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    • The Role and Impact of Intellectual Property ProtectionIntellectual property protection plays a crucial role in incentivizing creativity and innovation, but its misuse and exploitation have led to concerns about its current state.

      Intellectual property (IP) is the fruit of your mental labor and can encompass various forms such as inventions, slogans, movies, algorithms, and even bacterial strains. It is treated as property in most developed countries and is protected by IP laws. The purpose of this protection is to incentivize creativity, discovery, and invention by granting individuals the sole claim to their creations for a certain period of time. Without IP protection, the cultural public domain would suffer, and we would be culturally bereft of movies, algorithms, and iconic slogans like Coke. However, IP protection has been perverted from its original intent, making it one of the most insidious legal protections today. The value and registration of IP have been steadily increasing since the 90s.

    • The Importance of Intellectual Property in the US EconomyUnderstanding and protecting intellectual property rights is essential for individuals and businesses to thrive in today's economy dominated by knowledge and ideas.

      IP intensive industries play a significant role in the US economy, accounting for 41% of the GDP and 33% of employment. This shift from inventing physical products to inventing ideas showcases the value placed on intellectual property. The four main types of IP covered by US law are patents, trademarks, copyrights, and trade secrets. Patents protect new ideas, processes, or designs, granting exclusivity for about 20 years. Trademarks are brand names or slogans associated with specific companies, and their rights can be enforced even without registration. Copyrights protect creative works, giving the creator sole rights for a long period of time, often 70+ years. Understanding and protecting these different forms of IP is crucial for individuals and businesses in today's knowledge-based economy.

    • Understanding Intellectual Property Protection and Its Historical SignificanceIntellectual property protection, including copyrights, trademarks, patents, and trade secrets, has a long history and serves as a crucial incentive for innovation. Historical examples highlight the importance of rewarding inventors while preventing abuses of power.

      Intellectual property (IP) protection has a long history and serves as a crucial incentive for innovation and creativity. While copyrights, trademarks, and patents are the most commonly known forms of IP, there are other ways to protect ideas. For example, trade secrets, such as recipes or customer information, can be safeguarded without the need for registration. However, it's important to actively work to keep them secret. Historical examples, like Filippo Brunelleschi's patent for moving marble in 1421, demonstrate the early recognition of inventions deserving monetary reward. This idea spread across Europe, culminating in the Venetian patent statute of 1474 and later the English statute of monopolies. These laws aimed to encourage inventors while curbing abuses of power by granting temporary exclusive rights.

    • The Evolution and Critiques of Intellectual Property RightsThe concept of intellectual property rights, although rooted in philosophical justifications and utilitarian perspectives, is facing criticism for potentially hindering progress and discovery in the digital age.

      The concept of intellectual property (IP) is a legal fiction created by governments to grant individuals a monopoly over their ideas or creations. This idea is rooted in various philosophical justifications, including the extension of oneself and the mixing of labor and resources, as argued by philosophers like Hegel and Locke. Additionally, there is the utilitarian perspective that IP rights provide incentives for individuals to create and innovate. However, with the rise of the internet and the tech boom, criticisms of IP have emerged. Some argue that the current IP system is outdated and stifles progress and discovery. As technology advances, the debate around IP rights continues to evolve, necessitating a careful examination of its implications in the modern age.

    • Understanding the complexities of intellectual property rights and their implicationsIntellectual property protection is a nuanced issue, with different forms of protection serving specific purposes. Misusing terms like "theft" or oversimplifying the concept can lead to misunderstandings and hinder fair innovation. Excessive monopolies and high costs can also impact consumers negatively.

      Lumping trademarks, copyrights, patents, and trade secrets under the umbrella term "Intellectual Property" diminishes their specific purposes and can create misleading associations. The use of terms like "Intellectual property theft" or "crime" can evoke moral implications, while calling it "copyright infringement" portrays it as a bureaucratic issue. Furthermore, not all forms of intellectual property protection relate as easily as assumed. Limitations, such as time restrictions, are placed to strike a balance between incentivizing innovation and avoiding excessive monopolies. However, there are exceptions like fair use, which acknowledge the difficulty of finding the right balance. Additionally, the cost to consumers, particularly in the pharmaceutical industry, can lead to a transfer of wealth to the wealthy.

    • The Trillion-Dollar Burden of Pharmaceutical PricingReplacing monopolies with cash prizes for pharmaceutical discoveries can lead to faster access to affordable medications and prioritize finding cures for critical diseases over profits.

      The pharmaceutical industry's monopoly power and excessive pricing are contributing to a trillion-dollar burden on society. This enormous sum comes from inflated costs of life-saving medicines and patented products like seeds and fertilizers. The problem lies in the flaws of intellectual property protections, as pharmaceutical companies take advantage of government funding and exclusive rights to charge exorbitant prices. Shockingly, these companies spend more on marketing and stock buybacks than on research for new drugs. To tackle this issue, some propose a solution: replacing monopolies with cash prizes for groundbreaking pharmaceutical discoveries. By incentivizing research and making these discoveries open source, we can ensure faster access to affordable medications and prioritize finding cures for critical diseases over profit-driven priorities.

    • The Challenges of Funding and Intellectual Property in Malaria Cure DevelopmentFinding a solution to fund malaria cure development and address intellectual property concerns requires a global pact among major countries, despite the challenges of unfair competition and historical instances of intellectual property theft.

      Finding a cure for diseases like malaria requires significant funding, especially in lower-income countries. The suggestion of providing $500 billion for a malaria cure is a good idea, but there is a flaw in it. If the US government funds the development of the cure and makes it open source, other countries would benefit without contributing financially. To address this, a global pact among major countries would be necessary. However, implementing this becomes complicated due to intellectual property (IP) laws and the history of countries not respecting IP rights. China's government-sponsored hacking operations, stealing trillions of dollars worth of intellectual property, highlight the unfair competition that arises. This issue is not new, as emerging economies have frequently resorted to stealing ideas during their development.

    • The Complexities of Intellectual Property ProtectionStricter intellectual property laws have led to unfair advantages for wealthy corporations, hindering competition and innovation, while copyright extensions and loopholes have raised concerns about the public domain.

      Intellectual property protection has evolved alongside American industry, with stricter laws being enacted to safeguard valuable ideas and intellectual property. However, this has resulted in unfair advantages for wealthy corporations, impeding competition and innovation. Copyright laws have been extended over the years, granting longer periods of ownership, but some have exploited loopholes to protect their assets, as seen in the case of Disney's lobbying for copyright extensions. While the United States aligned with international copyright agreements through the Sonny Bono Copyright Term Extension Act, there are concerns that certain versions of copyrighted works may still enter the public domain. Overall, the issue of protecting intellectual property continues to be a complex and evolving matter, particularly in the digital age.

    • Balancing copyright protections for creativity and innovation.Copyright protections should strike a balance between encouraging creativity and allowing for the remixing and adaptation of artistic works, fostering the growth of new ideas and the economy.

      The length of copyright protections can present both benefits and drawbacks. On one hand, longer protections allow for the flourishing of creativity and the growth of the economy, as seen on the internet and in various forms of media. However, the downside is that excessively long protections can hinder the creation of new ideas and limit the ability to remix and build upon existing works. The aim of copyright protections is to encourage the spread of creative content into the public domain, enabling new and amazing things to be done with them. It's essential to strike a balance between protecting the interests of creators and allowing for the evolution and adaptation of artistic works.

    • The Clash between Internet's Free Ethos and Compensation for Content CreatorsThe conflict between the principles of an open internet and the need to compensate creators is causing issues, which are evident in Canada's attempt to regulate compensation for news aggregators and the tragedy of Aaron Swartz. Profit motivations can impact knowledge sharing and creativity.

      The clash between the internet's free and open ethos and the need for creators of valuable content to be compensated is causing a problematic situation. The internet was originally envisioned to be a free and open space for information, but now we see that companies like Google and Facebook, which have become the most profitable in the world, are profiting from the work of journalists and creators without adequately compensating them. This clash is exemplified by Canada's attempt to mandate compensation for news aggregators, which led to Google and Facebook threatening to withdraw from Canada. Additionally, the case of Aaron Schwartz, who took his own life after being aggressively pursued by US attorneys for downloading academic articles behind a paywall, highlights the complex dilemma of access to valuable content versus copyright enforcement. Money and profit seem to be at the heart of these challenges, and they can have significant consequences on the dissemination of knowledge and creativity.

    • The Impact of Free Music Downloading on the Music IndustryFree music downloading sites like Napster caused a decline in music sales, leading to the rise of paid subscription services like Spotify and Pandora. This shift affected revenue but also increased ticket prices for live concerts.

      The rise of free music downloading sites like Napster devastated the music industry in the early 2000s. A lawsuit shut down Napster, but it marked a turning point in the relationship between the internet, the music industry, and consumers. Services like Spotify and Pandora recognized that policing online music trading was impossible, and instead offered a solution: paid subscriptions for unlimited music. This shift in the industry significantly impacted revenue from music sales, which plummeted from nearly $26 billion in 1999 to $8.3 billion in 2014 and 2015. However, the industry has rebounded to around $16 billion in recent years largely due to paid subscriptions. The decline in music sales has also driven up ticket prices for live concerts, as artists and companies try to make up for lost revenue. This shift highlights the direct link between consumers downloading music for free and musicians losing income.

    • The risks and alternatives of buying scalper tickets for live showsBuying tickets directly from the box office or through pre-sales is the best option to avoid exorbitant fees when purchasing tickets for live shows.

      Buying scalper tickets for live shows can result in exorbitant fees and is not recommended unless you absolutely cannot find a ticket through other means. The original price of the ticket, along with venue fees, can increase significantly as you move away from the venue, with various sellers adding their own fees. The best option is to try purchasing tickets directly from the box office as it is the closest to face value. If that is not possible, look for pre-sales, which typically have lower fees. It's important to be aware that the ticket-selling industry can have its share of drawbacks, but there are some promoters and sellers who are actively working to improve the experience. Ultimately, dealing with different sellers is a part of being on tour, and it all began with the impact of Napster on the industry.

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    Can You Copyright or Trademark a Logo Designed by AI?

    Can You Copyright or Trademark a Logo Designed by AI?

    The legal world is buzzing about AI and its use for all kinds of things, including generating logos, text, and other things people would normally want to register for copyright or trademark protection. I'm particularly nerding out over these issues, because my master's degree project involved training of artificial intelligence systems. Rights to AI-generated content, and to content made on creative platforms, aren't always easy to understand, and they have a big impact on how you can use it and if and how you can protect it.

    There's no doubt AI is incredibly useful for generating content, though there is still no substitute for a real human author or artist. But what rights do you have to what it creates for you? Can you use it in the ways you want to?

    Keep in mind the generators are trained on existing material, including things that are protected by copyright and trademark law and registration and patents. There have been some court decisions on this precise topic, but the law is not completely settled. However, there are some certainties and principles of law that can guide you.

    AI-assisted programs, like online logo generators, aren't straight AI tools like ChatGPT. Instead, they provide templates tweakable using AI. If you're using an online logo generator, such as the one in Canva, a very popular online program for creating all kinds of visual projects, or Logo.com, you need to look at the license terms of the software. Canva and other logo generators are licensing the use of their product and the generated logos in it to you. You'll almost certainly see language that says you cannot apply for copyright or trademark registration for those logos, and that Canva and whoever they licensed the clip art, photos, etc. used in those generated logos retain the ownership to that original art and do not give you a license to use it exclusively. Even when you make a "new" creation with those elements, they still belong to Canva and/or whoever licensed them to Canva.

    I made a logo for Bob's Burgers for selling burgers on Tailor Brands' logo maker website. Their terms say I own full commercial (note they don't say "exclusive") rights to it and can apply for trademark registration for it (through the, naturally, even though they aren't lawyers and will just copy whatever you provide them into the application and submit it whether it's appropriate or not). Well, they're right, I can apply, but registration surely won't be granted. For starters, Bob's Burgers is already a trademark belonging to someone else. Second, they had me pick one of 20 graphics for use as part of the logo. That means in no way is that graphic element going to be unique to my logo. The lack of exclusive rights here is fatal. These generators also don't address other issues that can lead to refusal to register a trademark. usually you won't be given the rights needed to have ownership or apply for registration, but even if you are, your logo could still be refused copyright and trademark registration for other reasons.

    If you use another kind of AI tool to create a logo, like Canva's AI tools or DALL-E, the platform doesn't claim any ownership rights, including copyright ownership, to the output. That doesn't mean you're in the clear for ownership and registration, however. Some of the elements in the output may be identical to or similar enough to work made by others that it would be infringement to use it without proper credit to and licensing from them.

    Copyright

    I asked DALL-E to make some logos for me for use in this post. I've seen enough stock graphic elements when doing trademark and copyright searches to know that the crown elements and scales of justice elements are likely to be highly similar to or identical to crown and scales designs owned by Getty Images or some other entity or artist. That means not only is it possible I do not own exclusive rights to those elements, it is also possible I would be infringing if I use them commercially (I'm using them educationally here, so that's ok).

    The US Copyright Office has issued some very helpful guidance about copyright ownership of AI-generated works in the US. The general gist is this: copyright only protects works made by humans. AI isn't human. The Copyright Office views the human prompts that generate AI output as akin to instructions to a commissioned artist where the AI determines how the instructions are carried out. In such cases, the output is ineligible for copyright ownership or registration.

    If, however, a human takes AI output and selects, arranges, or modifies it in a creative way the work may qualify as a work of human authorship that can have copyright protection. There's a catch, though. Any parts that came from the AI are excluded from that ownership and protection. Only the human-authored parts can be protected.

    Trademarks

    The United States Patent and Trademark Office (USPTO), is also working on handling the influence of AI on trademarks and patents. There's no question AI has helped make trademark and patent searches much more efficient, but what happens when AI is involved in the creation of the trademark for which someone is requesting protection?

    As with copyright, AI-generated logos are subject to the terms and conditions of the generator regarding whether the user can use them commercially or apply for trademark registration. This is why I ask trademark clients who generated the logo and whether they have all necessary rights to apply for registration. Human or AI-created, if you don't have the proper rights to ownership or use, you don't have the proper rights to apply for trademark registration. Of course some people apply anyway, whether they know this or not, and some applications get approved. That doesn't mean all is ok, however. If the AI service retained the rights and sees you using the mark commercially, they will likely take action to have your registration cancelled and against you for infringement and violation of terms of use. Just because you know someone who has gotten away with it so far doesn't mean it's legal or ok. Like speeding.

    AI generators don't care if they produce infringing material. They don't have the sophistication yet to generate a logo that for sure wouldn't definitely infringe on someone else's if you used it. That means you have to take whatever it gives you and do your own research on it. Run the logo it creates, and distinct parts of it, through a reverse image search on Google and see what comes up. It's really no different than doing the same searches you'd need images you or an artist you hire create. Those logos I had it create for me could absolutely be infringing on something another law firm is using. The standards for non-infringing and registrable use of an AI-generated trademark are the same as for a human-generated trademark.

    Be Careful What You Ask For

    One more thing to consider is that your prompts to the AI generators could be used against you in infringement cases. If you asked for something that looks like the Starbucks logo, rather than just asking it to design a logo for a coffee shop, that would weigh on the side of what it created being infringement.

    AI isn't perfect. You can't trust it, at least not yet, to give you results that won't cause trouble for you. This isn't limited to logo design. It applies to anything it generates for you. You may also be surprised at what limits there are to the non-AI content you create on sites like Canva and Promo Republic.

    Beyond Logos

    Copyright

    Any creative work you have AI assist you in creating is subject to the same copyright issues as a logo AI helped create. You need to see what the terms and conditions of the generator permit. You also need to determine the extent to which AI was the creator and to which you were the creator. You may remember the case a few years ago about whether a monkey who took a selfie held the copyright to the photo. Because the monkey isn't human, the court held it couldn't own the copyright, so the poor little monkey couldn't make any money to buy treats by licensing the photo to calendars.

    If AI creates your image, music, or text, you don't have the copyright to that work. You'd have to do something to transform it, and you'd still only own the copyright to the parts to which you contributed any creativity.

    As with logos, any creative work you use the work of others to create, even on a site like Canva that you might think gives you a license to use whatever you create however you like, is subject to specific licensing terms. Those terms depend on how you're going to use the content and will vary significantly from a flyer you create for a block party or garage sale, to a classroom worksheet, to an advertisement for your business. It's annoying to comb through the terms and conditions on those sites, but if you are going to use any of what you create for a business or other commercial purpose, you are running huge risks not doing so. If you aren't sure, find out by contacting them or by consulting an intellectual property attorney.

    Trademarks

    If you have AI generate a business name, product name, slogan, etc., as with logos your rights and ownership, and therefore ability to use them commercially and receive trademark registration for them, depend on the terms and conditions of the generator. You will need to have proper searching due diligence done to make sure you won't be infringing on someone else's trademark rights. Search the names and slogans it gives you to see if something identical or similar is already in use for similar goods or services.

    Remember, the AI generator doesn't care if the slogan it generates will get a refusal from a trademark examiner for "failure to function" as a trademark because it's too common of a phrase, or that 20 other companies are already using the slogan it generated for your hand cream to market their eye creams and lip balms. The AI is a tool, not a solution, and it certainly isn't a lawyer well-versed in the nuances trademark law. Not yet, anyway.

    Patents

    In 2020, over 80,000 utility patent applications involved AI, and nearly 20% of all utility patent applications these days involve AI in some way. One of the biggest issues with AI and patents is whether AI can count as an inventor, and if so, to what extent, and how does that affect patentability of the invention? A case in 2022 held that an inventor must be human, but this isn't 100% settled law.

    If the AI did help with the invention, can the parts of the invention it didn't help with still be patented, or does the AI involvement render the entire invention unpatentable? What if the part it helped with isn't essential to the invention? What if it is?

    There are other issues as well. For something to be patentable, it can't be something someone with general knowledge in the field of the invention would find obvious. Given the depth of training of AI in so much of the content on the internet, its knowledge can far surpass a human's in scope, so does that make many more things obvious and therefore unpatentable?

    In early 2023 the USPTO asked for public comment on AI assistance with inventions to help it advise government rulemakers. If you're using AI to help you with an invention, you need to work with a patent attorney well-versed in current law and thought about AI and inventorship so you can receive good guidance on patentability, filing an application, and handling any issues the USPTO brings up about the use of AI with the invention.

    There Is So Much More to AI and IP!

    There are a host of other AI-related issues with intellectual property, such as whether you can keep your work from being used as training for AI generators. If you'd like me to do some posts on those or go into more depth on things I've touched on here, please let me know! DM me on social media or email me at info@kingpatentlaw.com.

    I'm fascinated by AI, and I have a good understanding of the various ways it can be trained. The speed at which it is improving is fascinating and sometimes a little scary. It's amazing what it can do. It's not perfect, though, and like any tool, it can be used poorly or intentionally misused. I hope this post has given you a better understanding of some of the limits and issues involved with using AI and other programs for generation of logos and other material.

    Losing $500K+ Amid a Counterfeiting Nightmare

    Losing $500K+ Amid a Counterfeiting Nightmare

    For the last year, Kevin Williams of Brush Hero has been dealing with the nightmarish implications of having his product ripped off. Not only have the knockoffs cost him more than half a million dollars in lost sales and out-of-pocket fees, but the whole ordeal has also halted his company’s growth as they try to fight back. In this episode, Kevin gives us a candid look at what happened, what he’s doing to fight for his company, and what business owners should be doing to protect themselves from counterfeiters. 

    You can find show notes and more information by clicking here: http://bit.ly/2EMsnxa