Creator Economy Law – Issue #19

AI has arrived, except at the Copyright Office, what the TikTok ban would actually mean, Meltwater’s Global Digital Report, and more!

This is Creator Economy Law, a newsletter dedicated to exploring and analyzing the legal issues surrounding the creator economy, creators, and internet platforms. If you enjoy what you’re reading, share with friends, and invite them to subscribe using the button above and share using #CreatorEconomyLaw.

🆘 This week, I want to pause and take a moment to acknowledge the grief and pain of those impacted by Monday’s earthquake in south-central Turkey and Syria, along with their family, friends, and relatives around the globe. How can you donate? The New York Times offers helpful guidance

⛑️ Additionally, Mine Ekim, a Turkish-American citizen and Managing Director, Legal & Compliance at Golden Gate Global, shared the below two options with the community:

  1. Turkish Philanthropy Funds (TPF) – TPF is the leading U.S. community foundation for high-impact social investments dedicated to Turkish and Turkish American communities. Since 2007, TPF has mobilized over $55M and has invested over $28M in grants with partners focused on addressing economic, social, and environmental needs in Turkey and around the world.
  2. European Bank for Reconstruction and Development (EBRD): Mine’s brother (banking finance attorney based in London) and his friends started this campaign, and EBRD will match it 100%) – EBRD was created in April 1991 to ‘foster the transition towards open market-oriented economies and to promote private and entrepreneurial initiative’. Since then, EBRD has invested over €180 billion in more than 6,500 projects across three continents.

Here’s what’s been happening in the world of Creator Economy Law.

What You Should Know
In the end, aren’t we all just audience members at the tech company talk show?

Begun, the AI wars have.

Earlier this week, Google announced Bard – an experimental conversational AI service, powered by LaMDA. The next day, Microsoft announced Bing and Edge + AI – powered by a combination of OpenAI’s advanced learning model and the Microsoft Prometheus model. 

It now seems like every tech company is excitedly bringing AI into the fold for their product and service offerings.

In my opinion, Microsoft buried the lead in that they have also enabled a content-generation tool within their Edge browser that can easily generate a social media post based on a user’s prompt and additional controls (such as tone, format, etc.). Also, how does this remotely align with LinkedIn’s position in the HiQ case? Seems like tools such as these cannot function but for the existing content Bing/OpenAI/Microsoft Prometheus are scraping or somehow obtaining from the underlying websites.

Personally, I’m in a funk about what this means for the future of content creation and content consumption. Where does it go next? Where does it stop? Why am I even doing this newsletter, or any other writing, if an AI bot will eventually do it for us all? 😩

While I believe in the potential for AI and the power it can unlock across numerous industries ranging from healthcare to video games, I’m not interested in reading synthetic content, whether in whole or in part, on social media platforms like LinkedIn where I’m expecting a human-to-human interaction.

What do you think? I share some more of my thoughts across multiple posts, including here and here. 😂 Maybe it won’t matter 😂

Meanwhile, the American Bar Association passed a resolution and has officially adopted 3 guidelines for the use of AI by organizations with a focus on: human oversight, accountability, and transparency. Read more about the resolution (and download a copy).

Getty Images has also filed a lawsuit in the U.S. (Delaware) against Stability AI over its Stable Diffusion software claiming copyright infringement in connection with the copying of 12 million images to train its AI model. The story broke via Aaron Moss of CopyrightLately, and is also covered by The VergeAccess the docket over on Court Listener.

In the EUthings are heating up in the European Parliament over the AI Act in connection with the high-risk AI applications in light of recent frenzies in connection with ChatGPT. Thanks to Laurie Miller for highlighting these posts on LinkedIn that break it all down.

Lastly, for creators, the rights grant and other permissions contained in contracts for projects that involve AI technologies (or maybe even those that don’t, but still have overly broad contract language) are worth paying attention to. Vice’s Joseph Cox is reporting on discussions with “multiple voice actors and advocacy organizations, some of which said contracts including language around synthetic voices are now very prevalent.”

U.S. Copyright Office Response to Thaler’s Request for Summary Judgment

On Tuesday, the U.S. Copyright Office filed its response to Dr. Stephen Thaler’s request for summary judgment and is also asking the court to grant its counter motion for summary judgment.

The response seeks to knock down Thaler’s request for summary judgment in connection with his litigation over the USCO’s denial of his registration application for “A Recent Entrance to Paradise.” The work was entirely generated by Thaler’s software, Creativity Machine.

The USCO stands by its position that:

1️⃣ History and language of the Copyright Act support the USCO’s conclusion that human authorship is a requirement.

2️⃣ Supreme Court decisions support the Office’s rejection of the registration application. These cases include: Burrow-Giles Lithographic Co. v. SaronyMazer v. Stein, and Goldstein v. California.

3️⃣ Federal appellate courts have also reached the same conclusion – so there’s no unsettled area of law in lower courts.

4️⃣ Creativity of the work isn’t at issue (it’s a human authorship issue) and (arguably) allows the USCO to avoid diving into issues of whether, and to what extent, AI-generated or AI-assisted works meet the creativity threshold.

5️⃣ The USCO is pushing back on new facts being asserted by Thaler that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by Dr. Thaler,” or that “the AI only operates at Dr. Thaler’s direction.” These were statements or facts provided previously.

6️⃣ Common law and work-made-for-hire doctrine aren’t applicable (as they’ve previously argued).

7️⃣ Policy-based arguments are appropriate and, as Federal Circuit stated in response to these same policy arguments raised in Thaler v. Vidal, “Thaler’s policy arguments are speculative and lack a basis in the text of the Patent Act and in the record. In any event, the text before us is unambiguous, and we may not ‘elevate vague invocations of statutory purpose over the words Congress chose.’”

Also, the USCO notes that Thaler’s claim under the Administrative Procedure Act (APA) fails because Thaler didn’t adequately prove the USCO “action, findings, and conclusions . . . [were] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Which is a requirement under 5 U.S.C. § 706.

The USCO requests a denial of Thaler’s motion for summary judgment and also requests a granting of their cross-motion for summary judgment.

Download a copy of the filing, or access the full docket on Court Listener.

Unpacking Meltwater and We Are Social’s 2023 Global Digital Report

Meltwater, a social listening/monitoring, and analytics platform, and We Are Social, a socially-led creative agency, recently released the 2023 Global Digital Report

Described as a “rundown of essential digital usage and connectivity insights from around the world,” the 465-page PDF features data, charts, and insights galore. The report as a whole is worth saving as a handy reference for the global digital space. There is a lot to look through, but I pulled out three interesting insights below to give readers an idea of the level of detail within the report.

It’s interesting that YouTube, Facebook, Twitter, Instagram, Whatsapp, Reddit, and LinkedIn are in the top 20 most visited websites based on Similarweb’s ranking.

Top Google searches relevant to the creator economy? It looks like Google, YouTube, “video(s),” Facebook, Whatsapp, Instagram, “Whatsapp web,” and Twitter round out the top.

English held the top spot for “Most common language for web content” at a staggering 58.8% share of websites, with Russian coming in second at 5.3% and Spanish in third at 4.3%. (Page 88)

The video content breakdown is incredibly insightful with music videos dominating at least half of all content consumed.

Unpacking some TikTok drama…

“As a general rule, ideas or general concepts are not eligible for copyright protection in the U.S. making it difficult to shop around ideas with other creators for collaboration or when pitching to a network or production company.”

I enjoyed contributing some thoughts, along with the always insightful Scott Sholder, to this article for Passionfruit while catching up on some recent TikTok drama. Check out the article for the scoop, but also here are some additional takeaways I shared outside of the publication:

💡 How do you protect your ideas as a content creator?

One potential option is to utilize a non-disclosure agreement (called an NDA for short). However, this may not be possible in every situation if the owner of an idea doesn’t have any leverage going into an opportunity to pitch their idea. Additionally, some companies may require the creator to sign an agreement that aims to remove liability for the company in the event they are already pursuing a similar idea, or reasonably plan to do so in the future.

In her response video, Jilian alludes to having contracts in place, so there could potentially be claims pursued if those contracts provided her sufficient protection over her contributions to the discussions.

Another option is to move beyond a general idea or concept and create a more robust treatment that includes specific details, descriptions, and more. Doing so may allow a creator to seek registration of the treatment with the U.S. Copyright Office and protect their pitch before sending it around for consideration.

Unfortunately, the nature of digital workflows used by many creators, which often involves collaborating early on via social media messaging apps or cloud-based software like Google Drive, doesn’t always lend well to ensuring proper or clear ownership over ideas as they become more concrete, protectable works.

🤔 When does commentary or opinion cross the line and become defamatory?

When dealing with defamation cases, courts will look at the statements that have been made to determine whether or not they are libelous. In this instance, it will be important to understand whether or not the actions of simply liking a comment are substantial enough to be considered statements.

Defamation laws, which would include libel and slander, vary from state to state, so it can be difficult to apply a broad rule to this one situation, especially not knowing the jurisdiction in which the activity happened.

Just last year, a court in New York (covered by Eric Goldman) refused to connect retweets by a family member of Gen. Michael Flynn as being an endorsement of the underlying content, an argument CNN attempted in the case. The court noted, “There are many reasons that someone might retweet a statement; a retweet is not necessarily an endorsement of the original tweet, much less an endorsement of the unexpressed belief system of the original tweeter, as CNN would have it.”

This same logic can potentially be applied to the actions of Jillian in “liking” responses to the TikTok video that fed into this idea that another creator was the subject of the video. It would likely be difficult to prove the person’s intention in liking a comment, but I’m not aware of courts addressing this issue. Drop in the comments if you know!

Apologies, which Jillian specifically addresses in her response video, would likely help her defense in the event she was sued for defamation.

Another factor that can potentially help Jillian is that she remained vague and non-specific in her video when discussing the situation. If there are factual elements behind what happened, as opposed to assumptions that turn out not to be true, those factual elements would further support Jillian’s defense against claims of defamation.

So TikTok gets removed from app stores… then what?

U.S. Senator Michael Bennet (D-CO) called on Apple CEO Tim Cook and Alphabet Inc. and Google CEO Sundar Pichai to remove TikTok from their app stores immediately given its unacceptable risk to U.S. national security. How would this play out?

The move would be the most direct method of cutting off the U.S. population from the mobile app, or at least users with a U.S.-based AppleID or Google account. But, it might take some time before completely shutting down the mobile app.

At first, removal of the app from store listings would likely just prevent new installations (or potentially re-downloads from historical purchases available through the App Store or Google Play, as we saw with Fortnite during the Apple and Epic Games dispute).

However, removal could put at risk in-app payments and revenue streams to creators, which would also likely become unavailable to remaining users that have the mobile app installed. I would assume, if they are forced to take action, Google and Apple would have the TikTok developer accounts suspended or shut down, too.

As time goes on, and as the mobile operating systems (iOS and Android) are updated by Apple and Google, the app runs the risk of becoming incompatible as future app updates cannot be delivered.

All of this doesn’t necessarily mean the end of accessing TikTok for U.S.-based users. Why?

It’s easier to still install mobile apps on Android-powered devices, but also arguably a much higher security, privacy, and safety risk given the potential for misuse. With Apple, it’s likely going to be a crackdown on future app developers that try to sneak in a way to still access TikTok.

Also, it’s unlikely we’d ever see the U.S. make a move that would shut off access to TikTok through a web browser. It would take more support and development work from TikTok if they decided to move in this direction and support a web experience; however, it’s not entirely impossible.

The question remains: will advertisers still do business with the company if these more robust bans start taking effect? If not, what will the backlash be for still being involved with the company?

“Like most social media platforms, TikTok collects vast and sophisticated data from its users, including faceprints and voiceprints. Unlike most social media platforms, TikTok poses a unique concern because Chinese law obligates ByteDance, its Beijing-based parent company, to ‘support, assist, and cooperate with state intelligence work,’” wrote Bennet.

Read the full press release. Also, check out this article that dives into what happened in India in 2020 when the app was banned.TL;DR – nothing happened. Users and advertisers moved to YT Shorts or Instagram/Facebook Reels.

Don't Miss

Hermès wins NFT trademark lawsuit. Huge development and win for brands in groundbreaking NFTs trial that landed a win for Hermès against MetaBirkins NFTs for trademark infringement. The jury didn’t agree with a First Amendment argument to protect Mason Rothschild’s use of the ‘Birkin’ mark. Hermès awarded damages of $110,000 for infringement and $32,000 for dilution. Bloomberg Lawand The Fashion Law have more.

February 17th Deadline for EU’s DSA User Report. Under the EU’s new Digital Services Act (DSA), social media companies have until February 17th to report the number of active end users on their websites. Based on the user numbers, the Commission will make an assessment as to whether a platform should be designated a very large online platform (“VLOP”) or search engine (“VLOSE”), more than 45 million users. Such classification would mean additional reporting and assessment requirements for the platform (also read: 💰). Read moreTikTokand Twitter are likely to be subject to the new rules, which will be very interesting to watch.

Q4 & Annual Reports. Ad spending across most tech appears to be on the decline following earnings reports last week. Google (search and YouTube) was down, with YouTube advertising revenue specifically down 8% compared to the year before. CNBC reported on Pinterest missing revenue along with a weak forecast. 

Why is North Korea being allowed to promote its propaganda on YouTube? In the past, such content has been removed, so it may only be a matter of time before this new, arguably more mild content is also taken down. Is the argument that viewers are able to reasonably perceive and identify propaganda an appropriate one? Or, is it more accurate to be worried given the path to radicalization from content consumed on social media is a slow and winding one? 🤔 Read more: “North Korea is trying a new propaganda strategy: YouTube influencers” By Jessie Yeung and Gawon Bae via CNN

Twitter’s been busy looking for revenueTwitter announced plans to start charging for access to its public API, which was previously available free of charge. However, Musk again tweeted “Responding to feedback, Twitter will enable a light, write-only API for bots providing good content that is free”. This move isn’t a surprise given the company is likely looking for any way to cut costs, or in this case, recoup costs of operating a publicly available API. However, as Tubefilter noted, this also has the potential to impact bots that have been active for years by everyone from creators to meteorologists.

EU high commissioner Josep Borrell issued a warning to Elon’s Twitter about the impact changing the APIs would have on ensuring proper access to information that could be pulled on the amount of disinformation available on the platform. Twitter is also talking to the UK ICO and Ireland DPC following user complaints that their requests to delete direct messages are not actually working.

Elon Musk also announced a new creator monetization feature that will allow someone “to publish directly on Twitter & get paid for it.” In a follow-up tweet, he also announced the company is “reviewing ad rev share for ads in a creator’s tweet replies – create an interesting thread and get paid for it!” The next day, on February 3rd, Musk tweeted an announcement of revenue share with creators for ad revenue earned on “ads that appear in their reply threads”. A Twitter Blue subscription is required, but additional details are non-existent. Musk also tweeted that the legacy blue checkmark for verification is going away in a few months.

Users have also spotted an “ID verified” badge that appears on profiles. According to Jane Manchun Wong, “There’ll be a flow for uploading your legal ID and your selfie for the purpose of confirming your identity.”

In a big win for Twitter’s ad sales team, The Information reports that Twitter landed two major ad deals in connection with the Super Bowl from PepsiCo and Anheuser-Busch InBev.

In a separate report, The Information (also covered by The Verge) says Twitter plans to roll out a $1,000 per month corporate subscription for businesses that utilize a gold checkmark. One of my favorite go-to experts for the latest happenings in social media and marketing news Matt Nevarra published a screenshot (and a follow-up second message) that appears to be an email from Twitter’s Product Manager, Monetization Evan Jones that supports the report by The Information.

The New York Times highlights how a promise Elon once made to have the removal of child sexual abuse material (CSAM) as the #1 priority for Twitter under his direction remains largely unmanaged. It’s also being reported the company owes $1.9 million to Innisfree M&A for services it provided in connection with the deal to take the company private, which is now being handled through litigation.

Twitter Blue is sitting at less than 300,000 subscribers globally and around 180,000 in the U.S., according to internal documents made public.

TikTok’s time crunch. Can TikTok be the same without licensing music from the majors? A new report from Music Business Worldwide alleges that TikTok is experimenting in Australia with removing access to song catalogs from major labels for a small set of users as an experiment. The results of any such experiment would be helpful as TikTok negotiates with the majors to renew licensing deals. TikTok also announced an expansion of its music distribution service, SoundOn, to Australia. Could there be a connection? 🤔

The Verge reports on a recent visit by Alex Health and other journalists to TikTok’s Los Angeles HQ to explore the company’s “Transparency and Accountability Center.” The Washington Post journalist Taylor Lorenz shared a video from the tour over on Instagram. Meanwhile, TikTok is also “supporting creators with an updated account enforcement system.” The new system includes strikes, similar to that of YouTube.

BOGARD v. TIKTOK INC. (3:23-cv-00012), District Court, S.D. Indiana, was filedon February 1st and is a product liability class action (brought by parents of children) claiming social media platforms (including TikTok, Google/YouTube, etc.) caused harm for failing to properly moderate and remove harmful content, including the recent choking challenge.

More on TikTok:

YouTube Music Strike. Contract workers, by way of Cognizant, at YouTube Music are officially on strike according to the Alphabet Workers Union (AWU). You may recall in last week’s newsletter I shared about the dispute stemming from Google’s return-to-office requirement. Now, things have significantly heated up for the operations in Austin, TX, as The Verge reports.

In other YouTube news, the company has officially rolled out Go Live Together on iOS and Android. I previously put together guidance and “best practices” for use of the feature by creators.

Also, Colin and Samir interviewed YouTube employees for their Creator Support channel. Now that we’re officially into the launch of revenue share for Shorts, they do a helpful deep dive into the world of Shorts monetization.

Meta highs and lows. The FTC said it won’t pursue an appeal of a CA district court’s decision to stop Meta from its acquisition of VR startup Within Unlimited. Reuters noted that the FTC declined to comment on its upcoming option to pursue action before an FTC administrative law judge on February 13th.

The company is also reportedly aiming to reduce the number of middle managers, asking employees to either take a demotion or leave. In Kenya, a labor court ruled that a worker could proceed forward with a lawsuit against Facebook for the harm to his mental health working as a content moderator responsible for regularly reviewing graphic content. This is despite Meta arguing it wasn’t based in the country.

Meta has also resolved a trademark dispute over the infinity logo with the non-profit Dfinity Foundation. I shared back in November about Meta’s partial win, but now it appears Dfinity will not be filing an amended complaint and pursuing the case further. The action is dismissed with prejudice, meaning it’s over.

Safer Internet Day. Tuesday was #SaferInternetDay and I took a moment to pause and reflect on the importance of mental health and our own awareness of how digital technologies impact our lives and the lives of those around us. I encourage you to read two articles:

1️⃣ First, retired YouTuber Elle Mills wrote an opinion guest essay for The New York Times exploring their rise to fame, the impact it had on their mental health, and how they are moving forward.

2️⃣ Second, Nile Cappello wrote this month’s piece for The Atavist Magazinethat explores the world of tween influencers, and the toll it takes on their lives. Specifically, this piece focuses on the issues surrounding the Ramirez family, #TheSquad, and the toll internet fame can take on families. You can also listen to the audio story on Apple News.

Don’t Miss…

Learn With Me

Games arrive at the Grammy Awards

This year’s Grammy Awards included a few milestone “firsts” for the event. Beyoncé was getting everyone bodied becoming the most-awarded artist of all time. Sam Smith and Kim Petras broke barriers with an award their best pop duo/group performance. But, did you know the inaugural GRAMMY Award For Best Score Soundtrack For Video Games/Interactive Media was awarded?

“Thank you for acknowledging and validating the power of video game music,” said Stephanie Economou, composer for Ubisoft’s Assassin’s Creed Valhalla: Dawn Of Ragnarok.

The morning of the network telecast for the GRAMMY Awards, CBS Sunday Morning Correspondent Conor Knighton explored video game soundtracks and related music compositions. It’s a great segment!

It’s incredible to (finally) see the recognition of video game scores by The Recording Academy. It gave me a chance to revisit an article that explores copyright and ownership issues in the space.

I appreciate the article’s highlighting of the indie developer scene, and it also gives some insights into how some composers are approaching the use of their works online.

Do you have a favorite video game score or OST?

ABA IPL Section’s NFT Task Force

I had the honor of serving on the ABA IP Section’s NFT Task Force that helped draft this letter to the U.S. Copyright Office and USPTO in response to their NOI regarding issues of intellectual property law and policy arising from the use of non-fungible tokens (NFTs).

Music Video of the Week

Super Bowl LVII is coming on Sunday, February 12th! In honor of the big event, this week’s music video selection is morphing into an entire playlist. The NFL has made several past Halftime Show performances available through their YouTube channel, so let’s take a trip down memory lane.

Check out the playlist on YouTube.

This year, don’t miss the Apple Music Super Bowl Halftime Show with Rihanna taking center stage. Can’t wait to see which songs she’s selected and who will be joining her on the stage!

Editor's Notes

Affiliate Links. As an Amazon Associate, I earn from qualifying purchases. I have noted above where links to products on Amazon may earn me a commission if you make a purchase. Thanks for supporting my work!

Not Legal Advice. This newsletter is published solely for educational and entertainment value. Nothing in this newsletter should be considered legal advice. If you need legal assistance or have specific questions, you should consult a licensed attorney in your jurisdiction. I am not your attorney. Do not share any information in the comments you should keep confidential.

Personal Opinions. The opinions and thoughts shared in this newsletter are my own, and not those of my employer or any of the third parties mentioned or linked to in this newsletter. No affiliation or endorsement is implied or otherwise intended with third parties that are referenced or linked.

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