Pioneers and Pathfinders

Listen to Traklight Founder and CEO Mary Juetten on a recent episode of Seyfarth’s “Pathfinders and Pioneers” podcast, discussing her path from CFO to lawyer, how Traklight came to be, and the promise of blockchain in the future of business.

You can listen to the episode here.

Copyright Faces an Uncertain Future with AI

If you’ve spent anytime online over the past few months, you’ve undoubtedly come across AI creations that are at once amusing and offputting—computer-generated images created from human-input prompts that look and read like something refracted through a series of funhouse mirrors. It all makes for a bit of fun for people looking to distract from the bleak online discourse we’re used to, but to those who pay attention to intellectual property, it’s a more concerning development.

In a recent op-ed in Barron’s, Shawn C. Helms and Jason D. Krieser cite the most popular of these AI bots, ChatGPT, as a potential harbinger for future copyright chaos. As with most current rules and regulations, copyright law doesn’t account for creation beyond that done by humans—a fair limitation, given that AI being able to generate creative works seemed like something out of futurist fantasy a scant few years ago. But AI-generated content is here to stay; not only that, but those creations should only improve and hew closer to actual human artistic works as the technology improves and the respective AIs learn more.

As it stands, good old-fashioned human creations seem unlikely to be affected, as current copyright law will still continue to apply. (Although to what extent companies might try to outsource that work from humans to AI is another question.) But where does the work created by Chat GPT and others stand in the current copyright landscape? Could someone type in a prompt and then take the resulting image and claim copyright on it? They’re not the creator per se, but they have more claim over that given creation than anyone else…unless you start considering the images and text that the AI is drawing from. So it’s easy to see how this can get complicated.

At the conclusion of their article, Helms and Krieser call for updated to the Copyright Act, and while that’s the logical conclusion, there’s much to be figured on long the way. Who is going to own AI-generated works, if anyone? And how can we prevent some enterprising party from trying to churn out hundreds if not thousands of images to try and stake claims? There’s much to be decided upon, and while it seems like Congress is starting to grapple with the question, it could take years before we get a handle on it.

Are Comedians Fairly Compensated By Streaming Services?

If we’re being honest, most of us are largely in the dark when it comes to the terms of the royalty agreements between labels, artists and streaming services. We know they get paid—there’s not a Napster or Limewire currently running afoul of musicians ans record executives alike—but as to the percentage of revenue shared, or how much an artist gets paid per stream, I would struggle to wager a guess, as would most people. But based upon the furor, it seems safe to say that comedians are making out poorly compared with their fellow creatives in the musical field.

Comedian Lewis Black lodged a $10 million dollar lawsuit against Pandora, claiming copyright infringement on the part of the streaming service. According to Black, Pandora has denied both he and fellow comedians due royalties from streaming their comedy albums on their platform.

At issue is the murky and heretofore unresolved question over what rights comedians and other spoken word artists have, and whether they’re entitled to the same royalties as musicians. Comedians are contending that, like musicians, their works have copyrights for both the recording and the publishing, and that they should be paid due royalties for both. Pandora in particular has pushed back against that idea, paying recording royalties but thus far not publishing. And they’re not alone; Black and other comedians have pulled their work from Spotify after failing to reach suitable agreements over royalty payments.

The results of the suit could prove consequential; if Black and other spoken word artists suddenly command greater royalties, streaming services will have to consider what to do with their library of comedy albums, or if they even want to keep spoken work works if their price tags aren’t quite the bargain they used to be.

Can A Lax Approach to Copyright Actually Be a Benefit?

Most of the stories covered on this blog feature one company coming down hard on some business or individual for infringing upon their intellectual property rights, because that’s how most IP stories go. The actions taken within those stories makes sense in a way befitting early-21st century capitalism, which is to say that big, wealthy companies take an absolutist view of ownership, without much wiggle room. What this particular blog presupposes is, what if they didn’t?

You’ve probably seen Minions pop up on your social media feeds recently, if not for the handsome sum it raked in at the box office, then for the GentleMinions trend it inspired among the TikTok generation. Lost underneath those more attention-grabbing stories is a more compelling one about how Minions managed to become so popular as to inspire memes and drive kids to the movies with parents in tow—by not being overly concerned with copyright infringement.

Zack Kotser at Polygon has the breakdown of how Universal, the parent company of Illumination Studios and thus the “pater genitor” of the Minions they birthed, has managed to build a following for their roly-poly money machines by taking the opposite approach from Disney, long notorious for cracking down on anything that resembles infringement. Rather than trying to crack down on every Minions meme or every unlicensed product or image that may exist in the interest of selling more of their own official Minions products, Universal seems to have taken the long view: the can write off each airbrushed Minions t-shirt as an advertisement for the brand, growing the audience for future movies, shows or whatever (while still selling a healthy amount of licensed merch, to be clear.)

It’s an intriguing tactic, and one I’ve always thought that other big corporations should at least consider on a smaller scale. Disney doesn’t want an entire black market of off-brand Mickey merchandise, but what is the sense in coming down on some of their most dedicated fans who have perhaps exceeded the bounds of what’s allowed by the strictest interpretation of IP law in their zeal? It’s not for me to tell Disney or others how to run their multi-billion dollar businesses, but it seems like it’s worth considering.

Nintendo Files Copyright Claims Over Game Soundtracks on YouTube

The average internet user, for the most part, doesn’t care much for things like copyright. That’s not to say that they necessarily derive pleasure in disregarding our well-established intellectual property laws; rather, they just want what they want, and if they can’t get it from the putative source, they’re happy to turn elsewhere, and on the internet, there’s always an elsewhere.

The most recent example of this is a pseudonymous YouTuber who was forced to remove all of their videos featuring Nintendo game soundtracks after—you guessed it—Nintendo lodged over 500 copyright complaints. It’s not a terribly surprising move; Nintendo, like many other companies, jealously guards their intellectual property rights, as is their wont. No business likes to lose money to a free competitor, after all.

But there is the rub: Nintendo doesn’t have a competing product as such. There are the games that you can of course purchase, but if you’re looking for the soundtracks on Spotify or Apple Music or even on a CD, you’re out of luck. That’s why those videos were on DeoxysPrime’s channel, and why they were able to garner the attention that they did.

That doesn’t excuse the copyright violation, but perhaps it goes some way to explaining it. It’s impossible to say that no one would pirate Nintendo soundtracks if they were more readily available, but surely it would mitigate the issue. More than anything, it seems a curious decision by Nintendo to completely ignore the market that clearly exists for these soundtracks. Perhaps the answer, lie the princess, is simply in another castle.

Taylor Swift Loses Bid to Dismiss “Shake It Off” Copyright Case

Are famous artists more prone to copy (or, more generously interpreted, borrow) from other artists, or are they simply more likely to be either caught out or targeted by other musicians or rightsholders for these perceived indiscretions? If we believe that they’re not any different from other artists, save for being more talented and/or luckier to achieve their stardom, then it’s easy to believe that they’re no more likely to intentionally or inadvertently infringe upon the works of others, but for more likely to get noticed for it, and to be subject to lawsuits that go after some portion of the fortune they’ve amassed.

Case in point is Taylor Swift, one of the biggest names in music and one of the more frequent artists turning up in copyright or trademark cases among musical artists. this time, she’s making news for losing in her attempt to have a copyright case over her song “Shake It Off” dismissed. The case itself dates back to 2017, which offers some illustration as to why artists are eager to have such matters go away as quickly as possible, and relates to a couple of lines in the song and their provenance.

According to the plaintiffs in the case, Sean Hall and Nathan Butler of 3LW, the lines about “players gonna play” and “haters gonna hate” were taken from a song of theirs entitled “Players Gon’ Play”; according to Swift and her team, they’re phrases commonly used enough to be considered in the public domain, a consideration that they allege the judge didn’t take under advisement in moving the case forward.

Of course each side has their own interpretation of events that they set forth; for Swift and her team, it’s an attempt to copyright troll every songwriter that references players playing and haters hating, for lack of a better term, and for Hall and Butler it’s yet another powerful artist using their resources to escape consequence or justice. Whatever the truth, it’s indisputable that Taylor Swift seems to find herself at the center of a number of IP cases, regardless of who might be at fault.

Cloudflare Wins Summary Judgment in Copyright Case

As has been noted before, it’s particularly hard for rightsholders to nail down exactly who to blame for copyright violations on the internet. There’s the obvious answer — the people who are actually committing the infringement — but they can be hard to actually track down and are typically just one of thousands doing similarly bad things, so stopping them doesn’t do much to solve the problem on a larger scale. And so many of those rightsholders go after those who serve as middlemen and women for the legion of copyright infringers, be they platforms or internet service providers or any other service that has some incidental role in the act, even without direct knowledge. 

The most recent example of this involves Cloudflare, a company that offers website infrastructure and security, and a pair of wedding dress manufacturers. Per Ars Technica, Mon Cheri Bridals and Maggie Sottero Designs sued Cloudflare, claiming that the company contributed to copyright infringement committed by sites ripping off their designs by providing its services to said sites. Mon Cheri Bridals and Maggie Sotttero Designs claim that they tracked down the infringing sites and sent notices to Cloudflare for takedowns, but that their notices were ignored, and that Cloudflare continues to store and transmit those sites to visitors, furthering the infringement. 

But the judge in the case disagreed, granting Cloudflare’s motion for summary judgment. In it, he concurred with the argument laid out by Cloudflare that the services provided to the infringing website didn’t constitute a “material contribution” to the infringement in question, nor do the services Cloudflare provides serve to amplify or magnify the reach and visibility of the sites. Cloudflare is not contributing to an essential part of the infringement itself with what it’s doing for those websites. If anything, it seems like Mon Cheri Bridals and Maggie Sottero Designs should be taking greater aim at the web hosting for those sites rather than Cloudflare, although it could be the case that such suits are in the offing.

While it does seem that the right result was reached in this case, you do have to feel sympathy for the dress manufacturers and other companies that are trying to take on copyright infringement on the internet. Chasing down offending sites must feel a bit like a game of whack-a-mole that doesn’t end when your quarter’s worth of time is up. In that context, it’s easy to understand how companies would go after any and every company involved in putting the website out there, even as those efforts might not jibe with what the law says about the liability of those businesses when it comes to infringement.

Evel Knievel’s Estate Loses Trademark Suit Against Disney

If you’re a company as large as Disney, with as much ownership over wide swaths of TV and cinema and other media as they now possess, you’re going to have some fairly frequent IP run-ins. The most recent case making news was the lawsuit brought against the estates of comic creators seeking to prevent them from canceling the copyright on Marvel characters that feature prominently in both current iterations of the comic books as well as the Marvel Cinematic Universe. It’s unpleasant business, but not altogether surprising; every company is going to seek to protect its interest, and every family wants to see their relative’s legacy preserved and properly compensated. 

Which brings us to the most recent IP story coming out of the House of Mouse, involving a legendary stuntman and his surviving family. Kelly Knievel, the son of the late Evel Knievel, has his trademark infringement lawsuit against Disney dismissed by a federal court judge. Knievel alleged that Disney infringed upon his father’s likeness in creating a similar character for Toy Story 4

If you’ve seen the film, you probably remember Duke Caboom, the motorcycle daredevil toy that Woody, Buzz and company encounter on their quest to get back to Bonnie. (If you haven’t seen it, that’s on you.) The character, as voiced by Keanu Reeves, is certainly evocative of Evel Knievel and other stuntmen of his day, with a white jumpsuit and crash helmet, albeit with a French-Canadian twist, but just how evocative? The crux of Knievel’s argument is that the character is essentially derivative of his father, to a degree that constitutes infringement of the Knievel estate’s trademarks. 

The judge in the case disagrees, stating in the ruling that Disney’s Kaboom was different enough that it doesn’t represent a depiction of the late stuntman. Certainly Duke Caboom owes something to that, but is it the case that Evel Knievel has come to represent the larger category of motorcycle stunt drivers? Clearly the Simpsons makes a nod towards him with Lance Murdock, the stuntman who shows up in “Bart the Daredevil”. Likewise Hot Rod puts its audiences in mind of Knievel in both stunts and in the titular character’s costume change before the climactic finale. Evel Knievel certainly has a very specific look that the family was able to trademark, but in a way the jumpsuit and helmet and cape have managed to transcend the man into becoming archetype, and for someone looking to grab the attention of audiences, it’s perhaps not the worst thing to be synonymous with motorcycle stunts, even if it makes your heir’s work a bit harder.