- [Peter] Hello and welcome, I'm Peter Afrasiabi, I'm a partner at the law firm of One LLP in Newport Beach, California, where we specialize in intellectual property law and today's program is the Metaverse. We are going to be looking at what is this new wondrous thing that we all have heard about in the press known as the metaverse, and where does it intersect with the law and the legal regime? And so as you can see, we are going to necessarily touch on copyright, trademark, and wright a publicity law. And these are the three major areas of the law that we see intersecting with this developing metaverse or virtual universe that is being created by various players in the industry, all of which we'll talk about. We also will see, as we look at these copyright, trademark, and right of publicity principles, we see massive implications in the space of sex law, in terms of right of publicity in particular and in terms of what this means for the burgeoning sex law space to put it broadly, we'll even look at some patent issues that are touching on sex law and the metaverse that are already out there, and all of this also sort of touches on some general criminal over law issues. Now, what we are going to look at are really the general legal principles that get impacted here as the law has to advance and develop and address this developing digital metaverse. We will, however, not only be in the metaverse because we actually have some existing case law already that's testing the intellectual property meets and bounds of issues in what are really early precursors of the metaverse and for those of you who are into gaming or video gaming, you may well know of some of these spaces, one of them is Grand Theft Auto, it's a video game put out by some video game companies and it builds an entire universe around and similar to much of our similar physical space in video game world, which you interface with by being on your television and holding the controller, there's a similar place called Second Life, which was a sort of a digital world creation that we'll look at some case law coming from Second Life, World of Warcraft, I'm sure you've all heard of, we're gonna take a quick look at a World of Warcraft snippet to address some of the very interesting issues that are starting to pop up and that will certainly affect the metaverse in terms of issues such as tort claims, intentional infliction of emotional distress, and even sort of damage to property rights and what it means when we create these digital avatars and then we experience events via avatars that obviously affect us out here in the non-metaverse real world. And we'll look at some video college basketball games as we touch on some of the wright up publicity issues here. And so all of this is the type of stuff that is front and center, but first, we need some definitions, we gotta discuss and look at what is the metaverse. Well, there's this famous sci-fi novel written by a man by the name of Neal Stevenson, sorry, in 1992, and that's where the term metaverse was first coined. And this is a sort of dystopian novel named "Snow Crash," and it envisioned this virtual reality based successor to the internet, and of course this 1992 novel was before even we had seen the internet in even its earliest incantations we understood it today, it was before even the Netscape browsers had Mosaic Netscape, those early browsers had come out. And so back in 92, the internet was more sort of dial up digital bulletin boards and the sort of the visual interface was still on the horizon, but he was already looking way ahead and so in his novel, he, you know, created this world in the future 21st century where we are now, it turns out where people had digital avatars of themselves to explore this online world, and it was often sort of as a means in the novel at least, of escaping that dystopian real world they lived in and so that's where this term metaverse was coined. And so we now find of course, ourselves in the 21st century and we find ourselves confronting Facebook, which has decided to rebrand itself as Meta as it envisions this brave new future of the metaverse. and it's a massive space that will involve augmented reality and virtual reality will define both of those terms shortly but it's a space where people will interact and engage in meetings, games, travel experiences, concerts, all manner of points of interaction just like in the real world but by visual insertion into this medium, this metaverse via technology and the technology will be things such as goggles that you wear so that you now can interact in a digital space, glasses and even contact lenses at some point and or other devices that simulate tactile experiences so that you may be wearing goggles and have another device strapped to you to simulate the tactile experiences of the real world while in the virtual world and we'll look at a fun, interesting sex law patent in that space in a little while. And so one way we can understand this is, this is really Internet 3.0. These are going to be shared virtual spaces that are linked in this new universe that we perceive, and it's the next step up, whereas currently, the internet mediates our experience with the internet via our desk and the screen, you're all maybe sitting at your desk right now, you're looking at a screen, you're hearing me, and this is being broadcast to you through the internet, in the future, you may well put on some goggles and go into the metaverse and go into your continuing education provider like where you are today with Quimbee and there you will see me or an avatar of me and I'll be perhaps holding a CLE in the digital metaverse and we'll all be conversing there. So for now we stay in 2.0, but that's where 3.0 is taking us. And so, so this is a link here to a video that you can go watch on YouTube that's a good commercial really from Microsoft that depicts and describes what we're talking about when we're talking really about the metaverse and about people using both goggles and avatars. And so for those of you who can't watch the video, I can describe it and basically the big picture of what we're talking about here from a technology perspective is that we can put on these goggles or it may be a face plate that goes over your eyes and basically it projects, your eyes are looking at infinity in essence, but it projects a digital world. And so you may be, for example, standing around your work table and you put on your goggles and you can now see a three-dimensional rendering of perhaps an architectural design, a building, it could be a diagram of a car and you can then augment the size of them by using your fingers the way we do on our phones to make things bigger or smaller, you can turn them around and look at them from different angles, and what's critically important about this, because obviously that's an, and there's enumerable examples you can all think of in terms of how this can be valuable, but then there's also the ability to collaborate, so you could have someone else in the physical room with you also wearing the goggles, you each are now looking at this object and you can touch it and work with it collaboratively together or, you could have someone somewhere halfway around the world who beams in to your space and is also looking at that same three-dimensional object and can interact with it and so you would then see the avatar of this person, which would either be a near perfect digital replica of the person, sort of like you look at yourself in the mirror, then imagine if you're a little digitized, or it could be just a cartoonish avatar creation character that you may choose to make or it could be, and this is why we'll be talking about right of publicity down the road, I Peter, may not want a digital version of me, but I will throw in Brad Pitt and Brad Pitt wouldn't like that, right? So, this is where, we'll be talking about wright of publicity soon, but that's sort of a big picture of how these holograms can work coupled within virtual meetings where, you know, you could have five people in five different locations, each of them put on their goggles and go into, it could be a beautiful boardroom, the 50th floor of a building in New York, it could be on a beach, it could be wherever, you know the software and you choose to put yourself and then you literally will be in that room and you will see the four avatars of the other people and you can all interact and meet and talk and hear each other, see each other, and because there'll be avatars that may be projecting them, you'll be able to sort of really read even body language in time and engage in virtual meetings, travel is another obvious one where people can put these on and if you know one is unable to climb Machu Picchu, you now can sort of immersively, in essence, climb Machu Picchu and see it. So that's basically what we're talking about when we're looking at this on this slide. Now, augmented reality is a subset version of this, and you can, you know, as described obviously, we think a bit about these glasses that we may be wearing that, you know, and they're literally just your eyeglasses to anyone else, it just looks like you're wearing some readers for example, but what you're seeing is really very, very different and they're already augmented reality applications that you can use on your phone but the future really is to have this beamed into your eyes, either through these lenses or literally contact lenses. And so one example, and there's a great app out there on your phone, but it's also on glasses when they're available is sort of furniture apps for IKEA where you can imagine, you can look at your living room, you can put on the glasses and you can then get rid of your existing couch and then toss in, you know, this IKEA couch that you're thinking about or this chair or whatever, and you can literally see what your room would look like because you can digitally remove and add objects to it. Maps is another one, you could be just walking down the street and instead of having to look at your phone with an arrow saying turn left in 50 feet, you'll see just right ahead of you, an arrow saying turn left in 50 feet. Or you could imagine examples for example, where you go to London, you wanna do a walking tour of the city, and there are these great walking tours, you can do the Jack the Ripper tour or you know, the great spots during the Cold War and now you don't even need a guide because your glasses would tell you, you know, go up to this street, turn left and then, you know, look up at the building on the left, you'd look up at it and not only would you now have content being perhaps read to you, you could listen to a program, you would also visually see things like, for example, maybe the building doesn't look the same today that it did then, and it will give you a digital overlay of how it looked back then and you will see that or it can put some content up there, like maybe a flag or a box of content that you can read about it, and then it'll tell you, now turn and go this direction and you'll see the directions again, where to go, or you can imagine, you know, games with clues where you can digitally see, you know, things on a sidewalk, for example, that you wouldn't otherwise normally see, and of course, for those of you who love to ski, I can't wait for this one and that's when my ski goggles will tell me, you know, where the blue is, where the green is, where the black is, and you don't have any risk of like sort of accidentally going on the black diamond that you don't wanna go down and get hurt and you don't have to stop constantly and look at the signs to see which direction you go, instead, you will visually see lines just, you know, digitally placed over this snow you're looking at and you can just fly at full speed and know that you're on the blue or now you're on the green, or now you're the black diamond and whatnot, those are examples of augmented reality. Virtual reality, as we've now talked about on this next slide, you know, if you watch this video, it's really fascinating and it's a good example of sort of the more enmeshed version of what we saw earlier and so for me to describe it to you, you really will be using and relying on your sight and your sound and you will have this full immersive virtual reality, whereas, you know, as I mentioned before, one example is you can be sitting at, you know, in a beautiful boardroom on the 50th floor of a building in New York, a skyscraper, you will see the views out there of this sort of beautiful New York, you know, sunny day and you will see people in front of you, your colleagues who may be in, you know, four different locations around the world and you'll all be in this virtual reality that you've created where you can talk together, you can share documents and collaborate someone, you know, instead of a screen share that we do on the computers now, it would be, you know, a hologram share in essence of a document, a model, a building. I mean, one great example that you can see in some of these videos are for example, flight controllers. They won't be now looking at static airplane data on a screen, it will literally be a visual three-dimensional model of the earth, the curvature of the earth, the flight path of the airplanes, and they can kind of see all the different flight paths and if there's a problem, if there's not a problem, what's going on where they are in absolute real time in this virtual world that allows them to also then interact with it. And part of what's critical about this then is that it gives us the ability to modify, alter, change, you know, content that we may see there, which is what brings us back to then copyright and the metaverse as you see on our next slide here. So that's our overview, now let's get into the law and we are going to do a brief overview of copyright, trademark, and wright a publicity law for you, these are the general branches of intellectual property law and we are gonna look at the basic precepts and then we're gonna start applying them in the metaverse to get a sense of where we're going and what's going to happen. So let's start with copyright, what is copyright? Copyright exists for original expressions that are fixed in a tangible medium. And so here you can think of things such as art, computer programs, drawings, poetry writings, movies that Steven Spielberg makes for example. It's really anything that's original to the author and is subjected to fixation. And what fixation and a tangible medium means is that it has to be put down pen to paper, computer program is written, you know, art, paint is put on the canvas, so in other words, if you come up with the greatest new poem of all time that you wanna get a copyright on and you put it up in the air with, you know those companies that send up airplanes and they wright words in the air through smoke and whatnot and you publish your poem to the world up there, that smoke is not fixed in a tangible medium, it'll blow away and so you don't yet have a copyright. Now what is the standard? It's a very low standard, this is not a breathtaking novelty standard, there's really a low standard for artistic ingenuity and here's a quote from the famous Bleistein v. Donaldson Lithographing case from the U.S. Supreme Court written by Justice Holmes in 1903 and it still holds true today, "it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits. At one extreme, some works of genius would be sure to miss appreciation, at the other end, copyright would be denied to pictures which appeal to a public less educated than the judge." And that's a basic precept of copyright law, the courts are not going to get involved in mediating and addressing whether an artist is of, you know, has created something of sufficient value or worth to be deemed art, there's such a low standard that courts don't wanna get involved. And so that means that if you're watching my program right now and you're drawing a really cool doodle on your paper, you have got a copyright already right now in something, so look what you get outta the program as well as CLE, you get copyrights. Now, when we start talking about the metaverse, it becomes important for us to conceptualize how copyright works and what's happening because an author owns the copyright at the moment of creation, so that means you doodling right now, you are the author of that doodle, you own the copyright and that's true as a matter of copyright law unless there's some mechanism by which, you the author, have given away your rights. For example, you've entered an agreement whereby you agree that the work you are doing belongs to someone else from a copyright perspective or under default law employees for example, the works they create in the course and scope of their employment belong to the employer. So how does this collide with the metaverse? Well, the world you are in has obviously been created by a software company, so they own the copyright to that metaverse digital universe that you step into. Now when you step in there, you may obviously, just like in the real world, you have the ability to perhaps create digital art in the metaverse and so the question is, well, let's say you do that or let's say you take in with you some digital token for example, and you publish it, the question is, who owns what you just created in that digital space? And normally you would always own it the same way if you paint something down, you'd go hang a shingle to sell your art, you own it, you own the clock, right in your creation. The problem here is that this entire universe that we are all stepping into will be subjected to terms of use that define who owns what. And so this is a massively significant fact really for our understanding of how we'll be mediating law in the metaverse because whereas right now, the entirety of the legal regime that attaches, simply attaches by virtue of whatever laws exist, now we have an an additional layer, we have copyright law, trademark law, right of publicity law, criminal law, tort law, and we have overlaying all of that, terms of use. And so terms of use will become one of the massive areas of litigation in this burgeoning field. So here, let's take an example and look already at some current social media terms of use. And this is, for those of you not familiar with intellectual property law who have, or perhaps you don't pay attention much to IP law and you just sign up with Instagram and these other places, you may be surprised to see sort of how copyright works with terms of use. And so this is just a very standard TOU policy, this is Instagram, and it says, "by displaying or publishing any content on or through the Instagram services, you hereby grant to Instagram a non-exclusive, fully paid up, royalty-free, worldwide limited license to use, modify, delete, add, perform, display, translate your content. So, what that basically means is that when you upload that photograph to Instagram, that great photograph that you took on your phone, of your cute little dog, at the moment you took the photograph, of course you're the author of the photograph, you own the copyright. By putting that content into Instagram, you've actually now given Instagram this non-exclusive, fully paid, royalty-free license to use the photo to publicly perform it, publicly display it, reproduce it, even modify it so they could take the picture of your dog and create a derivative work and then distribute it around. So in other words, you have given up a massive amount of your copyright interests already simply by using social media sites and that's a very normal term and condition as it turns out. And so the point is there will be terms of use in Facebook's new metaverse or Microsoft's or whatever, actually next company we've never even heard of as of today probably that goes out and creates a metaverse that we all engage with, there will be terms of use like this that will be heavily, heavily regulated and you may be forced to give up everything as the entrance fee. And so that will become a massive area that you know, both is litigated and also becomes one driven by practically how much can they demand from us as the entrance fee before people are willing to use it. But, what you'll need to do is at some point start paying attention to this terms of use if we don't pay attention to them already. So let's do a brief overview now of trademark law just so we can get our bearings as we dive into some early metaverse trademark cases. Trademarks are brand names basically, so you can think of like we have here Coke, 7up, Chevy, Google, and they are words, sounds, numbers, shapes that have to be used in commerce to denote a product, you know, a good or a service. So the trademarks function as source identifiers connecting a source with a particular product or service. And so if we're talking about goods like Coca-Cola, you know, know Chevy, we call them trademarks and technically when we're talking about services such as my law firm, One LLP, we have a trademark in One LLP, it's technically a service mark because we as lawyers are service providers. And so you can think then of trademarks and service marks, I mean they're all used interchangeably and by and large everyone refers to all of them as just trademarks generically but there is that technical difference. Now trademarks can even extend to product packaging and certain non-functional product configuration features. And so you can think of this in terms of, you know, perhaps you could think of it in terms of the shape of a Ferrari Testarossa, right? That that car is a utilitarian functional car, but it doesn't have to look exactly like a Testarossa and so the Ferrari Testarossa is actually non-functional product configuration that exists as a trademark, there's no particular patent on the shape of that car, but there is trade dress protection for cars and parts of cars, and so that's one area where you see a lot of trademark law sliding into product shape configuration law as in the space of trade dress which we get when we're dealing with cars. Now, what does this mean for the metaverse? Well, companies are already getting trademarks in the metaverse. You see here, I put up an example, this is from the U.S. Patent and Trademark offices website where you can do a search, this is just one I pulled up, this is Ralph Lauren's company, it's the Mark Polo and they have already gone out like McDonald's and many companies now actually and started registering their trademarks for particular application to the metaverse, recognizing that the future is coming where, you know, people will have avatars in the metaverse, they're gonna wanna wear cool clothes just like we do in the real world, and they're gonna want to have a Ralph Lauren polo shirt or polo logo. And Ralph Lauren wants to make sure that they extend the reach of their trademarked logo polo and the little, the icon of you know, the guy on the horse into the digital world so that when you get the inevitable infringers in the metaverse who are selling knockoff digital polo t-shirts and the like, they will have a registered trademark directly in that space to be able to deal with the infringers. So that's an example and so we think of this because what will come up in the metaverse then will of course be just what comes up in the real world. If we have avatars and there's value to having social currency or whatever it may be, by having a really cool watch on your avatar or a really cool logo, there's gonna be a reason for people to then infringe. I mean, if it costs a lot of money to have a digital Rolex and you wanna have a digital Rolex on your avatar, there's gonna be an incentive for people to be selling knockoffs again. Or you may get it more and more as the metaverse develops and commerce is engaging in the metaverse, for example, perhaps we have, you know, those of us may have virtual law firm entrances where we, you know, meet and interact with all manner of people in this virtual three-dimensional metaverse way, well, what happens if I have a virtual law firm and I throw up the Nike logo above it? I wanna sort of let people perusing the metaverse think that, you know, wow, you must be a really important law firm if Nike kind of associates with you, and then I have a reason to use Nike and now I'm infringing Nike's trademark, so these issues are front and center and they're emerging and they're gonna be present in the metaverse. And this brings us really to our first case now, which gets close to the metaverse and so it's obviously not the metaverse, but you can think of our video game universe is at least as in some sense, early versions of the metaverse and so this is a video game called Call of Duty, and it creates this sort of semi alternate reality world and it's a world of, you know, warfare and fighting and guns and whatnot and shooting and all that stuff if you played Call of Duty, and so it creates this though massive, massive playing field and that it inserts you into the playing field to go and engage in kind of warfare. and so within the Call of Duty world, they create battlefields or areas and so you have desert warfare, you can have mountain warfare, whatever, but what happens is, in here at least, Activision, who owns Call of Duty created this world of, you know, warfare and they had cars that looked like Humvees and so you see a picture of it there from the video game and so the owner of the Humvee trademark, including the trade dress like we talked about earlier, the specific product configuration shape, they sued Activision saying, you know, we never affiliated with your video game or your company, we never agreed to sponsor you and have the Humvee brand be within your video game and so you're engaged in trademark infringement. So this gets litigated and they lost, here's why, it was metaphysically possible for Activision to have produced video games without the presence of Humvees. If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal because they increase Call of Duty's feeling of realism then and serve a purpose beyond simply trading on the brand, it meant what is fundamentally this First amendment artistic test related to the use of works in art forms, so what this means then is that, you know, I couldn't necessarily simply create a digital replica of only the Humvee, maybe I make an NFT token or something of that and then sell that, at that point, I would probably be infringing the trade dress because I'm now trading on someone else's property in that sense, right? And that's a closer question, the different question though is when you create an entire universe that has to by definition simulate the real world and incidentally in that you see all manner of things, like Humvees and guns and buildings and other things, that gives a broad reach of surface artistic test grounded in the First Amendment, which allows companies like Activision creating those worlds to use such products because they don't convey, fundamentally at the end of the day, any kind of affiliated soft sponsorship or connection, it's just not realistic to think that consumers believe that the Humvee company is somehow affiliated with this because they're incidental to the game in other words. Now, let's take a look at another case which is similar and this is the case of ESS Entertainment versus Rockstar, it's reported at 547 F.3 1095, and this is coming out of the ninth circuit in 2008. This brings us to another video game called Grand Theft Auto, which kind of similar to the Call of Duty game, Grand Theft Auto is a game of people driving around sports cars in this video game world and the video game world is very, very similar to our real world, it may replicate sort of Southern California in some, you know, times literal translation of the streets of Southern California, at other times a mashup of kind of Southern California, but it's sort of unequivocally the LA area, you know, or it could be some other location in the world, Tokyo or or whatnot. So in any event, this one involved, you know, the plaintiff is a real world strip club and it's called the Play Pen and you can see there on the right hand side, there's a picture of the actual outside of the Play Pen strip club in Southern California and so you can see their name, the stylized logo, and the writing for them and then what happened is the makers of Grand Theft Auto depicted in a video game as just part of the background world that you can be cruising around at some point in this sort of broad video, you know, game expanse of sort of hundreds of miles or whatever of like endless buildings and trees and you name it, there will be a place where you see what's called the pig pen< and so there you see on the left hand side is the pig pen and it's sort of to simulate a strip club in the virtual world. And the pig pen, as you can see, uses similar stylized writing the way there's that sort of, you know, the shape of the letters, it's a play on the word play and pig, but you can see that kind of similar p the way it's done. So in any event, the owners of the Play Pen were not impressed, they sued for trademark infringement and what became clear is that obviously the makers of the game were inspired by it, but they used other elements too, and so here's the rule again, and this is in the ninth circuit similar to our last one and that is that an artistic works use of a trademark that otherwise would violate the Lanham Act is not actionable unless the use of that mark has no artistic relevance to the underlying work whatsoever, or if it has some artistic relevance unless it explicitly misleads as to the source or the content of the work. And so here what the Ninth Circuit held is that there was no infringement of the Play Pen's trademark rights because this was simply an artistic expression in a game that fundamentally did not connect sponsorship of the game to the strip club. Grand Theft Auto was not about the Play Pen in a particular manner, it was just sort of incidentally in the background there, in other words. And so this is what gives rise to this sort of First Amendment protection that allows artists and creators to touch on things from the real world, even if they're trademarks, and so, I mean, you could think of perhaps one of the most famous ones you can imagine, for example, is Andy Warhol's famous, you know, painting of the Campbell's Soup Cans, obviously that Campbell has a trademark in their logo label and whatnot and his painting was simply a replica of the series of Campbell's Soup Cans but that's protected by the First Amendment just as this sort of incidental use that's not source affiliated or sponsoring is also protected. Now that we've covered copyright and trademark, we're going to do a brief overview of right of publicity. And really, when you think about intellectual property law, we will today touch really all four legs of it, we have copyright trademark, right of publicity, and we're gonna very tangentially touch on patent, but the three major branches of intellectual property that are going to matter for the metaverse in this sort of three-legged stool are copyright, trademark, right of publicity. And so, let's briefly give you an overview of what is a right of publicity. Well, the concept of the right of publicity was first conceptualized in a very important work by Brandeis, this is before he was a Supreme Court justice, but this is why by Brandeis in the Harvard Law review called The Right to Privacy in 1890. And so what happened was he developed this idea that people have a property right in their name, image, or likeness, and this concept that our identity is itself something which is protected and owned by us. And so what's happened over time is that this now exists in at least 35 states, some of 'em are common law, most are codified statutorily in state laws and this is a distinct right to copyright and trademark. And it's a right that has taken on massive significance in the last couple of generations, really since the Supreme Court fundamentally addressed it and recognized that this embedded state law right that we may have is significant. And so this case is Zacchini v. Scripps from 1977 and basically it involved a guy by the name of Zacchini who had this act he did, he was a human cannonball and so he had, you know, put on his little uniform, get into the cannonball, get launched out of it and land and all that, and so that was his entire performance, the value his persona that he had created was built entirely around this kind of 30-second performance where he would, you know, be launched outta the cannibal. And so a reporter was there at one of his shows, videoed it, played it on the news that night and so he filed suit saying, I have a right of publicity under Ohio Law, my persona, that is, you know, me and my act was taken in that very short video sequence and it was used then commercially, I wasn't compensated for it and if you wanna take someone's right of publicity for some commercial purpose, you need to compensate. And the news company said, well no, we got a kind of a first 14th amendment type right to broadcast the news and show stuff and the Supreme Court very importantly said, no, your right doesn't extend that far, you don't have the right to, you know, to make an entire taking of someone's right of publicity for your own commercial benefit and purpose and so no, there is no such right and so that opened the, you know, really the floodgates over the last 20, 30 years to massive amounts of right of publicity litigation. And so we can take California as just a basic example here, you know, just to get our sense of sort of what is this right, California has a statutory right, it's at the California Civil Code 3344 and it protects against the unauthorized use of one's name, likeness, voice, signature in commercial advertising. And so the basic prima facie case, you know, did the defendant knowingly use the plaintiff's protected identity? Was the use for advertising purposes? Was there a direct connection between the use and the commercial purpose? And interestingly, in California and in many states, this right of publicity actually lasts postmortem. In California, it lasts for 70 years after death and is considered an assignable asset by the estate or the heirs of the owner. Now that postmortem right of publicity only exists if a death, the deceased person's right of publicity actually had commercial value. So, you know, today, you know, you and I who are not famous, we have a right of publicity, people can't take our name and you know, use it for commercial exploitation without our permission but since we're not famous when we die, it turns out that our kids won't be able to sort of protect the use of our name and image in the same way if we didn't have commercial value, you know, what's the quantum of commercial value that remains to be seen, but I suspect I don't have it. So, that's basically how right of publicity works everywhere, and so now what we can do is we can think about this idea of, okay, well what's going on in the metaverse? And so the first place to start is to look at technology that's already out there in terms of deep fake video technology, including both audio visual appearance, but also voice. Now, this 40-second video is a fantastic example, you can see it on YouTube, you can also find any number of deep fake videos on YouTube, they're more and more popping up every day. This one happens to be a link if you were to choose to go to it or you punch in the search, it's a deep fake of Tom Cruise. And if you watch it for 30 seconds, you see someone who has the exact face mannerisms, body structure of Tom Cruise, you would swear it's Tom Cruise down to the most, you know, minute facial mannerisms in terms of the voice, body language, everything, and this has literally been created by software. And this software allows then people to create versions of other people and put them, you know, they can be silly, funny videos like this of someone who purports to be Tom Cruise falling over and tripping but it can also be far more serious things like fake sponsorships, of course, of products where all of a sudden someone creates a deep fake of Jennifer Aniston saying that this is the greatest law firm in the world or whatever, right, and things that they haven't consented to and then of course, as we've looked at and have talked about a little bit, and we'll get into more, you then have the deep fakes that get into sort of revenge porn, fake porn, and lots of really, really troublesome things like that. But this technology is pushing hard on right of publicity law, which is what brings us to right of publicity now. It comes up in the context as you see when we're thinking about this of the avatars that we'll create to insert in into the world like you saw in some of those videos in the beginning of this program, who then engage with others and this is incredibly interesting from a right of publicity perspective because it allows us to almost redefine who we are visually. You know, right now we are who we are visually, you know, the genetics define what we look like, maybe you do some plastic surgery to tinker around at the edges, but at the end of the day, our image and likeness is a function of just who we are but now we have the ability to create new versions of ourselves, we can sound perhaps a nicer accent than our accent, whatever we want, and we can create those and those will develop an identity in there and that will be your identity. By the same token, you will have the ability to perhaps go and create an avatar of President Obama or Jennifer Aniston or a famous sports player, you name it, and then what you may want to do is in virtual reality have a t-shirt with a logo on it or a perhaps a famous photograph, perhaps the Andy Warhol painting, you're gonna put it on a t-shirt in virtual world, right, in the metaverse. Maybe you have a virtual law firm and you have a welcome bot greeting people there and you think it would be helpful for your business to have Tom Cruise be the greeter, right? So all of these things are issues that we have to now start confronting and seeing as right of publicity will inevitably be used, exploited, taken advantage of in the metaverse. And this brings us now to another case, which again brings us to the video game world, which you know, as it stands today until we're in the metaverse, it really is the space of video games more than anything that have most closely approximated what the metaverse is bringing us. But this is the case of O'Bannon v. NCAA and Keller versus Electronic Arts and these are related cases both coming outta the ninth circuit, you can see the O'Bannon one was reported at 802 F.3D 1049 and this is the ninth circuit, 2015 and the Keller case is reported at 724 F.3D 1268, this comes out of the ninth circuit in 2013 and their consolidated cases involving former college sports stars whose avatars, their likenesses, were used in video games by EA basketball video games. And so basically, here's the basic fact pattern of what happened, Electronic Arts has created video game worlds. You know, if you play video games, you'll know that you can play, you know, soccer, football, basketball, but you can also play legacy type things such as, you know, 1990s college basketball and there's a particular game that has sort of all of the college basketball teams of the 1990s, for example, in the video game. Well, Ed O'Bannon was a famous UCLA college basketball player in the early 1990s and later in the 2000's, he was at someone's house and they had the video game and he saw this college basketball video game, he played it, and he said, wow, that's me. And basically EA had created an avatar in the game, you know, and if you wanted to play the UCLA team, you could pick the players in there, you could pick someone who looks like Ed O'Bannon, who wore number 31 like him at UCLA and it's a digital replica. And so he was unhappy and so he sued, and this was the same for the plaintiff, Keller, and the defendants, the cases are very complicated 'cause they touch antitrust law too but from an intellectual property perspective in this universe, the defendants claimed fair use, First Amendment, kind of like the idea that we saw already in the strip club case and in the Humvee case and this time it was rejected because what the Ninth Circuit said in this type of a context is that, that the use of the likeness of a college athlete is simply not as a matter of law protected by the First Amendment. You don't get to create a universe built entirely around, you know, 100 people and then use all of their likenesses and then say that, well you had to use it to create the game, that was too much of a taking and that kind of right of publicity use of someone was not protected by the First Amendment. And so, from an intellectual property perspective, the case was a win for people like Ed O'Bannon, another athletes who are being used in games, now the complex overlay of this case is that if you're talking about professional sports players in these video games, their their rights are licensed by EA and the likes because they clearly have right of publicity rights to control it. The complexity for college athletes at the time at least, was that the NCAA never allowed them to exploit or monetize a right of publicity, part of the deal of being in the NCAA and being on the team is that you gave up such rights and you didn't have the right to even monetize it and so that overlay is what EA relied on to try to avoid ever having to pay any particular damages and ultimately what the Ninth Circuit held is that the NCAA's rules were at some level a violation of antitrust laws, but not completely and it didn't allow a massive financial windfall to go to the athletes. Now that was in 2015, the breaking news is that in 2022, the U.S. Supreme Court issued a major decision in the NCAA context, finding that the NCAA's rules in a slightly different context to this, were violated at the antitrust laws and there was no immunity for them to engage in that behavior. And so literally within one month that the Supreme Court's decision in 2022, sorry, the NCAA reverse course and now allows student athletes to fully monetize their name, image, and likeness. And so what that means then is that when EA makes its next, you know, 2023's college basketball video game, if it wants to have your, you know, young player playing at UCLA today, whoever number 31 is at UCLA today, who may be a great star to put that person in the video game, they're gonna have to secure that person's consent and transfer of the right of publicity. This brings us to patents. I alluded to earlier when we're thinking about the metaverse, we even managed to touch the realm of patents. Patents are issued for new novel and non-obvious inventions and here you have a picture, this is from an actual issued patent, you can go pull it up, Google it, you can pull up the patent number 6,368,268, and this was granted by the US Patent Trademark Office and the title of the patent is a Method and Device For Interactive Virtual Control of Sexual Aids Using Digital Computer Networks. And so there I pulled out for you a basic picture of what the invention is really focused at and geared towards, and you can see then that you have two computer networks sort of at root that are working together, you know, mediated by the internet and each computer is attached to a sexual stimulation device. And so basically what you can imagine is, you know, without being too blunt, you basically are wearing perhaps sexual stimulation devices and you're wearing your goggles because you don't have to actually be sitting at a keyboard, the input device could be your goggles, for example, and maybe you're wearing something around your private genitals, you're then over the internet and someone else is doing the same thing, you know, in reverse on the other side of the internet, across the internet, maybe across the planet or maybe next door, every one of you have got sexual stimulation devices on, you're wearing your goggles, you're in the metaverse, and you're actually essentially having sex in the metaverse. And so this is where from a patent perspective, the metaverse is taking us, and so what this also means is that we are going from a physical world to a virtual world, and in that virtual world, we have to now start thinking about what it means. And so we have not only patents, but we still have right of publicity type issues, and so here we can see an another example coming out of the sex law space, just like the patent one, which overlays on the metaverse because that patent one, that virtual patent that we saw for having essentially what I guess what we could call virtual sex, each person would be looking at someone else, it may be video footage or it may be an avatar you're looking at, and so the question then is, well, if you're having virtual sex, who are you having virtual sex with? And so this brings us to the idea then of sex law and the right of publicity and we have to, we'll start in the physical world as we leapfrog to the virtual world and see what's already going on. And so in the physical world, we've already had companies try to create sex doll brothels, there was one called KinkySdollS in Houston, and this is sort of a Canadian, literally a sex doll brothel that wanted to open a store in Houston and it was shut down by a zoning ordinance of Houston saying, look, we're not willing to have people come in and rent sex dolls on-site and you know, and use the sex dolls on-site. And that issue of physical sex dolls has come to realm really when you're talking about personas in the right of publicity space because, then the question is, okay, well, who is that doll? Is it a likeness of a famous celebrity or a person? And as it turns out, we actually have licensed uses of right of publicity for sex dolls already, and specifically some famous female and male adult film stars have actually licensed their right of publicity to have these very, very realistic looking sex tools made in their likeness. This of course though, in the physical world and this is only in the physical world these aren't metaverse assignments yet, but what we have also in the physical world are actually unlicensed uses. And so there is a picture of an actual sex doll that's been sold by a Chinese company and this is actually the first reported case where a sex doll has been commercially sold that which is essentially infringing the right of publicity. And so this doll was sold in 2019 and the doll was named Yael and it very, very much resembles a very famous young is Israeli internet influencer whose, whose name is Yael Cohen, and the doll looks very much like her and is even named after her and this is being sold by Chinese companies throughout the world and showing the complexity of right of publicity, it's very, very hard to actually stop it and shut it down when you are, for example, a famous celebrity in Israel and this doll is being, you know, transported from China to Singapore or China, China to somewhere else, it raises massive issues about just right a publicity law in general, which will now of course augment in virtual world. And so in the virtual world, when we then transcribe this into the metaverse, we will have literally virtual reality strip clubs having that virtual experience and virtual reality brothels having that experience just like that patent we saw and then we will confront virtual avatars of people that when you think about it, you know, those physical dolls that you're looking at there are very expensive, they're expensive to make, they're expensive to ship, there's sort of massive transaction costs, but now all of a sudden we'll have virtual avatars that are incredibly cheap, fast, easy to make, and become more beneficial for infringers because, you know, you can have these basically bespoke artificial virtual avatars, you know, that people can custom-make based on whoever their favorite person is that they wanna have virtual sex with, and so in the metaverse, we are gonna see massive as well as the corporate trademark issues we looked at, we're gonna see massive right of publicity issues and one of the big, big problems looking on the horizon is, what legal regime is going to address it? Because as it turns out, we don't have a uniform federal right of publicity, what we have is a patchwork of state regimes that are all inconsistent and different, in fact, in terms of the scope of the right of publicity, how much protection, the duration, even whether it exists, and so this becomes a massive problem just in our existing world in terms of the foreign form shopping ability that people have, the uncertainty for business to sort of expand or even if they can do business, you know, do they know if they're able to do it or they not able to do it? You even have conflicts where sometimes it's okay to use someone's right of publicity perhaps, and other times it's not depending upon domicile requirements and so really what we now confront is that the modern technology starting with like deep fake video technology and then looking at what will be occurring in the metaverse, just the stuff we've already spoken about, we now suddenly realize that the time will rapidly approach that Congress will need to adopt a uniform rule so that we have a national right of publicity that protects everyone in the United States, there's the guaranteed ability to get into a federal court where you can get much broader injunctive relief obviously of nationwide impact as opposed to someone being forced to go into a county court, you know, for example in Oklahoma to try to get an injunction and then the question is, well, does that apply to the Silicon Valley provider that's hosting the site and all that? So, there will be a massive need to avoid peace mail litigation and to avoid horrendous abuses of people's right of publicity is, and you know, you can just imagine the horrendous things that will start happening, we are going to need this uniform rule and so I think the metaverse is going to bring about the nationalization of the right of publicity at some point, it'll just have to happen because of this new technology realm that we're entering. This raises the issue of course of some jurisdictional criminal tort law type issues in the metaverse. Alright, so this video on our little tutorial here on criminal tort law really is a fascinating one to watch and lemme describe it. Basically, it's an example of something that happened many years ago in World of Warcraft and you know, the video cuts back and forth between this band of warriors with all this loud music and they're clearly sort of on this war path, right? Is they're running through this video game virtual world and it's sort of different people all over the world playing together and they're in this guild and they're running along on, you know, this up and down pathway as as you'll notice, and they're out to sort of get people and then it cuts with serene music to another part of the game in this virtual world, and that is where there are a series of people just standing around having a conversation and they're not fighting in the game. And what they were doing was, they were part of a given guild in this video game and in real life one of the guild members died. And so this guild is made up of people all over the world and so they obviously couldn't attend a funeral in real world together, but they decided that they would host this sort of funeral in the video game world. And so they all gathered where they could sort of on their headsets chat and talk and have a little memorial and they gathered with their video game profiles and they went into this location. Well, what happened is they went into the location to hold this kind of peaceful funeral in essence, and they didn't go in with all their weapons and whatnot like they normally would do, I mean, the whole point of the game I think is you go in and you fight, you conquer, you gain points, territory, et cetera. And so what happens then is while they're hosting this sort of funeral, this other band of warriors have heard this was gonna happen and they decided, well it's a video game, we're gonna go by the video game rules, we're gonna attack them and destroy them and steal all their power money, you know, gold, whatnot. And so that's what the video shows and it's sort of an early example then and this goes back, you know, to the late 2000's really of what are the standards? And it's getting at in terms of what we're willing to accept in terms of behavior in the virtual world versus a real world, obviously that conduct in the real world would be horrendous, it would be tortious. But what do you do when this is in the video game, virtual world, and then what do we do, of course, is we take it up to the next level where we're in augmented virtual reality and it's not just sort of characters in a game, but it's sort of digital replicas of us in this virtual space. And so we can look at an early case kind of addressing some of this lack of clarity at some level on the jurisdictional front and this is Bragg versus Second Life, Second Life is another online world that was created several years ago, it's like this video virtual world where people can go in and buy virtual land and sell it and buy beachfront property and whatnot, and so basically the plaintiff here had figured out some way to acquire land below the game's actual market price. And so it was some, you know, he could figure out some mechanism by which he could exploit the currency transaction that was going on and make money, you know, buying real estate cheap in Second Life and selling it for more or whatnot. So in any event, he got caught and he lost his virtual land that he had taken and he got locked out of this metaverse in essence that he had been in and was a part of and wanted to be in. And so he sued the company in his home state where he lived, and they moved to dismiss for lack of personal jurisdiction. And what the court fundamentally held is that the defendants were in this game saying how wonderful it was to be inside Second Life, and how you could kind of get property and you could interact with other people and you could make money and all this stuff, and so, you know, as a result of that, what they held was that no, you can be hauled into the jurisdiction of where this plaintiff was. And so this plaintiff who they terminated, maybe he was in his little hometown of Ohio or wherever it was, he now got to sue them in that hometown. And that raises significant questions on the other side of the coin for the defendants who are creating these universes about whether and where they may be held liable? Now, of massive importance for the metaverse and where we are going is that in the Second Life case, there was an arbitration clause in the terms of use that mandated this, you know, disputes be sent to arbitration and the federal court held that it was unconscionable, both procedurally and substantively because fundamentally, it was buried in a take it or leave it agree button that you have to agree to before you ever enter the world, and let's be clear, that's essentially where all of these terms of uses tend to exist at the point of entry where you just click agree before you've ever gone in and that will be something that's of massive importance because the metaverse companies of the future are not going to want to be, you know, held accountable in thousands of jurisdictions, they're gonna want a virtual jurisdiction or a single jurisdiction to adjudicate the case and it may well be a virtual one at that where we hold virtual arbitrations and the like. But that's a very, very good example of an early metaverse type case struggling with really the issues of jurisdiction when you're tryna figure out where people are, and in that case, even, you know, the avatar in the game had been engaged in doing stuff, the defendant avatar, which the court held existed, where the person witnessed the avatar, which was sort of in their, you know, bedroom in whatever town they were in. So this now brings us to the end of the Metaverse program and the conclusions that I really wanna leave you with that I think are particularly important as we understand this massive new Internet 3.0 technology that's gonna be growing and burgeoning in coming years and one thing we recognize is that there really are no universal set of laws that are going to regulate all the intellectual property and personal behavior in the metaverse. We are gonna be having an intersection of various federal laws, a patchwork of state laws, and then we have the intersection of foreign laws too, where they don't have the same laws and rights, or they have very different versions of copyright and trademark, and all of this is gonna be mashed up in this metaverse in a way that we've never really dealt with it in the physical world. And so what it means for certain is that terms of use and how courts address those terms of use gonna be really important. Whether courts are gonna allow just those click through agreements where you give up everything just by virtue of entering that world is entirely uncertain and I suspect it's not going to be held by most courts that you just give up everything, and so you're gonna be able to litigate out in real world jurisdictions that matter to you, but it's going to test contract and tort law significantly. We also see in the metaverse already a collision of copyright and trademark principles. You know, things that in the real world on a limited scale that would be unequivocally copyrighted trademark violations, are not going to be as much in the metaverse world where it's a massive reproduction of our entire physical landscape, such that, you know, there will be inevitable uses of others' works just kind of in the background as the part of that metaverse and that's gonna viewed more expansively within the First Amendment. And so I think we're gonna see at least more examples of that artistic expression, First Amendment protection stuff that we saw in some of our video game cases, really taking root in the metaverse. And I think the biggest area where the metaverse is going to test at our legal regime is really on the right of publicity front because, the sex space in particular that we saw through that patent is particularly ripe for massive personal injury, intentional infliction of emotional distress, you know, creating digital avatars of people without their consent and then engaging in virtual sex with them and what we really see is that this patchwork parochial regime is just not sufficient, there's going to be a need for national right of publicity protection so that injunctions can issue to protect people from right of publicity, likeness takes, and deep fakes and the like. So thank you very much for listening to this program, again, I'm Peter Afrasiabi, at the law firm of One LLP, and as always, if you have questions, feel free to reach out to me.