Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
Jack Daniels, Mickey Mouse, and Andy Warhol Walk Into a Bar
In this month’s episode, we’re talking about Jack Daniels, Mickey Mouse, Andy Warhol, Jason Voorhees, Winnie-the-Pooh, Lizzo, and WallStreetBets … What do they have to do with patents you might fairly be wondering? Honestly, not much.
Patents are our focus in our business and in this podcast, so we devote a lot of air time to talking about protecting ideas and inventions, but in the realm of intellectual property, patents have some pretty close cousins. In thinking more broadly about creating the largest possible moat with your IP, you also need to be considering what our guest, Mallory King, refers to as “brand protection” – or the copyrights, trademarks, and contracts necessary to protect your brand’s rights and assets.
Copyrights and trademarks in particular have seen a lot of limelight this year involving some of the biggest brands and pop culture icons. At the same time, major IP rights questions are erupting around the use of generative AI systems like ChatGPT. In addition to covering the basics necessary to help get you booted up, we’re going to use these high profile topics and Supreme Court cases as a vehicle to get a deeper understanding of copyrights and trademarks and some of the sharpest corners you should be aware of when managing your own brand protection.
** Topics Highlights **'
⦿ Copyright and Trademark Basics
⦿ Work made-for-hire and Friday the 13th
⦿ Jack Daniels Properties v. VIP Products
⦿ Brand protection expiration, Winnie-the-Pooh: Blood and Honey, and Steamboat Willie
⦿ Lizzo's "100% That Bitch" trademark appeal
⦿ r/WallStreetBets trademark dispute with Reddit
⦿ Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
⦿ Generative AI: Humans as authors and fair use implications
** Mossoff Minute **
This month's Mossoff Minute, featuring Professor Adam Mossoff, looks at the introduction of the 2023 Patent Eligibility Restoration Act, its biggest criticisms, and why it needs to be passed.
** Connect With Our Guest **
Mallory King is the owner and attorney at Breathe Brand Protection, PLLC, a boutique law firm specializing in all things brand protection. Based in Traverse City, Michigan, Mallory is passionate about helping entrepreneurs and small businesses protect their most valuable brand assets, both locally and nationwide. You can learn more about Mallory and Breathe Brand Protection at https://www.breathe.law/
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Thanks for listening!
---
Note: The contents of this podcast do not constitute legal advice.
00:05 G'day and welcome to the Patently Strategic Podcast, where we discuss
all things at the intersection of business, technology, and patents.
This podcast is a monthly discussion amongst experts in the field of
patenting. It is for inventors, founders, and IP professionals alike,
established or aspiring. And in this month's episode, we're talking
about Jack Daniels, mickey Mouse, andy Warhol, jason Voorhees, lizzo
and Wall Street Betts.
00:27 What do they have to do with patents, you might fairly be wondering?
Honestly, not much. Patents are our focus in our business, and in this
podcast, we devote a lot of air time to talking about protecting ideas
and inventions. But in the realm of intellectual property, patents
have some pretty close cousins that we'd like to discuss today.
00:44 In thinking more broadly about creating the largest possible moat with
your intellectual property, you also need to be considering what our
guest today refers to as brand protection, or the copyrights,
trademarks, and contracts necessary to protect your brand's rights and
assets. Copyrights and trademarks, in particular, have seen a lot of
limelight this year, involving some of the biggest brands and pop
culture icons. At the same time, major IP rights questions are
erupting around the use of generative AI systems like Chat GPT.
01:12 In addition to covering some of the basics necessary to help get you
booted up, we're going to use these high profile topics in Supreme
Court cases as a vehicle to get a deeper understanding of copyrights
and trademarks and some of the sharpest corners you should be aware of
when managing your own brand protection. Since this is not our bread
and butter, we've enlisted some great help today. We're very pleased
to be joined by Mallory King, a good friend of the podcast, who's also
helped us with some of our own brand protection, including copyrights
for our beloved Sonic the Patent mascot.
01:40 Mallory is the owner and attorney at Breathe Brand Protection Plc, a
boutique law firm specializing in all things brand protection. Based
in Traverse City, Michigan, Mallory is passionate about helping
entrepreneurs and small businesses protect their most valuable brand
assets, both locally and nationwide. Mallory received both her JD and
BA in Political Science from Michigan State University, but nobody's
perfect, so we don't hold that against her.
02:04 Go blue. You can learn about Mallory and her brand protection legal
practice at Breathe Law. We'll be sure to include that link in the
show.
02:11 Notes. Before jumping into our interview with Mallory, we'd like to
take you to the second installment of The Mossoff Minute, a new
monthly segment that builds on our Patent Wars episode and features
short conversations with Professor Adam Mossoff, providing updates and
quick takes on movements in patent reform, significant court rulings,
innovation policy happenings, and occasional Star Wars references.
This month, we discussed the introduction of the 2023 Patent
Eligibility Restoration Act, its biggest criticisms, and why it needs
to be passed.
02:39 First question is just we attended a recent US. Inventor. Call with
Judge Michelle.
02:45 Judge Michelle super generous with his time. It was a very long, super
constructive call. And I don't know that U.
02:52 S. Inventors, like, officially taken a position on this yet. They
teased that they might be soon, but like I said, super constructive
conversation.
03:01 But there were some lingering concerns. So the judge said that I think
his quote was, process is the tricky one. This version got rid of the
term non technological, which was definitely one of the bigger hang
ups that we talked about with the prior version.
03:16 Judge tried to clarify and he said that if a computer or machine is
involved, that it's essentially eligible. But if the process is done
with pen, paper or mind, that maybe not. The rationale he gave is sort
of like trying to set aside things that are cultural, artistic or
aesthetic in nature and that they're really business with one, too.
03:39 But they're trying to draw this line between things that are technical
and non technological in nature without necessarily using that term
non technological because on the basis that the patent system was
historically meant to cover things that touch on technology. But there
were some pretty reasonable concerns that were expressed around
potential for unintended consequences. Right.
04:02 The phrase keeps coming up with process language because things like
the BCD algorithm, this was an example of something that was highly
technological in nature, but that could be thought of in the mind and
done on paper. Right. So, just given the volume of discussion and the
questions that arose from US.
04:23 Inventor members during this particular call, I think that
demonstrates that there's still some room left for interpretation
around these things. And we know that's where the courts have gone
wild in the past, it's a long lead up. But the question is, are these
concerns sort of just misunderstandings or are they really like just
sort of the inevitable casualties of compromise and getting to a
system that's infinitely better than what we have today? Yeah, that's
a really great question, and let me reframe it a little bit by first
recognizing and identifying that we have a serious problem in our
patent system.
05:10 The US. Supreme Court has turned our patent system on its head and has
reversed decades, if not centuries, of a general approach within the
United States of securing new innovations in the cutting edge areas of
the US. Innovation economy.
05:29 Processes were part of that and a very important part of that in the
Industrial revolution and even in the biopharmaceutical revolution of
the 20th century. And they continued to be in the biotech revolution
and the high tech revolution of the late 20th and now 21st century. So
we do definitely have a problem.
05:49 It is a very difficult area to identify with analytical precision and
conceptual precision. Exactly. Well, if you're protecting steps that
do something to achieve something, which is a human innovation in
itself and as we've talked about in the past, was a improper
innovation of the founders to recognize as something that should be a
patentable invention as distinct from and refusal to recognize that in
England and in other countries.
06:24 It's important nonetheless to recognize that we should continue to try
to protect these issues. And so people who are concerned about that
there might be some restriction or undue restriction on the ability
for people to obtain process patents, that's a legitimate concern if
they have that concern. But I don't think the concern in this context
is coming from the right place in the sense of legislation will never
be bulletproof.
06:50 You can't write a piece of legislation that can never be
misinterpreted by courts or misapplied by courts or even the US.
Supreme Court. At the end of the day, if that's your standard, we can
only enact a bill that will provide us with 100% certainty that a
court, whether a district court, whether the Court of Appeals for the
Federal Circuit or whether the US.
07:14 Supreme Court, will never ever be able to misinterpret this, well,
that can never happen, and we would never have legislation. Now, maybe
that's a good thing. Maybe people don't want Congress to be enacting
laws and frankly, I take that position with respect to a lot of areas,
but we do need Congress to enact patent laws because there isn't any
patent law.
07:33 We don't have congress enacting patent statutes so they can't be our
standard with respect to know what you try to do is you try to address
that and you try to cabin in as much as possible by writing precise
statutes and setting forth now what has become a normal practice,
which is findings in the statute, because that makes it very clear
what Congress and enacting the statute means in the actual statutory
language itself, which is really important because you don't want
courts engaging in shenanigans by picking and choosing pieces from
legislative history or offhand comments by particular senators or
congresspersons as to what they think the legislation meant. Because
congress enacts the legislation. And if the legislation includes
findings, then that is part and parcel of the public meaning of that
statute.
08:35 So I worry that there's kind of this concern about perfection in
enacting legislation that is driving some of the criticisms of patent
reform legislation more generally. And that kind of classic adage of
letting the perfect become the enemy of the good is really undermining
the ability for us to actually enact legitimate, necessary patent
reform legislation because the Patent Eligibility Risk Restoration Act
is really important. By and large, it is the best piece of proposed
reform we have at the moment, and I don't see any others.
09:20 And unless someone has an alternative bill to introduce that actually
is better, then we need to go with the legislation that we have. And
the legislation that we have is pretty good. Now, are there aspects of
it I don't like yet? I think it's a little too detailed, or more
precisely, I think it's too much detailed.
09:41 I prefer kind of more general, broad language like you see in the 1952
Patent Act. But notice people could have the same criticisms of that
general, broad language that they have of the current Patent
Eligibility Restoration Act. Oh, that allows for shenanigans by courts
because it's too broad.
09:58 Right. And so you can kind of see how senators feel like they're
caught in a situation where it's no win for them, right. If they write
legislation that's too broad, they get attacked.
10:09 That doesn't actually cabin in the discretion of courts. So they try
to be more precise, and then they get criticism from people like me
saying, you're doing too detailed statutes and you're not covering it.
And they still get the criticism from the people who are saying, this
still doesn't prevent courts from engaging in shenanigans because at
the end of the day, you can never fully prevent that from happening if
judges really want to do it.
10:33 But what you can do is, at the core, make clear what inventions are
patentable and are not patentable, and the Patent Eligibility
Restoration Act achieves that in the best way possible in our current
context. And so for that reason, I think we should support it. Until
or unless someone actually has introduced a piece of legislation that
is better actual legislation, introduced co sponsors that is better
and demonstrably better, that isn't susceptible to the exact same
criticisms that are being made against the patent eligibility
restoration, then I think we need to talk about why we should be
enacting the Patent Eligibility Restoration Act.
11:19 It's always easy to harp on and criticize on the edges. It's not the
edge cases that should be driving you. What should be driving you is,
does this address the core issue that you're concerned about? And what
are we concerned about? You can't get patents in biotech right now on
DNA and on diagnostic tests and all the things that have wrought our
incredible biotech revolution and have made medical treatments that
were thought of as pure science fiction even just 20 years ago, that
are now standard today.
11:33 You can't get patents on high tech innovations, on computer software
and CGI, and on AI. Now AI is starting to be held to be invalid
because, oh, that's just human thought. And meanwhile, you are getting
patents on these things in China and Europe.
12:10 So where do we want to be as the United States? Do we want to be the
leader in biotech, in high tech and AI and automated cars and all
these things, or in five G or six G? Or do we want China and Europe to
lead on these things by where they secure to their innovators these
types of new innovations? I think this is a fundamental choice that we
have to face and recognize. And I think the Pura Act, as it's come to
be called, addresses this, addresses this quite well, at the end of
the day, we need to reform the patent system. We need this important
reform.
12:50 It's not going to come from the US supreme Court, which has now denied
well over 50 cert petitions to ask it to reconsider its application of
what we now refer to as the Mayo Alice or the Alice Mayo Framework.
And so the only last place it can come from is Congress. And Congress
is doing its job, just like it did its job in 1952 in overruling the
flash of creative genius tests that was manufactured by, I believe,
Justice Douglas, that made it impossible for people to get inventions
under what was then known as the invention test, and becomes known
after 1952 as the nonobvious inquiry.
13:28 We're also publishing clips from the Mossov Minute as short form
videos on Instagram reels, YouTube shorts, and even TikTok, at least
until we're shut out by Big Tech or the Chinese government. You can
check out these shorts and follow us at Aurora patents on all three
platforms and be on the lookout next month for some great analysis on
the recently introduced Prevail Act. Now, without further ado, here's
our conversation on Brand Protection with Mallory King.
13:52 Thanks for joining us today, Mallory. Thank you so much for having me,
Josh and Ashley, it's a pleasure to join you. Didn't even fight back
on the you know, I would say go green, go white, but we can all be
friends, we can all be right.
14:13 So, you know, we're hoping to cover a lot of ground today. You don't
get to say this often, but it's been a very busy and especially poppy
year for copyrights and trademarks. Lots of juicy topics to get into
with Jack Daniels, Andy Warhol, the Mouse, AI taking over the world,
all these things just really being the tip of the iceberg.
14:32 But before we get into all that, we think it would be helpful to lay
down some groundwork on the basics of copyrights and trademarks to
help anyone in the audience who's newer to those IP asset classes.
Awesome. Thanks, Josh.
14:44 So mallory I think it would be helpful and kind of was some of the
original inspiration for this episode was to kind of give everybody a
good 30,000 foot level view of what copyrights and trademarks are and
what they're designed to protect, what rights they give to their
creators. And then, obviously, some good examples of each of these.
Absolutely.
15:06 And I think starting with the basics is a great place, especially
because, as you know, with patent, the intellectual property phase can
be quite complex. And so with copyright, this is what protects
artistic works fixed in a tangible medium of expression. So you're
going to think of books, plays, music, both the notes and the lyrics,
photographs, fashion designs, paintings, jewelry, graphic designs, TV
shows, movies, blog posts, social media feeds, et cetera.
15:37 Anything that is being created physically and put out there
artistically, notably the one exception is that you can't copyright an
idea because this is something that is intangible and not fixed in a
medium of expression. So with your copyright and as a copyright owner,
you're given several exclusive rights to that work, which includes to
reproduce, distribute, display, perform and or create derivative works
of that copyright. And conversely, trademarks protect words, slogans
and or logos that are used or intended to be used in association with
goods or services.
16:24 So a trademark in and of itself is meant to be a source identifier of
goods and services. So the trademark has to be used in association
with those goods and services. And so this is where a lot of people
can get tripped up and even some of my clients who come to me, they
don't quite understand that the trademark has to be that source
identifier.
16:44 So for instance, you can't just put a trademark on a shirt and have
that be protectable as a trademark. That would be what is called a
merely ornamental use of a trademark. Rather you have to establish use
of that trademark in association with shirts.
17:01 So this is either by having a website where your trademark is featured
and you're selling the shirts or sticking a tag on the shirt that has
the trademark so that they know the trademark is the source of that
shirt. This is what we call a specimen of use in the trademark world
and it's imperative to getting trademark protection. And like
copyright, as a trademark owner, you also are given exclusive rights
to the trademark specifically on a nationwide basis since it is
federal.
17:36 And also you have the right to prevent others from using a confusingly
similar trademark in association with similar goods and services. So
as a trademark owner, it's actually your duty to enforce your
trademark rights against infringement. Otherwise you risk your
trademark becoming less strong in the marketplace.
17:57 And when you're looking at trademarks next to each other, comparing
whether there is confusion, the basis is likelihood of confusion when
comparing these marks. And this is a very fact intensive analysis.
There are several factors that can be considered such as the
dissimilarity and dissimilarity of the marks.
18:19 And this could be anything from sight, sound and meaning. The
trademark office has been known to even refuse translations of words
if they're used for confusingly similar services. And also they're
going to look at the nature of the goods and services, of course, the
trade channels used and things of that nature.
18:41 Essentially the question becomes, are consumers likely to be confused
about the source of these goods or services when they're looking at
the two trademarks? To give you some concrete examples, trademarks are
everywhere in our consumer centric society. You can look at your
shampoo bottle in the shower, any of your products you use. Trademarks
are amongst us.
19:05 So some obvious examples would be Nike, that's one of my favorite
ones. Nike has both the word and the Swoosh symbol trademarked in
association with a massive amount of goods athletic apparel, T shirts,
you name it. They have a large portfolio.
19:24 Bath and Bodyworks is a trademark for skincare goods, beauty products,
craft in association with food. So you think your mac and cheese, your
salad dressings, anything that Kraft might distribute. Apple and
that's a big example, an association with technological goods.
19:45 And this one is particularly strong because it's very arbitrary. It
has nothing to do with what it actually provides in association with
that trademark, which makes it stronger. And then you also want to
think like words we use every day, right? Google, Pepsi, Facebook,
Kleenex, Clorox.
20:03 These are all trademarks. So they're everywhere. Awesome.
20:08 Thanks for that. Mallory and so you mentioned that you can apply for
these and that it's federally regulated. So can an inventor or creator
get protection for these all in one spot, or are there multiple spots
that they can go? We usually think of the United States Patent
Trademark Office, but that's not really the one stop shop for things,
as you know.
20:33 Absolutely. So, yes, the USPTO is where you go to protect your
trademarks, just like your patents, but the copyrights are registered
through the Copyright Office, which is a federal agency that oversees
the organization registration of those copyright applications. And
it's important to note that it's not required to register your
copyright or your trademark.
21:01 It's just extremely wise to do so under the common law, taking aside
registration at all. Under common law, copyright is actually
automatically created when it's fixed in a tangible medium for the
first time. So, say I sit down, I create a piece of music, I make a
painting, I have automatic common law copyright to that work.
21:27 Trademark is similar in this regard. They do recognize common law
rights, but it's typically limited to geographically, where you
actually use the mark versus having the federal nationwide protection
with the registered mark. So an example that came to mind for me was
in law school, we talked about a Papa John's pizzeria that was local
in a know, and then the know, huge company of Papa John's that's
nationwide tried to prevent them from using it.
21:58 But this pizzeria had actually been there before the big Papa John's,
and they had those common law rights to their geographical area, so
they weren't know they could coexist. And it's noteworthy in that
regard on that is that the trademark law does recognize the first to
use versus the first to register when it comes to trademarks. So you
could have a common law trademark usage that's preexisting to an
application that could actually oppose that application right on the
grounds of being there first.
22:34 But again, you're going to be overcoming hurdles of how prolific is
your use of this mark? Where are you using it? The Trademark Office
would want to see a lot of evidence that you're very well known by
that mark to have any sort of common law leverage. But overall, I
always recommend registration whenever possible. And this is for two
main reasons.
22:58 It is to put other people on notice that you own the copyright or the
trademark, and two, to enhance your enforcement options in general.
IP, as you guys know, can be extremely valuable asset for a business,
particularly in a mergers and acquisition situation. So if you're a
business, it's really important to think about acquiring registration
to your IP, so that if you did get bought, you can say, I have this
whole portfolio of registered intellectual property that is extremely
valuable to the company.
23:33 And so when it comes to enforcement, in order to even for copyright
infringement under the Copyright Act, you must have a registration.
You can't have a pending application, has to be registered,
registration in hand. And this is something that the Supreme Court
actually ruled on specifically because they were getting a lot of
cases where someone would apply for a copyright and then sue, and then
it would be TBD whether they even have a registered copyright and can
take advantage of this statute.
24:04 And the Copyright Act is important in this regard because you can get
statutory damages. So damages that are written out specifically and
limits are articulated in that statute. Whereas if you have your
common law copyright, you're only allowed to enforce under state law,
and you're going to have to prove actual damages based upon that
infringement.
24:28 So you have to gather sales data from them, articulate actual hard
evidence of the damage caused, which can be extremely burdensome. So
it's always good to have that benefit of the doubt, right? I have a
registered trademark, you're infringing it. I'm entitled to a certain
sum of money.
24:50 I think that was great. And I think to underscore the difference
between patents and trademarks and copyrights right, patents, you have
to file first before ideally publicly using on the opposite side of
that copyrights and trademarks, you basically do need to create them
and you do need to use them before you can actually get them
registered. So I think that's a really nice contrast.
25:13 So where does Trade Dress fit into all of this? Well, Trade Dress is
similar to trademark, except it's going to protect the characteristics
of the visual appearance of the product or packaging that signify the
source of the product to consumers. It can also protect things like
the layout and design of your website. So if you were to notice that
someone copied you and your design, you could use Trade Dress as
leverage to get them to cease and desist.
25:43 And while Trade Dress does fall under the umbrella of trademark law,
it's not super typical for brand owners to actually register and
protect the shape or visual appearance of the product with a
registration. Though there are exceptions, tic TAC comes to mind. They
do have a registered trademark for the shape of the actual Tic TAC
dispenser so there are exceptions.
26:09 It's just not super common. And trade dress is actually closely
related to consumer packaged goods, which in and of themselves have
unique legal considerations and requires all consumer commodities have
to be labeled accurately. And so there are attorneys who actually
specialize in this particular area alone and advise clients,
especially like ecommerce clients or anyone in a product distribution,
what their packaging must include, how it must include it design
factors, all of that.
26:43 So in some, trade dress is like a cousin to trademark perfect. And
then kind of thinking about marking to your point, you have to
register to kind of give notice. But you also should mark.
26:56 You have to mark with a patent. Like this is protected by patent
number, whatever. So for trademarks, for example, you should also mark
with ATM or an R. So when do you use them and is it okay to use either
in some situations? Yes.
27:11 This is a really good question, and again, one that is frequently
misunderstood by the general public. So the TM actually indicates
common law trademark, whereas the R indicates a registered trademark.
Interestingly, you're only legally allowed to use the R if you
actually have the registration.
27:34 Otherwise it could potentially be considered fraudulent, both of them.
But the R in particular is meant to put others on notice that the
trademark is registered and it's protected. I know a lot of brands
struggle with the fact that I don't want to put this on my logo.
27:55 Do I have to put it there? Is it going to not make things look as
pretty? But am I sacrificing my rights? The answer is in some. It's
not absolutely necessary for you to do that. You're not like breaking
any laws.
28:11 You're not negating your registration or your right to that trademark.
It's just from a brand protection standpoint, it's good to be
proactive. And something I've noticed because as a trademark nerd, I
am I'm looking at my shampoo bottles or my face wash, and some
companies choose not to at all, which is fine, and they have a
registration.
28:37 Others build it right in, like the Crest two bottle has the R right
next to the Crest. Same with Target's up and up little arrow logo,
which is pretty ubiquitous. They have the R there, but others will put
the TM either because their trademark is too descriptive, it wasn't
worthy of actual protection, but they still want to say, hey, we have
common law rights to this or their pending registration, kind of like
patent pending.
29:07 They may put that there to say, hey, we have common law trademark
rights, but we can't put the R there yet. So really it's the brand's
discretion whether they want to or not. But it is recommended.
29:20 I really appreciate that clarification, because the designer in me
really struggles with this from an aesthetic perspective. But the
person who's heavily invested in intellectual property rights
protection struggles with the other side of that, and so it's kind of
this massive dissidence bomb that I have to deal with whenever we're
rolling anything out publicly. So thank you for that one.
29:43 Absolutely. Actually, quick question, quick follow up for clients that
have products that are being distributed worldwide, where maybe they
have trademarks in some countries and they have trademarks in other
countries. I think we had a client a while back that had that problem,
and I think they were advised at that time to do a TM on everything,
so they didn't have to change their packaging from country to country
to country.
30:10 Is that generally the recommendation or how do you usually just more
for my own personal curiosity? Yeah, I would say for a consistency
standpoint, that would probably be wise, especially because you can
use your US based trademark as a launch pad, basically for your
international trademark registrations. But once you send those out
there, you can face a litany of different issues with various country
IP offices, office actions, different timelines, all sorts of things.
So, I mean, it would be easiest and probably most cost effective to
just keep the packaging consistent and have the TM versus try to say,
I have VR in the United States, but I don't in the UK.
31:01 Or I don't in Canada. It's probably good for keeping things
consistent. Perfect.
31:07 All right, awesome. Last question in our background, lightning round.
And so this is more from a growing curiosity of our own around the
genesis of everything.
31:17 And so we just did a historical deep dive on patents for our last
episode, but copyrights have the same article one, section eight,
clause eight, constitutional basis as patents to promote the progress
of science and useful arts by securing for limited times to authors
and inventors the exclusive right to their respective writings and
discoveries. And they similarly have a 1790 act instituted by the very
first congress. So they've been around since the beginning of time,
beginning of us.
31:49 But when did trademarks come into play? Well, in the United States,
trademark laws didn't really emerge into the late 19th century.
According to the USPTO. The first actual registered trademark was for
average, ready mix paint, and it was their logo, and it was registered
in 1870.
32:12 And so then it wasn't until like, 1876 when trademark law continued to
grow and there were penalties for trademark infringement. And the
lanham act, which is the trademark law now, wasn't enacted until 1946.
So definitely compared to copyright and patent, trademarks are
relatively new, and the main reason that trademarks came into
existence was to fulfill public policy, and that was the objective of
consumer protection.
32:47 They want to prevent the public from being misled as to the origin or
quality of a product or service. And so I think personally that this
was probably not something on the radar when our country was formed
and the constitution was drafted, whereas the founding fathers were a
very. Inventive group of individuals, very artistic generation and so
I can see where they would specifically prioritize copyright and
patent and maybe not think about trademark.
33:18 Back then there probably wasn't as many sources of goods or you didn't
have to worry about whether you were buying the right thing or not.
And so that is kind of why trademark came into existence. So less of
an artistic perspective, more of the consumer protection aspect.
33:33 Perfect. That's helpful. Yeah, it's crazy to think how different in
time they were.
33:39 But it makes sense. You add the global economy or even just the
national economy really took off, became more of an issue. Well, it's
also sort of interesting because in doing this I'm starting to see a
lot more parallels between the two systems than what I realized or
three systems than what I realized existed.
33:57 And with patents and copyrights there's a very clear quid pro quo
between the individual and society. And it wasn't ever super clear to
me what that was for trademarks. But the consumer protection side of
that is that societal good piece of it.
34:14 So that makes a lot of sense and it's sort of consistent with the
broader ecosystem. Absolutely awesome. So I know that contracts are
another big aspect of brand protection and kind of out of scope for
today's conversation, but it's super important.
34:32 And so I think it's especially important for those of the audience
newer to them copyrights and anyone considering outsourcing or working
with contractors. So this is something we've spoken about at length as
a sharp corner to avoid in our prenuptial patenting and our top three
inventor mistakes episodes. And we're going to do that again here
because it's that important and we've seen some problems when people
don't pay attention to this.
35:00 So could you talk about who owns a copyright by default in both
employment and contract scenarios and the importance of a work made
for hire agreement? Yes, absolutely. Because this is super important,
like you said. And it's something that a lot of new business owners
definitely don't consider when they're taking on employees or
independent contractors.
35:23 So under the law, in a traditional employee employer relationship, the
employer automatically owns any and all copyrights to work created by
that employee pursuant to their employment. But conversely, when a
creator is an independent contractor, the general rule is that the
independent contractor automatically owns all of the copyrights
created by that individual pursuant to their relationship with that
business. So businesses should always utilize work made for hire
agreements which are meant to articulate copyright ownership between
the independent contractor and the employer.
36:08 So with all of my clients, I always advise that they include a
workmate for hire clause in their general independent contractor
agreement so that it's known up front that anything that that
independent contractor creates pursuant to this relationship is owned
by that business. And so that business can then go and seek copyright
registration free and clear. Not have to worry about the independent
contractor disputing ownership.
36:36 And this way, again, it's a good way for the business to build up
their valuable copyright assets without getting into the weeds on who
actually owns that. Yeah, this is so real. We've seen software deals
busted up where code ownership issues became a concern because the
code was developed by contractors and they didn't have a work for hire
provision.
37:01 And so the contractors sort of owned the copyright to all the code.
And this is kind of another one of those broader ecosystem pieces. You
sort of learn both in patents and copyrights that the system is very
intentionally biased towards protecting creation and inception of
these ideas.
37:19 And so it's not necessarily paying for or rewarding the payment of the
creation, but the actual inception or creation of the idea or the
work. And sort of a bonus pop culture piece that wasn't sort of really
on the agenda. But it came to mind the other day.
37:35 There was a dispute a couple of years ago over the Friday the 13th
franchise and Jason Voorhees. So the script for the first movie was
written back, like, in the late, late 70s. They released the movie,
the first movie in 1980.
37:50 It was written by this guy named Victor Miller. And as you know,
copyright law sort of changed in the late 70s around some of these
things. And in 2021, Miller basically served notice to the production
company for Friday the 13th that he was terminating the copyright on
grounds that he created the script as a contractor and not as an
employee.
38:14 And so the producers countered that, no, you were an employee under
some Screenwriters Guild provisions. And the courts took a look at it.
It bounced around and ends up in the Second Court of Appeals, and they
terminate the copyright for one of the four Mount Rushmore of horror
films.
38:33 Right? That's how significant this is. We're talking about one of the
biggest Hollywood franchises of all time sort of is falling into this
snag. And now it's like it's really going to kind of muck things up
for them going forward because we'll get into kind of like the whys on
some of this later.
38:50 But these rulings can kind of be narrow and split things apart, where
he doesn't have the copyright to the title, he has a copyright to the
camp and the mom. But the mask, the hockey mask that's iconic that
came later, doesn't have the copyright to that. The adult version of
Jason didn't come until later, doesn't have the know to that.
39:09 So now we've got this franchise that's sort of like split completely
between two entities because of this level of contractual provisions.
It's like you can't overstate the significance of this for folks. It's
such a little hidden thing that you just can't undo later.
39:31 And it does break up that film series, especially because in the first
film, jason's mom is the killer. So as far as canon goes and with
horror movies, you get further and further away from the original. You
know, that was a big deal in the first film that Jason wasn't actually
the original killer.
39:54 And so how does that look moving forward in new iterations? I saw that
there's going to be a Camp Crystal Lake show come. They can they even
include Jason's mom after that. And so you're right.
40:10 Not doing this upfront, not having a work made for hire can completely
undo the decades of work and presumed IP ownership. So it's definitely
crucial to get ahead of it. Valerie, as not being a horror film
person, you should have said spoiler alert, because I didn't know that
Jason was the killer.
40:33 Now I'm not going to watch it because Jason doesn't even show up until
the very last scene of the first movie. Don't worry. I'm not I wasn't
going to watch it.
40:48 Yeah, well, that's good. That's like a classic trivia. Who was the
killer in Friday the 13th? And people often think Jason, but it's not.
40:58 It's his mom. But he is afterwards. Oh, now we know why.
41:03 Clearly. Yes. I'll be sure to put a spoiler alert tag in the show
notes for any other Ashley's out there just in case.
41:12 I don't want to ruin it for no, no. Well, thank you so much for those
great explanations. I think that gives us a super solid footing to
help us kind of dive into some of these current events and some of the
recent court rulings that I think are going to help bring some of
these legal concepts to life, and some of them are also pretty damn
funny.
41:32 So the first SCOTUS ruling that we'd like to talk about, because some
of this was hilarious, hearing the Supreme Court justices try to
address potty humor with straight faces is Jack Daniels Properties
versus VIP products. Can you tell us a little bit about this case, how
it collided with claims around First Amendment freedom of expression
and parity, how the Supreme Court ruled, and what the lasting
implications could be for trademarks. And in doing so, feel free to be
very detailed on the infringement specifics of the dog toy.
42:07 Oh, this is a great one to talk about, not only because everyone knows
Jack Daniels, but dogs are an extremely important part of American
life. And so this is super relevant to not only culture, but also
copyright and trademark law. So high level, right, because all of
these cases are extremely dense, but high level is that VIP products
created a bad spaniels squeaker dog toy that looked visually similar
to a Jack Daniels whiskey liquor bottle.
42:42 Specifically, VIP products created a squeaker toy that mimicked the
shape, color and design of your traditional Jack Daniels bottle with
the black and white font and the shape, but also replaced Jack Daniels
bottle phrases such as old number seven brand Tennessee sour smash
whiskey and 40% alcohol by volume with comedic alternatives like the
old number two on your Tennessee carpet and 43% poo by volume. 100%
smelly. 100% smelly, and then there's a dog on it.
43:26 It's hilarious. And I agree, it's always hilarious to try to see super
professional supreme court justices grapple with something like this.
So very so in know, as we touched on earlier, trade dress is a
protection.
43:47 So, I mean, Jeff Daniels has trade dress rights to that whiskey
bottle, right? The look, design, everything. But that wasn't what they
ended up specifically suing for because they actually own trademark
registrations to their whiskey bottle label and design of the bottle
itself. So they have a very wide portfolio of trademarks.
44:10 So they took issue with VIP product usage of the whiskey bottle and
sued for trademark infringement and trademark dilution, which is a
similar claim. It's also under the lanham act. And it is instead asked
whether the defendant harmed the reputation of the famous trademark as
opposed to whether they infringed the famous trademark.
44:34 So that they pursued both those avenues when suing. You know, my
inclination is that they were probably upset that they wanted some
revenue, but also they could think, wow, I don't want them disparaging
our brand by having 100% smelly on a bottle that looks like our
whiskey bottle. So in defense, VIP products main argument to the claim
of trademark infringement was that the dog toy was an expressive work
and didn't designate a source of a good or service.
45:14 And so they were insulated from infringement and the standard of
likelihood of confusion didn't apply. So very quick backstory. When
courts are considering whether trademark infringement exists, if there
is an issue of whether it is an expressive work, there was a different
precursor test called the Rogers test that they often applied to know,
is this even being used as a trademark right, or is it just
expressive? And if they found it was just expressive, oftentimes
courts would stop the analysis there, foreclose the claim, not even
consider the likelihood of confusion test that I mentioned earlier.
45:57 So that's a big part of this case. And in defense to Jack Daniels
claim of know, VIP products has argued that it was a parody, the
toy's, a parody of Jack Daniels and therefore fair use. So both of
these defenses in and of themselves resound in the first amendment and
what expressive uses can and cannot be made of trademarks right? And
so what the supreme court ultimately did here was that first they
determined VIP products was using bad spaniels as a source identifier
for their dog toys.
46:37 And indeed, VIP products conceded this in their pleadings that this
was their trademark, they were using it to pile dog toys, et cetera.
So the supreme court said, well, this is a source identifier, this
isn't expressive. There's no threshold first amendment inquiry needed
here, and therefore only likelihood of confusion needs to be
considered.
46:59 So is bad spaniels confusingly similar to and, you know, skip the
whole expressive portion. Further, the Supreme Court ruled that when a
trademark is used as a source identifier, as they believed bad
spaniels is the statutory exclusion for dilution, which parity is one
statutorily included, you could be found not liable for trademark
dilution if you're using it as a parity. However, this was a source
identifier, and therefore those exclusions don't apply.
47:34 So the Supreme Court really took those First Amendment defenses off
the table and redirected them, but also clarified, what does it mean
to really use a trademark as a source identifier versus what's
expressive, and how do we analyze that? So, moving forward, my
takeaway was that there's no blanket rule for what, unauthorized use
of a trademark. And when that is parity, and when that's fair use,
just because it expresses a humorous message, right, you're not going
to be insulated automatically. You should anticipate that a
traditional likelihood of confusion analysis will always be engaged by
the courts.
48:19 You shouldn't assume that just because you're using it expressively
that you can get away with it, and you're not going to be subject to
traditional trademark infringement. But overall, those who make
parodies off of trademarks should be treading lightly, moving forward
and cognizant of potential liability because they just don't know
where that line is going to be drawn. And also, this conversely, gives
trademark owners probably more leverage against infringers.
48:51 They could cite this case and be like, well, this parody wasn't found
to be parody even, and therefore this is trademark infringement or
trademark dilution. So that's really the big takeaway is that there's
no rule for what is or what isn't expression in First Amendment
protection when it comes to trademark infringement, and you should
always be prepared for that liability. Yeah, source identification
piece of this one was really huge.
49:22 Going back to the kind of the fundamental stuff that you laid out
earlier. I think they said that in the majority of the opinion, they
said that the cardinal sin under the law is to undermine that ability
to indicate the source of a good right. When it came to freedom of
speech, kagan said, we hold that it's not appropriate when the accused
infringer has used a trademark to designate the source of its own
goods.
49:50 In other words, has used a trademark as a trademark right. That kind
of use falls within the heartland of trademark law and does not
receive special First Amendment protection because it's that brand
confusion misleading the consumer about where the product is coming
from. That's where they really fell into a big VIP, fell into a big
trap on this one, and rightfully so with parody too.
50:17 They said they should be amused by parody, but not confused by it.
Right. It's sort of like hearken to that thing.
50:25 It should make you think about that thing, but it shouldn't make you
think that that thing came from its original source. These things
should be clear on its face. I thought it was funny, too.
50:39 Lawyers can try to do whatever they want to do, but VIP tried to argue
that this was like a non commercial expression. Yeah, which is
hilarious. Kagan says, this is a standard commercial product.
50:53 This is not a political T shirt. It's not a film. It's not an artistic
photograph.
50:56 Right. It's not like a thing that hearkens to a, uh and then Justice
Thomas, who's always really great for pithy one liners, he says, could
you just elaborate a bit on why a product that you can buy online or
at Petco is non commercial? I mean, it's like it's absurd on its the
argument was kind of absurd on its face, but yeah, that is absurd. And
like you said, this goes right to what we talked about, why trademarks
are created in the first place, right.
51:24 Protecting the consumer. They don't need to be confused about whether
Jack Daniels made this dog toy, even though I'd like to give consumers
a more benefit of the doubt than that. But it's important for the
purpose of the law to uphold that.
51:43 Yeah, well, I mean, Jack Daniels does make dog products, though, and
sells licensed merchandise in the same market, so they do actually
compete actively in that space on remand. That will probably be
something that the lower court considers when they're analyzing
likelihood of confusion, especially if Jack Daniels has a registered
trademark for dog toys, then it's really going to get interesting.
But, yeah, definitely.
52:15 That'll be a huge consideration. The overlapping use and the
commercial aspect will be huge. And my opinion, I think Jack Daniels
will come out on top here.
52:28 Yeah, it seems like it. And, I mean, this was pretty resounding
decision for a court that tries to stay away from IP things in
general, and then tries to not make very bold, assertive claims about
things related to IP, and then it was a unanimous opinion. I think
you're right.
52:50 All right, for the next question I love this one. I think things are
just starting to get interesting, but could get really freaky in the
not so distant future strictly for podcast research purposes. And
maybe that's a little bit of a lie.
53:07 Back in February, I went to theater and I watched a movie called
Winnie the Pooh blood and Honey. This was a low budget horror movie.
It featured a now feral Pooh Bear and Piglet.
53:18 They've been abandoned by a grown up, Christopher Robin, and they're
now out for blood, trying to fend for themselves. Some college kids
are vacationing in the 100 acre wood, christopher Robin's returning
with his girlfriend, and they get tangled up in Pooh and Piglet's
murderous rampage. There are exes chloroform hot tubs.
53:39 Pooh learns how to Drive a car. I mean, it's a disaster. Disney owns
the rights to Winnie the Pooh.
53:47 And for added context here on the lengths that Disney has gone to to
protect its IP. Here is a tour of some headlines. Disney forces
Florida Daycare Center to remove unauthorized Minnie Mouse mural.
54:01 Disney tells Stonemason that carving Winnie the Pooh into child's
gravestone would violate its copyright. Disney affiliate charges
elementary school $250 for showing The Lion King at PTA fundraiser
without permission. Why aren't films like Blood and Honey feeling the
full weight of the fury of the Mouse? Yeah, first of all, I'm really
happy you brought up Blood and Honey because if my trivia knowledge of
Friday the 13th didn't give it away, I'm a huge horror movie fan,
unfortunately have not had the pleasure of seeing Blood and Honey yet,
but it's on my short list and the sequel was already greenlit.
54:42 So you need to make sure that you yeah, I'm thrilled as a Winnie the
Pooh fan from my childhood. It's like a beautiful mashup of two of my
favorite things and I'm really excited about and I'm also excited you
asked because it's a prime example of avoiding copyright infringement
by using copyright protected material after its expiration. So in
general, and there are exceptions that the general rule is that the
term of a copyright is the life of the author, plus 70 years after the
author's death.
55:21 So thereafter, the copyright falls into the public domain and it
belongs to the public for the public to use how they see fit. So this
means Disney, as you noted, Josh, a company that is notoriously
aggressive at enforcing its intellectual property rights. Yeah,
graves, Daycares, you name it, there's no boundary they won't cross.
55:47 And so they can't prevent a film like Blood and Honey from using
Winnie the Pooh and Piglet. And specifically, it was the first Winnie
the Pooh book, which includes ten stories that entered the public
domain in January 2022. So that means any of the characters really
featured in there pooh, Piglet, Tigger, Eeyore, Owl, Kanga Rue, all of
them, they're free game and people can use them.
56:14 And I actually thought I read that there was even another Winnie the
Pooh horror movie or something, not necessarily a sequel, but people
are using this and they're allowed to. And I think it is interesting,
though, to note that when copyrights have a natural life expectancy,
right, trademarks aren't the same way. They can expire, but they don't
necessarily have to.
56:43 Only if they're purposely abandoned, say they decease using it, right?
They can't show use so it dies or it isn't renewed in a timely manner,
accident and it just lapses. But for instance, trademarks have to be
renewed between their fifth and 6th year, their 9th and 10th year, and
then every ten years after that. And the USPTO wants to see an updated
specimen of proof that you are using that trademark for the goods and
services you registered it for to begin.
57:15 So but in theory, especially if these are owned by businesses, which
is a good idea to have rather than as an individual. It's good to have
like an IP holding company of some sort, but it could go in
perpetuity. There are trademarks that are probably 100 years old
because the company is still in business and it still uses that
trademark for those goods or services.
57:39 So those are not prone to the same public domain situation that
copyrights are. Yeah, and just like we saw the Jack Daniels case too,
as long as it's not perceived as coming from these companies, that's
another key element to it. Too right.
58:00 Can't be any of that brand source confusion. Still have to occupy
those lanes safely. But from having watched Blood and Honey, I don't
think there's any confusion at all that that came some there's some
other notable interesting ones that are coming up soon from my
research.
58:20 So Mickey, who market researchers have acknowledged is more well known
than Santa Claus, is going to be coming up for one of these himself,
actually, later this year. There's the Steamboat Willie version, the
little short cartoon that's appearing at the front of the intros of
some of the Disney cartoons. Apparently that's going to be public
domain later this year.
58:43 And then early versions of Popeye, King Kong, Donald Duck, Flash
Gordon, Porky Pig and Superman are all going to be entering into the
public domain at various points over the next decade. I think to your
Friday the 13th Jason thing. Again, it's that and you were kind of
saying it, too.
59:01 It's the early version, right, keeping within the confines of what was
actually at that time. So I think Josh, the Winnie Pooh of old didn't
have the red shirt, for example, right? Correct. The Steamboat Willie
version is the version of Mickey Mouse that's coming out, but that
didn't have the rounder, kind of more playful approachable version
with the red shorts and the white gloves.
59:26 Like all of those elements were added later on. So that stuff's going
to be safe for Disney for an extended period of time. Yeah.
59:35 And as I think we discussed, even with Steamboat Willie, with the
copyright falling into public domain, they still have a trademark for
that little short snippet that they'll play at the beginning of some
of Disney movies. And so I'll be interested to know, hypothetically,
someone tries to make a use of Steamboat Willie. I'll be intrigued if
Disney tries to take the trademark infringement angle instead.
60:06 The answer is probably yes. Right? 100%. They'll do everything.
60:10 They'll try it all. Clearly there is precedent. Yeah.
60:16 I think this is going to get really interesting, too, with creator
culture, know, the likes of Instagram and TikTok combined with
increased superpowers that were being given with these generative AI
and deep fake tools. Disney's not going to be able to go after
everyone, right? At least in theory. But more on that in a little
teaser there.
60:37 So next up, we're going to talk about another important aspect of
trademarks. Makes them unique when compared to other creative
expectations around things like patents and copyrights. So this one
centers around a trademark trial and appeal board, or TTAB decision
from earlier this year around musical artist Lizzo's trademark for use
of 100% that bit on apparel.
61:04 She has a line in a song called Truth Hurts that goes, I just took a
DNA test and turns out I am 100% that bit. She admitted that she
didn't create the phrase, but had seen it in social media, in a social
media meme about being 100% that ever said, I'm probably going to
bleep it out, so it's all good. First link laughing a little and then
added it to the song she was writing.
61:32 So her original registration was refused on the grounds that it was a
commonplace expression and a well recognized sentiment. But she won
her appeal with the TTAB. So on what grounds did Lizzo win the appeal?
And how is she able to get a registered mark even though she didn't
create the phrase and the phrase was preexisting? Well, as you
mentioned, Lizzo was denied initially by the examining attorney
because they felt 100% that was just a commonplace phrase, as opposed
to, again, a source identifier of apparel like shirts that Lizzo was
trying to sell.
62:09 And so Lizzo appealed to the TTAB, which for those unfamiliar, it is
essentially the trademark office's internal tribunal. In Know,
trademark disputes can be adjudicated beyond just going back and forth
with an examining attorney with an application. So Lizzo is allowed to
appeal by right.
62:37 And that's important even if you don't think you could not have a very
strong argument for appealing a final refusal. But anyone can do it,
right? So if anyone who has a trademark application, if they receive a
final refusal, you have a certain amount of time where you can appeal
that decision to the TTAB and have them determine whether or not that
refusal stands or should be overturned. But she appealed, basically
arguing that fans and consumers associate 100% that with her and not
just with the commonplace phrase.
63:18 Relatedly I find it very interesting that up until very recently,
there was a prohibition on immoral and scandalous trademark
protection, and so words like weren't allowed to be trademarked. At
Know, this actually came before the Supreme Court with a trademark
called, you know, it sounds like one word, but it's spelled so. But
the Supreme Court ruled that that prohibition actually violated the
First Amendment, therefore opening the gates to swear words being able
to be trademark registered.
63:58 So before 2019, Lizzo wouldn't have been able to get this trademark at
all just on the face of it being immoral. But now she did get over it
being a commonplace expression and what the T tab ultimately did, they
looked at all the evidence that Lizzo had provided, which was 100%
that being used on clothing, keychains, mugs, stickers, all sorts of
goods, and all of them referenced Lizzo in some way all of it was
connected to Lizzo. It wasn't just 100% that big floating around on
its own.
64:39 Like it's commonplace. It was Lizzo's 100% that. And so that is how
ultimately the TTAB said, this isn't a commonplace phrase.
64:50 People associate 100% that with Lizzo and therefore she is entitled to
trademark registration. And even though she didn't coin the phrase
herself initially, she is still allowed to do this. She did give
writers credit to the individual who initially coined 100% that she
gave writing credit on.
65:10 Truth hurts to her. So in essence, Lizzo is associated with Lizo and
she is allowed to register it. It'd be a really interesting exercise
to look at how many profane marks were registered post 2019.
65:28 That would be I would like to see the statistics on that. I bet
someone has run them too. I bet it was like flooded.
65:36 Also, in my research for this one, I saw that Supreme Court decision
referred to as the fucked decision, which I've never laughed so hard
in preparing for a podcast episode in my life as I did for this one,
because you could argue that a lot of their decisions could be called
that. But this one actually got that designation. So that made me very
happy.
66:00 So also I found this one particularly interesting because we're sort
of juxtaposing some things against contrasting with patenting. We're
obtaining and defending patent centers so much around the first
claimed, the creation around the existence of prior art, things like
that. Trademarks in this case are really about consumer perception
versus creative endeavor.
66:29 And that was just sort of like a thing I learned. I would like to
shift our attention next to where mine often goes anyway, and that's
Reddit. But more specifically, what can happen when the lines around
where your brand begins and ends aren't clear.
66:47 So I suspect a lot of people listening, even if they're not on Reddit,
have probably heard of Wall Street Bets subreddit and if they haven't,
sure they've at least peripherally aware of the meme stock craze that
it gave rise to an individual by the name of Jamie Rogozinski. He
created this subreddit back in 2012. It got wildly popular during the
pandemic when its members sort of banded together and employed some
aggressive trading strategies to squeeze hundreds of millions, if not
billions out of short sellers.
67:19 Big win for the little guys by pumping up the value of stocks like
GameStop. Rosinski published a book called Wall Street Bets and also
filed for the trademark. Reddit responded by booting him as a
moderator, citing that he was attempting to monetize a community and
then immediately filed for competing registration applications for the
same mark.
67:44 Proceedings are pending before the TTAB. And Rogazinski is also suing
Reddit in federal court for infringement of his unregistered mark
violations of contract, all the things along that line. This matter is
clearly unsettled, but folks out there should what, in fact should
folks out.
68:03 There be thinking about when they're depending on big platforms like
these, and even when considering smaller partnerships where brand
ownership and monetization lines can very quickly get blurred. Yeah,
this is a great question and one that I think primarily resounds in
contract. And my advice, if you are planning on using a major platform
to grow your brand or to monetize in any way, is to read the Terms of
Use.
68:33 And that sounds like a joke because they're humongous and it's a joke
that's been played out by South Park as far as Apple's Terms of Use
and Black Mirror made fun of Netflix Terms of Use. So you know it's a
joke because they're huge, but it's actually important. And I'm not
saying you need to scour every nook and cranny of these Terms of Use
agreements, but you do want to look for important provisions such as
content ownership and things of that know, and there are several
reasons why these Terms of Use are important in this regard.
69:11 When you're using, say, a Reddit, a Facebook, a Twitter, an Instagram
of threads, et cetera. So first, when you're using a platform like
Reddit, that is primarily built upon user generated content, meaning
users can post content, create subreddits, contribute all on their
own. There are moderators, but it's pretty much you can upload it and
it's there.
69:35 And so in that situation, you're almost always granting the platform a
license to use your content that you upload to the platform. So while
you may own the copyright to your content, for instance, the Copyright
Office recently did introduce a new copyright class where you can
register your whole thread of your whole scroll of your Instagram
posts and you can have a copyright registration to that, or like your
blog posts, for instance. Instagram can't own that, but they can use
it.
70:12 And probably in their Terms of use, there is a license to obviously at
least display your content because that's what the platform does,
right? But you'd be surprised, some of them, it may be it's a royalty
free license to use, display, do whatever they could, most likely use
you in some sort of advertising. There are multiple scenarios that
could unfold, so it's important to know that aspect also. Second,
there are always community guidelines when you're on a platform like
this.
70:48 So with rules, restrictions that surround your posts and interactions
with others. And so my understanding is Reddit is claiming they axed
this individual because he violated the Terms of Use. And so that is
something that a platform will definitely use if they feel you're in
the wrong, they can boot you, they can block you, et cetera.
71:11 So when it comes down to this, I always recommend to not actually
build your brand on these platforms, but just use it as a brand tool
to grow your brand, right? For instance, if you're going to start
something, it's always a really good idea to start with a website,
start with a website, have that be the basis of where your brand is
born, and then take it to the other platforms so that there's no
question that it belongs to you. Right. And I haven't scoured Reddit's
Terms of Use in particular, but my guess would be they are saying they
own the subreddit titles or, you know what I mean, all these things.
71:55 And so I'll be super intrigued to see how this pans out because it
could really impact how brands are established moving forward,
especially if this goes against Reddit. Yeah, I mean, it's going to be
a big precedent setter, for sure. And also, thank you.
72:12 I didn't know we were going to get to work South Park in today, too.
But now I'm going to have the human centipede stuck in my which you
can't unsee that. You can't unsee that.
72:28 No, but anytime I click through, I'm like, oh, gosh, what am I
agreeing to with these guys? It definitely made you think, but it was
really interesting when I don't know if you've seen the most recent
Black Mirror, but Netflix made fun of itself calling itself
Streamberry, and it happened. So that the girl that the story is
about. Netflix basically appropriated her life and made a show about
it.
72:56 And she's like, you can't do this. And they're like, you agreed to
this and the Terms of use when you signed up, that we could do
whatever we want with you and your image, your likeness, your life. So
she had no recourse at all.
73:09 And so it's unfortunate. They're huge. But if you're thinking about
who owns what, when it comes from an IP standpoint, the Terms of use
are imperative.
73:19 Yeah, and like most things, Black Mirror, it sounds terrifying, but
also not too unlike what you'd expect to come out of reality. So,
yeah, there's no no, it walks that fine line and it actually spooks.
It's like, yeah, definitely eye opening.
73:35 For all these reasons, I'm really surprised this didn't become a
bigger issue sooner. Right. Like, massive brands are being created by
these influencers on these platforms, and there's this inherent
symbiotic relationship between the platforms and the creators.
73:49 But what that means for brand ownership feels like it's going to get
pretty sticky and could be huge topic of debate going forward. So next
up is another of the three landmark Supreme Court cases on IP this
year, and it centers around a conflict involving one of the biggest
music legends of all time and the best known painter of the pop art
movement. Like we discussed earlier, copyrights protect original works
of authorship.
74:19 This includes things like photographs and paintings. And this
protection also extends to the author, the exclusive right to create
what are called derivative works. Before we get into case specifics in
Warhol versus Goldsmith, because I feel like this one is a little bit
heavier than some of these other cases, could you explain what
constitutes copyright infringement, what derivative work means, and
briefly, what the infringement exceptions are under fair use doctrine.
74:50 I'd love to, because it is especially relevant here, as we did mention
earlier, right as a copyright owner, you're given exclusive rights to
your copyrighted work right to reproduce, distribute, display, perform
and or create derivative works. As you mentioned, Josh. And copyright
infringement occurs when one or more of these exclusive rights are
infringed without permission of the copyright owner and in general to
establish copyright infringement.
75:21 Again, in federal court, if you have your registered copyright, the
copyright owner, I e. The plaintiff must prove, one, they have
ownership of a valid copyright recall, you have to have your
registered copyright to sue and two, they must prove copying of the
protected elements of the work by the infringer, which is the
defendant. So if there's no direct proof of copying, which is most of
the times the case, it's hard to prove, it's hard to say, I know for a
fact that you copied this right.
75:53 Instead, the question becomes the plaintiff must prove the defendant
had access to the copyrighted work, which is very easy, especially if
it's proliferated widespread media and two, that there was a
substantial similarity between the general ideas and expression when
compared to the copyrighted work, and that multiple factors can come
into consideration with substantial similarity. But that high level is
the standard for copyright infringement. So because copyright owners
have the right to creating derivative works, that is something that
comes into play.
76:32 So in a derivative work is an expression or creation that includes
major copyrightable elements of the first previously created original
work or the underlying work. So the derivative work becomes a separate
second work, independent from the first, but it's still related in
heavy copyrightable elements to the first. So we're thinking
translations say your book is translated into Spanish, that's a
derivative work, and you own that copyright as the copyright owner, or
cinematic adaptations, musical arrangements, et cetera.
77:08 I saw a good example that especially in this day and age of comic
book, can be the underlying work of a copyright and then they can spin
off into movie, a TV show, all sorts of different related derivative
works to that original comic book. And so that is an exclusive right
that the copyright owner has. So it's important to know that you can
create those derivative works.
77:34 But as we touched on briefly with Jack Daniels and Trademark,
copyright law also recognizes fair use as an exception to
infringement. So a lot of times the question will become is this a
derivative work or is this fair use? Fair use generally includes
things like criticism and parity, comment, news reporting, teaching,
scholarship research, all those types of things. And when considering
whether fair use applies, courts are always going to consider four
factors and that includes the purpose and character of the use,
including whether such use is of commercial or nonprofit educational
purposes.
78:17 The nature of the copyrighted work, the amount and substantiality of
the portion used in relation to the copyrighted work as a whole, and
the effect upon the use, upon the potential market or value of the
copyrighted work. So, big picture, the question a lot of courts ask is
whether the use is transformative and essentially transforms it into
something new, that in of its right is a fair use of the original
copyright. Yeah, and that turns out to be pretty key to this one.
78:52 With that baseline down, could you talk about the Andy Warhol
Foundation for the Digital Arts, Inc. Versus Goldsmith case, what the
Supreme Court ultimately decided and what the lasting takeaways could
be for fair use and derivative works? Absolutely. So this is hits
right on the head of fair use, particularly the first element, which I
will explain in a little more detail, but high level facts, because
facts are everything when it comes to these cases.
79:23 Backstory here is that Andy Warhol had created a series of 16 works
featuring prints, the Prints series as they were called, which were
all derived from one copyrighted photograph taken in 1981 by Lynn
Goldsmith, who was a professional photographer. So originally Andy
Warhol only paid a license to Goldsmith to create the one purple
silkscreen portrait of Prince called The Purple Prince, which was
featured in Vanity Fair's 1984 issue. So after Prince died in 2016,
vanity Fair's parent company, Conde Nast, approached the Andy Warhol
Foundation, since Andy Warhol had since passed away as well about
recreating the image for a special issue to commemorate Prince.
80:16 And the AWF had all 16 of these that Andy had created back in the
early eighty s. And so the magazine ultimately featured orange prints,
which was one of the 16 he created. And instead of being a purple silk
screen, it was an orange silk screen over the image.
80:38 Goldsmith was unaware that all of these 16 derivatives had been
created. So when she saw the orange prints in Vanity Fair, she took
issue with this, considered it copyright infringement because she had
not licensed this particular use. So the primary issue before the
Supreme Court here was the first factor of fair use meaning the
purpose and character of the use, including whether such use is
commercial or nonprofit, and whether the work was transformative.
81:09 So the Andy Warhol Foundation argued that Orange Prince was
transformative because the silkscreen images of the photograph have a
different meaning or message than the original photograph did. But the
Court ultimately disagreed and found that this factor weighed against
Andy Warhol Foundation because Warhol had originally paid a license to
the photograph to create purple prints and therefore the use was
commercial. Right.
81:39 He paid to use the photograph and then sold the photograph to Vanity
Fair. It's all commercial. So the Supreme Court actually know such
licenses for photographs or derivatives of them are how photographers
like Goldsmith make a living.
81:58 And so they provide an economic incentive to create original works,
which is the goal of copyright. So in the ideal world, the Andy Warhol
Foundation should have also gotten a license from Goldsmith to create
all 16 but especially orange prints if they were going to be providing
it to Vanity Fair for publication. And so ultimately the Supreme Court
ruled that Andy Warhol Foundation use of orange prints was not fair
use and therefore it was copyright infringement, which know a big deal
because the Supreme Court doesn't always take hard stances with
intellectual property cases.
82:38 And so this is interesting that they are saying this isn't
infringement as opposed to we're going to remand this to the lower
court for you to determine if this is infringement or not. Right?
Sometimes they don't engage in that analysis. But the majority opinion
essentially opined that tohold otherwise would potentially authorize a
range of commercial copying of photographs to be used for purposes
that are substantially the same as those of the original.
83:07 As long as the user somehow portrays the subject of the photograph
differently, he could make modest alterations to the original, sell it
to an outlet to accompany a story about the subject and claim
transformative use. So they're saying this is going to be a slippery
slope where maybe you don't even pay the license or you just get one
license and you perpetually know, you change the color of it and then
you claim this is fair use. And so the Supreme Court is taking a
stance where they're protecting the original creator here.
83:39 And that is a major takeaway of the case is that this will give Cote
Gray owners more leverage for infringement, know, especially if it's
something know simple as a color change or slight modifications to the
original. But it will make it much more difficult for other creators
to navigate what they can and cannot do with preexisting copyrights
and fair use. And it's never been a bright line but there was a case
once upon a time where changing of the colors and slight variations
like that were enough for fair use.
84:17 And so now that's not going to be the case and so it does will help
set that precedent and guide it a little more. But I think it's
definitely creator favorable. But there were dissenting judges in this
case and they basically went to the point that this would impede the
creation of new art and music, support the expression of ideas and
attainment of new knowledge because part of art in of itself know
inspiration, right? And this is something that actually is going on
with the music industry as well right now.
84:54 Robin Thick and Pharrell got sued several years ago for Blurred Lines
by Marvin Gaye's estate and essentially Marvin Gaye pharrell indicated
that we've heard it, we're maybe inspired by it, but it wasn't like we
sat down and copied it. But they were found to be copyright infringing
and there were a ton of briefs submitted from people in the music
industry that basically said this could create dangerous precedent for
the music industry because where is that line drawn? Sampling is
abundant. Using similar tunes and rhythms.
85:40 That's abundant. What is copyright infringement? What is not? And so
there's been just like a proliferation of major artists like Katy
Perry, Taylor Swift, lizzo getting sued for copyright infringement
based upon works that pre existed them, which often they never even
heard before. I think the court put some really important nuance in
their wording on this one that's going to hopefully keep that from
being an issue because not a lawyer.
86:10 But my read on this is they said, look, if you're not doing something
that's substantially different than the original, and it's of
commercial nature. Okay, we need to put up the flags and give this a
close look. Because in the majority opinion, they said those sort of
fair uses don't supersede the original objects or supplant them.
86:31 Rather, they work to serve a different end. So it's almost like the
trademark of a trademark thing in the Jack Daniels case. It's like
you're almost sort of overriding another brand or another use.
86:43 You block the original artist's ability to use that thing that was
uniquely theirs. You're not hearkening to it with a parody. You're not
bringing it to someone's imagination.
86:52 You're literally overriding it and stamping out their ability to
commercialize their creative work. And that's a huge distinction. And
layman read on that.
87:03 I feel like they were pretty clear on that because, like they said,
the consequence of this would have been huge, right? Allowing small
alterations to sort of change. The fair use application would I think
the words they used it would swallow the rule and make it so that the
exclusive rights to prepare derivative works would just basically be
eviscerated. And to the extent, like, if you wrote you talked about
books being adapted to the big screen when movies hit the big screen,
they're significantly different than the books we read.
87:41 But you can't argue that that's transformative enough to take that
right away from the author of that book or that script is a I feel
like this is a really important ruling. I like that they offer
distinction around the Campbell's soup can pieces that Warhol had also
done because now we're talking about the same artist, we're talking
about another commercial application. But they this is this is an
entirely different like Warhol is not selling soup, right? This is
like commentary on consumerism.
88:21 So where sometimes I feel like they leave these big, wide open
questions that do more harm than good. I felt pretty good about this
one, actually. You do make a good point in that regard.
88:37 And in my opinion and experience, the first factor in the
commercialism versus non commercialism has always been one of the
biggest tipping factors when it comes to fair use. And I agree. Right?
This will knit a lot in the bud as far as am I using it commercially
and just basically only altering it slightly.
89:04 I more think it's always kind of fluid as to how much is enough, how
much isn't enough of a change. Right. But I think that this will at
least give that guidance that silk screen color over the photograph
isn't enough to change it and you're using it commercially.
89:23 And you're absolutely right. The Campbell Soup distinction is big
because right, Lin Goldsmith was doing the same thing as Andy Warhol
was is selling the photo. Right.
89:33 Andy wasn't selling think, yeah, I think it'll, know, dampen a lot of
potentially infringing activity that could have occurred otherwise.
But I'm always interested to see more parameters get established
around how much is enough change to make it transformative. Yeah, and
then what the lower courts do with the dicta and all that stuff.
89:58 Yeah, exactly, exactly. Because almost all the case law is created in
lower. The Supreme Court only hears a very small fraction of all the
cases that tried to get in there.
90:13 My one nitpick with the mental gymnastics that happened in this one,
though, was they tried to justify their Google versus Oracle ruling on
fair use earlier last year. Ish time, is not. I don't know.
90:30 But they said know, Google copied a ton of Sun's code in sort of
replicating the Java interface. And the court reasoned that it was
created for use in desktop and laptop computers only insofar as it
needed to include the tasks that would be useful in smartphone. That
is, Google put Sun's code to use in a distinct and different computing
environment of its own Android platform, a new system created for new
products.
91:01 And that's like pretty garbage reasoning if you ask me. Because that
would be like, oh, if Andy Warhol had done this online instead of in
newspaper or in a been, it would have been okay. So anyway, I felt
like there was sort of some similar ends justify the means mental
gymnastics required to get to that conclusion that they put into the
original case.
91:22 But just a plug here season two. We did an entire episode on the
Google v. Oracle case and its implications on fair use for software.
91:31 So not going to relitigate all that today, but highly encourage folks
to go and give that one a listen if you're curious on the specifics of
that one. All of that said, I'm sort of like a little bit more
passionate about this one, I think probably than some of the other
ones. I personally find this fair use step to be the most kind of
confusing and paralyzing aspect of copyright law from a creator's
perspective.
92:02 So we try to keep our content fun, entertaining, culturally relevant.
Sometimes that means trying to tie in elements of pop culture where we
can right like to use memes and gifs and blog posts. And sometimes we
like to do screenshots of movies and webinars and sound bites in the
podcast, but we consider this podcast to be news reporting,
commentary, criticism, hopefully educational in nature.
92:28 I don't think it would create any brand source confusion. And while
we're in the top 25% of podcasts across all categories, I don't think
we're going to adversely affect anyone's potential market for their
copyrights. But that threat still looms large and it can for sure
stifle the creative process.
92:50 And the Warhol case definitely seems clear to me, but I think in a lot
of cases seems like the bright line almost. Maybe like it doesn't
intentionally exist because I think that would make it easier for
people to cheat. But it also makes it really hard to comply when you
can't possibly know how to follow the rules.
93:10 And as long as the price of getting it wrong is Disney going after
daycare centers, you have to care. That's not a question, that's just
me on a soapbox. I am an intellectual property attorney and I get
nervous about what I'm using and where and how when it comes to my
website and graphics, I pay a license for business purposes, which is
important.
93:42 And also I want to share memes, I want to share music on Instagram
stories, for instance. But I'm like, am I infringing the copyright by
doing that? Because I'm a lawyer and technically this is promoting my
business. Is it commercial? I agree.
94:00 It's very paralyzing from a creator standpoint, especially because I'm
like, am I going to be the joke of an IP attorney that gets popped for
copyright infringement because I thought I wasn't crossing the line
and I am. It's almost impossible as a creator, as anyone these days,
to avoid it altogether. I mean, at least every business should
anticipate some sort of DMCA digital Millennium Copyright Act.
94:29 Takedown getting sent to them for an image on their website unless
you're just like completely tight shit bottled up. It happens to
everybody in some capacity, probably, but I agree and that's why it's
a fair use factors, right? It's always going to be that balancing
analysis and until someone gets sued that's in a similar position as
you or the case law continues to get carved out and more defined,
those parameters are going to continue to be very blurry and scary at
times. So the most you can do is just be very cognizant of it.
95:06 And like I said, the amount and substantiability of the copyrighted
work used is a factor considered. So if you're using like a really
small part of something and it's part of your much bigger creation,
then you have much less to worry about. But the flip side is there's
almost always an argument why you're using it fairly.
95:30 I'm a lawyer. My husband goes crazy. I'm always like, well on one hand
on the other and I'm like, I can't help it.
95:36 I'm programmed to think this way. I always think there's always
probably unless you're just so egregiously infringing, there's almost
always an argument why you could be using it fairly. Absolutely.
95:51 In any case, it's hard to imagine this decision not having an impact
on our next topic. Next and final topic, especially as it pertains to
what it means to be sufficiently transformative and especially in a
commercial context. Perfect.
96:07 Thanks Josh. So generative AI systems like Chat GDP to me seem like
the next gold Rush. We dealt with clients in AI and ML for the last
decade, but this whole large language model and how ubiquitous it is
now, I mean it seems to me like the next gold rush in terms of
technology and it's going to be probably a legal IP minefield for a
lot of companies and developers.
96:34 So some AI experts are arguing that as soon as 2025, 90% of online
content could be generated by AI, which is crazy and stifling. So this
is no longer the stuff of academic research, it's not science fiction
anymore, although it harkens to it. And the biggest players in tech
are pouring billions into it in an arms wraith to reshape the
internet.
96:57 And it's already raising some really serious concerns around content
ownership. So just from a brief background, these generative AI
systems use large language models which are trained on massive public
data sets that include websites, books, images and articles. And then
the chat bots are then able to create an unlimited amount of new
content, which is quite impressive, including articles, essays,
images, lyrics, video code, you name it.
97:24 And they're doing so at a level of quality and artistry that it's hard
to distinguish it from human created content. So when prompted, at
least in earlier versions, chat GTP admitted that this training data
included copyrighted material, but claimed this work was okay because
of fair use. So the content it's producing is certainly the kind of
content that people have traditionally sought copyright protection
for.
97:50 And so can generative AI output be copyrighted? Is it really legal for
these generative AI companies to be training their models with these
mass volumes of unlicensed copyright protected material? And what does
it mean for the average consumer who's taking the generative output
and using it without a license? That was thick? Well, you're right, AI
is definitely probably the gold mine of technology. Kind of scares me
a little bit, especially as a content creator know, I like to so and
I've seen a lot of lawyers talk about how they're using Chat, GPT or
Google to draft their blog posts know things of that nature. So it's
relevant in every sector of so as of right now, baseline, no
generative AI output cannot be copyrighted.
98:55 And so currently the copyright law only recognizes copyright for human
creations. Only humans can get a copyright registration. Indeed, there
was a case that held that a photograph taken by a chimpanzee couldn't
be copyrighted because the chimp is not a human.
99:13 So with that as the baseline, it would be a very large stretch to say
that a machine of any sort could be the owner of a copyright. However,
it is a big question. By scraping libraries of content that include
copyrighted material, are these AI companies committing copyright
infringement? They could be especially.
99:42 But it's difficult then when the output is you can't decipher what
comes from where and how much is a copyright infringement or not. So
this could turn the fair use analysis on its head for the average
customer, say someone who's like create me a blog post, right? Are
they exposing themselves to copyright infringement potentially in some
capacity, if that AI is using copyrighted material. So this is all
extremely dense and complicated.
100:19 And a lot could hinge on whether as AI continues to proliferate,
whether the Copyright Office ultimately decides to recognize a
mechanism for AI generated content, either specifically excluding it
from trademark protection, saying no, this store is closed forever, it
is still just only human creations that can be protected or are they
going to allow where? So when you do say for instance, you create
something that uses part of a copyright of another, you do have to
disclaim that. So it's like, do people have to note on their copyright
registration application, oh, I used AI to create this? Is AI somehow
still an owner of that? Or I don't own what the AI created, but how do
you know what amount it created? Or they could ultimately change it.
Yeah, like where AI is, authors, like the AI itself actually gets
credit for the copyright.
101:19 It'll be interesting to see how this all pans out, because I'm no AI
expert, but if you're using copyright protected source material, I can
only imagine that some sort of copyright issue will arise here
eventually. Yeah, I think it's going to be, you know, the patent
system is grappling with this and I think it's going to be continuing
to know that the whole Davis case that started in Europe and whether
AI could be an inventive entity from a patent system perspective. So I
think it's far from resolved in the patent world and also just
starting to be dug into in the copyright world.
102:03 Yeah, regulators tend to be pretty slow to catch up to these things,
but this one is especially tricky because it's potentially obfuscated
infringement. Right. Like you've got these models are consuming the
collective of human knowledge, including a lot of unlicensed
copywriting material.
102:24 They're synthesizing new answers from that material these companies
didn't create. But then these answers, this new content is being hid
behind a chat interface doesn't have to cite any of its sources.
Right? So it's like this big black box.
102:40 It's just sort of magic. I don't know. It's going be to hard to
regulate this stuff.
102:45 It's gonna be hard to know, it's gonna be hard to prove some of from
a, from a usage perspective. We looked at chat GPT's terms just for
our own. Internal use because we were trying to figure out how it
could potentially impact us in terms of content generation especially.
103:06 And one of the things that I found to be particularly eye popping is
that the terms say that it's okay to use the content for commercial
purposes, but what sort of viral transference of infringement could
come from this? Right? Because the terms say that explicitly say that
you own the output, right, and that you can use it for commercial
purposes, but it also shifts any infringement liability to the owner
of the generated content. So they're assigning rights that they don't
have and then they're saying, well, you own the input, you own the
output, and it's on you to make sure that this complies with local
laws. So by using the interface, going back to the whole contract
thing, the terms of use, you are explicitly inheriting the
infringement liability that come as a user.
104:04 Which not a big deal if it's just your little chat assistant on the
side, but if you're using this for marketing material and blog post,
this is a whole nother potential can of worms and it's going to be
interesting. Yeah, well, I mean from GPT's perspective, it's genius.
That's genius contract writing for them, hey man, we're not liable for
anything, it's all you.
104:33 And that's great for them, but I would suspect something is going to
come up with them specifically involved in the IP sector and maybe
whether those terms of use are legal to do that. It'll be very
interesting. I agree.
104:51 Josh, I think your point too about assigning rights that you don't
own, right? And so to think that I think, again, not being in that
world as much, but in the patent world, it happens right where you
have to have a good chain of title and if there's a break in it and
then rights are being assigned from an entity that didn't have the
rights to assign in the first place. Right. And so I could see that
being a huge chink in the armor.
105:21 Well, it's like if you didn't own the rights to begin with and now
you're giving them to whoever, the person who's using Chat GTP, well,
maybe you shouldn't have been given those rights away anyways because
they weren't yours to give. So anyways, interesting. Yeah.
105:37 And sort of going back to some of the Warhol stuff and fair use
commercialism and all that, there's Getty Images, they have this
massive database of images especially used in the media. They're suing
stable Diffusion right now, saying that stable diffusion trained their
image generator on getty's 12 million images without getting
permission or providing compensation. And if you want to talk about a
work that's designed to supplant the work of someone else for
commercial purposes, as in the case of warhol, I think you can start
making pretty strong arguments to that.
106:23 Sure, for sure. And it is seriously a new frontier for everyone from
every angle mean, I'm just long for the ride to see how it works
because I'm still hesitant to use it myself. So I would be looking at
the terms just like you two.
106:41 It'll be interesting. The one thing that I think is sort of
interesting from an authorship perspective though and not being able
to credit AI as an author, one of the arguments they're trying to make
is that the Office is basically saying like hey, you can use AI tools
for creating original works. It's just like using you can use
Photoshop to edit an image as a photographer and you can still get a
copyright for that.
107:15 Sort of some of the logic driving that distinction is saying that it
matters to the extent that the human is involved in the creative
process. And they're saying that because Chat GPT is this like you put
a prompt in and then you get an output that you're not sort of
involved really in authorship. Right? And so this is like this AI
generated thing that's not eligible for copyright.
107:40 But where I think that starts to fall apart a little bit from a logic
perspective is that not everyone uses these interfaces the same way.
Right. There's sort of a lot of developing science around getting the
best possible answers and outcomes from these systems.
107:58 And there's an Iterative, these generative AI systems, they have
memory. You can sort of make them smarter as you go through this
Iterative process of prompt crafting and it's hard to imagine that
there's not some artistic expression in that. Right? Like you and I
are not going to get the same thing out of Chat GPT.
108:21 So I think again, some of these arguments, I don't think they're
really going to stand the test of time once the regulators truly
understand what these things are capable of and how people are
actually using them. Definitely. And I was thinking that too.
108:38 It's user controlled, right? You have to prompt it, you have to
explain to it what you want. Right. I would argue that that's some
sort of human contribution.
108:52 So wow, that would definitely probably could be angle that's explored
in the case law because how much is enough? Again, it'll probably be
perhaps a factor based analysis or a sliding scale of some sort of did
you have enough human contribution or was it all just the machine?
It's a fully loaded topic and I have no clue exactly how it will all
pan out. But yeah, for right now it's pretty set in stone that only
humans can create copyrights and own them. Whether having AI as an
assisted tool in that creation, just like you say, Photoshop or any
sort of other music editing software, is that the same, is that akin?
And then just to shake things up and play devil's advocate because AI
probably is the devil, I was thinking models are trained on the
collective of public human knowledge.
109:59 These LLMs, they make connections and they generate new works. When
does that depart from how humans learn, become inspired by, and
synthesize from protected works, as we have no doubt done today? Well,
similar. And that was the argument that was made in the patent case
that the AI, the debut system had come up with, solved its own problem
by itself and engaged in inventive activity, but still wasn't enough
from the court's perspective across multiple countries.
110:34 But that might change. All right, well, I think that covers it and
then some. Thanks, Mallory, for joining us today and making our very
own greatest hits tape of 2023.
110:47 Copyright and trademark news. And hopefully you'll be able to
represent us if the mouse comes after us for the graphic I'm going to
let Dolly generate for this episode's promotional materials. I got
your back, Josh, and it was so much fun being on the podcast today.
111:05 Thank you both, Josh and Ashley, for having me and letting me engage
in this discussion on brand protection with you. Thanks, Mallory.
Awesome.
111:15 All right, that's all for today, folks. Thanks for listening, and
remember to check us out@aurorapateents.com for more great podcasts,
blogs, and videos covering all things patent strategy. And if you're
an agent or attorney and would like to be part of the discussion or an
inventor with a topic you'd like to hear discussed, email us at
podcast@aurorapatents.com.
111:33 Do remember that this podcast does not constitute legal advice. And
until next time, keep calm and patent on our channel.
