France regulates influencers, the DOJ has entered the arena, UMPG sends YouTube copyright strike over AI, Twitter goes Doge, 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 is a double dose of music videos! Did you know that George Michael’s Careless Whisper just hit 1 BILLION views on YouTube? That’s crazy, right? Can you guess the first video to hit 1 billion? Tell me your guess in the comments before checking the answer!
The real Creator Economy 2.0. The gap is quickly widening between platform opportunities available to established creators and those trying to start out. The ability for a level playing field across all content creators is potentially vanishing thanks to two reasons: (1) regulations on the horizon that aim to scale back an open internet, and (2) platforms exploring new revenue opportunities at the expense of creators, such as rolling out paid verification and paywalled creator tools, or even algorithmic content suppression and boosting based on a creator subscription. Creators and marketers feel mixed about all the various offerings that I’ve watched become a growing trend over the last few months.
Are we moving into the next generation of the creator economy that is less advantageous for the creator starting out in their closet or bedroom? What do you think?
Here’s what’s been happening in the world of Creator Economy Law.
France now regulates influencers
France is aiming to crack down on the reported 150,000 influencers creating content for French audiences on social media channels. This matters on a global scale.
“The objective of this bill is to create and strengthen a legal system that can both empower and sanction, where appropriate, all influencers, their agencies, advertisers and distribution platforms, in order to strengthen the protection of social network users and consumers,” according to the statement of reasons section of the bill (translated by Google Translate).
The bill has been introduced for debate in the National Assembly.
Here are key highlights:
🚨 Influencers must include a banner on photos and videos explicitly indicating sponsored content, with the descriptions, hashtags, or comments not being sufficient
🚨 Content that uses filters or photo-editing effects must be labeled
🚨 Cosmetic surgery services, pharmaceutical products, and medical devices are prohibited from influencer campaigns, as well as investment and financial services.
🚨 Social media platforms must set up a process to report fraud and release an annual report of activity
🚨 Social media platforms also must cooperate with French authorities to block misleading advertising content
🚨 Mandatory contracts between an influencer and their agency
🚨 Influencers based outside France are supposed to appoint a legal representative within France.
What happens if influencers violate the law?
🚔 Fines up to 375,000 euros
🚔 Prison sentence of up to 5 years, and
🚔 Potential suspensions, temporary or permanent, from social media platforms.
How does France define an influencer under this law? “any natural or legal person who, for consideration or in exchange for a benefit in kind, produces and distributes by means of electronic communication content which is aimed, on occasion of the expression of their personality, to promote goods, services, or any cause” (Translated using Google Translate)
- Bill No. 790 – Visant à lutter contre les arnaques et les dérives des influenceurs sur les réseaux sociaux
- “France to limit what internet influencers can say and sell for brands” by Sarah Elzas via RFI
DOJ sues Activision Blizzard over salary suppression of esports leagues players
On Monday, the Justice Department filed a civil antitrust lawsuit against Activision Blizzard, Inc. for imposing rules that limited competition for players in Overwatch and Call of Duty professional esports leagues and suppressed the wages of esports players in these leagues in violation of the Sherman Act.
The complaint alleges that two of the leagues implemented a so-called Competitive Balance Tax, which penalized a team if a player’s compensation exceeded a threshold set by Activision.
The DOJ also filed a proposed consent decree which would prevent the behavior by Activision Blizzard in the future, but also require that they certify the practice has been discontinued, the teams notified of what happened, and that policies and compliance measures are implemented.
- “Justice Department Files Lawsuit and Proposed Consent Decree to Prohibit Activision Blizzard from Suppressing Esports Player Compensation” via DOJ Press Release
- “U.S. Justice Department settles with Activision over esports salary limits” via Reuters
Did UMPG have the proper legal basis for sending this YouTube takedown?
Here’s what’s interesting about this DMCA copyright strike that Universal Music Publishing Group sent via YouTube for an AI generated Eminem cat rap video posted by Dr Grandayy that was also featured on an episode of John Oliver’s Last Week Tonight, which as of right now remains up.
The DMCA requires good faith action by the party sending a takedown. Part of that involves considering a fair use defense. UMG/UMPG should know this well since they were a party to the 9th circuit decision that held this… Lenz v. UMG, widely known as the Prince dancing baby case. The Prince song “Let’s Go Crazy” was playing in the background of a 29-second video Stephanie Lenz uploaded to YouTube of her kid dancing.
Another issue is whether or not the use of copyrighted materials and/or data to train an AI model/tool is considered a transformative fair use, or if it’s copyright infringement. In this case, were the lyrics of Eminem’s songs used? If not, how did the AI tool know the style of Eminem? Also, is the output of the AI system infringing on any of the publishing work under admin by UMPG?
Better yet… Is the YouTube copyright management system considered part of the DMCA process? Or, is it outside of the statutory requirement under 17 USC 512(c)(3)?
I’d be very curious to know what content is being claimed as having been infringed by the output in this situation!
Of course, there are name, image, and likeness, trademark, and other state law claims/issues. But, those fall outside the scope of the DMCA and copyright.
Read more coverage of this story by Samantha Cole over at Motherboard.
Celebrities, brands, organizations, and government agencies are being very vocal about the new requirement that everyone on Twitter is now required to pay for Twitter Blue to maintain a verified blue check or pay even more for an organization account. Then, reports came out that verification would be free for the 10,000 most followed accounts. Either way, the White House isn’t going to pay. Celebrities aren’t going to pay. But maybe the blue check will stick around even after you end your subscription. Social Media Today breaks down whether it’s worth it or not for brands and others to pay up.
Speaking of breakdowns, Fidelity downgrades Twitter shares again.
Twitter appears to be limiting the visibility of tweets shared via DM. Insider reports (Apple News+) on the limits for LGBTQ+ phrases, as Axios reported. It is also labeling NPR as state-affiliated media, so there’s that.
Twitter’s algorithm was released as open source code on GitHub. I find it hysterical that the repo doesn’t include the standard “License” file, but rather has a file simply named “COPYING” 🤪. The code was explored using ChatGPT by Rowan Cheung in this Tweet thread. Stephen Tey has a breakdown (H/T Brendan Gahan). Also, here are 10 things marketers need to know.
Germany’s Federal Justice Office says Twitter failed to remove hate speech within the timeframes it was legally required to do so after such content is reported and the platform confirms the illegal nature of it. Fines could be upwards of €50 million under the criminal laws, but they have yet to be enforced.
The Information Commissioner’s Office (ICO) has issued a £12,700,000 fine to TikTok Information Technologies UK Limited and TikTok Inc for a number of breaches of data protection law, including failing to use children’s personal data lawfully. The ICO estimates that TikTok allowed up to 1.4 million UK children under 13 to use its platform in 2020, despite its own rules not allowing children that age to create an account. They allege that TikTok “did not do enough” to check who was using their platform and take sufficient action to remove the underage children that were.
ByteDance, the parent company of TikTok, hit over $80 billion in revenue last year, which is more than a 30% increase. ByteDance is privately held, so the information leaked from a memo as reported by Bloomberg.
More than 2 in 1 Americans support a shutdown of TikTok, according to a new Pew Research Center report. However, creators around the globe are heavily dependent on U.S. viewers, as explored in this piece by Andrew Deck.
POLITICO released a detailed report on the volume of lobbying and related work by TikTok and ByteDance as they’ve been building up the case for allowing the platform to stay operational, starting as early as 2019. Public disclosures add up to over $16 million spent on federal lobbying efforts in the U.S. alone. They note this is still less than Meta spent ($26 million in 2022).
Lemon8, the Pinterest-meets-Instagram app from TikTok/ByteDance, is having a run on usernames thanks to viral TikTok videos. Ad Age reports brand handles are being scooped up by users not affiliated with the brands. Here’s to hoping they have a solid trademark policy & complaint process🥂
For attorneys and legal or brand professionals, here’s the information for submitting a trademark notice to Lemon8: “If you wish to file a complaint about information or materials uploaded by other users, contact us at: email@example.com.” Read the full ToS.
Don’t call YouTube a social media platform, at least that’s what its new CEO Neal Mohan said at the Axios What’s Next Summit. Instead, he pitches the video-sharing platform as a place to connect with creators. Global Head of Music, Lyor Cohen published a blog post highlighting the massive success YouTube Shorts is bringing to musicians and artists and their subscriber counts.
The rise of investigative content creators arguably kickstarted through podcasts, quickly transitioned into long-form videos on YouTube, and most recently exploded in popularity in short-form videos like TikTok. A great piece written by Jordyn Haime and published by Insider explores the opportunities available for independent journalists and documentary filmmakers, as well as the stigma and pitfalls that come along with publishing to a platform like YouTube. (Read on Apple News+) Also, check out Casey Newton’s piece on why journalists can’t quit Twitter.
In March, YouTube hosted over 150 creators at the LA YouTube offices for its first-ever YouTube Creator Day. Creators and YouTube staff were able to meet and discuss a range of experiences about the platforms, including Shorts. Play Button Awards and other recognitions were also part of the activities.
Well, that escalated quickly… 😕 YouTuber Tanner Cook of the Classified Goons channel is recovering after being shot in the stomach while filming a prank video in a mall food court in Virginia on Sunday. The shooter was arrested and was scheduled to appear in court Wednesday.
TubeFilter reported on a new platform, Mercury Sponsorships, from partnerships company StreamElements. “Mercury is a fully managed performance marketing platform focussing on the middle class of creators,” said StreamElements CRO Paul Bowen.
Meta struck a deal with Italian TV broadcaster RTI to prevent piracy on Facebook.
Do creators really want Meta’s Creator Marketplace? There’s a Facebook version and an Instagram version. After dropping other cash payout programs for creators, Facebook and Instagram are not making creators happy according to an Insider interview with 17 creators that have used the marketplace. (Read on Apple News+)
Meta has reportedly gutted its support teams, leaving creators (and group admins) with little to no support from reps.
Meta is going all-in on AI. Generative AI advertising is on Meta’s roadmap, including the use of the technologies to generate custom-tailored ads and power virtual reality creations. While I find the tailored ads are a bit creepy and not what I personally want, I believe generative AI will be a key to a successful metaverse experience, whether that is AR, VR, or XR in deployment.
Meta also released an AI model, called Segment Anything, that identifies items in photographs.
“Segmentation — identifying which image pixels belong to an object — is a core task in computer vision and is used in a broad array of applications, from analyzing scientific imagery to editing photos.” […] “We are releasing both our general Segment Anything Model (SAM) and our Segment Anything 1-Billion mask dataset (SA-1B), the largest ever segmentation dataset, to enable a broad set of applications and foster further research into foundation models for computer vision. We are making the SA-1B dataset available for research purposes and the Segment Anything Model is available under a permissive open license (Apache 2.0).”
AI/ML and Emerging Tech
Want to learn about AI like a federal judge? Look no further! In February 2023, the Federal Judicial Center published “An Introduction to Artificial Intelligence for Federal Judges“. It’s a guide that addresses questions related to #AI in the judicial process by providing some technical background and highlighting potential legal issues. The FJC is the research and education agency of the judicial branch of the United States Government.
OpenAI’s defamation problem. An Australian government official is launching what appears to be the first defamation claims brought for the output of a generative AI tool. Meanwhile, ChatGPT is making up false information about sexual harassment claims and naming a real law professor as an accused. But, it doesn’t stop there. The news coverage of the event led the misinformation to then be fed into and spit back out of Microsoft’s Bing AI generative tool. Good Lord, help us all.
Generative AI and NPR. Earlier this month, NPR’s Scott Detrow interviewed the U.S. Copyright Office’s Register of Copyrights Shira Perlmutter and generative artist Claire Silver (who remains anonymous).
But, I do find it interesting the interview with Silver argues for recognizing the distinctions between generative artists working with off-the-shelf text-to-image AI tools versus those that are custom-made and curated, like Silver’s. I don’t disagree.
I disagree with the mental gymnastics Silver does to downplay the importance of copying and using pre-existing works (it’s not simply “data” as they refer to it).
If we’re going to be talking about AI systems that rely on pre-existing works, we need to be having that discussion right alongside sustainable, ethical, and transparent licensing and consent methods used to build the training materials and datasets. Adobe Firefly is a good, early example of this practice.
Also, machines and AI don’t “learn”, so I was also turned off by that approach to apply human-like learning to this process.
All of that being said, I do recognize the layers of creativity, technological skill, and artistic work that go into these more advanced systems, so I am excited to see those use cases play out during the upcoming USCO AI Study.
Thaler vs. the U.S. Copyright Office. Another week, another development on the AI litigation front 😃 On Wednesday, the U.S. Copyright Office filed its reply in support of its motion for summary judgment in the ongoing litigation started by Dr. Stephen Thaler. If you recall, Dr. Thaler attempted to register the output of Creativity Machine, an AI program that generated the work “A Recent Entrance to Paradise.” You can read more about the background of this case in my article.
In this new filing, the USCO continues to argue the position that it correctly denied registration of the generative work. The USCO says that Copyright Law does not recognize non-human authors in the U.S.
Also, it argues that Dr. Thaler’s arguments in favor of recognizing non-human authorship, or some other creative reason for registering the work anyways, are inapplicable to copyright.
Lastly, the USCO continues to point out that Dr. Thaler’s policy arguments are irrelevant and wrong. It writes, “[the USCO’s decision] was a well-reasoned decision based on the text of the Constitution and the Act, as well as Supreme Court and appellate decisions that uniformly support a human authorship requirement.”
The IP Awakening for AI. As I’ve explained numerous times in previous newsletters and my own articles, AI has an intellectual property law problem and it seems like the week for think pieces centered on the entertainment and media industries. Timothy Lee published a new piece exploring copyright issues with generative AI. The WSJ published “Who Owns SpongeBob? AI Shakes Hollywood’s Creative Foundation” by Jessica Toonkel and Sarah Krouse
AI, deepfakes, and politics. A Campaign Aide Didn’t Write That Email. A.I. Did. As Shane Goldmacher reports for The New York Times, “the swift advance of artificial intelligence in politics is already blurring the boundaries between fact and fake.”
Tom Graham, the CEO of Metaphysic, the startup behind the Tom Cruise deepfakes, is attempting to register a copyright that covers his AI likeness, according to The Hollywood Reporter. The article mentions Graham is trying to register a video, so I’m not really following since that registration (if granted) wouldn’t cover anything beyond that one video. It certainly wouldn’t address anything to do with NIL rights.
AI-generated videos available instantly and on-demand? It’s coming, but are we really ready for it? Runway AI thinks so and plans to open limited testing soon. https://www.nytimes.com/2023/04/04/technology/runway-ai-videos.html
Snap is updating its AI policy by adding new safety enhancements in response to the backslash (and that Washington Post story) that came after the roll-out of its AI assistant as part of its Snapchat+ premium subscription offering. At the same time, the company is also offering generative AI profile backgrounds as a benefit for subscribers to its Snapchat+ subscription.
Move over Jellysmack, a new player in the AI-powered, cross-platform video distribution has entered the game! Tubefilter’s Sam Gutelle reports on BENlabs and TubeBuddy are launching a Suggested Shorts tool that will create short-form content from long-form videos.
- What do teens care about? Piper Sandler released its 45th Semi-Annual Generation Z Survey (of 5,690 U.S. teens?) which is making some headlines. They don’t care about VR, with only 4% using one daily, which might be bad news for Apple’s coming XR headset device (which I’m excited about, TBH… see my asterisk on my bias here though in the QC profile I talk about below).
- On March 29, the Copyright Alliance launched its Community Partnership Initiative, which is designed to bring together like-minded, creator-based organizations as partners to advance the interests of creators and their works, while also promoting the importance of copyright protection and enforcement. The first Community Partner to join this program is BIPOC Podcast Creators. BIPOC Podcast Creators is a networking and consulting organization that works to create a vibrant and supportive community for BIPOC podcasters. You can read the press release.
- Pinterest announced the expansion of its Creator Inclusion Fund to five new countries: Canada, Germany, Austria, Switzerland, and France. The focus of the first North American Creator Inclusion Fund cycle of 2023 is on sustainability. The Fund is Pinterest’s incubator program to elevate Creators from historically marginalized communities through financial and educational support.
- KSI, the UK-based YouTuber and boxer that’s one-half of the duo behind the Prime drink, has taken a break from social media following the use of a racial slur when forming a word on a U.K. game show.
- The Atlantic’s Kaitlyn Tiffany wrote a piece exploring the business, labor, and personal financial impact of being an influencer.
- Poshmark, the fashion resale marketplace, is launching a live streaming product called Posh Shows where sellers can use auctions to sell to consumers.
- Kick is a relatively new live streaming platform that is rivaling Twitch by poaching some of its biggest stars. Tubefiler’s Sam Gutelle has a great rundown on how creators are earning significant revenues from the platform.
- Twitch announced it is testing new sponsorship and brand opportunities, including streamer-read ads, brand-sponsored subscription codes and gifts, and brand-sponsored subscription discounts. Will be curious to see how these types of brand deals will be properly disclosed, if at all, to comply with ad disclosure guidelines and requirements from the FTC and other regulatory bodies around the world. Tubefilter’s James Hale reported on the backlash these moves are getting from creators who see it as a way for Twitch to take a higher cut of their revenues.
- Music Business Worldwide published an article that explores recent comments made by Warner Music’s Robert Kyncl that calls for a ‘multiplier’ on royalties to be paid for music that is streamed intentionally by a user, as opposed to an algorithm suggesting the song. It makes me think of how interactive vs. non-interactive streams are paid different royalties.
- Spotify Live, the Clubhouse competitor, is being shut down by Spotify.
- Move over Patreon, there’s a new audience subscription tool on the rise. As TechCrunch reports, Gen Z is the focus for Fanfix.
- Lawsuits against Meta, TikTok, Snap, and YouTube at the state level continue stacking up. This time, Alabama school districts join the fray and the state of Arkansas.
- Famous Birthdays, a long-standing, go-to resource for learning about creators and finding the information you wouldn’t get anywhere else, has launched a newly re-designed website. Plus, they’re offering a new talent portal that’s a pro subscription offering. Tubefilter has the full details.
- AdWeek’s Brittaney Kiefer interviewed Squarespace Chief Creative Officer David Lee about how the website hosting platform is working with creators and building an in-house agency.
- World IP Day. April 26, 2023, is World IP Day, an annual event that takes place every year on April 26. The global campaign offers a unique annual opportunity to join with others around the globe to celebrate inventors and creators around the world and to explore how IP contributes to a thriving music and arts scene and drives the technological innovation that helps shape our world. This year’s theme is Women and IP: Accelerating Innovation & Creativity. There will be an event in the U.S. on Capitol Hill, sponsored by Senator Mazie Hirono (D-HI) Member, Senate Judiciary’s Subcommittee on Intellectual Property. Register and see the schedule on Eventbrite.
- “Noncompete Clauses Get Tighter, and TV Newsrooms Feel the Grip” by Lydia DePillis via The New York Times
- “The influencers getting rich by teaching you how to get rich” by Rebecca Jennings via Vox
- Creator-guided shopping platform LTK launches LTK Boost, social media advertising for brands. LTK Boost™ enables brands to engage social media users through paid reach directly from lifestyle content creator accounts. New media buy solution drives efficiency by reducing costs on content production while increasing engagement, click out rates and conversion through native creator content.
- AdWeek published an article highlighting “Key Trademark Infringement Principles Marketers Need to Know”. I don’t have a subscription to read it, but, if you do, let me know if it’s helpful!
- The ongoing saga of the open source youtube-dl software continues with a German court forcing the hosting company Uberspace to take it offline.
- The Intellectual Property Office UK (IPO) just published new guidance for registering trademarks to cover non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse. The guidance covers the registration of: (1) NFTs; (2) Virtual goods; and (3) Virtual services. The guidance applies immediately since it’s only clarifying existing guidance.
- As I reported in last week’s newsletter, the social media regulations requiring I.D. verification are going to be a problem not just for teens, but literally everyone else, too.
- While Trump has been allowed back on social media sites like Twitter, Facebook, and YouTube, I completely missed the news that he is contractually obligated to prioritize his efforts to Truth Social. According to SEC filings, he reportedly has to wait six hours after posting to Truth Social before the same content can be sent out on other platforms. There’s an exception that allows immediate posting for “political messaging, political fundraising or get-out-the vote efforts.”
- The Office of the Intellectual Property Enforcement Coordinator (IPEC) has issued its Annual Intellectual Property Report to Congress, which brings together the combined and coordinated efforts of the White House, the Departments of Agriculture, Commerce, Defense, Health and Human Services, Homeland Security, State, and Treasury, the Office of the U.S. Trade Representative, and the U.S. Copyright Office. The report provides an overview of the intellectual property enforcement strategy and related efforts undertaken by departments and agencies during fiscal year 2022.
- Endeavor is buying WWE, adding to its roster that already includes the UFC.
- “NIL rights are changing the creator economy, and Curastory is ushering in a new era of monetization tools for athletes” by Lateefah Jean-Baptitse via Passionfruit
- 32 ways Creators can m̶a̶k̶e̶ 𝒍𝒐𝒔𝒆 money in 3 words or less. Check it out.
Last year, I listened to the audiobook The Age of A.I.: An Our Human Future by Henry Kissinger, Eric Schmidt, and Daniel Huttenlocher. It’s a great overview of the technology, as well as some historical use cases and studies that landed us where we are today.
I recently recommended the book to someone, so I thought I’d pass along the same recommendation! [Amazon Affiliates link]
Tim Cook’s GQ Profile
“We feel privacy is a basic human right and so we try to design our products to where we collect the minimum kind of data, and as important, that we put the user in the control chair, where it’s the user’s data and they’re deciding what they want to do with it.” – Tim Cook
I’m an Apple fanboy. I have been since I was in elementary school. My retirement plan includes (if I’m lucky enough) returning to a part-time role at an Apple Store. I always enjoy reading new pieces that shed some additional light on the company, its leaders, operations, and products. This week, GQ published a profile on Apple CEO Tim Cook, written by Zach Baron, as part of its First Annual Global Creativity Awards. You can also listen to an audio version of the article. Lastly, there’s a cool 8-min video that accompanies the article where Tim Cook shares five things that inspire him.
“If you think about the technology itself with augmented reality, just to take one side of the AR/VR piece, the idea that you could overlay the physical world with things from the digital world could greatly enhance people’s communication, people’s connection, it could empower people to achieve things they couldn’t achieve before. […] If it could accelerate creativity, if it could just help you do things that you do all day long and you didn’t really think about doing them in a different way.”
Meghan Trainor is easily on track to become a guaranteed viral hitmaker. She’s back at it again, this time with her latest single Mother. The track is from her recent album, Takin’ It Back, released last fall. The latest success follows previous viral hits Title and Made You Look.
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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