Professional Digest

All of the important news and exclusive analysis you need, delivered to your inbox every Friday

The U.S. Copyright Office has released the first part of a series of reports that examine copyright law and policy issues raised by artificial intelligence (“AI”), including the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. In Part 1, the Copyright Offices takes on the topic of digital replicas – or “the use of digital technology to realistically replicate an individual’s voice or appearance.”

Setting the stage in its initial report, the U.S. Copyright Office (the “Copyright Office” or “USCO”), reflecting on the rise and widespread adoption of generative AI, states that artists, for example, “have harnessed the power of AI to find new ways to express themselves and new ways of connecting with audiences.” At the same time, it states that “AI-generated deepfakes have proliferated online – from celebrities’ images endorsing products to politicians’ likenesses seeking to affect voter behavior.”

Delving into digital replicas, the Copyright Office primarily asserts that they do “not fall neatly under any one area of existing law.” While some experts characterize digital replicas as a form of intellectual property, it says that protection against the use of unauthorized digital replicas raises “overlapping issues,” including ones in the realm of privacy, unfair competition, consumer protection, and fraud.

– Julie Zerbo
Founder & Editor-in-Chief

Here are TFL’s top articles of the week …

1. Virtual Goods Not Similar to “Real World” Counterparts, Per EUIPO. The EUIPO’s Opposition Division refused to extend a finding of similarity between goods/services in class 35 to the same goods/services when applied to the virtual reality.   

2. COUNTERPOINT: Hermès Prevails in Trademark Trial Over MetaBirkins NFTs. “The outcome is important as it appears to indicate that existing (i.e., ‘real world’) TM rights neatly extend into the virtual world and can serve as the basis for successful infringement and dilution actions.” 

3. Judd Foundation Angling to Keep its Case Against Kim Kardashian Intact. Kardashian has continued to use the “knockoff” DONALD JUDD furniture in social media advertisements for her SKIMS brand, the Foundation argues.

4. Recycling or Greenwashing? Considerations for Sustainable Fashion Claims. Making recyclability and sustainability claims is not without risks that fashion brands must weigh against consumer demand. 

5. 3rd Circuit Rejects $5M Attorney’s Fees Award in Nike Lawsuit. The U.S. Court of Appeals for the Third Circuit overturned a lower court’s ruling that the case is “exceptional.” 

6. Court Finalizes Thom Browne’s Win in adidas Lawsuit Over Stripes. SDNY Judge Jed Rakoff reconfirmed the court’s May 3 “bottomline” order, in which it denied adidas’s motion for a new trial.

7. How Effective Are Companies’ Voluntary Sustainability Reporting Efforts? If companies release sustainability reports just to meet the needs of external stakeholders, including regulators, it is unlikely to motivate internal changes to business operations.

8. How the IOC Effectively Maintains a Monopoly on Olympics-Related Trademarks. In addition to relying on national trademark laws to protect its valuable assets, the IOC has also obtained unique, heightened protections that do not extend to other companies.