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The Fundamentals of NFTs, Emerging Technology, & Intellectual Property Law

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The Fundamentals of NFTs, Emerging Technology, & Intellectual Property Law

This CLE program will provide an in-depth overview of the legal issues that are arising at the intersection of intellectual property and emerging technologies. Attorney Caleb Green of Dickinson Wright will discuss IP protection, registration, and enforcement strategies while also addressing the risks and issues related to NFTs and the blockchain.

Transcript

Hello, everyone. My name is Caleb Green and I am your presenter for today's webinar. Today's webinar is going to be on the fundamentals of Nfts emerging technology and how they interact with intellectual property law. And so I want to thank everyone for joining us today. And I'm hopeful that you're able to take out a lot from today's presentation in webinar. So first a little bit about me. Um, my name is Caleb Green. As I mentioned, I am an attorney at Dickinson Wright in their Las Vegas office where I practice intellectual property law. Um, majority of my practice also revolves around technology law as well. So I am a graduate of the William Boyd School of Law, graduated in 2019. But prior to that, one thing I'd like to tell people, especially when I do this presentation, is prior to that I was in the College of Engineering at Unlv as well. So I'm a Unlv alum where I got my degree in computer science and while I was in law school or excuse me, in undergrad, I actually also worked for the Information Technology office at UNLV. So my background is very strongly in technology, information technology, a very fun story I like to share with people to kind of just give some depth to my technical experience. When I was in college, not all the buildings at UNLV actually had Wi-Fi, and so it was my job to go around and install all the wireless access points around campus, including at the law school. So when I got to law school, I would go around and jokingly tell people, You're welcome. When they ask me for what I'd say for the Wi-Fi. So I've been involved with whether it's programming, whether it's information technology, cybersecurity that's been my Mo prior to law school, and now I've been able to merge that with my legal experience. I've also done quite a bit of teaching, do a lot of community work teaching similar classes like this other class, but also did one for our UNLV's inaugural community class and among other things. But that's just a little bit about me, just just so you know who, who's just talking to me about IP and technology and do they really know what they're talking about? They just have a little bit background on me. So emerging technology. We're going to be talking a little bit about this today. But I think it's very important for us to make sure we're on the same page. Um, a lot of times emerging technology, you'll hear things like nfts, artificial intelligence, virtual reality. What are these things mean? Sometimes we think. We think we know what they mean and we don't actually know. So we're talking about emerging technology. We're typically talking about new technologies that are either building upon existing technologies or they're just very, very new themselves. So one example of emerging technology is artificial intelligence, right? Artificial intelligence has been around for a long time. It's not something that's new, but it's really grown, especially recently and has had a lot of of intrigue, most recently another thing that was around but not popular non-fungible tokens, which we'll talk about a little bit later, been around for a while, but we saw them kind of peak in 2021, their interest. But then we had things like, you know, that were kind of new cryptocurrencies, for example. Um, you know, again, something that wasn't necessarily new but virtual reality. You know, we have companies like Meta who's creating the metaverse. So these are emerging technologies. As new technologies develop or as we build upon existing technologies, um, you know, new questions arise as to how can we use them. And then as we start integrating them into our lives and to our businesses, questions arise of, okay, what are the legal implications of some of these new technologies, especially when they have not really been used previously, especially when they grow in popularity when they weren't popular before. Now, you know, it gives rise to causes of action, litigation, legal questions. So we're going to dive into some of those, but particularly from the intellectual property aspect. Some other examples, as I mentioned, of emerging technologies like we talk about Web three, you know, being able to automate things through the Internet, artificial intelligence, right? Whether you're using a generative AI, whether it's something that's more responsive, whether it's a language learning model, different different forms of artificial artificial intelligence. There's a theory that we see in the movies of, you know, computer just being able to operate as an individual things that we also, you know, recent developments, record keeping, things like blockchain technology, these are additional emerging technology examples. And then we also see, you know, some of the impacts are that they can be efficient. Right? I'll talk a little bit about how blockchain technology can be more efficient later, but also they're trendy, right? And one example I love to say is Nfts. And I'll talk a little bit later about this when we talk about Nfts, I'll use a few examples, but also kind of talk about some of the rise and you know, arguably the fall of Non-fungible tokens are still around. So but they certainly aren't at the same height they were at their at the inception of their popularity back in early 2021. And that brings me to, you know, talking about nfts non-fungible tokens. Don't worry, I'll get to defining those later. Um. But here's an example of a non-fungible token, right? Cryptopunk. Number 5822. And so what you see here is an image of that was created by, you know, the folks at Cryptopunk. They minted this as a non-fungible token. Non-fungible tokens are effectively pieces of code that basically say that you're the digital owner of some digital asset. That's the best way I can describe it. So the way I like to use this as an example is if like I owned a, um. And I'll dive into this a little bit more. But if I owned a poster of a famous celebrity or athlete, right? I have that one iteration of copy that is mine, right? But that is pretty much all you get. You don't when I buy, you know, I'm a big Kobe Bryant fan. So if I bought a poster of Kobe Bryant and he's wearing his famous Laker jersey and some Nike basketball shoes, um, I didn't buy any of the IP rights. I just have that one iteration that I can use. I can sell it that version, I can resell it for more value. I could potentially, um, you know, post it and show it off to people in my house. There's some utility there. I may be able to work out some other social or, you know, utilitarian value out of it. But largely I'm kind of limited and that's basically what Nfts are. They're basically pieces of code that say, Hey, I own this particular digital asset, but when and where does the IP get transferred? That's something we'll talk about. But what's so interesting is that, you know, when you really unpack nfts and you really get to understand it, it then starts to question why were Nfts so expensive? As we see this Cryptopunk sold for at its height $23.7 million. Um, currently not the case, but it also, you know, lends us to think, well, why, why are these emerging technologies kind of growing? So I like to start with non-fungible tokens because I think they were such so popular. Um, and I started doing a lot of presentations on talking about non-fungible tokens. And I actually wrote a pretty popular article on it for our firm as well. Um, just breaking down the, the intellectual property aspects. But one thing I like to do, one thing I didn't mention is when I was in at Unlv getting my computer science degree, I also got an economics minor. And so I'm always concerned in one to kind of figure out why I don't want to get explanations for why people are putting their monies toward certain things, especially non-fungible tokens. And so I think there are a few things that actually drove the, um, the craze of nfts, if you want to say that. Um, so this happened in the middle of Covid. Um, before Covid there was the big Bitcoin rally, right? And there was all the craze. Cryptocurrency, Bitcoin. Oh, you need to get some Bitcoin. Um, and I think people were kind of in the back of their mind saying, Man, I miss that bitcoin wave. You know, what's going to be the next wave that comes up? And then we hit the pandemic. And then we saw things like meme stocks and, you know, we're all sequestered to our homes because, you know, stay at home orders. And then we had things that kind of relieved us of some financial obligations. There were moratoriums on evictions and mortgages. So there's a lot more disposable income, you know, depending on who what how much money you're making. You probably got stimulus checks. So you're sitting on $1,200, $600, $800. Um, you know, even if you're unemployed, you may have been in a position where you were still getting checks from unemployment. And so all this leads to a lot more disposable income. Also, there's kind of this pressure, if you remember at the beginning of Covid, like everyone's staying home. Like, you know, we should come out with some kind of skill or some come out of the pandemic a lot better. So when you kind of couple all this boredom being at home, um, extra disposable income don't have to pay my rent, don't have to pay my mortgage and they can't evict me because there's a, you know, there's a moratorium in place. Right? And then you're coming off meme stocks, you know, GameStop and AMC and people are like, you know, how can I make money during the pandemic? Nfts seem to be that next wave. And we saw a lot of people kind of dive into it head first. Um, and so that's kind of part of the reasoning because I get that question all the time. But why are Nfts so popular if it doesn't seem like you're going to get any intellectual property rights? And I think that's that has something to do with it was kind of the times and the additional disposable income, kind of a perfect storm, if you will. So again, I talked about Nfts before, but just to talk about the Nonfungible tokens again, look at Nfts. They're a piece of code that are basically like a digital receipt. I look at Nfts as a way to. Get an additional property right on existing assets. So as used before, we talked about the Cryptopunk, right? That is a graphical image that someone created. Right. And I'll talk about a little bit later. You know who owns when you create a graphical image that's original, you know, what does that fall under? Trademark copyright? Something else. I'll go into that a little bit later. But that is owned by someone. Someone owns the IP, the person who created that owns the intellectual property. And then they can they can extrapolate more utility out of it by Oh, let me also sell it as let me mint it as an NFT and sell the NFT. But I think and there's a lot of confusion. Okay. When I buy an NFT, what am I getting? You're not actually getting the image. You're not actually getting any of the IP unless there's a separate agreement that says you do get them. What you're getting is a piece of code that basically serves as a receipt that says, Hey, I'm the digital asset owner of this. What does that give you and what can you cannot do with Nfts? We'll talk about a little bit later once I dive into the IP side. But that's just kind of a breakdown of what non-fungible tokens or Nfts actually are. What I think is also very key and this is kind of the bedrock. Of Non-fungible tokens as well as a lot of other, um, a lot of other. Um, emerging technologies, and that's blockchain. You probably heard of this somewhere, whether you're talking about cryptocurrency or you're talking about non-fungible tokens. Even in the artificial intelligence space, you know, they're merging artificial intelligence with blockchain technology has been talked about a lot. So you've probably heard that term like, what is a blockchain? I don't know what it is. I hear the term all the time. Well, basically a blockchain is a decentralized ledger and you're like, okay, that doesn't decentralized. Ledger just sounds like more big words. Allow me to explain. A basically effectively a decentralized ledger is the best way to explain this. First, talk about what is centralized ledger is if you ever think about, you know, someone gathering information, think about your local recorder's office, right? If you own land or property or even if you use the DMV. Also, if you own a car. Right. You have to get a title for that car and go to the DMV. And they are the ones that typically have all the records they keep all of the records of who's driving, what car, you know, what's the license plate number, this, that and the third. That is centralized, right? If the DMV were to burn down in all of their computers, wipe tomorrow, be really difficult to for them to go back and figure it out. It's all in a centralized location or in several locations. But. Now, whether it be servers that they have it on but largely controlled by one entity, something happens to that single entity. You know, the veracity of those documents in the information may be compromised. So a decentralized ledger believes in not having a single entity actually having the information, but rather spreading it out through what they call nodes. But they that's typically what they call them on a on a blockchain ledger. They call them nodes. And instead of having one centralized individual or computer, they're doing the verification process or confirming information or storing information. You you actually decentralize the verification to all the nodes. And what this does is not only does it ensure that it's accurate, but it also ensures the security, um, you know, blockchains, you know, contrary to what most people say, a blockchain can't be hacked. Nodes on the blockchain can certainly be hacked. But the issue is if you have, you know, a blockchain network that's comprised of 100 nodes, if you have even ten of those, you have 90 other ones that are going to be able to verify and say, okay, the information that's on these other nodes are incorrect and then they can verify amongst themselves what is the correct one and and restore the blockchain with the accurate, accurate information. And that is the effect of blockchain technology and why it's so popular, why it's so strong. A lot of people think that blockchain technology can actually do things such as be a more secure record keeping system, allowing each node to verify each transaction that's on the blockchain. It provides that level of security. Also data. One of the cons, though, is that if there's information for, for example, that's on a blockchain, if it's public, right, once it's on the blockchain, it's on there, it's hard. You can't really take that off. So information that you enter is inaccurate or there's, let's say some, you know, information that you rather keep private and it's on a public ledger may be difficult to remove that. So there are pros and cons, but that's effectively how blockchain technology works. Okay. Separately, what are Non-fungible tokens? I talked about these again. I like to use this this example, but I also want to talk about what nfts are not. So I'm going to dive back into Nfts here and kind of go into some of the legal and ownership rights. But I love using this one. I don't know if I can actually use I probably need to change this because it is no longer Twitter. It is now X, as we all know, whether you love it or don't. Um, but Jack Dorsey, who was the original one of the original founders of Twitter, he actually minted the screen. He screenshot took a screenshot of the first tweet. This is the first tweet ever on Twitter. He actually minted this as an NFT and it sold for several million dollars. Um, but I like to use this example. Let's go through exercise. Let's say you're the person who bought Jack Dorsey's tweet NFT the NFT for his tweet. What do you own? Or better yet, what do you not own? Well nfts are not ownership rights in the tangible property. So if you have an NFT of like, let's use this tweet, right? You don't actually own any of the tangible property. Um, you also don't own any of the intellectual property rights of the tangible property unless they've otherwise been assigned or given, or you've been granted a license to use them. So let's use this again. What? Nfts are not right. You're not going to get any protection if this is using the Jack Dorsey tweet again, you bought this NFT for Jack Dorsey. What are you not getting? You don't have any access to the actual Twitter account. You don't have any any of the text, the profile picture that's not yours. Any other content or attachments are not yours. Again, you just have a piece of code that says, I am the digital owner of this particular non-fungible token. This NFT, that's all you get absent a. Some kind of agreement. So that brings us. Okay, let's talk about. That's great. I trust you. You're a lawyer, but can you break that down for me? Absolutely. Let's talk about intellectual property law. Let's give a brief overview here. So what is intellectual property law? You probably heard this term before. Ip or intellectual property. And to be honest, don't love that everyone calls things intellectual property because it can get confusing. There are different aspects of intellectual property law, different things, and they cover different things. And a lot of times, especially whether you're an attorney, whether you're a layperson, it can be confusing if you're not really experienced in the area. You know, I get calls all the time, people calling, Hey, I want to copyright this or I want to trademark this, and I have to kind of correct them and say, okay, so trademark isn't quite what we want. We may want to go this other route. But overall, intellectual property is essentially intangible creations of human intellect. And so we try to break this down in a lot of different areas, but for the main ones are copyright patents, trademarks and trade secrets. So I'm going to talk about a few of these today and how they interact, how they interplay with different emerging technologies. So I'm going to first start off by talking about copyright. And I like starting with this because I think we all really can figure out something that is subject to copyright protection, whether it be this presentation, whether it be music, whether it be a book, whether it be a movie. We see copyright all the time, and sometimes it's hard to understand or figure out, okay, what's subject to copyright protection? What is it? When am I infringing? When is something okay to use? You know, we hear this word fair use all the time, so we'll dive into a little bit of that. But first, let's start talking about what is copyright. So copyright is actually a pretty strong right. And it gives the author or the owner of the copyright, the exclusive legal right to reproduce the particular work, distribute it, perform or create derivative works. In many of copyrighted works are things like literary works, artistic musical materials, etcetera. And the copyright owner is the exclusive owner of those rights. So I'm the copyright owner of a particular book. I'm the only one that can go out and make copies of it. I'm the only one that can go out and create a derivative work. So if I want to if someone else wants to say, Oh, I really like this book, I want to create an audio version of the book, right? That's a derivative work. It derives from, you know, my original authorship. So they can't go out and do that without my permission. I like derivative work is a great example. I love to use like Harry Potter, for example. Right. You J.K. Rowling wrote those books, right? Hollywood couldn't just pick up the books and be like, wow, this Harry Potter character is really interesting. Let's make a movie based upon this character. No, because they wanted to make movies. They had to based upon that book. They had to go and get an author, get a license from J.K. Rowling. And once they did that, they were able to go out and make movies and the movie franchise and make rides at Universal and Disney. Et cetera. Based upon those characters in the book. Um, but it's not just, you know, it's not pigeonholed to this literary works, artistic works, musical materials, etcetera. Um, copyrighted works have to be basically meet three necessary requirements. They have to be fixed in a tangible medium, they have to be original and they have to have a minimal level of creativity. So I'm going to kind of go backwards here. Then when we talk about minimal level of creativity, we don't mean when it comes to creativity, doesn't mean you have to be Van Gogh, doesn't mean that you have to be Beethoven and just come up with these, you know, like emotional pulling, tear jerking works of art. In order for copyright, it has to have a minimal or de minimis level of creativity as long as it's and I'll talk a little bit about like as long as it's not facts, it's not scenes of fair. That's a big word. But I'll talk about it later. As long as it has a minimal level of creativity that's likely. It's that's not a high bar to meet. So I just want to make that clear that copyright doesn't have to be these illustrious works of art. It can be something as, as you know, much as an article that you wrote for work, um, or posted on LinkedIn, that may be enough to be a minimal level of creativity depending on the content. It also has to be original and originality here just means it can't be a copy of someone else's work. So that's basically what original means under the Copyright Act. And then separately, it has to be fixed in a tangible medium. So what does that mean? It has to be fixed somehow in some tangible meaning that we can perceive. Can't be things like ideas. Ideas aren't fixed in a tangible medium when they're just swirling around in your head. Now, once you let's say you take an idea and you put it pen to paper or your artist and you have this idea of a painting in your head the moment you put paint the canvas, boom, copyright protection. And the beauty of copyright law is that it has immediate effect. The moment you have something of minimal creativity that's original and you fix it in a tangible medium, you likely have something that's subject to copyright protection and has immediate effect. I'll talk about later about getting registrations, because you may be saying, well, wait a minute, Caleb, can't we get a registration for copyright? Absolutely you can. And there are certain benefits, but we call common law protection for copyright that immediately attaches once you created it and once those three elements have been met. Um, also let's talk about duration because it's important to understand once you get copyright, how long does it last? Well, it doesn't last for forever, but it does last for actually quite a bit of time. So let's say you have, say, someone wrote a book, right? And you're just the only author of that book that author of that book will be will enjoy copyright protection for the duration of that author's life. And then once that author dies, you count 70 years. And once that 70 year period ends, then the copyright goes into what we call the public domain, and anyone can use it. But throughout the author's life and then 70 years after that, it is the exclusive rights of the author and their estate. That is where copyright vests. If its joint authors you just take it's the same thing applies except you just take the life of the last surviving author and then you add 70 years and that works made for hire. These are works that are if you create a work in the scope of your employment for your employer. So let's say I'm a speechwriter for a politician, for example, and they hire me and I'm employed and they're I'm an official employee working in their office, right? And I write speeches on behalf of that politician, although I am actually the author, I'm the human author that is creating these works because I am an employee operating in the scope of my employment. Those works that I create within that scope belong to my employer, whether that be an individual or it be an LLC, incorporation, fictional fictitious business, whatever, what have you. Those also get copyright protection and those are either going to be 95 years from publication or 120 years from the date that they were created. So I would like to give you a couple other examples of things that can be subject to copyright. I mentioned literary works like books. There are other things like pictorial and sculptural works, graphical works as well. Um. A dramatic works. Choreography. Sound recordings. I think we're familiar with that. Motion picture films, even architectural works, can be subject with some exception. And we'll talk about an example later. Um, fabric designs, photographs, podcast recordings, etcetera. These are all well settled copyright protection. Copyright protection extends to these kinds of works, but this is not an exhaustive list. These are just some examples. Let's also talk about what copyright does not protect, because that is very important as well. Copyright does not protect works in the public domain. So I just talked about works that fall into the public domain. Water works in the public domain works that have either someone has relinquished and just said, I don't want I basically relinquish all of my copyright in this work. Release it to the public domain, they can do that. Or as I mentioned, if it's a work and the author has died and it's been seven years since their death, that works fall into the public domain. Always like to give out a shout out to Duke University, their law school. Every year at the beginning of the year, they post a law review article that actually lists several very infamous works that are going to be falling into the public domain. So don't think there's really anything of note this year, but last year, 2022. One work that actually was falling into the public domain was the original iteration of Winnie the Pooh. Now, mind you, I just said the original iteration, not Disney's iteration. Disney iteration came around along late. A long time later. So please do not leave this webinar thinking you can go print up t shirts with Disney's Winnie the Pooh. Christopher, Robin, Tigger, you know, Piglet, Eeyore, all those. I did not say that. But the original iteration that Disney later adapted and made their own version later that original version as it fell into the public domain last year. So Duke has a really great resource. You can actually go look that up fairly easily online. But those are works that are going to that fall into the public domain and will not be subject to copyright protection. Other things, as I've just mentioned, ideas, concepts, methods, to the extent they are not captured in a tangible medium, just an idea or concept or method that you think of isn't going to be subject to copyright. Now, if you put a pen to paper, you make notes. Write those notes may have some copyright protection. A thin layer or even more of protection, but largely just the ideas themselves. Those lend themselves more so towards patents or some other form of intellectual property that you may be able to try to protect that, but they're not going to be enjoyed by copyright. There may be other ways to protect it, but it won't be protected by copyright. Other things short phrases, titles, names and slogans not going to be subject to copyright protection. You're like, Wait a minute, Caleb. But there's all kinds of phrases and slogans that I thought were copyright. You're probably thinking about trademark trademarks can protect certain phrases and names and slogans, right? And I'll talk about a little bit later. But something like, you know, two all beef patties, special sauce, lettuce, cheese, pickles, onions on a sesame seed bun. Right. We know that that's McDonald's. Big Mac copyright doesn't protect that. And that's for good reason, right? If we had short phrases and short names, we're subject to copyright. Remember, copyright protects one of the rights is reproduction. So if we were going to extend copyright to short phrases, someone came up with a new word, we would be prohibited from even saying it, even using it. And that gets into a lot of other issues, policy, but also things like First Amendment to people be prohibited from saying a certain name. Right? Especially think about the news, right? If if you know there's a fire. You know, at a local school. Right. And they were able to get a copyright on their name. And the news wants to use their name and say there's a fire at X, Y, Z School. Right. We don't want people going around and getting in frivolous copyright lawsuits because, oh, you reproduced my name without our permission. So we don't give it to short phrases. But you may get something. Let's say it's maybe a short poem or, you know, even such like a paragraph in an article made may be enough to get copyright protection depending on the content. So. But typically short phrases titled slogans, not copyright protection. But there may be some protection for trademarks. Useful articles. If a if a article is primarily useful, likely not going to get copyright protection. If you're just trying to get copyright protection on, you know, like let's say like a chair that you design, like the chair itself, right? Sure. It's in a tangible medium. Sure. You may have added design elements to that chair that no one's ever done, its original not copied. There's de minimis level creativity. Okay. I think I met all the all the requirements for copyright, but overall, the chair itself, you know, won't be protected by copyright. Now, if you again, if you put those designs on a piece of paper, those designs may be protected by copyright, but the chair itself won't be. Um, so as I mentioned, you know, works in the public domain. Those works that are copyright copyright has expired. Um, don't meet or they don't meet the requirements for copyright protection such as works that are produced by the federal government. Works that are produced by the federal government do not have protection from the copyright. Do not have copyright protection. Now, the federal government may want to outsource and they may license and acquire copyright through assignments and agreements, but the works that they create. So, for example, let's use an example of like the Supreme Court. Supreme Court is a federal agency, if you will. They are, although they are the Supreme Court, they're federal employees. When they draft an opinion that goes on public to the to, you know, the Internet or to SCOTUSblog. Right. They don't own any kind of of copyright registration on that. Now, if you go to Westlaw. Right. And maybe a little different, they may arrange it a little differently. Right. They may have a thin level of protection, but largely the federal government won't have a claim to that particular work. Um, as I've already mentioned, works donated to the public domain. One big thing I'd like to raise because this comes up in emerging technology, is another thing that is not created protected by copyright. Non-human, created works. And yes, as you guessed it, we're probably getting into artificial intelligence and other things, um, non creative works. And you're like, you probably are looking at this picture of this monkey on the side and you're like, Caleb, how does this picture of this monkey have anything to do with copyright? I'm glad that you asked that question. Um, I'm happy to explain that picture. So is a picture of a monkey called Naruto. He is a monkey at that was at a monkey sanctuary. And there is a famous photographer who was taking pictures, and the monkey took his phone, turned it around and took this photo of himself. The selfie. The monkey took this photo. So the it was it made the news and then the the photographer who monkey who the monkey took the phone from, he took that image and started using it. And of all people, Peter. Yes. That Peter filed a friend of the court claim asserting that the photographer was infringing on the intellectual property rights, specifically the copyright of the Monkey Naruto. And this made it all the way up to the to the ninth Circuit Court of Appeals, where the court had to say, okay, this the monkey does not enjoy copyright protection because only works created by humans create are subject to copyright. And that has been the rule and that has been that rule is still ongoing. If it is not human created, it is not enjoy copyright protected works. And that is the current position of the Copyright Office as it pertains to works that are created by artificial intelligence solely. There's no human interaction whatsoever other than just a prompt. If it's just you prompting, you know, ChatGPT or one of these other artificial intelligence models, hey, generate an image that looks like X, Y, Z that largely is not going to be protected by copyright because there's no human interaction. And to the extent there are human interaction, right. The the US Copyright Office is going to carve out the human interact. The parts that were human had human creativity and apply copyright protection to that, but will carve out the works that are solely created by artificial intelligence. So that is something that's very key to know and understand. And it's a very fun case. The monkey case, we call it, endearingly throughout the copyright legal community. So I talked about copyright protection. And so you're probably asking yourself, well, Caleb. Yeah, like I need to be. It seems like there's dual sword here, right? There's ways for me to get copyright protection, but also if I use someone else's work without their permission. Sounds like I could be, you know, on the hook for copyright infringement. And if you said that to yourself, you would be absolutely right. Copyright infringement is very important because it is strict liability. I want to be very clear. Copyright law does not care about your feelings. It does not care about if you knew this was copyrighted by someone else, someone else with the copyright owner. It does not care. I like to say copyright infringement is like the speed limit. You get pulled over from the cop and he gives you a ticket for going ten over. You may have all the excuses in the book. I didn't see. I didn't know. I didn't know that the speed limit was 45 and I was going 55. None of those are going to fly when it comes to speeding ticket because it's your obligation to know. And whether we think that's fair or not, that's a policy question for another day. But that's that is the law and we deal with it. It's the same thing with copyright law. If I take an image from online from Google Images and put it on my website and I come to find out later that that image was owned by somebody else and I reproduced it without their permission. I infringed on their copyright and I may be liable for statutory or actual damages based upon the youth, my use of that particular work. So it's important for you to give permission. I like to say, you know, they like to say it's better to ask forgiveness than to ask permission in copyright and intellectual property law world. It's reverse. It's better to get permission than ask forgiveness. Because if you're asking forgiveness, you're probably staring down the barrel of a lawsuit. And that brings me to this wonderful, um, uh, pictures of the Statue of Liberty that you see here. Right. And to the left of it, you also see iStock. This is iStock image that I pulled. These are there's a lot of websites out there that have images that have the owners have basically relinquished their rights. They've said, I'm giving a license. Anyone can use this. Istock There's a bunch of other ones that you can use. That is something I tell people to use all the time. If you can't go out and get a license, go out and use images where no one's claiming the IP, um, or otherwise get a license and conduct thorough due diligence to make sure that the image that you're using is not going to be not subject to someone else's copyright. Um, and again, that brings me to this wonderful idea because you're looking at this and say, okay, why do you have two pictures of the Statue of Liberty next to each other? Well. These are not two images of the Statue of Liberty. One of these are the image of the Statue of Liberty, and that would be the image on the far right. That is an image of the Statue of Liberty. And it is not infringing. Why is that? Well. Because I thought you said works of architecture. And just for fair disclosure. The Statue of Liberty is considered to be a work of architecture because. It is a museum. There's a museum inside of it, and you can go inside of it. So it's considered to be a work of architecture. The two like, Well, what's that image on the stamp to the left? That is not the image of the Statue of Liberty. So one thing to keep in mind when it comes to works of architecture is although works of architecture can be subject to copyright protection, there's an exception. If you take a picture of a work of architecture, there's not infringement there. There's an exception there. That's why all the pictures that we take in front of, you know, beautiful buildings, New York, Chicago, overseas, the Eiffel Tower, Right. Those are not going we're not going to get a take down. We're not going to get sued by the the builders of those buildings because there's an exception there. So. Okay. Okay. What does all that mean here? Well, that means that the photo taking photos of the Statue of Liberty aren't going to be infringing. Okay, I'll wrap this up. What does this mean? The other photo that was on the stamp was actually a picture of the sculpture of the Statue of Liberty that sits in front of the New York New York hotel here in Las Vegas, Nevada. And this became problematic. Why? Because the US, the US Postal Service made a blunder and they thought that they were printing off pictures of the Statue of Liberty, which would have been totally fine. Right. They can absolutely do that. Wouldn't have been infringing. But because this was a sculptural work, that exception doesn't apply to sculpture works and taking pictures of a sculpture work and reproducing it is a violation of the sculptor's right to reproduce that sculpture work. And they violated it by printing off millions and millions of stamps that were showed on the previous slide. And they got sued. They got sued for several million dollars and they didn't get to go and say, well, we didn't know because at the end of the day, intent only matters when it comes to copyright. When we're talking about enhancing the damages, it has nothing to do to say whether or not you are liable has everything to do with will we enhance the damages or not. And so that's why I tell people, you may see people online who say, no, no copyright infringement intended. I don't own the rights. None of that has any merit. If anything, it's going to enhance the damages because it's showing that not only did you post this, but you did it knowing. That the IP was owned by someone else. And so that can enhance damages from just, oh, I was just an innocent infringer and didn't know to you actually knew someone else owned the rights to this. And then therefore the court should award enhanced damages to the copyright owner. So I like to use that example because if the federal government can get it wrong, you can absolutely get it wrong. And we absolutely oftentimes get it wrong, especially when it comes to new emerging technologies that we're not familiar with. And this brings me back to non-fungible tokens and how copyright is plays a role. Again, Nfts are not ownership rights in the tangible property or the intellectual property rights, including copyright, unless expressly given by the Creator. So if I create an image, I mints it off as an NFT and I sell that NFT. You don't own any of the IP unless I say, Hey, when you buy this NFT, I'm also giving you the underlying copyright to reproduce this particular work, you know as well. You only get piece of code. So again, you bought Jack Dorsey's tweet. You don't get the NFT for his tweet. You don't get any of the IP, you don't get the username, you don't get any of the account, You don't get any of that. All you have is a piece of code that says, I own the I. I am the digital owner of that NFT. So we can imagine now why nfts have kind of like boiled down and you know why people aren't spending millions of dollars on them because people are, you know, now we're past the big Covid wave and people have kind of really understand what they spent their money on. They know they're not getting intellectual property along with that Non-fungible token, this isn't common knowledge. This is a fun tweet that actually got retweeted from bad legal takes, not because of my take, but because of the take that I was talking about. I was I was working on a I was in an NFT certification program. And the instructor said, once you purchase the NFT, you own the copyright in the underlying work and you can exploit it for commercial purposes as this is terribly wrong and very incorrect. But a lot of people seem to think this and I think the public confusion only gets worse. Um, here's a here's the following tweet that got a bunch of love. Um, you know, so he went on to say, like, you know, use of Snoop Dogg as an example. Um, he said if you, let's say you bought an NFT of Snoop Dogg's image, you can now use it for commercial purposes. This is completely wrong. But this goes to show this is what people think when it comes to non-fungible tokens. You don't get any IP use my Kobe Bryant poster example. When I buy a Kobe Bryant poster, I don't have any of his name, image and likeness rights because I bought that poster. I don't have any of the copyright. I can't go and make copies of that poster and go sell it on eBay. That's an infringement of copyright. You don't. Same thing with Nfts. Just because you buy an NFT doesn't mean that you can just exploit the underlying work. You have to get the. You have to go out and get a assignment or license from the underlying owner. That goes for if you bought an NFT and you want to make it your profile picture. Sorry, you don't own the rights. The actual owner, the person who created that underlying image has a right to go and tell you to take that down. You only have a right to the code. And that's one of the big things. And that goes into non-fungible tokens and also other emerging technologies. You got to be careful. So let's let's I'm going to speed through here. I'm going to talk about trademark law. Trademarks are word phrases, symbols, signs, designs, sounds or even any combinations that identify or distinguish goods and services. I want to make this clear. Trademarks primary. Right. And the purpose is to distinguish goods and services in the marketplace. That is the primary goal. Um, the primary goal is to distinguish and to keep consumers from being confused. Here's a good example. When we see these all of these marks that you see on the screen, right, we are like, okay, I know what Google provides. Google is different than Microsoft. They may be in the same place. But I know if I see Google on a laptop, I know I'm probably getting a Chromebook. If I see Microsoft, I'm talking about probably Adele or Lenovo. Um, I know, I know they provide different kinds of, you know, software, operating systems, etcetera. I know the difference between Starbucks and Dutch bros and coffee Bean, um, you know, Pepsi, Coca Cola, right? Some of these we don't even need to see the words, right. You see the, the Apple logo there? We know that's Apple. We know what kind of technology. This is the work of Triton. It's to build brands and to be able to help consumers navigate the market, the marketplace. There's different strengths, right? Stronger the mark, the better. So we start with generic, right? Generic marks typically are not going to be given any kind of protection. This is just some kind of generic. It basically generically describes a vast set of goods and services in a particular industry. I'd like to use Velcro. Another good example is like Kleenex, arguably maybe generic. They've been fighting against this, but if I say, Hey, pass me that Kleenex and you actually pass me Cottonelle or some, you know, generic brand of tissue paper that you got from Walmart, right? That's that's a mark that's going to be generic. Another one, Taco Tuesday. We just heard about that, right. That was a big popular one. Taco Tuesday in connection with restaurant services selling tacos on Tuesday. Right. Really generic. We don't really associate that with one particular, you know, taco shop or taco brand that's going to be considered generic, not going to be given for protection. Another one, descriptive, you know, if the work if the mark describes the goods or services, then it may be given protection if there's acquired distinctiveness. So I like to use this example, Seattle's Best Coffee. If I've never been to Seattle, that's a that's a factual thing. I've never been to Seattle yet. And so I imagine when I go to Seattle, I'm going to go to Seattle, I'm going to ask someone, Hey, where is Seattle's best coffee? And they could be thinking one of two things. One, am I asking them for their opinion on Seattle's best coffee? And that is an example of a mark not having acquired distinctiveness. They think that then they're going to say, Oh my, the the best coffee in Seattle is Starbucks and that's around the corner. Or it's this Dutch bros down the street. Right? Then in that case, Seattle's best coffee is not going to be given any kind of trademark protection. But if I say, Hey, we're Seattle's best coffee and they immediately know, Oh, you're talking about the Seattle's Best coffee, that one place that sells coffee. Um, that's called Seattle's Best Coffee that that's an example of acquired distinctiveness. They say, oh, that particular place is, you know, on Fourth and Craig or whatever, that's going to be given protection. So descriptiveness can be, but it has to have that acquired acquired distinctiveness consumers, You have to be able to prove that consumers recognize that basically as a brand. And it's not just describing like if I just opened up a shop called Caleb Barber Shop, right, For Barber Shop Services. Yeah. That's a little descriptive of the goods and services. I'm largely not going to be able to get protection for that unless I can prove up through a lot of whether it's like unsolicited, um, you know, media attention or, you know, I've been using this for so long or so many sales, then I can prove up. The general public knows. When I say Carlos Barber shop, I'm talking about the Carlos Barber shop, not just some random barber shop. Marks that are suggestive. They provide like suggestive quality or characteristic of the of the service. So a little higher than descriptiveness. Right. Microsoft they sell software computers micro microchip suggest computer because suggest software. You're combining those words together. It takes a little bit more brainpower to get. They're not exactly describing it, but takes a little bit more brainpower to kind of connect the goods and services with the name that will absolutely be given trademark protection. Marks that are arbitrary marks that already exists, but you're using them in a way that have no relation to the goods like Apple. Apple doesn't sell fruits and vegetables. They sell technology. They sell computers, they sell iPhones. That's an example of being used arbitrarily. That's a stronger mark. Will definitely be given trademark protection. And then the last one, we have Rolex. This will absolutely be given trademarks. This is an example of a word that didn't exist. It was created solely to serve as a trademark. This is the strongest form of trademark that will always be given trademark protection. Um, one thing about trademark protection, unlike copyright, it is on the trademark owner to enforce their trademark. Otherwise they lose it. Right. Again, this goes back to the purpose of this is, you know, people use marks in commerce. The the community is going to be the public is going to be associating those with certain goods and services. If you fail to do that, if you allow a mark to be used just rampantly. Right. You may have what is a distinctive mark, but like let's use aspirin, for example. How many times have someone said, pass me an aspirin? Aspirin was an actual brand name for pain relieving medicine. Someone says, Pass me an aspirin. Nowadays, sometimes they pass me a Tylenol or an Advil. They're not actually passing you the brand of aspirin and which is for pain. So those cases. Right, it behooves the owner of the aspirin brand to go out and enforce stop people from saying, hey, this is an aspirin when they're just talking about some generic painkiller that's on the that's on the trademark owner. And that makes trademark litigation a little bit more litigious because it requires that the trademark owner actually go out in order to maintain their rights. They actually have to go out and enforce it, go to court, take people to court, issue takedowns, etcetera. So that brings me to domain names, because this is where Nfts and Emerging Technologies has kind of merged. And we use domain names. Domain names can be subject to trademark protection, not necessarily copyright, but trademark protection. But there's an interesting twist. So normally when we have a URL, you have things like, okay, https, right. W-w-w. And then you have like this main domain name part, say Caleb Green Dot, and then you have the top level domain.com.co.gov.org. And we have now a myriad of different ones. So traditionally, right when you do this right, we use domain names because it's kind of a shorthand. Computer doesn't read like Google.com, but we as humans do. We what the computer reads is like a domain or excuse me, an IP address. Right. You know, 101.1.1.1.0. Right. But we don't talk like that. We use we use a lexicon, we use letters, we use English or another language. Um, the so we need domain names to kind of be the intermediary. We type in google.com, a DNS search lookup protocol, a domain name service protocol. What that does is it takes that and it interprets it into an IP address, which the computer can use, which it can then navigate you to on the Internet and take you to that particular address. So if I want to go to Google, the computer actually reads like 108.177.12.101. Okay. Makes sense. That's been that's been working for a while. But what we have now is we have this new thing called blockchain domains. And instead of them being centralized like normal domain names where you have to go to a registrar, you have to go to go GoDaddy or Namecheap or something of that nature. In order to get that domain name. Now you can go to these blockchains where they have a decentralized. So again, as I mentioned before, there's no there's not this centralized place where I go to get the domain name. I go register it and there's hundreds of nodes that go and confirm, hey, I'm the owner of this particular one, so I get that. What's the problem? Well, the problem comes when we try to enforce it. Traditionally, if we try to enforce an infringing domain name, I just go to I can. I can governs all the registrars namecheap go GoDaddy domains, dot com, all those that you go to in order to get domain name and it's centralized. So if I have a dispute, I could file a complaint with Icahn and be like, Hey, these people are infringing. Here's my trademark. Hey, you got 60 days. If they don't respond, take it down or transfer it over to me. Easy to do because I can is centralized, but with blockchain domains, they're no longer centralized. It's the it's decentralized. And sometimes there's this anonymity. We don't know who. And sometimes even the blockchain, the one the blockchain domain registrars don't even know because they're hidden behind a um, they may be hidden directly behind a Bitcoin wallet name or some or something like that. So you actually don't know the person, whereas an Icahn they actually have to get your name, your address and that to turn that over in the event there's some kind of trademark litigation. Also, we have structures in place, we have laws, the Anti-cybersquatting Act, the I mentioned that before, that's going to ICANN and filing a complaint with ICANN and saying, hey, this infringes on my IP, take it down. We also have who is look up so I can go in and type in a a, a URL that says hey and try to figure out who the owner is or at least, you know, know who to ask or know which registrar it's been registered with and try to get that information. Blockchain domains take all that out and it makes it a lot more difficult to enforce. I'm going to skip over this. But I want to say one of the big things that comes into play is, okay, what do we do if someone comes up with a let's say someone uses Nike on a decentralized blockchain registrar and they start posting things on that decentralized web page, Well, it becomes difficult then to try to stop that. And so honestly, and it seems a little self-serving, but a lot of the registrars have said, well, the one way to do this is to be honest, there's really no other way to stop this but proactively register going out and buying up a bunch of domain names on these decentralized networks that cause that you think are going to be able to cause a lot of confusion, buying them up early and just maintaining them so no one else can buy them. And that right now seems to be one of the ways, although we have been navigating through a lot of jurisdictional procedure in order to try to enforce these. Um, also some ways to do it is through trademark enforcement. Sometimes they have these takedowns so you can file a takedown. Now, some of these blockchain domain registrars have them, some don't. So it behooves people to go in and kind of think about, okay, do I want to, um, you know, actually file here, get a blockchain domain name or not? Um, based upon whether or not they have, you know, internal takedown mechanisms where you can file and say, hey, instead of going directly to that person or going to a court, you go to the, the, the, the folks that are organizing the blockchain and saying, hey, you need to remove this or disable access, right? Because this is infringing on my on my trademark rights. So there's more here. There's been a lot about here about hey, how Web3 and these new blockchain domains provide some several issues to the traditional approach to enforcing trademark rights in domain names. Godaddy also here says the same thing. You got to go out and protect it. There's other there's other way issues with nfts. People like that take images. Let's say I'm an artist and you go and screenshot one of my images and then you post an image to it and start selling. It becomes a big problem, right? That's another issue that we're dealing with trying. And then again we come down, comes down to tracking down people, getting Bitcoin wallet names, hiring investigators. It can come very, very difficult. And these are things that a lot of people in the space are were sharing with the courts and the courts and other attorneys are sharing with Congress so we can find other ways to go about it. Courts have also found ways of like providing ways of alternative service. Some have even done it by minting an NFT and sending it to particular Bitcoin wallets and providing service that way. Some have done it through DMS, so those are things. Insider trading. This is interesting. So if I go and I create an NFT because a lot of these things are anonymous, I go, let's say I buy, I have a worthless NFT, but I also have like 50 other accounts on a NFT marketplace and I just sell that NFT between all those other accounts. And every time I increase the value right then comes along on, you know, if I have 50 accounts and I sell it 50 times between those 51, there's someone who looks at this and says, Wow, this NFT has increased in value so much, right? Oh, I'm going to buy it, right? Little did they know those other 50, you know, transactions were really fraudulent and were there to inflate the price. So that's another issue. And again, as I talked about, there's the IP issues as well as jurisdiction that we deal with in the anonymity dealing with folks who actually have don't have a name or address associated with their particular works or the nfts or their blockchain wallets. But just have just have a long string of that is that's that makes up their Bitcoin wallet or blockchain wallet. As I mentioned a little bit about counseling and IP enforcement. It's important to understand these new technologies and brush up on copyright, trademark law and other forms. And of course, there's the copyright Act. There's also terms and conditions, right? To the extent you find like there's some content on someone's website or someone's. Uh, I wouldn't say their website, but on Amazon or some other, uh, online marketplace or even a decentralized, decentralized marketplace. Right? You may want to look to their terms and conditions. That's a contract and you may be actually be able to enforce that against the owners, whether it be decentralized or centralized. Um, you may be able to go after them and say, Hey, this violates your terms and conditions, this violates your community guidelines, you should remove this. There's a lot of other ways litigation which comes expensive. You could also register some of your copyrights and trademarks with the US Customs and Border Patrol, and they can also go out and enforce and stop those from being imported into the United States. These are some examples of what takedowns look like on like Facebook, Apple, Twitter. You can oftentimes you see some kind of infringing materials. You can actually just go straight to them, file, say, here's my registration for my trademark or my copyright. Here's why this infringes. Please take it down. Talked about US Customs, Border Patrol. There's a website, there's the Copyright Claims Board, and this will be my last slide before I open it up to address any questions. But there's the Copyright Alternatives and Small Claims Enforcement Act. This has been open for about a year and it allows small claimants of copyright claims to actually address copyright claims instead of having to go to federal court and pay a lot of money and hire an attorney. This makes it a lot easier, cheaper and faster. There's a lot less motion practice, a lot less procedural hoops you kind of have to run through. And you also can do this pro se if you want, but you also can have an attorney. So it kind of evens the playing field. The one catch is that it does require consent from both parties, meaning if you try to sue someone they can, they have the option to opt out and then you could still take it to federal court if you want. But that's one of the pros, but also the cons of the copyright claims board. So with that, that's a little bit about this, some contact information here. I want to thank everyone for being here at this webinar and for indulging me in my technology and intellectual property merger space. I absolutely love this area of law and it's a lot of fun. So I appreciate you all being with me.

Presenter(s)

CG
Caleb Green
Associate
Dickinson Wright

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                                                                                                                  Available until

                                                                                                                  December 31, 2026 at 11:59PM HST

                                                                                                                  Status
                                                                                                                  Approved
                                                                                                                  Credits
                                                                                                                  • 1.0 general
                                                                                                                  Available until

                                                                                                                  September 26, 2025 at 11:59PM HST

                                                                                                                  Status
                                                                                                                  Available
                                                                                                                  Credits
                                                                                                                  • 1.2 general
                                                                                                                  Available until

                                                                                                                  May 2, 2025 at 11:59PM HST

                                                                                                                  Status
                                                                                                                  Approved
                                                                                                                  Credits
                                                                                                                    Available until
                                                                                                                    Status
                                                                                                                    Pending
                                                                                                                    Credits
                                                                                                                    • 1.0 areas of professional practice
                                                                                                                    Available until

                                                                                                                    September 26, 2025 at 11:59PM HST

                                                                                                                    Status
                                                                                                                    Available
                                                                                                                    Credits
                                                                                                                      Available until
                                                                                                                      Status
                                                                                                                      Pending
                                                                                                                      Credits
                                                                                                                      • 1.0 general
                                                                                                                      Available until

                                                                                                                      September 26, 2025 at 11:59PM HST

                                                                                                                      Status
                                                                                                                      Available
                                                                                                                      Credits
                                                                                                                        Available until
                                                                                                                        Status
                                                                                                                        Pending
                                                                                                                        Credits
                                                                                                                          Available until
                                                                                                                          Status
                                                                                                                          Pending
                                                                                                                          Credits
                                                                                                                            Available until
                                                                                                                            Status
                                                                                                                            Pending
                                                                                                                            Credits
                                                                                                                            • 1.0 general
                                                                                                                            Available until

                                                                                                                            January 16, 2026 at 11:59PM HST

                                                                                                                            Status
                                                                                                                            Approved
                                                                                                                            Credits
                                                                                                                              Available until
                                                                                                                              Status
                                                                                                                              Pending
                                                                                                                              Credits
                                                                                                                                Available until
                                                                                                                                Status
                                                                                                                                Pending
                                                                                                                                Credits
                                                                                                                                  Available until
                                                                                                                                  Status
                                                                                                                                  Pending
                                                                                                                                  Credits
                                                                                                                                    Available until
                                                                                                                                    Status
                                                                                                                                    Not Offered
                                                                                                                                    Credits
                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Pending
                                                                                                                                      Credits
                                                                                                                                      • 1.0 general
                                                                                                                                      Available until

                                                                                                                                      September 30, 2024 at 11:59PM HST

                                                                                                                                      Status
                                                                                                                                      Approved
                                                                                                                                      Credits
                                                                                                                                        Available until
                                                                                                                                        Status
                                                                                                                                        Pending
                                                                                                                                        Credits
                                                                                                                                        • 1.0 general
                                                                                                                                        Available until

                                                                                                                                        September 26, 2025 at 11:59PM HST

                                                                                                                                        Status
                                                                                                                                        Approved
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Not Eligible
                                                                                                                                          Credits
                                                                                                                                          • 1.0 general
                                                                                                                                          Available until

                                                                                                                                          September 26, 2025 at 11:59PM HST

                                                                                                                                          Status
                                                                                                                                          Approved
                                                                                                                                          Credits
                                                                                                                                            Available until
                                                                                                                                            Status
                                                                                                                                            Pending
                                                                                                                                            Credits
                                                                                                                                              Available until
                                                                                                                                              Status
                                                                                                                                              Not Eligible
                                                                                                                                              Credits
                                                                                                                                                Available until
                                                                                                                                                Status
                                                                                                                                                Not Eligible
                                                                                                                                                Credits
                                                                                                                                                  Available until
                                                                                                                                                  Status
                                                                                                                                                  Pending

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