Posts in Copyright

It’s safe to say that most sectors will undergo significant disruption as a result of artificial intelligence (AI) technology. AI will not only disrupt our business models but it will also disrupt our legal framework for the creation and exploitation of intellectual property (IP) rights, giving rise to new IP challenges for those seeking to develop and deploy new AI systems.

A few weeks ago, a New York federal judge ruled that Hip-Hop Artist Drake was protected by copyright’s fair use doctrine when he sampled a spoken-word jazz track on his 2013 song “Pound Cake,” saying the artist had transformed the purpose of the clip. Drake used 35 seconds of Jimmy Smith’s 1982 “Jimmy Smith Rap” without clearing the clip, but Judge William H. Pauley said Drake’s purpose in doing so was sharply different from the original artist’s goals in creating it.

Arista Networks (NYSE:ANET) was recently successful in its attempts to overturn the validity of a patent held by San Jose, CA-based tech multinational Cisco Systems (NASDAQ:CSCO). The recent ruling of the Patent Trial and Appeal Board (PTAB) clears the way for Arista to overturn a ruling of the U.S. International Trade Commission (ITC), which has prevented Arista from importing and selling networking equipment in the U.S. due to patent infringement violations.

The $43.5 million from the recent Spotify settlement will reportedly go towards a separate fund to compensate publishers and songwriters. Such payments made by Spotify and other streaming services to copyright owners are known as mechanical royalties. Mechanical royalties are usually paid when a copy of a song is made, such as when a music publisher creates a CD containing copyright-protected songs. Although Spotify doesn’t sell or distribute physical media, it does owe mechanical royalties when it streams a copy of a song to a user.

At the top of Amin’s prepared remarks delivered to the Senate judiciary committee, he noted the fact that the importance of protecting IP was made explicit by Article I, Section 8, Clause 8 of the U.S. Constitution, often referred to as “the IP clause.” Amin said that his first responsibility as IPEC, if confirmed, would be to work with the White House as well as senior leadership at relevant agencies and departments to ensure well-coordinated efforts as well as the effective and efficient use of resources. “We need to ask ourselves three important questions — What are we doing well? What isn’t working? And what should we be doing?” Amin’s remarks read. Second, Amin would use existing law enforcement tools in order to ensure IP laws are enforced and prevent counterfeit and infringing goods from entering the U.S. market by engaging with stakeholders and trading partners on those issues. Third, he would focus on developing an IP enforcement policy which addresses all sectors of intellectual property including patents, copyright, trademark and trade secrets.

It’s not just businesses and corporate environments that need intellectual property protection – artists of all kinds must protect their work too. Specifically, musicians have a lot to copyright and trademark – band names, original music, and album art, to name a few… When it comes to YouTube, today, musicians should pay close attention to monetization of their IP rights, according to Umanoff. This means making sure that YouTube has reference files, which are samples of the copyrighted materials, so that YouTube can attempt to recognize an artist’s work when incorporated in user-generated content.She said, “The artist must also ensure that their reference files contain accurate metadata so that YouTube knows who to pay when copyrighted works are streamed. Independent companies specializing in confirming that YouTube content is monetized by uploading reference files and manually checking metadata are emerging and growing a new frontier of music technologists.”

Businesses were recently given a harsh reminder about the effects of failing to obtain permissions when using photography for commercial purposes when a California woman sued Chipotle earlier this year for $2.2 billion. According to the complaint in the Chipotle case, in 2006, a photographer approached the plaintiff outside of a Chipotle restaurant and asked her to sign a consent form about some photographs taken inside the restaurant. The woman refused, but in 2014 and 2015, she found a photograph of herself edited into promotional materials placed on the walls of several Chipotle restaurants in California and Florida. This case serves as a reminder that any business that uses a person’s image for commercial purposes must first obtain that person’s consent.

The Voice, So You Think You Can Dance, The X-Factor and may other TV shows have become popular worldwide. All these shows were adapted for TV viewers in various countries, so they could watch their “local” product. Today, a TV format is the moving force of progress within the television industry. As the first TV formats were created, their owners started to think about how best to protect their intellectual property rights. The thing is, a TV format is not recognized as intellectual property either by national regulations or under the Berne Convention on the Protection of Literary and Artistic Works… It’s important to understand that to create a TV format, it is necessary to develop a TV program template containing the detailed description of a show and its and its constituent elements (music, the number of hosts and their roles, the set, etc.).

“As a society, we depend on innovators… to make our lives better and to solve the challenges we face,” said Sen. Chuck Grassley (R-IA), chairman of the House judiciary committee. Grassley cited statistics published by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) on the 40 million American employed by IP-intensive industries. These same industries contribute $5.8 trillion to the nation’s gross domestic product (GDP) and account for 74 percent of U.S. exports, according to the Global IP Center. In his opening statements, Sen. Chris Coons (D-DE) cited separate statistics from the U.S. Department of Commerce which reported $6.6 trillion in value added to national GDP from IP-intensive industries.

One of the key findings is that only 938 patent infringement actions were filed in district courts during the recent quarter, a total which is the lowest for a single quarter since the third quarter of 2011 when only 921 such cases were filed… The U.S. District Court for the Eastern District of Texas (E.D. Tex.) remains the most active court for patent infringement suits, receiving one-third of all patent infringement cases filed in 2017’s first quarter.

H.R. 1695 would amend 17 U.S.C. 701. Currently, the Register of Copyrights is appointed by the Librarian of Congress, and acts under the Librarian’s direction and supervision. That would change if and when H.R. 1695 becomes the law of the land. The substantive change would add the following sentence: “The Register of Copyrights shall be a citizen of the United States with a professional background and experience in copyright law and shall be appointed by the President from the individuals recommended under paragraph (6), by and with the advice and consent of the Senate.”

Patent filings relating to 3D printing have increased 23-fold over the last five years, and trademark filings for businesses involved in 3D printing have increased 300 percent over the same time. Obviously, there is great excitement over the promise of 3D printing, but there is also concern about how 3D printing could make it too easy to copy a patented product with a push of a button… Traditionally, it is more important to have patent claims that protect products, components of products, arrangements of products, etc. Future IP will weigh more heavily on ideas and designs, rather than methods, which will be increasingly become difficult to police. These files will serve as proof of an owners’ pre-established rights, and could prove to be a major profit-making source in the future. And while copyrights are susceptible to fair use claims in a way patents are not, copyrights last for an extremely long time (e.g., 70 years beyond the death of the author).

The World Wide Web Consortium (W3C) unveiled a proposed recommendation that would extend the Internet standards organization’s HTML5 standard to incorporate Encrypted Media Extensions (EME), a specification which provides a communication channel between web browsers and digital rights management (DRM) agent software. The proposed new standard has raised a bit of controversy among Internet industry groups despite a reasoned argument from W3C founder and Internet pioneer Tim Berners-Lee… Some industry organizations, like the Free Software Foundation (FSF) or the Electronic Frontier Foundation (EFF), are religiously opposed to DRM and are zealous in their conviction that the W3C’s proposal “is simply a back door for media companies to require proprietary player software.”

On March 27th, 1997, the 9th Cir. decided to affirm a preliminary injunction prohibiting the publication and distribution of The Cat NOT in the Hat!, a parody of the O.J. Simpson murder trial told in the style of Dr. Seuss… Geisel had passed in 1991 but Dr. Seuss Enterprises filed a copyright and trademark infringement suit against Penguin and Dove seeking the injunction before the work was published. Seuss alleged that The Cat NOT in the Hat! misappropriated protected elements of copyrighted works, infringed upon six unregistered trademarks and one registered trademark and diluted the distinctive quality of the Seuss marks. On March 21st, 1996, the injunction sought by Seuss was granted in district court, enjoining the distribution of 12,000 books, which were published at a cost of $35,000.

The Supreme Court recently issued its decision in Star Athletica v. Varsity Brands, which addressed whether copyright protection can extend to the graphic designs depicted on cheerleading uniforms. The sole inquiry in Star Athletica was the meaning of a provision in the Copyright Act which permits copyright protection for the design of a pictorial, graphic or sculptural work, but only to the extent that the design can be identified separately from, and is capable of existing independently of, the utilitarian aspects of the article. Essentially, the question in Star Athletica was whether a copyright could extend to a graphical design that allegedly made a useful product more desirable because it satisfied the aesthetic demands of target purchasers. But will the Supreme Court’s decision in Star Athletica lead to more expansive protection for clothing designs? The result, I fear, is that the decision will serve to raise more questions than it resolved.