Lawrence G. Townsend, Intellectual Property Lawyer Lawrence G. Townsend, Intellectual Property Lawyer2024-02-07T15:49:06Zhttps://www.lgt-law.com/feed/atom/WordPress/wp-content/uploads/sites/1202011/2021/06/cropped-site-icon-lawrence-townsend-32x32.pngOn Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488912024-02-07T15:49:06Z2024-02-07T15:49:06ZMiami Ink and LA Ink. Her high profile likely led to the copyright infringement case involving her work recreating a 1989 photographic portrait of jazz trumpeter Miles Davis putting his finger to his lips, seemingly telling everyone to keep quiet. Photographer Jeffrey Sedlik registered the copyright for the iconic image in 1994 and has earned a steady income from licensing its use for t-shirts, prints, and even tattoos. His suit claimed that Kat Von D (real name Katherine von Drachenberg) should have paid him a license fee to use the image. Von D posted images about the project in several social media posts documenting how she used the image to create the tattoo.
Fair use doctrine cited
Eight jurors in a Los Angeles court deliberated to reach a verdict, finding that the tattoo work and the posts fell within the fair use doctrine. While each case is different with varying outcomes, this legal doctrine promotes freedom of expression by allowing unauthorized use of a copyright-protected work where, for example, the new use has a signficantly different character or use than the original, where only a portion of the original is used, and where the new use has no impact on the marketability of the original.
Jurors deliberated for two hours to reach a verdict.
If Sedlik had won the case, it would have been worth between as little as $200 and as much as $150,000. In her testimony, the defendant stated: “I made zero money off it. I’m not mass-producing anything. I think there is a big difference.”
“Fair use” is often highly disputed
Like many other legal doctrines, the concept of fair use is open to interpretation and addressed on a case-by-case basis. Those with questions about a potential lawsuit should discuss it with an intellectual property attorney who handles copyright litigation.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488862024-02-06T15:15:34Z2024-01-08T18:37:04ZNew York Times filed suit against OpenAI (creator of ChatGPT and other AI platforms) and Microsoft (an OpenAI investor), claiming their AI was using millions of news stories without permission. This is the first of what is likely to be several major media organizations taking action to protect its’ content or get paid for its use.
The complaint
The 172-year-old media giant with 9.41 million digital subscribers and 670,000 print readers filed its complaint in Manhattan federal court, claiming that OpenAI is trying to get a “free ride” in using the company’s massive backlog of content and its continued investment in creating one of the most respected and reliable news organizations in the world. The company alleges that the defendants take the Times’ rigorously reported and vetted information by respected journalists and editors and feed it into the platform, which can then use the datasets to deliver a version of the same or similar information to users. Copyright law does not protect information, but in some instances it protects the selection, coordination, and arrangement of information, and copyright generally protects the expression of information (original writing) In delivering that information, OpenAI is a competitor in distributing news and information to customers, in some instances by supplying near-verbatim copies of its articles. It also claimed that ChatGPT created two reviews of office chairs attributed to non-existent product reviews by the Times’ Wirecutter website.
Defense cites “fair use” doctrine
OpenAI responded and, among other defenses, will be claiming fair use.
The lawsuit was filed after talks between the two sides broke down. OpenAI claimed that it thought that negotiations were going well and that it was blindsided by the lawsuit. The lawsuit does not cite specific damages, but it could be in the billions of dollars. OpenAI’s parent company is a non-profit (OpenAI, Inc.), but OpenAI, LP is a for-profit subsidiary valued at more than $80 billion. Microsoft invested $13 billion for a 49% stake in OpenAI, LP.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488842023-12-07T15:21:32Z2023-12-06T15:21:22Zon an August post focusing on claims made by illustrators Sarah Andersen, Kelly McKernan, and Karla Ortiz. On November 29, 2023, the artists amended their lawsuit previously struck down in court and added seven more artists (H. Southworth, Grzegorz Rutkowski, Gregory Manchess, Gerald Brom, Jingna Zhang, Julia Kaye, and Adam Ellis) to an amended class action case involving Stability AI, Midjourney and DeviantArt, along with new defendant Runway AI. There are also similar claims by others against giants like Google, Meta and Microsoft.
Plaintiffs in the amended claim maintain that AI learned their works without authorization and payment as training materials and can now create similar AI-generated pieces using the artists’ names in the prompts. For example, the user could input prompts saying, "Create a garden landscape that looks like late-period Claude Monet." The living artists claim that AI-generated works are "indistinguishable" (in style only) from their own works.
The claim, in part, says that “AI image products are primarily valued as copyright-laundering devices, promising customers the benefits of art without the costs of artists.”
The amended claim alleges that Midjourney has about 16.4 million users, offering them a list of more than 4,700 artists' names used as prompts, which is a violation of federal trademark law. One of the plaintiffs on the list, Kelly McKernan, found that the top hit in a web search of their name was a Midjourney-generated image created using McKernan’s name as a prompt.
Judges allow claimants to revise arguments
A judge dismissed parts of the artists' initial claim (Andersen v. Stability AI, U.S. District Court for the Northern District of California, No. 3:23-cv-00201) because the judge deemed that the plaintiffs' claims lacked evidence. Like other AI cases, the judge allowed the plaintiffs to reopen the claim with new evidence based on recent developments on this fast-moving issue. This firm is not involved in the specific cases cited here.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488612023-11-21T15:00:56Z2023-11-21T15:00:56Zmade headlines when they filed two suits in the same court in July 2023. One case set to be argued in December cited Microsoft's OpenAI, and the other, citing Meta's Llama system, was recently argued before a judge. Each claims that AI training infringed on the book copyrights for Silverman’s Bedwetter, Kadrey’s Sandman Slim, and Goldman’s Ararat.
Illegally obtained training content
Both suits allege that the AI systems illegally acquired datasets containing the books from so-called “shadow library” websites Bibliotik, Library Genesis, Z-Library, and others. The Meta suit claims that Llama used ThePile, which is a copy of the better-known Bibliotik. These illegal libraries make books available to AI in bulk using torrent technology.
The plaintiffs argue in the Meta case that Llama did not cite copyright information when prompted to reproduce the content in the authors’ books. The authors also argue that they did not give copyright consent to use the books as training materials. The authors also claim six counts of copyright violations and unjust enrichment, unfair competition, and negligence. They seek statutory damages, restitution of profits and more.
Motion to dismiss ruling with a caveat
On November 9, federal judge Vince Chhabria ruled to grant Meta’s motion to dismiss allegations that text generated by Llama infringes on their copyrights. Still, he indicated that the plaintiffs were welcome to amend their claims.
Judge Chhabria allowed the core argument that the books were used to train Llama but told attorneys for the authors that their other arguments do not stand up. Chhabria noted at one point that the plaintiffs' work and Llama’s language model would need to be substantially similar, which they are not, for the lawsuit to be successful. The judge then permitted the plaintiffs to amend most of their claims.
While this firm is not directly involved in these cases, watch this space for more on this quickly-moving issue.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488542023-10-20T16:37:51Z2023-10-20T16:37:51ZAccording to Reuters, the new amicable settlement results from negotiations to finalize a settlement started in August 2023. Nespresso has asked a Southern District of Manhattan federal court to dismiss the claim with prejudice, which means the suit cannot get refiled.
No details were released on the settlement
At this time, the details of the settlement have not been released, but they did release a joint statement:
"Nespresso and Peet's agreed to amicably resolve and dismiss all claims and counterclaims in their federal lawsuit concerning single-serve espresso capsules, as well as Peet's opposition to Nespresso's trade dress application in connection with the shape of single-serve espresso capsules. Nespresso and Peet's cannot further comment on that resolution."
This firm is not involved in the case, but we represent clients in trademark disputes like the one discussed here.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488532023-10-20T15:06:55Z2023-10-20T15:06:55Zwhopping 60.82% in the last six months.
In May 2022, the grocer filed a claim with the World Intellectual Property Organization (WIPO), asking the crypto entity to relinquish the domain name. After numerous attempts via cease-and-desist letters to resolve the matter privately, the retailer filed a lawsuit at the U.S. District Court of Central California on October 5.
Trademark protections
Trademark protections generally protect a name within a market. For instance, Apple Computers and the Beatles' Apple Records/Corps both used the name. Things, however, got much more complicated when Apple Computers created music platforms to download music onto devices. The tech giant eventually settled the matter with the band. The grocery chain is also suing for trademark dilution which does not require proof of likely consumer confusion. The plaintiff need only prove that its brand is famous (essentially a household name) and that the defendant's mark diminishes the distinctiveness of the famous brand.
A growing phenomena
The difference between cryptocurrency trading and a brick-and-mortar retailer selling groceries is ostensibly quite different, but the retailer argues that it is too close for comfort. Cryptocurrency is becoming more mainstream and can be used to purchase a variety of groceries and home goods. Some believe that the retailer (which opened its first store in California in 1967) has the upper hand as a singularly recognizable brand with 500 stores in the U.S., but Trader Joe is one of the top decentralized exchanges in the crypto space.
Has the grocery retailer achieved the top marketing echelon where the name is synonymous with a particular brand? Do digital businesses need to be more careful about trademarks and branding as they become more mainstream?
Watch this space for updates on this evolving story.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=487842023-08-24T14:37:29Z2023-08-09T20:55:35Zsome logical steps to take.
Identify your trade secrets: Look at how your business operates and determine the most important and unique parts that need to remain secret. It could be the recipe for baking sourdough bread or the identities, requirements, and purchasing histories of customers at a tech company. Focus on specific crucial details rather than imposing sweeping protections – overly broad parameters are harder to enforce.
Revamp vendor contracts: Hold them accountable by drafting and using strict and well-provisioned agreements. Dividing work among different vendors is also a wise safeguard because it better ensures that none of the vendors have all the information.
Properly store information: Ensure that this information is on a need-to-know basis, password protect that information online or lock it up, and look for weak spots in the security. Make sure to wipe computers before they are resold, repurposed or tossed out.
Use password security: Employees may complain, but they should use strong passwords and then routinely update them. This adds a layer of protection if computers are lost or stolen.
Inform your employees about expectations: Educate employees about the safe use and ongoing protection of information, and hold them accountable when they do not follow protocols. Conduct exit interviews to remind them of their legal obligations, recover equipment with sensitive information, and ensure that their passwords no longer work.
IP attorneys can review and strengthen protections
Law firms that handle intellectual property matters understand how to protect trade secrets and sensitive information. Working with them before a breach or dispute can minimize problems and provide a practical course of action when information falls into the wrong hands.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488302023-09-07T02:42:29Z2023-08-02T16:27:13ZThe issues for actors
The list of Hollywood A-list stars is relatively short and ever-changing, depending on who's hot. While it may seem hard to feel sympathetic to actors who get paid millions to play “make-believe” or use their brand for lucrative endorsement deals, the vast majority of 160,000 striking actors and union members do not enjoy those kinds of revenue streams. The Rock earned $270 million in 2022, but 87% percent of the striking actors earn less than $26,000 annually. The gross pay scale is $27.73 per hour with a minimum of $3,756 for a week’s work on a television show.
The fear is that the Hollywood extra of the future may get a day’s work where the studio scans the actor’s image and then has use of it endlessly. According to SAG-AFTRA negotiators, actors are already scanned with the same regularity as they would get their hair, costumes, and make-up.
There are certainly benefits for the stars:
Actors do not need to participate in dangerous stunts.
Missing actors can later get inserted into a scene rather than halt the production.
But the economics for the Hollywood extra are daunting. Studios can generate AI images of people rather than the overhead of running a large set with dozens of extras. Rather than run multiple takes of a scene, the AI characters don’t blow their lines, misuse a prop, trip on something or otherwise make mistakes.
Control of right to publicity
Scanned actors of all levels in the food chain make decisions over what work they do. Actors may take a job because they need the work, but it's their decision, and they do the work. Unless the use runs afoul of rights of publicity or contractual restrictions, AI can mean that any scanned actor could be made to do anything.
Fighting back
To protect the actors' livelihood, SAG-AFTRA attorneys are fighting for restrictions on how AI images are used and for how long. Proposals involve using images for the length of a project, with actor approval coming if their image or likeness is used again on another project. Not only does it ensure payment for usage, but it could also be a big deal if a scanned extra subsequently becomes a well-known star whose image is already scanned by a studio.
Money for AI
While studios are using AI to cut costs in other areas, it is worth noting that Netflix recently posted a job for an AI product manager with a $900,000 salary. Rather than the historical job of creating algorithms for recommending shows based on watching habits, that AI product manager will likely do much more. With the studios moving forward, it is clear that the changing IP landscape caused by AI is not an issue that will subside any time soon.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488262023-08-02T15:36:28Z2023-08-02T15:36:28ZPotential lawsuit gets refined
U.S. District Judge William Orrick told plaintiffs on July 19 that he will likely dismiss a proposed class action that is one of several recent lawsuits filed against AI companies, telling them they need to develop stronger arguments in a new complaint. The complaint about the initial complaint was that it was overly broad and light on facts. Their lawsuit claimed Stable Diffusion is simply a complex collage tool where all AI image creators violate the rights of millions of artists by using the same basic process to absorb the information.
The new complaint must provide more facts about how Stability AI, Midjourney and DeviantArt infringe upon copyrights. Stable Diffusion and other systems “scraped” an estimated 5 billion compressed images off the internet to “learn” how to create text-to-image content as prompted by users. The judge further pointed out that it was unclear whether the claimants accused Midjourney and DeviantArt (which use Stable Diffusion tech) of violating copyrights by using Stability as a model or that Stability infringed for using the images.
The judge also warned claimants that there would be no grounds for a lawsuit if the images created by AI were not substantially similar to the preexisting work.
Kelly McKernan, Karla Ortiz and Sarah Anderson were the initial claimants. Still, illustrator Anderson's case will likely stand because Stability clearly infringed upon registered copyrights in several of her works.
Watch this space as this issue evolves in the courts.]]>On Behalf of Lawrence G. Townsend, Intellectual Property Lawyerhttps://www.lgt-law.com/?p=488242023-05-18T09:12:03Z2023-05-18T09:12:03Z+. His second album, 2014’s X, further catapulted his career thanks partly to the song "Thinking Out Loud," which won the Grammy for Song of the Year.
In Sheeran’s borrowing from different styles of music, the heirs of Ed Townsend, who co-wrote “Let’s Get It On” with Marvin Gaye, felt that Sheeran and co-writer Amy Wadge’s R&B-inspired slow jam believed it was a copyright infringement. They subsequently filed a claim in 2017.
We’ve previously discussed other infringement cases, including one the Gaye family filed against Robin Thicke and Pharrell Williams for “Blurred Lines.” The family believed it infringed on Gaye’s “Got To Give It Up,” and the family won a $5.3 million lawsuit in the Central District of California.
While the plaintiff's previous case was successful, the same could not be said for "Thinking Out Loud." The lawsuit filed against Sheeran, his label (Warner Music Group) and publisher (Sony Music Publishing) claimed that the defendants owed them 22% of the profits for its use of "Let's Get It On." After a six-day trial and three-hour deliberation, a New York federal court jury cleared Sheeran.
The winning argument
The defense argued that the resemblances between the two songs were basic “building blocks” regularly employed by songwriters everywhere. They added that the rhythms and chord progressions were like “letters of the alphabet of music" used to create the song. So, rather than infringing upon original works of authorship fixed in a tangible form, the similarities between the songs were so general that there was no specific copyright infringement. The plaintiff acknowledged that the similarities were building blocks but was unsuccessful in arguing that the violation combined them in a similarly unique manner.
This lawsuit is Sheeran's second win. He previously won a dispute in Britain where Sami Chokri claimed that Sheeran had used parts of his 2015 song for the hit “Shape of You.” A British judge ruled in favor of Sheeran in 2022.
An important case
The New York lawsuit will not be the last copyright infringement involving a pop song. Still, the arguments further define what parts of songwriting are protected. Future songwriters and their legal teams will look at this case (and others cited here) to determine if there is infringement. Songwriters with questions can discuss the details of their issue with someone who understands copyright laws.]]>