonomously by machine.” The office refused the application, responding, “We cannot register this work because it lacks the human authorship necessary to support a copyright claim.”"
BRIAN CRONIN, CBR ; DeviantArt, Midjourney Face Lawsuit for Using 'Billions of Copyrighted' Images in AI Art
"A lawsuit on behalf of a group of plaintiff artists has been filed in the United States District Court for the Northern District of California against three companies: Stability AI, DeviantArt, and Midjourney, over the alleged infringement of the copyright of the artists in the creation of so-called "artificial intelligence" art."
Stephanie Sy, Layla Quran, PBS News Hour ; Advances in artificial intelligence raise new ethics concerns
"In recent months, new artificial intelligence tools have garnered attention, and concern, over their ability to produce original work. The creations range from college-level essays to computer code and works of art. As Stephanie Sy reports, this technology could change how we live and work in profound ways."
Alaina Demopoulos, The Guardian; ‘People are leaving the game’: Dungeons & Dragons fans revolt against new restrictions
"It’s been a tough week for Dungeons & Dragons fans.
The reins were pulled in on users who come up with their own storylines and new characters, creating legions of imaginary worlds that spin off of the original fantasy roleplaying game. They have also been able to make and sell products required to play or based on the game under an open game license (OGL) agreement.
But as Gizmodo first reported, a leaked new agreement drafted by Wizards of the Coast (WoTC), the Hasbro subsidiary that owns D&D, threatens to “tighten” the OGL that has been in place since the early 2000s. It would grantWoTC the ability to “make money off of these products without paying the person who made it” and companies that make over $750,000 will have to start paying Hasbro a 25% cut of their earnings."
PESALA BANDARA, PetaPixel; Photo Agency Sues Twitter for $228.9 Million Over Copyright Infringement
"Photo agency Backgrid and ten anonymous defendants have sued Twitter for allegedly failing to take down more than 1,500 photographs of celebrities owned by them and illegally posted to the platform by users.
According to the lawsuit filed on December 30, 2022, Backgrid alleges it sent over 6,700 Digital Millennium Copyright Act (DMCA) notices to Twitter requesting the removal of its copyrighted photos, but Twitter failed to respond or take down a single image.
Furthermore, Backgrid claims that its images were posted continuously by some Twitter users, but the social media platform failed to suspend any accounts under its “repeat infringer” policy."
Holland Gormley, Library of Congress; The CASE Act for Libraries and Archives
"Calling all libraries and archives! You may have heard about the CASE Act and the establishment of the Copyright Claims Board, or CCB for short, a new forum for resolving copyright disputes involving damages of up to $30,000, staffed by experts in copyright law. But did you know that qualifying libraries and archives can preemptively opt out of participating in the CCB even before any claim is brought against them? Here is what you need to know."
U.S. Copyright Office; What You Need to Know about Small Claims and the Copyright Claims Board
"You may have heard about the Copyright Claims Board, or CCB for short. But what is the CCB? Who can use it? In this fifty-minute session, learn the basics about what anyone should know before filing or participating in a CCB proceeding. Attendees will learn about the types of claims the CCB can hear, legal resources to be aware of, and why respondents might want to consider participating in the United States’ first intellectual property small claims tribunal.
Date: January 12, 2:00 p.m. eastern time
Speakers
About the CCB: The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 established the Copyright Claims Board (CCB), a tribunal located in the Copyright Office and available as a voluntary alternative to federal court. The CCB is an efficient, streamlined way to resolve copyright disputes involving claims seeking damages of up to $30,000 and is designed to be less expensive than bringing a case in a federal court."
Isaiah Poritz, Bloomberg Law; Dr. Dre, Greene Feud Over Music Copyright in Politics: Explained
"The dust up is the latest in a long history of musicians fighting politicians they say use their songs for political purposes—like campaign rallies and ads—without permission, and in violation of copyright law.
The complaints go back decades. Bruce Springsteen famously demanded that Republican President Ronald Reagan stop using his “Born in the U.S.A.” for his re-election campaign. The soul duo Sam & Dave in 2008 requested that then-presidential candidate
United States Patent and Trademark Office; USPTO seeks public comments on draft 2022-2026 Strategic Plan
"The United States Patent and Trademark Office (USPTO) is seeking public comments on the draft 2022-2026 Strategic Plan. We are working to drive innovation, entrepreneurship, and creativity for the benefit of all Americans and people around the world. Guided by this mission and vision, the USPTO 2022–2026 Strategic Plan sets forth five goals: drive inclusive U.S. innovation and global competitiveness; promote the efficient delivery of reliable intellectual property (IP) rights; promote the protection of IP against new and persistent threats; bring innovation to positive impact; and generate impactful employee and customer experiences by maximizing agency operations.
“If we can expand the number of inventors by four-fold, we can grow our economy and GDP by $1 trillion,” remarked Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO. “Guided by our new plan, we will work across government and with stakeholders to drive innovation, entrepreneurship, and creativity, create jobs, and enhance global competitiveness and national security.”
We welcome comments on all aspects of the draft plan and ask that you please provide them via email to strategicplan@uspto.gov by January 31, 2023. The final strategic plan for FY 2022-2026 will be posted on the Strategic Planning webpage of the USPTO website in spring 2023.
For more information on the USPTO’s proposed 2022-2026 Strategic Plan, please visit the Strategic Plan webpage of the USPTO website."
Thomson Reuters; Copyright litigation 101
"A common type of intellectual property (IP) infringement involves copyright, which protects “creative” work. This includes literature (running the gamut from blog posts to newspapers to novels), music (both sound recordings and compositions), visual arts (photos, paintings, and illustrations), motion pictures, theatrical works (scripts, stage designs, and productions), and architecture.
Under copyright law, the creator of the work is considered to be its author, unless the author assigns the copyright to another person or entity, such as a publisher or record label.
For works made for hire, the employer or commissioning party is typically considered to be the author, though a few creators of work-for-hire properties have later sued the commissioning party for partial or full copyright ownership. For instance, there have been multiple suits filed against Marvel and DC Comics by original creators of Spider-Man and the X-Men, which resulted in out-of-court settlements with the creators or their estates.
Table of contents:
1. What are elements of a copyright infringement claim?
2. Criminal copyright infringement
3. What is the most common copyright infringement?
4. What happens if copyright is breached?
Case study of copyright litigation
Monica Miller, BBC News; US farmers win right to repair John Deere equipment
"Consumer groups have for years been calling on companies to allow their customers to be able to fix everything from smartphones to tractors.
The American Farm Bureau Federation (AFBF) and Deere & Co. signed a memorandum of understanding (MOU) on Sunday.
"It addresses a long-running issue for farmers and ranchers when it comes to accessing tools, information and resources, while protecting John Deere's intellectual property rights and ensuring equipment safety," AFBF President Zippy Duvall said.
Under the agreement, equipment owners and independent technicians will not be allowed to "divulge trade secrets" or "override safety features or emissions controls or to adjust Agricultural Equipment power levels.""
United States Patent and Trademark Office ; Women's Entrepreneurship event: How to identify and protect your intellectual property (IP) for business success
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.
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"
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. Oracle
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:"
Brody Ford, Bloomberg Law; IBM Loses Top Patent Spot After Decades as IP Leader
"
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."
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."
, 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
"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."
Luke Broadwater, Maggie Haberman, Alan Feuer and , 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."
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."
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.”"
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."
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."
"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."
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 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."
