Friday, January 6, 2023

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."

Thursday, January 5, 2023

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

, Library of CongressFind 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 & TaftHoward 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


"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."

Wednesday, January 4, 2023

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."

Tuesday, January 3, 2023

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."

Monday, January 2, 2023

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

, 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."

Sunday, January 1, 2023

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."

Wednesday, December 28, 2022

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-ColaBlue 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 BauerHouston 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."

Tuesday, December 27, 2022

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

, 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.”"

Saturday, December 24, 2022

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

 , 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

, 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:..."

Wednesday, December 21, 2022

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.”"

Tuesday, December 20, 2022

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." 

Saturday, December 17, 2022

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."

How to Trademark a Name; Money, November 29, 2022

By: ; How to Trademark a Name

"Ensure the name you want to trademark isn’t already taken

Before applying for a trademark, ensure that no one else has registered a similar name. Any similarity will invalidate your application efforts because the USPTO can’t allow two companies to have the same or similar names.

This is why a trademark search comes in handy. The USPTO has a database of trademarks, both registered and pending. You can use the Trademark Electronic Search System (TESS) to conduct a USPTO trademark search in the database.

A trademark attorney can help you conduct a more thorough search, as professional searches go beyond the regular USPTO trademark database. The attorney can also check common law trademarks, state trademarks, foreign trademarks and pending applications to minimize the risk of applying for an already registered trademark and avoiding an expensive mistake."

United States: New Trademark Office Action Deadlines Initiated 12/3/2022; Mondaq, December 15, 2022

Falkner Werkhaven, MondaqUnited States: New Trademark Office Action Deadlines Initiated 12/3/2022

"While those of you who frequently work with trademarks are already aware, the USPTO new three month deadline to respond to Trademark Office Actions began last Saturday, December 3. For those of you who do not frequently work with Trademark Applications, this new deadline may be news to you and is half the response time of the previous six month deadline. The vast majority of Office Actions now issued will have three month response times.

Two major exceptions apply to this rule."

Mariah Carey can't be the only 'Queen of Christmas,' the trademark agency rules; NPR, November 18, 2022

Rachel, Treisman, NPR; Mariah Carey can't be the only 'Queen of Christmas,' the trademark agency rules

"Earlier this week, the Trial Trademark and Appeal Board finally made a "judgment by default," rejecting Carey's trademark request."

UMG, BMG, and Concord Name Altice USA In $1 Billion+ Copyright Suit, Claim the ISP ‘Deliberately Turned a Blind Eye to Its Subscribers’ Infringement’; Digital Music News, December 16, 2022

Dylan Smith, Digital Music News; UMG, BMG, and Concord Name Altice USA In $1 Billion+ Copyright Suit, Claim the ISP ‘Deliberately Turned a Blind Eye to Its Subscribers’ Infringement’

"Estimating based upon the maximum $150,000 in statutory damages for each of the allegedly infringed compositions and recordings as well as a staggering 176 pages’ worth of purportedly infringed works, UMG, Concord, and BMG are seeking over $1 billion from the Optimum owner."

What Does Copyright Say about Generative Models?; O'Reilly, December 13, 2022

Mike Loukides,O'Reilly ; What Does Copyright Say about Generative Models? Not much.

"In any AI application, the training data is at least as important to the final product as the algorithms, if not more important. Should the rights of the authors of the training data be taken into account when a model is built from their work, even if the model never reproduces their work verbatim? Copyright does not adequately address the inputs to the algorithm at all."

Supreme Court asks for Biden administration's views in Google copyright case; December 12, 2022

, Reuters ; Supreme Court asks for Biden administration's views in Google copyright case

"The U.S. Supreme Court on Monday asked the Biden administration to weigh in on song-lyric website Genius' attempt to revive a lawsuit over Google's alleged theft of its work.

The justices are considering whether to hear ML Genius Holdings LLC's bid to overturn a U.S. appeals court's ruling that its case against Google LLC was preempted by federal copyright law.

The Supreme Court often asks for the solicitor general's input on cases in which the U.S. government may have an interest."

Artists fed up with AI-image generators use Mickey Mouse to goad copyright lawsuits; daily dot, December 16, 2022

Mikael Thalen, daily dot; Artists fed up with AI-image generators use Mickey Mouse to goad copyright lawsuits

"The issue surrounding AI art has already led to widespread protest and pushback from the art community. Just this week, artists on the art-hosting platform ArtStation began uploading identical images en masse that featured the caption “NO TO AI GENERATED IMAGES.”

Given just how new the technology is, it remains unclear what guidelines, if any, will be created to balance the rights of artists against the ever-expanding capabilities of AI."

Photographer Sues Gannett for $34 Million For Copyright Infringement; PetaPixel, December 15, 2022

PESALA BANDARA, PetaPixel ; Photographer Sues Gannett for $34 Million For Copyright Infringement

"Photographer Stephanie Campbell filed a copyright infringement lawsuit against major media company Gannett and more than 220 Gannett news outlets on Friday, reports Rochester Beacon.

In the lawsuit, Campbell alleges that hundreds of Gannett’s news titles published her photo of former NFL coach Katie Sowers without seeking the photographer’s permission...

[Kip Currier: The photographs, as described in the article, would be registered with the U.S. Copyright Office as copyrightable subject matter, not with the U.S. Patent and Trademark Office, which, as its eponymous name indicates, has jurisdiction over patents and trademarks.] Campbell registered the photographs of Sowers with the U.S. Patent and Trademarks office...

According to the Rochester Beacon, Campbell is seeking damages of up to $150,000 for each alleged infringement, a sum that, if each supposedly infringing publication used the Sowers photo only once, could see the photographer winning $34 million."

Saturday, December 10, 2022

First Global Forum on Ethics of AI held in Prague, one year after the adoption of UNESCO’s global recommendation; UNESCO, To Be Held December 13, 2022

UNESCO; First Global Forum on Ethics of AI held in Prague, one year after the adoption of UNESCO’s global recommendation

The Global Forum on the Ethics of AI, hosted by the Czech Republic on 13 December 2022 in Prague, is the first international ministerial meeting to take place after the adoption of the global recommendation on the ethics of AI a year ago. The forum will place a spotlight on “ensuring inclusion in the AI world,” and take stock of the implementation of the recommendation so far. The event is held under UNESCO’s patronage.

"Human Rights At Risk

While artificial intelligence (AI) is revolutionizing our lives, its benefits are not being distributed equitably across and within countries. Moreover, the technology continues to be developed in ways that raise risks related to human rights. They may also increase inequalities. While most countries are willing to take steps to minimize the risks associated with AI, many lack the regulatory capacity to do so. UNESCO seeks to bridge this gap by promoting a global and ethical approach to AI and offering guidance on regulatory measures and policies. The Recommendation is the first-ever global normative instrument in this domain, unanimously adopted 193 Member States of UNESCO."

Your selfies are helping AI learn. You did not consent to this.; The Washington Post, December 9, 2022

, The Washington Post; Your selfies are helping AI learn. You did not consent to this.

"My colleague Tatum Hunter spent time evaluating Lensa, an app that transforms a handful of selfies you provide into artistic portraits. And people have been using the new chatbot ChatGPT to generate silly poems or professional emails that seem like they were written by a human. These AI technologies could be profoundly helpful but they also come with a bunch of thorny ethical issues.

Tatum reported that Lensa’s portrait wizardly comes from the styles of artists whose work was included in a giant database for coaching image-generating computers. The artists didn’t give their permission to do this, and they aren’t being paid. In other words, your fun portraits are built on work ripped off from artists. ChatGPT learned to mimic humans by analyzing your recipes, social media posts, product reviews and other text from everyone on the internet...

Hany Farid, a computer science professor at the University of California at Berkeley, told me that individuals, government officials, many technology executives, journalists and educators like him are far more attuned than they were a few years ago to the potential positive and negative consequences of emerging technologies like AI. The hard part, he said, is knowing what to do to effectively limit the harms and maximize the benefits." 

Friday, December 9, 2022

Popular Photo App Lensa Spurs Debate Over Ethics of Artificial Intelligence in Art; WTTW, December 8, 2022

  Eunice Alpasan, WTTW; Popular Photo App Lensa Spurs Debate Over Ethics of Artificial Intelligence in Art

"For a few dollars, users can submit photos of themselves that the app will use to generate multiple self-portraits in different art styles using artificial intelligence technology.

But the app has also reignited concerns about the ethics regarding the use of artificial intelligence in art.

A.I. algorithms work by going into large datasets of work posted online from various sources to help photo apps like Lensa generate self-portraits for users in different styles, said Jennifer deWinter, dean of Lewis College of Science and Letters at Illinois Tech. 

DeWinter said this presents a copyright issue, but because it’s a computer program generating the images, it makes it hard to trace back who is actually culpable. “It’s a problem of a giant, diffused system of multiple actors,” she said. 

Kennedy Freeman, a student in fine arts at Columbia College and founder of the Black fem art collective HourNine, said seeing these generated portraits spreading on social media made her concerned about how her art and those of other artists are being used without permission to help train A.I. generators."

Is a Deal Between 44 Texas Colleges and Elsevier ‘Historic’?; Inside Higher Ed, December 9, 2022

 Susan D'Agostino, Inside Higher Ed; Is a Deal Between 44 Texas Colleges and Elsevier ‘Historic’?

"As pandemic-weary U.S. colleges face strained library budgets, many seek creative ways to lower costs and preserve access to scholarly content. That shared goal brought 44 colleges in Texas together to negotiate a deal with Elsevier, the behemoth publisher of over 2,500 scientific journals, including The Lancet and Cell.

The consortium—known as the Texas Library Coalition for United Action—announced last month that it had reached a deal with Elsevier that is expected to improve access to scholarship, afford researchers greater control over their work and save the member institutions millions. Some laud the agreement as historic. Others say it falls short of long-sought-after goals. If nothing else, the deal offers one example of how a collection of colleges is moving forward in a tense academic publishing ecosystem."

American University Intellectual Property Brief; ANDY WARHOL FOUND. FOR VISUAL ARTS, INC. V. GOLDSMITH, November 30, 2022

 American University Intellectual Property Brief; 

ANDY WARHOL FOUND. FOR VISUAL ARTS, INC. V. GOLDSMITH, 11 F.4TH 26 (2D CIR. 2021), CERT. GRANTED, 212 L. ED. 2D 402, 142 S. CT. 1412 (2022)