Brief: March 17, 2023
Putting SVB aside, AI was at the forefront of noteworthy developments again this week, as the U.S. Copyright Office announced the launch of an initiative on Thurs. that will see it “examine copyright law and policy issues” around AI, including “the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training.” In addition to its plans to “convene public listening sessions to gather info about [the impact of] current technologies,” the Office issued a policy statement to “clarify its practices for examining and registering works that contain material generated by the use of AI.” (I delve into that here.)
The TLDR: In the Office’s view, it is “well-established that copyright can protect only material that is the product of human creativity” and that “most fundamentally, the term ‘author’ … excludes non-humans.” As such, while “individuals who use AI tech in creating a work may claim copyright protection for their own contributions to that work,” they must identify/disclaim any AI-generated materials in their registration application. For parties that have applications pending w/ the Office that include AI-generated elements, the Office says they should ensure that the info. provided “adequately disclose[s] that material.”
This follows from an AI and inventorship-centric request for comment from the U.S. Patent and Trademark Office last month.
Not limited to guidance in the U.S., the UK government issued its digital tech-focused “Pro-innovation Regulation of Technologies Review” this week and mentions “AI” 30+ times. The main recommendations: (1) “support a step-change in the UK’s regulatory approach to AI; (2) facilitate greater industry access to public data to help deliver the government’s public services transformation program + address pressing societal challenges; and (3) government signaling and leadership to focus regulator efforts on innovation.”
The Bottom Line: IP offices, regulators, and courts (see: Thaler v. Perlmutter, for example) are all busy grappling with some of the legal gray areas that come with the rise of AI, particularly generative AI.
BRINGING IT HOME: In the latest example of how fashion/retail is looking to use AI, Chinese luxury e-commerce platform SECOO revealed today that it will combine the advantages of OpenAI’s new GPT-4 tech and the Chinese version of ChatGPT Baidu ERNIE Bot to better “understand [its] users’ needs, improve its intelligent marketing capabilities, explore more intelligent luxury goods marketing models,” etc. SECOO says it’s angling to use the AI chatbot combo to “complete product recommendations, selling point explanations, discount promotions, and generate visual images and videos,” ultimately, helping to reduce costs.
Other examples have come by way of Valentino, which collaborated with artist Robert Del Naja to create an AI-generated project in connection with its SS21 couture collection and more recently, produced its “Essentials” collection campaign imagery entirely with AI tech.
On the litigation front …
– Hermès v. Rothschild: In addition to renewing his motion for judgment as a matter of law or a new trial, Mason Rothschild filed an opposition to Hermès’ permanent injunction bid, arguing that Hermès “has unclean hands that should bar the injunctive relief it now seeks because it engaged in a pattern of deliberately dishonest conduct throughout trial.”
– Garrison v. Paffrath: The latest FTX-related lawsuit is being waged against “‘influencers” who promoted, assisted in, and/or actively participated in FTX Trading LTD.’” Edwin Garrison’s complaint closely mirrors the one he filed last year against SBF, Tom Brady, Gisele, Shaq, Larry David, etc. for “promoting, assisting in,” or “actively participating in” the offer and sale of FTX “unregistered securities.”
– Jack Daniel’s v. VIP Products: Jack Daniel’s filed its reply brief, arguing that the 9th Circuit’s decision – which it says, “creates two outcome-determinative circuit conflicts” – “invites humorists to infringe the marks of alcohol beverages and other famous brands under the umbrella of the First Amendment.”
– Yuga Labs v. Ryder Ripps: Bored Ape Yacht Club creator Yuga Labs is angling for summary judgment, asserting in a recent motion that via their RR/BAYC project, Ripps and co. used its TMs “to sell identical-looking NFTs in the exact same markets” and the record contains “volumes of evidence” of the “undisputed confusion” that resulted.
A Couple of TM Bites …
– Metaverse Marks: Those metaverse-focused applications for registration for “Gucci” and “Prada”that were lodged by unaffiliated third parties in Nov. 2021 were deemed abandoned after the filers (unsurprisingly) failed to respond to the USPTO’s Office actions.
– As for AI marks … There is still no USPTO rush like we saw with metaverse-related filings. One application that’s interesting: Golden Goose AI – which is not affiliated with the Italian footwear co. – was published for opposition after overcoming an Office action on the basis that its specimen “does not show direct association between mark and services.”
In some deal-making news … Resale platform Responsible has acquired fellow Belfast-based reseller Haru in a deal that it says will enable it to “continue to push the boundaries of circularity in the fashion industry.”
– In a deal that suggests digital fashion isn’t dead, DressX has raised $15M in a Series A led by Greenfield w/ participation from Slow Ventures, Warner Music, The Artemis Fund, Red Dao, etc.
– Khaite has taken on an investment from NYC-based growth equity firm Stripes. The terms of the deal were not disclosed but … interestingly enough, early partner Adam Pritzker revealed that former Gucci CEO Domenico De Sole has been “involved in helping build and assemble Khaite.”