AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions; United States Patent and Trademark Office (USPTO), February 12, 2024

Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, United States Patent and Trademark Office (USPTO) ; Director's Blog: the latest from USPTO leadership

AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions

"Today, based on the exceptional public feedback we’ve received, we announced our Inventorship Guidance for AI-Assisted Inventions in the Federal Register – the first of these directives. The guidance, which is effective on February 13, 2024, provides instructions to examiners and stakeholders on how to determine whether the human contribution to an innovation is significant enough to qualify for a patent when AI also contributed. The guidance embraces the use of AI in innovation and provides that AI-assisted inventions are not categorically unpatentable. The guidance instructs examiners on how to determine the correct inventor(s) to be named in a patent or patent application for inventions created by humans with the assistance of one or more AI systems. Additionally, we’ve posted specific examples of hypothetical situations and how the guidance would apply to those situations to further assist our examiners and applicants in their understanding."

Inventorship guidance for AI-assisted inventions webinar; United States Patent and Trademark Office (USPTO), March 5, 2024 1 PM - 2 PM ET

United States Patent and Trademark Office (USPTO) ; Inventorship guidance for AI-assisted inventions webinar

"The United States Patent and Trademark Office (USPTO) plays an important role in incentivizing and protecting innovation, including innovation enabled by artificial intelligence (AI), to ensure continued U.S. leadership in AI and other emerging technologies (ET).

The USPTO announced Inventorship Guidance for AI-Assisted Inventions in the Federal Register. This guidance is pursuant to President Biden's Executive Order 14110 on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (October 30, 2023) with provisions addressing IP equities. The guidance, which is effective on February 13, 2024, provides instructions to USPTO personnel and stakeholders on determining the correct inventor(s) to be named in a patent or patent application for inventions created by humans with the assistance of one or more AI systems. 

The USPTO will host a webinar on Inventorship Guidance for AI-Assisted Inventions on Tuesday, March 5, from 1-2 p.m. EST. USPTO personnel will provide an overview of the guidance and answer stakeholder questions relating to the guidance.

This event is free and open to the public, but virtual space is limited, so please register early."

On Copyright, Creativity, and Compensation; Reason, February 12, 2024

DAVID POST, Reason; On Copyright, Creativity, and Compensation

"Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months...

What to make of all this? I am not oblivious to the irony of being confronted with this problem after having spent 30 years or so, as a lawyer and law professor, reflecting on and writing about the many mysteries of copyright policy and copyright law in the Internet Age.

Here are a few things that strike me as interesting (and possibly important) in this episode."

EU countries strike deal on landmark AI rulebook; Politico, February 2, 2024

 GIAN VOLPICELLI, Politico ; EU countries strike deal on landmark AI rulebook

"European Union member countries on Friday unanimously reached a deal on the bloc’s Artificial Intelligence Act, overcoming last-minute fears that the rulebook would stifle European innovation.

EU deputy ambassadors green-lighted the final compromise text, hashed out following lengthy negotiations between representatives of the Council, members of the European Parliament and European Commission officials...

Over the past few weeks, the bloc’s top economies Germany and France, alongside Austria, hinted that they might oppose the text in Friday’s vote...

Eventually, the matter was resolved through the EU’s familiar blend of PR offensive and diplomatic maneuvering. The Commission ramped up the pressure by announcing a splashy package of pro-innovation measures targeting the AI sector, and in one fell swoop created the EU’s Artificial Intelligence Office — a body tasked with enforcing the AI Act...

A spokesperson for German Digital Minister Volker Wissing, the foremost AI Act skeptic within Germany’s coalition government, told POLITICO: "We asked the EU Commission to clarify that the AI Act does not apply to the use of AI in medical devices.".

A statement the European Commission, circulated among EU diplomats ahead of the vote and seen by POLITICO, reveals plans to set up an “expert group” comprising  EU member countries’ authorities. The group’s function will be to “ advise and assist” the Commission in applying and implementing the AI Act...

The AI Act still needs the formal approval of the European Parliament. The text is slated to get rubber-stamped at the committee level in two weeks, with a plenary vote expected in April."

This AI Model Is Trained On Public Domain Stills To Create Mickey Mouse Images; Cartoon Brew, February 5, 2024

JAMIE LANG, Cartoon Brew ; This AI Model Is Trained On Public Domain Stills To Create Mickey Mouse Images

"In the comments section of an article about Mickey-1928 published by Ars Technica, Langlais explained that he’s aware of the line his model may be crossing by using Stable Diffusion and says that the public domain might provide a lot of answers to the ethical and legal questions raised by the emergence of AI tech:

I do agree with the issues of using a model trained on copyrighted content. I’m currently part of a new project to train a French LLM on public domain/open science/free culture sources, not only out of concern for author rights but also to enforce better standards of reproducibility and data provenance in the field. I’m hoping to see similar efforts on diffusion models this year. My general impression is that the copyright extension terms have made impossible an obvious solution to the AI copyright problem: having AI models trained openly on 20th century culture, and thus creating powerful incentives to digitize newspapers, books, movies for the commons."

Under the Bridge | The Rise of Copyright Trolls in the Intellectual Property Space; JDSupra, February 6, 2024

Lindsey Mead, Mikhail Murshak, oster Swift Collins & Smith, JDSupra ; Under the Bridge | The Rise of Copyright Trolls in the Intellectual Property Space

"Through tactical litigation practices, copyright trolls rely on copyright law to allege infringement and threaten major statutory damages upon unsuspecting defendants. The term “copyright troll” is an unflattering nickname for someone who manipulates the intellectual property (“IP”) laws to force a “toll” by way of a settlement payout on market participants...

There is hope in the IP legal field that greater copyright protections may come due to the soaring presence of copyright trolls. Notably, there is a pending copyright case before the United States Supreme Court, Warner Chappell Music, Inc. v. Nealy, that will be heard on February 21, 2024. The Electronic Frontier Foundation (“EFF”) has chosen to submit an amicus brief in support of the defendants accused of copyright infringement in that case. Within the brief, EFF alleges that copyright trolling imposes unnecessary costs on affected defendants and limits the exercise of creativity."

Study: Digital watermarks and AI will expedite copyright cases; Scottish Legal News, February 5, 2024

Scottish Legal News; Study: Digital watermarks and AI will expedite copyright cases

"The study was carried out by Professor James Griffin from the University of Exeter Law School and others. Researchers applied an existing AI system to copyright case law, to see how it could read and understand cases and produce outcomes in disputes concerning 3D printing. They found more complex watermarks will lead to faster and more accurate resolutions."

European Publishers Praise New EU AI Law; Publishers Weekly, February 2, 2024

 Ed Nawotka, Publishers Weekly; European Publishers Praise New EU AI Law

"The Federation of European Publishers (FEP) was quick to praise the passage of new legislation by the European Union that, among its provisions, requires "general purpose AI companies" to respect copyright law and have policies in place to this effect.

FEP officials called the EU Artificial Intelligence (AI) Act, which passed on February 2, the "world’s first concrete regulation of AI," and said that the legislation seeks to "ensure the ethical and human-centric development of this technology and prevent abusive or illegal practices law, which also demands transparency about what data is being used in training the models.""

The economy and ethics of AI training data; Marketplace.org, January 31, 2024

 Matt Levin, Marketplace.org;  The economy and ethics of AI training data

"Maybe the only industry hotter than artificial intelligence right now? AI litigation. 

Just a sampling: Writer Michael Chabon is suing Meta. Getty Images is suing Stability AI. And both The New York Times and The Authors Guild have filed separate lawsuits against OpenAI and Microsoft. 

At the heart of these cases is the allegation that tech companies illegally used copyrighted works as part of their AI training data. 

For text focused generative AI, there’s a good chance that some of that training data originated from one massive archive: Common Crawl. 

“Common Crawl is the copy of the internet. It’s a 17-year archive of the internet. We make this freely available to researchers, academics and companies,” said Rich Skrenta, who heads the nonprofit Common Crawl Foundation."

‘Please let me get what I want’: can artists stop politicians from using their songs?; The Guardian, January 30, 2024

Matthew Cantor , The Guardian; ‘Please let me get what I want’: can artists stop politicians from using their songs?

"How much power do artists actually have in this scenario? It depends on the circumstances, says Ben Depoorter, a professor at University of California Law San Francisco. In the US, licensing companies including Ascap and BMI manage copyright issues on behalf of artists. Generally, venues like convention centers have their own licenses with these companies, meaning that, broadly speaking, the venues can play whatever they want.

However, the rules are a little different when a third party is involved. When a candidate “walks on and they play music, that is actually not covered by the standard license of the venue”, Depoorter says. Political campaigns often don’t realize that they need their own music licenses, under which musicians can opt out of having their music played. “When these authors are saying, ‘Hey, I don’t want him to play my music any more,’ it’s actually a legal right they have,” Depoorter explains."

How A Mickey Mouse Horror Movie Is Releasing Only 2 Months After Disney Lost The Copyright; Screen Rant, January 31, 2024

 EIDHNE GALLAGHER, Screen Rant; How A Mickey Mouse Horror Movie Is Releasing Only 2 Months After Disney Lost The Copyright

"Mickey Mouse is one of several popular characters who have entered the public domain in the 2020s. However, this upcoming horror movie is solely focusing on the Steamboat Willie version of Mickey Mouse. While the copyright claim on Steamboat Willie has expired, Disney has not lost all their rights to their mascot. Every Mickey Mouse movie and character evolution that took place after Steamboat Willie remains protected under copyright law, and Disney will continue to use the character as a trademarked mascot."

California copyright-case leaves tattoo artists in limbo; Fox26 Houston, January 29, 2024

Tom Zizka

, Fox26 Houston ; California copyright-case leaves tattoo artists in limbo

"Patent and Copyright expert Joh Rizvi, known at The Patent Professor, says the California case never got to the issue of whether images reproduced in tattoos are fair to use as art and expression. 

"What I find is the more interesting question is, 'Is a tattoo different? Is this free speech?'" he wonders.

Fair Use has been the subject of countless lawsuits, and Rizvi says this one leaves artists in a legal gray area, with no precedent."

Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark; JDSupra, January 29, 2024

 Ralph Artigliere , JDSupra; Florida’s New Advisory Ethics Opinion on Generative AI Hits the Mark

"As a former Florida trial lawyer and judge who appreciates emerging technology, I admit that I had more than a little concern when The Florida Bar announced it was working on a new ethics opinion on generative AI. Generative AI promises to provide monumental advantages to lawyers in their workflow, quality of work product, productivity, and time management and more. For clients, use of generative AI by their lawyers can mean better legal services delivered faster and with greater economy. In the area of eDiscovery, generative AI promises to surpass technology assisted review in helping manage the increasingly massive amounts of data.

Generative AI is new to the greater world, and certainly to busy lawyers who are not reading every blogpost on AI. The internet and journals are afire over concerns of hallucinations, confidentiality, bias, and the like. I felt a new ethics opinion might throw a wet blanket on generative AI and discourage Florida lawyers from investigating the new technology.

Thankfully, my concerns did not become reality. The Florida Bar took a thorough look at the technology and the existing ethical guidance and law and applied existing guidelines and rules in a thorough and balanced fashion. This article briefly summarizes Opinion 24-1 and highlights some of its important features.

The Opinion

On January 19, 2024, The Florida Bar released Ethics Opinion 24-1(“Opinion 24-1”)regarding the use of generative artificial intelligence (“AI”) in the practice of law. The Florida Bar and the State Bar of California are leaders in issuing ethical guidance on this issue. Opinion 24-1 draws from a solid background of ethics opinions and guidance in Florida and around the country and provides positive as well as cautionary statements regarding the emerging technologies. Overall, the guidance is well-placed and helpful for lawyers at a time when so many are weighing the use of generative AI technology in their law practices."

Lawyers weigh strength of copyright suit filed against BigLaw firm; Rhode Island Lawyers Weekly, January 29, 2024

Pat Murphy , Rhode Island Lawyers Weekly; Lawyers weigh strength of copyright suit filed against BigLaw firm

"Jerry Cohen, a Boston attorney who teaches IP law at Roger Williams University School of Law, called the suit “not so much a copyright case as it is a matter of professional responsibility and respect.”"

Creatives Battling AI Companies Over Copyright Turn to Congress; Bloomberg Law, January 29, 2024

Isaiah Poritz, Legal Reporter; Diego Areas Munhoz 

Reporter, Bloomberg Law ; Creatives Battling AI Companies Over Copyright Turn to Congress

"In 1908, the Supreme Court ruled that “piano rolls,” a new and increasingly popular technology that automatically played songs without a human musician, didn’t violate copyright law—a blow to the music industry. Songwriters and composers felt their livelihoods threatened but had no grounds to demand royalties from piano-roll makers that copied their sheet music.

That was until Congress stepped in the following year, amending the law to address piano rolls and ensure musicians were paid royalties.

More than a century later, musicians—along with other creatives—are yet again fearful an emerging technology could disrupt their industries: artificial intelligence."

When Louis Vuitton tries to make you change your brand name; BBC, January 27, 2024

Laurence Cawley & Sally Beadle, BBC; When Louis Vuitton tries to make you change your brand name

"IPO Tribunal Judge Matthew Williams found in the couple's favour, deciding Louis Vuitton's opposition had failed "on all grounds"...

Melanie Harvey, a legal director at Birketts LLP and a chartered trade mark attorney, says the Osborne's case is far from unique.

She says in the past 18 months there has been a "huge" rise big firms seeking to protect their trademarks. She says clothing businesses, champagne makers and high end brands were particularly busy protecting their identities at the moment."

Library Copyright Alliance Principles for Copyright and Artificial Intelligence; Library Copyright Alliance (LCA), American Library Association (ALA), Association of Research Libraries (ARL), July 10, 2023

 Library Copyright Alliance (LCA), American Library Association (ALA), Association of Research Libraries (ARL); Library Copyright Alliance Principles for Copyright and Artificial Intelligence

"The existing U.S. Copyright Act, as applied and interpreted by the Copyright Office and the courts, is fully capable at this time to address the intersection of copyright and AI without amendment.

• Based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.

  • Because tens—if not hundreds—of millions of works are ingested to create an LLM, the contribution of any one work to the operation of the LLM is de minimis; accordingly, remuneration for ingestion is neither appropriate nor feasible.

  • Further, copyright owners can employ technical means such as the Robots Exclusion Protocol to prevent their works from being used to train AIs.

• If an AI produces a work that is substantially similar in protected expression to a work that was ingested by the AI, that new work infringes the copyright in the original work.

• If the original work was registered prior to the infringement, the copyright owner of the original work can bring a copyright infringement action for statutory damages against the AI provider and the user who prompted the AI to produce the substantially similar work.

• Applying traditional principles of human authorship, a work that is generated by an AI might be copyrightable if the prompts provided by the user sufficiently controlled the AI such that the resulting work as a whole constituted an original work of human authorship.

AI has the potential to disrupt many professions, not just individual creators. The response to this disruption (e.g., not be treated as a means for addressing these broader societal challenges. support for worker retraining through institutions such as community colleges and public libraries) should be developed on an economy-wide basis, and copyright law should not be treated as a means for addressing these broader societal challenges.

AI also has the potential to serve as a powerful tool in the hands of artists, enabling them to express their creativity in new and efficient ways, thereby furthering the objectives of the copyright system."

Training Generative AI Models on Copyrighted Works Is Fair Use; ARL Views, January 23, 2024

Katherine Klosek, Director of Information Policy and Federal Relations, Association of Research Libraries (ARL), and Marjory S. Blumenthal, Senior Policy Fellow, American Library Association (ALA) Office of Public Policy and Advocacy |, ARL Views; Training Generative AI Models on Copyrighted Works Is Fair Use

"In a blog post about the case, OpenAI cites the Library Copyright Alliance (LCA) position that “based on well-established precedent, the ingestion of copyrighted works to create large language models or other AI training databases generally is a fair use.” LCA explained this position in our submission to the US Copyright Office notice of inquiry on copyright and AI, and in the LCA Principles for Copyright and AI.

LCA is not involved in any of the AI lawsuits. But as champions of fair use, free speech, and freedom of information, libraries have a stake in maintaining the balance of copyright law so that it is not used to block or restrict access to information. We drafted the principles on AI and copyright in response to efforts to amend copyright law to require licensing schemes for generative AI that could stunt the development of this technology, and undermine its utility to researchers, students, creators, and the public. The LCA principles hold that copyright law as applied and interpreted by the Copyright Office and the courts is flexible and robust enough to address issues of copyright and AI without amendment. The LCA principles also make the careful and critical distinction between input to train an LLM, and output—which could potentially be infringing if it is substantially similar to an original expressive work.

On the question of whether ingesting copyrighted works to train LLMs is fair use, LCA points to the history of courts applying the US Copyright Act to AI."

Richard Prince to Pay Photographers Who Sued Over Copyright; The New York Times, January 26, 2024

 Matt Stevens, The New York Times; Richard Prince to Pay Photographers Who Sued Over Copyright

"The artist Richard Prince agreed to pay at least $650,000 to two photographers whose images he had incorporated in his own work, ending a long-running copyright dispute that had been closely monitored by the art world...

Brian Sexton, a lawyer for Prince, said the artist wanted to protect free expression and have copyright law catch up to changing technology...

Marriott said the judgments showed that copyright law still provided meaningful protection to creators and that the internet was not a copying free-for-all.

“There is not a fair use exception to copyright law that applies to the famous and another that applies to everyone else,” he said."

Artificial Intelligence Law - Intellectual Property Protection for your voice?; JDSupra, January 22, 2024

Steve Vondran, JDSupra ; Artificial Intelligence Law - Intellectual Property Protection for your voice?

"With the advent of AI technology capable of replicating a person's voice and utilizing it for commercial purposes, several key legal issues are likely to emerge under California's right of publicity law. The right of publicity refers to an individual's right to control and profit from their own name, image, likeness, or voice.

Determining the extent of a person's control over their own voice will likely become a contentious legal matter given the rise of AI technology. In 2024, with a mere prompt and a push of a button, a creator can generate highly accurate voice replicas, potentially allowing companies to utilize a person's voice without their explicit permission for example using a AI generated song in a video, or podcast, or using it as a voice-over for a commercial project. This sounds like fun new technology, until you realize that in states like California where a "right of publicity law" exists a persons VOICE can be a protectable asset that one can sue to protect others who wrongfully misuse their voice for commercial advertising purposes.

This blog will discuss a few new legal issues I see arising in our wonderful new digital age being fueled by the massive onset of Generative AI technology (which really just means you input prompts into an AI tool and it will generate art, text, images, music, etc."

Teaching kids about their intellectual property rights; KX.net, January 23, 2024

 Joe Rinaldi, KX.net; Teaching kids about their intellectual property rights

"Right now, our children are living in an ever-changing technological world. 

They are constantly posting and publishing all aspects of their lives, and just like adults, they need to understand their creative rights and intellectual property."

Kat Von D Wins Copyright Case, Fair Use of Miles Davis Photo; Bloomberg Law, January 26, 2024

Maia Spoto, Bloomberg Law; Kat Von D Wins Copyright Case, Fair Use of Miles Davis Photo

"A tattoo by celebrity artist Kat Von D of jazz legend Miles Davis is not substantially similar to the photo it was based on, a Los Angeles jury found Friday afternoon in a victory for the tattoo industry.

The tattoo, which Von D inked for free on her friend’s arm using photographer Jeffrey Sedlik’s portrait as a reference, is fair use, the jury ruled. The jurors deliberated for less than three hours, and about half of them talked to and hugged Von D in the courtroom after the trial concluded in the Central District of California."

‘Who Owns This Sentence?’ Increasingly, Who Knows?; The New York Times, January 24, 2024

Alexandra Jacobs, The New York Times ; ‘Who Owns This Sentence?’ Increasingly, Who Knows?

"David Bellos and Alexandre Montagu’s surprisingly sprightly history “Who Owns This Sentence?” arrives with uncanny timing...

They sort out the difference between plagiarism, a matter of honor debated since ancient times (and a theme, tellingly, of many recent novels); copyright, a concern of modern law and, crucially, lucre (“the biggest money machine the world has ever seen”); and trademark. If I wanted a picture of Smokey Bear to run with this article, for instance — and I very much do — The New York Times would have to fork up."...

They themselves have a wry way with technical material; this is less Copyright for Dummies, like that endlessly extended, imitatedand spoofed series, than for wits. Discouraged by their publisher from naming a chapter title after the Beatles’ “All You Need Is Love,” the authors deftly illustrate this “absurd” circumstance by only describing in close identifiable detail the band and the song."

A Stranger Bought a Set of Highly Personal Letters. Can I Call Him Out?; The Ethicist, The New York Times Magazine, January 25, 2024

 Kwame Anthony Appiah, The Ethicist,The New York Times Magazine ; A Stranger Bought a Set of Highly Personal Letters. Can I Call Him Out?

"From the Ethicist:

It was thoughtless, I agree, to sell off a cache of letters that included some that were intimate and came from living people. The thought of strangers’ digging through letters written in the spirit of love and friendship can be upsetting. That the person who has acquired these letters has failed to grasp this suggests a certain lack of empathy. But it doesn’t establish that he lacks a moral sense, because you don’t really have any idea what he plans to do with this material. 

And there are constraints on this. When you acquire letters, you don’t thereby acquire the copyright in those letters, and copyright protection typically lasts until 70 years after the author’s death. So he has to deal with the murky issue of what counts as the “fair use” of such intellectual property. There are also a few privacy torts that individuals can try to pursue in the courts (e.g., intrusion upon seclusion; public disclosure of private facts). Even though he isn’t a party to a covenant of confidentiality, as someone in A.A. is, it remains true that, as you imply, exposing details of the intimate lives of private people is generally wrong."

George Carlin Estate Sues Creators of AI-Generated Comedy Special in Key Lawsuit Over Stars’ Likenesses; The Hollywood Reporter, January 25, 2024

 Winston Cho, The Hollywood Reporter ; George Carlin Estate Sues Creators of AI-Generated Comedy Special in Key Lawsuit Over Stars’ Likenesses

"The complaint seeks a court order for immediate removal of the special, as well as unspecified damages. It’s among the first legal actions taken by the estate of a deceased celebrity for unlicensed use of their work and likeness to manufacture a new, AI-generated creation and was filed as Hollywood is sounding the alarm over utilization of AI to impersonate people without consent or compensation...

According to the complaint, the special was created through unauthorized use of Carlin’s copyrighted works.

At the start of the video, it’s explained that the AI program that created the special ingested five decades of Carlin’s original stand-up routines, which are owned by the comedian’s estate, as training materials, “thereby making unauthorized copies” of the copyrighted works...

If signed into law, the proposal, called the No AI Fraud Act, could curb a growing trend of individuals and businesses creating AI-recorded tracks using artists’ voices and deceptive ads in which it appears a performer is endorsing a product. In the absence of a federal right of publicity law, unions and trade groups in Hollywood have been lobbying for legislation requiring individuals’ consent to use their voice and likeness."

The Sleepy Copyright Office in the Middle of a High-Stakes Clash Over A.I.; The New York Times, January 25, 2024

 Cecilia Kang, The New York Times; The Sleepy Copyright Office in the Middle of a High-Stakes Clash Over A.I.

"For decades, the Copyright Office has been a small and sleepy office within the Library of Congress. Each year, the agency’s 450 employees register roughly half a million copyrights, the ownership rights for creative works, based on a two-centuries-old law.

In recent months, however, the office has suddenly found itself in the spotlight. Lobbyists for Microsoft, Google, and the music and news industries have asked to meet with Shira Perlmutter, the register of copyrights, and her staff. Thousands of artists, musicians and tech executives have written to the agency, and hundreds have asked to speak at listening sessions hosted by the office.

The attention stems from a first-of-its-kind review of copyright law that the Copyright Office is conducting in the age of artificial intelligence. The technology — which feeds off creative content — has upended traditional norms around copyright, which gives owners of books, movies and music the exclusive ability to distribute and copy their works.

The agency plans to put out three reports this year revealing its position on copyright law in relation to A.I. The reports are set to be hugely consequential, weighing heavily in courts as well as with lawmakers and regulators."

The Public Domain Benefits Everyone – But Sometimes Copyright Holders Won’t Let Go; Electronic Frontier Foundation (EFF), January 22, 2024

 CARA GAGLIANO, Electronic Frontier Foundation (EFF); The Public Domain Benefits Everyone – But Sometimes Copyright Holders Won’t Let Go

"Unlike copyright, trademark protection has no fixed expiration date. Instead, it works on a “use it or lose it” model. With some exceptions, the law will grant trademark protection for as long as you keep using that mark to identify your products. This actually makes sense when you understand the difference between copyright and trademark. The idea behind copyright protection is to give creators a financial incentive to make new works that will benefit the public; that incentive needn’t be eternal to be effective. Trademark law, on the other hand, is about consumer protection. The function of a trademark is essentially to tell you who a product came from, which helps you make informed decisions and incentivizes quality control. If everyone were allowed to use that same mark after some fixed period, it would stop serving that function.

So, what’s the problem? Since trademarks don’t expire, we see former copyright holders of public domain works turn to trademark law as a way to keep exerting control. In one case we wrote about, a company claiming to own a trademark in the name of a public domain TV show called “You Asked For It” sent takedown demands targeting everything from episodes of the show, to remix videos using show footage, to totally unrelated uses of that common phrase. Other infamous examples include disputes over alleged trademarks in elements from Peter Rabbit and Tarzan. Now, with Steamboat Willie in the public domain, Disney seems poised to do the same. It’s already alluded to this in public statements, and in 2022, it registered a trademark for Walt Disney Animation Studios that incorporates a snippet from the cartoon.

The news isn’t all bad: trademark protection is in some ways more limited than copyright—it only applies to uses that are likely to confuse consumers about the use’s connection to the mark owner. And importantly, the U.S. Supreme Court has made clear that trademark law cannot be used to control the distribution of creative works, lest it spawn “a species of mutant copyright law” that usurps the public’s right to copy and use works in the public domain. (Of course, that doesn’t mean companies won’t try it.) So go forth and make your Steamboat Willie art, but beware of trademark lawyers waiting in the wings."

Computer scientist makes case for AI-generated copyrights in US appeal; Reuters, January 23, 2024

 Blake Brittain, Reuters; Computer scientist makes case for AI-generated copyrights in US appeal

"Creative works generated entirely by artificial intelligence should be eligible for copyright protection, computer scientist Stephen Thaler told a federal appeals court in Washington this week...

A separate U.S. appeals court rejected Thaler's bid for patents covering AI-generated inventions, in a decision that the U.S. Supreme Court declined to review last year. The UK Supreme Court ruled against Thaler in a similar case in December.

Thaler has several related cases still pending in other countries."

We Asked A.I. to Create the Joker. It Generated a Copyrighted Image.; The New York Times, January 25, 2024

Stuart A. Thompson, The New York Times ; We Asked A.I. to Create the Joker. It Generated a Copyrighted Image.

"“Nobody knows how this is going to come out, and anyone who tells you ‘It’s definitely fair use’ is wrong,” said Keith Kupferschmid, the president and chief executive of the Copyright Alliance, an industry group that represents copyright holders. “This is a new frontier.”

A.I. companies could violate copyright in two ways, Mr. Kupferschmid said: They could train on copyrighted material that they have not licensed, or they could reproduce copyrighted material when users enter a prompt."

It's Copyright Week 2024: Join Us in the Fight for Better Copyright Law and Policy; Electronic Frontier Foundation (EFF), January 22, 2024

KATHARINE TRENDACOSTA , Electronic Frontier Foundation (EFF); It's Copyright Week 2024: Join Us in the Fight for Better Copyright Law and Policy

"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, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation."

Is A.I. the Death of I.P.?; The New Yorker, January 15, 2024

Louis Menand, The New Yorker ; Is A.I. the Death of I.P.?

"Intellectual property accounts for some or all of the wealth of at least half of the world’s fifty richest people, and it has been estimated to account for fifty-two per cent of the value of U.S. merchandise exports. I.P. is the new oil. Nations sitting on a lot of it are making money selling it to nations that have relatively little. It’s therefore in a country’s interest to protect the intellectual property of its businesses.

But every right is also a prohibition. My right of ownership of some piece of intellectual property bars everyone else from using that property without my consent. I.P. rights have an economic value but a social cost. Is that cost too high?

I.P. ownership comes in several legal varieties: copyrights, patents, design rights, publicity rights, and trademarks."

Kat Von D Claims Miles Davis Tattoo Is ‘Fair Use’ at Unusual Copyright Trial; Rolling Stone, January 23, 2024

 NANCY DILLON, Rolling Stone; Kat Von D Claims Miles Davis Tattoo Is ‘Fair Use’ at Unusual Copyright Trial

"Jurors now hearing the case will have to decide whether Von D’s reproduction falls under the “fair use” doctrine that allows limited use of copyrighted material without permission. Artistic representations of copyrighted work can be protected by fair use if they “transform” the subject work into something new, such as a parody, critique, or news report."

Stephen Thaler’s Quest to Get His ‘Autonomous’ AI Legally Recognized Could Upend Copyright Law Forever; Art News, January 8, 2024

 Shanti Escalante-De Mattei, Art News; Stephen Thaler’s Quest to Get His  ‘Autonomous’ AI Legally Recognized Could Upend Copyright Law Forever

"Abbott and Thaler’s push for copyright brings up a very basic question for artists today: how do we locate agency and creativity when we make things with machines? When is it our doing, and when is it “theirs”? This question follows the arc of history as humans design increasingly complex tools that work independently of us, even if we designed them and set them into motion. Debates have raged in public forums and in lawsuits regarding to what extent a model like Midjourney can produce genuinely novel images or whether it is just randomly stitching together disparate pixels based on its training data to generate synthetic quasi-originality. But for those who work in machine learning, this process isn’t all that different from how humans work."

Lifecycle of Copyright: 1928 Works in the Public Domain; Library of Congress Blogs: Copyright Creativity at Work, January 8, 2024

Alison Hall , Library of Congress Blogs: Copyright Creativity at Work; Lifecycle of Copyright: 1928 Works in the Public Domain

"This blog also includes contributions from Jessica Chinnadurai, attorney-advisor, and Rafael Franco, writer-editor intern in the Copyright Office.

Over the last several years, we have witnessed a new class of creative works entering the public domain in the United States each January 1. This year, a variety of works published in 1928, ranging from motion pictures to music to books, joined others in the public domain. The public domain has important historical and cultural benefits in the lifecycle of copyright...

Below are just a few of the historical and cultural works that entered the public domain in 2024."