Victoria Kennedy , EUROGAMER ; The Day Before developer forgets to trademark game, delays release for nine months
"Developer Fntastic has announced The Day Before will not be releasing as expected on 1st March. Instead, its zombie MMO is now set for release on 10th November.
The reason for this fairly sizable delay? The developer claims it did not trademark the game's name and now someone else has done so instead."
HEATHER TAL MURPHY, Slate; Into the Sparkly Heart of Zazzle’s Font War
"In filings pushing to dismiss the suit, Zazzle blasted back that a font cannot be protected by copyright in the United States. Multiple lawyers verified this. Indeed, from a copyright standpoint, it’s irrelevant how beloved a font is, says Tyler Ochoa, a professor specializing in copyright law at Santa Clara University’s School of Law...
But here is where the case relates to the emerging debate around artificial intelligence. Laatz also argues that the company stole the Blooming Elegant Trio font software. Whenever we select a font, whether in Google Docs or Instagram stories, the application is relying on software to indicate not only what each letter looks like, but how those letters should relate to one another. Many designers draw each letter in a font-making tool and then allow that tool to generate the software for them, said Stacy Terry, a font designer in New Orleans. Still, as easy as that may sound, it took Terry six months of fine-tuning to create her first font.
“The output of an A.I. is not copyrightable,” said Mr. Ochoa, unless human creativity is combined with AI. Similarly here, you can protect font software by copyright, he said, but only if more than a minimal amount of human creativity, such as coding, played a role in producing it. So how do you define human creativity?
The answer, in this case, highlights the stark difference between the way the law and fellow creatives dole out credit to the imagination. Proving that Laatz played a key role will likely come down to proving that she wrote code by hand, said Christopher Sprigman, a professor at NYU Law and author of the book The Knockoff Economy: How Imitation Sparks Innovation. He points to an exchange that Zazzle lawyers included between Laatz and the United States Copyright Office in their motion to dismiss the case. The examiner asked her to clarify whether the program was “hand-coded by a human author,” because it could not be registered if it was generated by a font program. Laatz says she hand-coded the designs and instructions in the font data, but Zazzle’s lawyer cast doubt on this."
MARK FRAUENFELDER, Boing Boing; Do AI images violate copyright? A lawyer explains the Stable Diffusion lawsuit
"Three artists have filed a copyright infringement lawsuit against several AI art generators, including Stability.ai and Midjourney. The lawsuit alleges that the artists' copyright was violated when Stability.ai and other art generators trained their software using billions of images, which included copyrighted art created by the artists.
In this video, attorney Jake Watson breaks down the arguments in the lawsuit and compares them to related lawsuits and court decisions. He thinks the AI art companies have a good fair use argument for using copyrighted images in its training data."
Riddhi Setty, Bloomberg Law; First AI Art Generator Lawsuits Threaten Future of Emerging Tech
"A first-of-its-kind US copyright lawsuit targeting AI art generators, which have enjoyed explosive growth in recent months, could limit the number of images the tools ingest for training, ultimately affecting the content that they produce...
The success of a fair use defense will depend on whether the works generated by the AI are considered transformative—whether they use the copyrighted works it in a way that significantly varies from the originals."
GLYN MOODY, Walled Culture; Public domain: a belated step forward, two huge steps back
"Nor is Canada alone in its folly. Another post on this blog last year noted that New Zealand too has decided to extend its copyright term despite the moral and economic arguments against it. Once more, the reason was a trade deal – with the UK – one of whose requirements was this unnecessary strengthening of copyright. What this means in practice is that for the next 20 years, neither Canada nor New Zealand will see any published works enter the public domain on the first of January. This creates a massive historical void in those countries’ culture, for no good reason.
Although we can celebrate the wonderful works that have finally entered the public domain in places like America after being locked up behind copyright’s walls for so long, we should be outraged that two countries have just taken a massive step backwards in this respect.
Featured image created with Stable Diffusion."
Seyfarth Shaw LLP via JDSupra; 2022 Trade Secrets Webinar Series: Takeaways & Recordings
"Throughout 2022, our dedicated Trade Secrets, Computer Fraud & Non-Compete practice group hosted a series of CLE webinars that addressed significant trade secret and restrictive covenant issues facing companies today. This year’s series included:
As a conclusion to our 2022 webinar series, we compiled a list of key takeaway points for each program. For those who missed any of the programs in this year’s series, recordings of all of our past webinars are available on the blog, or you may click on the link for each webinar below to view the recording."
Jason Balich, Wolf Greenfield; Patents Expire But Trademarks Can Last Forever
"So, the next time you are looking to protect a good or service, don't just limit yourself to contemplating patent protection. These days, utility patents have a 20-year term from the filing date of the application and design patents have a 15-year term from date of grant. In contrast, trademarks can last forever."
David Ludwig,Dunlap Bennett & Ludwig PLLC via JDSupra Why Copyright Registration Matters
"Creative works of expression are likely your most valuable assets if you are a film studio, photographer, software developer, writer, musician, or visual artist. To fully protect against copycats, you need federal copyright registration...
If you are a copyright owner and you succeed in a lawsuit, you will be entitled to recover actual damages: whatever you lost because of the infringement of your copyright. This can be a hard number to calculate.
However, if you are the owner of a registered copyright, you can choose to receive statutory damages instead of actual damages. Courts can award between $750 and $30,000 for each infringement of a copyrighted work. If the infringement was willful, meaning the defendant deliberately used your work despite knowing it was copyrighted, you can recover up to $150,000. The right choice of which type of damages to pursue will depend on whether and when you registered your copyright and how easy it is to calculate your damages.
Keep in mind that if you registered your copyright before the infringement, you will also be eligible to recover attorneys’ fees and litigation costs from the infringer."
MITCH STOLTZ, Electronic Frontier Foundation (EFF) ; US Copyright Term Extensions Have Stopped, But the Public Domain Still Faces Threats
"We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation...
Copyright terms remain far too long. It will be nearly two decades before a filmmaker making a documentary about the World War II era can use music recordings from the period without facing what the Recording Industry Association of America and other music industry groups have called a “staggeringly complex” licensing process—or else risking massive and unpredictable statutory damages in a copyright suit.
Rather than preserving culture, long and complicated copyright terms keep us from our history. And that cannot be what copyright was meant to do."
Thuan Tran, Dunlap Bennett & Ludwig PLLC via JDSupra; Do Androids Dream Of Copyright Registration? – AI Art And Copyright, Part 1
"Two big questions arise when considering AI art: 1) Can AI art be copyrighted; and 2) What about the artists who are having their art “sampled” (though some prefer “stolen”) to supply the data for these diffusion models?
The article today focuses on the first question."
Michael Petro, Buffalo News; 'Did we win?' While he was in hospital, Damar Hamlin's reps filed to trademark two phrases
"Before Buffalo Bills safety Damar Hamlin even left the University of Cincinnati Medical Center, his representatives were taking steps to trademark two phrases that had become linked to his recovery.
Hamlin is looking to trademark “Did we win” and “Three is back,” according to filings from Jan. 6 with the United States Patent and Trademark Office.
The 24-year-old, second-year professional has received an overwhelming show of support from fans and the sports community after the injury he suffered during a Jan. 2 game, but some people and businesses have tried to cash in on that interest through the use of catch phrases like, “Did we win,” which is this first thing Hamlin asked doctors when he awoke from an induced coma."
MATTHEW CHAPMAN, Salon; Jan. 6 rioter tried to copyright note he left on Pelosi's desk
"Richard "Bigo" Barnett, the January 6 rioter who was famously photographed putting his feet up on the desk of then-House Speaker Nancy Pelosi (D-CA), tried to copyright the note he left on her desk, according to WUSA9."
Diana Bikbaeva - Diana Bikbaeva, Lexology; AI Trained on Copyrighted Works: When Is It Fair Use?
"We recently published an article that got much traction about whether machine learning on copyrighted materials is fair use. We now offer a deep analysis with new ideas and suggestions on legal risk mitigation and principles for more ethical AI systems.
AI is still a relatively new, although rapidly evolving technology, and some of its legal implications (especially in copyright law) remain a gray area, creating uncertainty on its use and development.
AI and machine learning technology are not one-size-fits-all and have diverse structures and algorithms specific to the tasks they are programmed to solve. So, any discussion of the legal implications of machine learning and resulting artificial intelligence needs to avoid sweeping conclusions on the technology in general and should consider the underlying technology and its treatment of copyrighted materials on a case-by-case basis."
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
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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."
