NO FAKES Here: A New Tool to Protect Against the Misuse of AI?

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What do Scarlett Johansson, Drake, The Weeknd, and Taylor Swift have in common (besides being among this millennial’s fav celebs)?  They all have the distinct displeasure of becoming a target of deepfake technology – a type of AI that creates fake, but highly realistic-looking audio, images, or videos using the likeness and/or voice of its victim.

While there are certainly positive uses of deepfake technology (Val Kimer’s AI-generated voice in his reprisal of “Iceman” in Top Gun Maverick comes to mind),1 the widespread potential for abuse and malicious use, from fake musical performances, to fake political robocalls, to pornographic content, is top of mind for the entertainment industry, politicians, and ordinary folk alike.

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Make your Company a Hard Target for Job Scams

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Your company’s talent is its lifeblood. Job postings for qualified individuals and other recruitment activities are vital to its operations. What happens, then, when scammers disrupt your business by conducting phishing schemes to trick individuals into applying for nonexistent jobs you did not post with the objective of stealing their personally identifiable information? In the age of remote work and virtual hiring, the impersonation of companies in job recruitment scams has become increasingly prevalent.

It can be difficult for job seekers to recognize a recruitment outreach as a scam, particularly when they’re highly interested in the opportunity. Therefore, it is incumbent upon companies to take steps to mitigate or stop the potential for harm. Leveraging company intellectual property is crucial to combating such schemes and to protecting both job seekers and the company’s good name.

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From Concept to Commerce: The Art of Trademark Specimens of Use

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In the world of trademarks, specimens of use (or proof of use) play a crucial role in obtaining and maintaining a trademark registration with the United States Patent and Trademark Office (“USPTO”). In this blog post, we’ll delve into the types of specimens that are accepted by the USPTO (hint: they’re not alien artifacts!), the specific requirements for each type of specimen, and some practical tips to help you navigate the selection process. So, grab your magnifying glass (figuratively, of course) and let’s examine the basics of specimens of use!

What is a Specimen of Use, and When Do I Need One?

Before the USPTO grants registration of your trademark, it wants to see tangible evidence that your mark is actually being used in U.S. commerce. That’s where specimens of use come in. A “specimen of use” simply means evidence of how a trademark is used. To meet the USPTO requirements, the evidence must show actual commercial use of the mark in the U.S. in connection with the goods and/or services claimed in the application or registration. There are three circumstances under which trademark owners are required to submit specimens proving use of their marks: (1) to obtain registration; (2) to maintain registration; and (3) to respond to a post-registration audit from the USPTO. Let’s investigate these scenarios further.

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Trademark Toolkit for In-House Counsel: “Can We Trademark This?”

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Most in-house counsel periodically encounter branding questions — and the business team wants answers … yesterday! To give you a head start, this article discusses key branding questions that companies frequently face and provides a roadmap for addressing them.

Can I trademark/patent/copyright this name? Let’s find out!

For starters, let’s clarify. This common intellectual property inquiry relates to trademarks — words and symbols that identify your company’s products and services, distinguishing them from competitors’ products and services. In contrast, patents protect inventions, and copyright law protects original works of authorship like photos, books and musical compositions.

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Connecting with Digital Natives through Brand Protection

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With the constant rise of counterfeiting, protecting one’s brand is now more important than ever. Many brand owners already take protective steps to protect their brands such as registering brands through trademark and copyright registrations and monitoring fraudulent use of said brands. However, with our current social media-driven world, connecting with the digitally native generations is a critical measure brand owners should consider in protecting their reputation and their consumers.

The term “digital native” describes a person who grew up in the information age with computers and an understanding of the Internet. Digital natives make up the largest share of the consumer base and workforce: Millennials (born between 1980-1994), Gen Z (born between 1995-2012), and Gen Alpha (born between 2013-2025) are digital natives because they were exposed to the Internet, social media, and mobile systems from an early age. Digital native generations are important for any brand’s future because they have significant buying power and influence.

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For In-House Counsel: 12 Questions to Ask When the Business Team Wants to Launch a Sweepstakes or Contest (Tomorrow)

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We’ve seen this scenario (one too) many times before: the business/marketing team comes to the in-house legal team and wants to run a sweepstakes or contest to promote a brand or a new product line. Surprise! They are hoping to launch it as soon as possible – maybe even tomorrow. But in the request to the legal team for approval, details are sparse, and it isn’t clear exactly what the business team intends to do.

In case you’re faced with an “emergency” like the one described above, this blog post is intended to provide a quick tool kit for in-house lawyers to keep things on track by asking the following questions:

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New Frontier: Ten Tips for Navigating Brand Protection in the Metaverse

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Advances in technology have taken the world by storm in recent years and brand owners must adapt to new forms of expression and brand awareness. Enter the metaverse: an online virtual world where users can interact with each other and digital objects including Non-Fungible Tokens (NFTs). NFTs are unique digital assets depicting works of art, photographs, text, and/or other digital content, minted using blockchain to identify an interest in a certain asset. Many companies are using NFTs to leverage their brands, which in turn create new revenue channels.

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Avoiding Warhol: How Celebrity Tattoo Artist Kat Von D Turned Defeat Into Victory in the Central District of California

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When celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) tattooed a portrait of Miles Davis on her friend Blake Farmer’s arm as a gift, she used a reference photo created by professional photographer Jeffrey Sedlik to guide her work.  This tattoo—which Von D did not charge for—would set off a two-year legal battle that culminated in a jury trial in the Central District of California in early 2024.  Sedlik claimed that Von D’s tattoo infringed his copyright in the photo and pointed to shared elements such as hand placement, overall pose, similar furrowed brows, similar lighting, and the direction of Miles Davis’s gaze.  Von D, for her part, spent the majority of the litigation arguing that the tattoo was transformative and protected by the doctrine of fair use.

And it seemed that Von D was well on her way to being able to plead her case to a jury.  The district court found that Von D had sufficiently shown that the tattoo could have a purpose or meaning distinct from that of the photo “by virtue of the way [Von D] changed its appearance to create what she characterizes as adding movement and a more melancholy aesthetic.”  Thus, it denied Sedlik’s motion for summary judgment on the transformative nature of the tattoo and Von D was poised to argue the issue to a California jury.

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Recap: 2023 ANA Annual Advertising and Marketing Law Conference

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If artificial intelligence is so great, why can’t it reliably predict the weather?

The weekend has just closed on another very rainy Floridian ANA Masters of Advertising Law Conference (Last year we had a hurricane, so this would qualify as an uninspiring upgrade). The Masters Conference is the largest advertising, marketing and promotion law conference in the nation, bringing together major brands, storied advertising agencies, and prominent regulators to discuss cutting-edge topics impacting the industry. Each year – not by design but by happenstance – a different theme is featured. This year, to no one’s surprise, the focus was on AI.

While not every session discussed AI in depth, most speakers devoted some time to the subject throughout the 3-day event.  Panelists confronted questions like: does algorithmic bias, increasingly employed in various industries, constitute an unfair trade practice?  How will regulators view advertising claims based on next gen tech?  What copyright traps exist for the unwary utilizing AI to generate advertising content?  Are US and international privacy laws evolving fast enough to keep up with new challenges posed by AI?  And while it had nearly zero to do with AI, the conference would have felt incomplete without a discussion of what drag queens can teach advertising lawyers about intellectual property protection.  Many learned more about Cardi B’s album covers during that session than they could have imagined in their wildest dreams.

There is no doubt that AI will affect the advertising and marketing landscape for years to come.  Like the metaverse (last year’s theme) and crypto assets (the year before that), these issues are not new.  But despite AI having been around for some time, the leaps forward that generative AI applications have made this year appear poised to significantly transform the landscape of advertising content creation and delivery.  President Biden’s October 30th Executive Order is one of the first major steps being taken to set limits on AI technologies while funneling their potential for good.  Among other things, that Order directs the U.S. Patent and Trademark Office and U.S. Copyright Office to issue a report on “potential executive actions relating to copyright and AI.”

We will of course be following this issue closely as the technology – and its implications for intellectual property and advertising issues – evolves.  But we will hold our concerns regarding AI singularity at bay until such time as we receive an accurate forecast for the next ANA Conference.  (It’s in Arizona, so we’re blithely optimistic.)

Until next year!