News of the Week

Dentons recently released its summary of what it considers to be the major Canadian intellectual property (IP) decisions in 2023. Among the highlighted cases are the following:

• Energizer Brands LLC. v. Gillette Company, 2023 FC 804, which concerned s. 22 of the Trademarks Act and the use of a competitors’ trademark in a comparative advertising champaign. A permanent injunction on using the competitor’s trademark in comparative advertising was issued, although the court found that “the next leading competitive brand” was not sufficient to evoke the competitor’s trademark to a hurried consumer of batteries. It was also held that without a consumer of data to gauge consumer reactions to this, “the bunny brand” was not sufficient to support a s. 22 claim. 
• French v. Royal Canadian Legion, 2023 FC 749, dealt with the relationship between the the “useful article” exemption to s. 64(2) of Copyright Act and a dog stuffed animal covered in poppies. This exemption in the Copyright Act is designed to be used to for useful articles that cease to be protected by copyright law and rather should be protected by industrial design laws, with the threshold being the production of fifty copies. The case then delves into two exceptions to this exception and how they related to toys. Important findings from the case include that toys are “useful articles” and that this toy did not fall under one of the exceptions to the s. 64(2) exception as it was not “a representation of a fictitious being applied to an article”.
• Travel Leaders Group, LLC v. 2042923 Ontario Inc., 2023 FC 319, is about two competing trademarks filled. The first corporation filed an application in 2008, which was abandoned in 2010 upon opposition from the other. The second, whose business has been declining since 2004 filed an application for the trademark in 2010 claiming use since 2005,  and was granted the trademark. The second corporation later took steps to derail the first’s attempts to expand into Canada by among other things, purposefully offering the trademark for sale to the competitors of the first corporation. It was held that the second corporation’s “actions and knowledge at its date of application could not be found to constitute bad faith” but that some of its later actions could be (although these actions were not material to establishing bad faith at the relevant date of application).

You can read more details about these cases and more in the full report, which is available for download here.

A federal judge in the United States has dismissed a lawsuit against Aritzia that accused the retailer of copying an artist’s work with hot pink, squiggle-shaped sculptures that appeared in stores in early 2023.

Here is the link to the initial lawsuit made by Richard X Zawitz, the owner of Tangle Creations posted by pr1ncess.

History of AI on YouTube

Since 2016, YouTube has used the power of AI to assist in its primary service: creating an algorithm that decides which videos to promote to viewers (1). This is done by assessing a viewer’s satisfaction with the video played based on factors such as watch time, engagement, and their personal viewership profile. The algorithm also helps affect YouTube search results, based on the metadata (title, description, keywords, etc.) and reaction (views, likes, comments, watch times, etc.) of videos on the platform. YouTube’s basic business model is dependent on retaining viewers for as long as possible, as this makes them more desirable to advertisers (2). This means that AI is intricately connected to YouTube, helping produce an addictively personalized experience for viewers that uses their activity to recommend videos most likely to get them to stay watching longer.

Development of AI Tools

With rapid developments coming in the field of AI, YouTube plans to implement AI even further into the fabric of the service. Recently, they announced Dream Track as a connected service with YouTube shorts, its vertical video answer to TikTok (3). It allows creators to enter a prompt that creates unique soundtracks using the voices of recording artists such as Charlie Puth and T-Pain. Along with finding interested artists, they had to negotiate with major labels such as Universal Music Group, Sony Music Entertainment, and Warner Music Group to finalize voice rights in a deal the labels view as precedent-setting for future AI deals (4). One of the key issues was the resources used by the AI model to learn, while another was the options for artists to either opt in or out. Another fundamental question is how payment should be approached; should artists receive compensation for their music being utilized to train the AI model or for the music generated by the tool?

Despite the interesting creative potential, this innovation comes with the concern that YouTube will turn to its Content ID tool to flag content with voices that sound like artists signed to these labels despite the risk of false positives (6). With an incentive to keep the labels happy and a content ID system that is highly flawed, enforcement mechanisms will likely frustrate innocent creators such as impressionists or cover artists (7).

In the upcoming months, they will also continue development on another tool called Dream Screen, an innovative feature enabling users to generate AI-produced images or video backgrounds for YouTube Shorts by typing a prompt (8). Other assistance tools promise to provide AI-powered insights, helping creators brainstorm or draft outlines for their videos based on their individualized style and which videos have been most successful (9). While these do not implicate IP rights in the same way Dream Track does, it reveals YouTube’s view that increased AI use is in the interest of their creators and by extension, will lead to content more attractive and addictive to viewers.

Flagging AI use

A few weeks ago, YouTube posted a blog titled “Our approach to responsible AI innovation”. The main takeaway was adding a requirement for creators to flag their videos if they include any AI-generated content (10). The justification given is that “AI’s powerful new forms of storytelling can also be used to generate content that has the potential to mislead viewers—particularly if they’re unaware that the video has been altered or is synthetically created”. Those affected by these videos will now have the option to request their removal on the grounds that it is AI-generated (11). These can also include other creators who, for example, may have their voices mimicked by AI software without permission.

Strangely, discussions surrounding this policy suggest that using the voices for parody or satire does not gain additional protection and is still removable by request (11). In addition, it is unclear how YouTube seeks to enforce these policies on those who consistently fail to flag their own content for AI use. YouTube does not currently have a tool capable of detecting external AI use, meaning this protective system is currently operating on a form of “honour system”, and part of the danger the policy is hoping to protect against is how difficult it can be to tell when content is generated this way.

In the post, YouTube listed a few situations that required additional protection where the content discusses sensitive topics, such as elections, ongoing conflicts, and public health crises, or public officials (10). Specifically, unregulated AI use can spread misinformation through deepfake images or perpetuate biases on a larger scale (12). Ironically, it is unclear if YouTube itself has been responsible in its use of AI models; creators are pointing out the hypocrisy that YouTube, under Google, has scraped the internet and used other people’s content to train all of their AI tools, one of the fundamental arguments plaguing AI today (11). This includes another tool Google has used that auto-generates video summaries to better meet the interests of viewers, along with other search-generation tools (13).

The effect on creativity?

Through the various arms of its AI enterprise, YouTube may soon offer tools that come up with video ideas, generate key visual and auditory elements, summarize the contents of the video, and advertise directly to key demographics. An unintended consequence may be the skill development of its creators, who are less involved in the creative process and use these tools as a crutch rather than an accessory (14). Taken to the extreme, this can also lead to less variation and individual vision on the platform in favour of highly curated, impersonal content produced with one goal in mind: succeed in the YouTube algorithm. At what point would the “skill and judgment” be so completely removed from a creator’s video that they would no longer be deserving of copyright protection?

Clearly, AI holds the potential to significantly increase the possibilities of creation on YouTube; however, if approached recklessly or without proper protections in place, it may actually erode the creativity itself.

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Resources:

(1): https://influencermarketinghub.com/how-does-the-youtube-algorithm-work/#:~:text=Frequently%20Asked%20Questions-,People%20Watch%20What%20YouTube%20Tells%20Them%20To,account%20is%20currently%20logged%20in)

(2) https://www.youtube.com/intl/ALL_ca/howyoutubeworks/our-commitments/sharing-revenue/#:~:text=YouTube’s%20main%20source%20of%20revenue,Chat%2C%20channel%20memberships%20and%20merchandise.

(3)  https://blog.youtube/inside-youtube/ai-and-music-experiment/

(4) https://metalinjection.net/news/youtubes-new-ai-tool-will-let-users-sing-like-their-favorite-artists-but-record-labels-are-hesitant

(5) https://www.theverge.com/2023/8/22/23841822/google-youtube-ai-copyright-umg-scraping-universal 

(6) https://www.billboard.com/pro/youtube-developing-ai-tool-creators-sound-like-musicians/

(7) https://www.hypebot.com/hypebot/2022/02/youtubes-content-id-system-doesnt-work.html

(8) https://www.theverge.com/2023/9/21/23883749/youtube-generative-ai-dream-screen-creators

(9) https://blog.youtube/news-and-events/made-on-youtube-2023/ 

(10) https://blog.youtube/inside-youtube/our-approach-to-responsible-ai-innovation/

(11) https://kotaku.com/youtube-ai-disclosure-1851020956

(12) https://www.cnn.com/2023/06/16/tech/ai-apocalypse-warnings/index.html

(13) https://www.theverge.com/2023/8/1/23815321/youtube-ai-video-summaries

(14) https://www.polygon.com/23933664/youtube-ai-plagiarism-creator-tools

Further Reading:

https://hbr.org/2023/03/how-will-generative-ai-disrupt-video-platforms

https://www.fasken.com/en/knowledge/2021/06/everyones-a-critic-copyright-considerations-for-youtube-and-twitch-reaction-videos-part-ii

*** NOTE: this is my post for the purposes of the 20% course requirement ***

Hi everyone,

If anyone is interested in the world of superheroes and/or video games, I came across a unique example of copyright law in action with the release of the new Spider-Man 2 game for PS5.

To give players the most accurate version of New York City possible, Insomniac Games included 47 special landmarks in their  2018 release of Spider-Man for the PS4. However, before the next game in the series, Spider-Man: Miles Morales, was released, the Chrysler Building was sold and so was the underlying IP for its design. According to US Copyright Law, architectural designs are covered by the Copyright Act. Architectural designs are commonly known as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings”.

Including an image or short video clip showing off the design may be fair use, but the unique nature of the video game series as an open-world immersive experience allows players to freely move around the space and closely inspect the details of each area. As a result, including it in the game without permission would have put Insomniac Games at risk of litigation. So, once negotiations to use the Chrysler Building broke down, they were forced to remove it from subsequent games in the series.

Link:

https://www.gameinformer.com/2023/10/20/spider-man-2-is-missing-this-major-new-york-city-landmark

Hey everyone!

I just came across this article which reminded of something interesting that I saw while walking to the bus stop the other day. If you’ve passed between Vine St. and Yew St. on 4^th Ave lately, you’ve probably seen a bunch of trees lined up in an elaborate marketing campaign for the new Terrex store. Terrex is a line of outdoor activewear and gear by Adidas, and they have just opened a location on West 4^th Avenue. As mentioned in the article linked above, West 4^th Ave is a hub for outdoor clothing with brands like Patagonia, Arc’teryx, and now Terrex, all within a few blocks of each other.

The first time I saw the Terrex store, I chuckled to myself because of how much the name sounded like “Arc’teryx” – especially when you say them out loud. That’s why I was interested to see that the Squamish Chief article directly raised this issue, pointing out that “the store banners sound similar, and the names could be confusing.” It sort of reminded me of when I lived in downtown Toronto and I would see “Balenciaga” shoes like this for sale on Spadina.

Adidas Canada’s vice-president of retail, Lesley Hawkins, was quoted in the article saying “I understand that there is some similarity in the names, but Terrex has existed for a long time.” However, it appears that Terrex used to be sold only as a brand at the regular Adidas stores; the solo-branded Terrex stores are a recent addition to Adidas.

I certainly questioned whether it was just a coincidence that Terrex opened at this specific location with such a similar name. According to Hawkins, when Adidas decided to open at this location in 2021, they did not know that Arc’teryx would move nearby (just a few storefronts down).

In my experience as a consumer, Terrex’s new location certainly benefited from its similarity to the nearby Arc’teryx. The Arc’teryx brand has been very popular in Vancouver, and they just opened a large new storefront on 4^th Avenue; when I saw Terrex, I immediately thought to compare it’s pricing and merchandise to Arc’teryx.

The similarity of the two names made me think of the intellectual property in the Arc’teryx brand, how Terrex may be allowed to benefit from being compared to Arc’teryx, and whether they are doing so intentionally or not.

I just saw this short news release and thought it might be of interest.

Patagonia Sues Gap Article

The suit is related to the Gap allegedly copying Patagonia’s “iconic” flap pocket on its fleece jackets. The short article specifically discusses goodwill and confusion, including an example of a customer genuinely being confused.

I enjoyed the velcro video we watched in class and I was trying to think of other such examples, beyond things such as kleenex, xerox, and rollerblades discussed in class. One day, on my way to playing spikeball, a game involving a small trampoline-like thing and a ball, I was thinking of how spikeball potentially fits in here. I was thinking this given that I often here tournaments in which one plays spikeball as “Roundnet” tournaments and was wondering whether these terms were what the game was actually called, key manufacturers within the game, or other entities. As it turns out, even though the game was introduced to me as spikeball and I don’t know of anyone who would not call it by this name, Spikeball is actually the name of a company that manufactures equipment for what the sport is actually called, that being roundnet. The founder had purchased the rights to the product as the original inventor did not patent it, and began manufacturing. I think that this situation is analogous to rollerblades and inline skates, in which while most people do call it rollerblading, the technical terminology would be that they are inline skating. I wonder if this mark can potentially lose reputation/goodwill as it may become generic. Only time will tell.

https://www.kiplinger.com/article/business/t049-c000-s002-small-business-success-story-spikeball-inc.html

Twitter has successfully prevented a Singapore technology firm called VV Technology from registering a yellow hummingbird as a trademark for a mobile application. The application was filed in 2018 and was opposed by the American company, Twitter.

In 2019, the principal assistant registrar ruled in favour of twitter, which led to the appeal by VV Technology. VV Technology has now lost its appeal before the High Court. It will be interesting to see how things unfold and if VV Tech is going to appeal once again.

Does anyone think the marks are similar? Feel free to comment below.

The article link : Twitter wins court tussle as Singapore tech firm fails in appeal to have bird logo trademarked – CNA (channelnewsasia.com)