Category - "Copyright"

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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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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Why 3D Printing Doesn’t Have to be a Pandora’s Box for IP Rights

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Personal 3D printing has seen leaps in advancement in recent years, allowing users to render increasingly sophisticated creations from the comfort of their own home. These creations can include anything from gaming miniatures to medical devices, often for pennies on the dollar. With these advancements, however, comes a growing need for intellectual property owners to actively protect their property through trademark and copyright registrations.

To provide a general overview, modern 3D printing typically begins with the creation of an “STL,” a computer file containing information on the model to be printed. This model can be sculpted via computer aided design (“CAD”) software. 3D scanners, which can provide three-dimensional scans of existing physical objects, can also provide a foundation for shaping realistically sculpted CAD models. For example, a sculptor looking to print a miniature of their favorite sports car may scan a toy model to work on in CAD rather than recreate every detail from scratch. The CAD model is then exported into an STL file. “Slicing” software then converts the STL into instructions for the 3D printer to create the actual model. This is done by stacking thousands of thin layers of the printing material, often plastic or resin, atop each other until the particular component is complete—much like how a stack of paper can form a cube, but molded into virtually any shape imaginable. Users can then easily share these STLs online, including through a variety of popular sites that make such files available for free or for purchase.

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Copyrightability of AI-Generated Works

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In recent months, we have been saturated with media coverage involving artificial intelligence (“AI”).  Almost daily there are articles about AI platforms including DALL-E, Midjourney, Stable Diffusion and ChatGPT, alternatively heralding AI as a great resource or a fearsome scourge to humanity.  Even the long-running animated television show South Park devoted an entire episode (Season 26, Episode 4:  Deep Learning) to the use of ChatGPT by students and teachers.

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NFTs: The Harbinger of Property Rights in the Metaverse?

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Non-fungible tokens (“NFTs”) continue to dominate the crypto-zeitgeist. It is beyond dispute that they are currently a major economic and cultural force. In 2021, sales surged to approximately $25 billion. They have been featured in high profile television commercials during the Olympics and the Super Bowl. And Nike recently purchased the NFT developer RTFKT Studios, signaling its intention to be a dominant provider of digital fashion in the metaverse.

Despite all this, it remains unclear what legal rights are conveyed with the purchase of an NFT. The academic consensus is that, absent a “smart contract” that expressly includes intellectual property (“IP”) rights, purchasing an NFT does not convey any copyrights or trademark rights. Yet, the creation of an NFT (called “minting”) is almost certainly limited by recognized IP and other legal principles. These issues have begun to percolate up through the courts.

This article explores lingering, undefined NFT questions through the lens of several pending lawsuits. While many articles just describe the facts of each case, this article focuses on the most interesting legal arguments that each makes. It also identifies how decisions by these courts may form the basis of property rights within the metaverse. And ultimately, it questions whether the emergence of such lawsuits undermines blockchain as a decentralized institution.

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NFT Infringement: No Free Taking or New Fair Transformations?

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Earlier this month sports apparel giant Nike sued StockX LLC, a Michigan-based sneaker and streetwear resale marketplace, for offering to its customers non-fungible tokens (NFTs) depicting Nike’s sneakers.  The claims asserted in the February 3 complaint filed in federal court in the Southern District of New York include trademark infringement, trademark dilution and unfair competition, all stemming from inclusion of Nike’s trademarks (e.g. Nike, Air Jordan, Jumpman, the “Swoosh” Design) in the shoe images depicted in the NFTs provided by StockX.

This is not the first case of its kind.  In January, Hermes sued a digital artist for unauthorized reproductions of its well-known Birkin bag in a line of NFTs released by the artist called “Metabirkins.”  And before that, in November 2021, Miramax – the studio that produced the 1994 cult movie classic Pulp Fiction – filed suit to enjoin Quentin Tarantino from releasing NFTs based off of his original handwritten script of the movie, including scenes from an early script that were cut from the final version.

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Help! Our Intellectual Property is Being Infringed – An Investigatory Checklist

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I don’t love surprises. Well, if you want to send me a surprise red velvet birthday cake, please feel free. Otherwise, I like being prepared – and infringement of intellectual property is one type of surprise that you can prepare yourself to handle. To assist in that effort, here’s a non-exhaustive list of questions you can ask yourself and your team members, to help determine next steps if you suspect infringement of your trademarks or copyrights. These questions may also come in handy if you find yourself on the receiving end of an allegation of infringement.

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SCOTUS to Decide 17 U.S.C. § 411 Referral Questions

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In 2016, Unicolors, Inc., sued H&M for selling clothing that infringed a Unicolor design. The group registration that Unicolors relied on included designs that had not been published as of the publication date set forth on the registrations. A copyright registration certificate is invalid if the registrant obtained it via the submission of false information that, if known to be false, would have resulted in a refusal to register. 17 U.S.C. §411(b)(2) requires that “the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse the registration.”

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ABCs of NFTs: A Bright Future for the Arts or Just a Flash in the Pan?

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Ever since the artist known as Beeple1 sold an NFT of a digital collage for over $69 million at Christie’s mid-March 2021 auction, everyone in the art world — and in other communities — has been talking about NFTs. Depending on whom you listen to, NFTs are the future of art and will bring long-hoped-for transparency and accountability to the art market. Or they are a dangerous fad. Or they are “nothing sandwiches” that provide something to purchase with cryptocurrency that otherwise just sits unused in digital wallets.

So what the heck is an NFT? NFT is short for “nonfungible token”; an NFT has been defined as a digital certificate of ownership or a digital record of a transaction. The record is “minted”, i.e. created, using blockchain technology that is stored over a decentralized computer network rather than in a centralized registry. And NFTs are purchased using cryptocurrency, most often Ethereum.

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