0:00 Look, maybe you are using Brain Rot 0:01 characters in your game, you ship a map 0:03 with AI assets, or you are staring down 0:06 a fake DMCA. Every creator I'm talking 0:09 to right now is running into this stuff. 0:11 IP attorney Rose Kauts came on the show, 0:14 and what she breaks down is generally 0:16 going to change how a lot of you think 0:18 about all of this. 0:19 >> The last misconception is that if AI is 0:22 involved, no one owns anything. And that 0:25 is 0:26 100% wrong. And not just 100% wrong in 0:29 Italy, and the UK, and China, where, you 0:32 know, I think people are starting to 0:34 hear, oh, China protected a copyrighted 0:36 work, or maybe you can get protection in 0:37 the UK. That is wrong here in the United 0:41 States. 0:41 >> In the next rush to trademark Brain Rot, 0:44 he's watching something most creators 0:46 aren't. 0:47 >> There was this rush of filings when they 0:49 first kind of started gaining traction, 0:52 and now, if you're keeping an eye on it, 0:53 like I am, you're seeing those 0:55 applications just keep getting refused 0:57 and keep getting abandoned. 0:58 >> Weaponized DMCA's killing maps, the 1:00 freelancer hired that cost devs their 1:02 own game, and the one case every UGC 1:05 creator and dev needs to watch right 1:07 now. Let's go. 1:08 >> This is Creative Juice. 1:11 >> All right, I think we're live. How's it 1:12 going, Rose? 1:14 >> It is going well. It's Cinco de Mayo. 1:16 Woo! 1:17 >> Oh my gosh, I know. It's probably it's 1:19 going to come out in like a week and a 1:20 half. Just for listening, so it won't be 1:22 Cinco de Mayo for you, but hopefully you 1:23 had a good Cinco de Mayo. But no, I'm 1:26 super excited to have you. Like Like 1:28 this is a treat for any creator, any 1:30 Anyone listening, like the fact that you 1:32 have come on, this is like just 1:34 incredible. I first want to thank you 1:36 because this is a really hot topic, I 1:38 think all in all of gaming space, but 1:40 especially in the UGC space, 1:42 for you to take time out of your very 1:43 busy schedule to come, you know, get us 1:47 uh noted up on IP. Thank you. 1:50 >> I am so happy to be here, and I 1:52 appreciate you giving me a chance to 1:53 stand on some of my soapboxes in front 1:55 of a new audience. So, I really 1:57 appreciate it. 1:58 >> It's perfect. All right. Well, let's 2:00 just get started. Want to start with how 2:01 you got into this work. You have a 2:03 computer science minor from Haverford, 2:05 and you build custom databases and 2:08 analytic tools for your law practice. 2:10 Like, you are not the lawyer most game 2:12 devs picture when they hear IP attorney. 2:15 Like, how did a CS background lead you 2:17 into trademark law? And how does that 2:20 shape the way you advise tech and gaming 2:22 clients? 2:24 >> Sure. So, I might not be a stereotypical 2:26 lawyer, but I am going to start this 2:28 talk with the stereotypical lawyer 2:30 disclaimer for your listeners. I am a 2:33 lawyer. I am not your lawyer. Um, we're 2:36 about to talk about a lot of facts and 2:38 nuances and exceptions in IP, so it's 2:40 impossible to cover every potential 2:43 situation in a podcast. Uh, nothing I'm 2:46 giving is legal advice. We're talking 2:48 about general principles, but how those 2:50 principles apply to anyone's specific 2:52 case might be different. So, now that we 2:54 have that out of the way, a little bit 2:56 about me. I have always lived in a world 2:59 that mixed art and science. My dad was 3:01 an engineer, and my mom is a children's 3:03 book illustrator. So, we were talking 3:06 about inventions and creative works and 3:09 who should protect them and how around 3:11 the dinner table. It's been something 3:12 important to me since I was little. 3:15 Um, and then by the time I got to 3:16 college, digital worlds were becoming 3:19 real economies. People were making real 3:21 money selling virtual merchants second 3:24 life and even writing entire academic 3:26 papers about the economy in Eve Online. 3:30 >> Yeah. 3:30 >> So, so many of our laws at that time 3:33 especially were based on physical items, 3:36 like records and CDs, which no longer 3:39 makes sense when everything is made of 3:40 pixels. The law treats photographs 3:43 differently than paintings because you 3:45 have a different amount of control over 3:47 a photograph versus a painting. But, 3:50 what happens when you have digital art 3:52 that's indistinguishable from a 3:54 photograph? So, in my law school act 3:56 essay, I actually said IP was the wild, 3:59 wild west and I wanted to be a cowgirl. 4:02 >> Yeah, okay. 4:03 >> So, I did start in patent law because of 4:05 my tech interests, but I switched to 4:07 trademark and copyright after a few 4:09 years. Patents are mostly focused on 4:12 inventions and science and medicine, 4:15 which can be a little dry. And I'm a 4:18 material girl. So, I like trademarks and 4:20 copyrights because they focus on things 4:22 everyone can see and understand and 4:26 touches on every day, like fashion and 4:28 food and sports and games. So, 4:31 in my humble opinion, trademark and 4:33 copyright is way more fun. But, the dev 4:35 mindset still shapes most of what I do. 4:38 I think in systems, I think in 4:39 algorithms. I'm really into scaling 4:42 programs. You know, what happens to this 4:45 thing when it goes viral? I'm not always 4:48 thinking just how is this thing going to 4:50 go, but how do we do this with the 4:52 resources we have now and start small, 4:55 but set ourselves up for success if we 4:57 hit 10 million 10 million users 4:59 overnight? 5:01 >> Yeah, how great intro, great intro. 5:03 Like, I I think you told me didn't don't 5:05 you do something with programming or you 5:07 have in the past? 5:08 >> yeah. I build some of my own bots and 5:10 agents. I'm constantly doing coding and 5:13 analytics. I think that data is worth a 5:16 thousand words. I love a good pie chart. 5:18 >> [laughter] 5:19 >> Yeah, definitely still the nerd the nerd 5:21 seeps through everything I do. 5:22 >> Amazing. Look, you're in the right crowd 5:24 right now. So, don't worry, don't worry. 5:26 We're we're definitely all nerds here. 5:28 And nerd's a cool a good term these 5:29 days. Like, back when I was in school it 5:31 was not. 5:32 >> [laughter] 5:33 >> You ever see the TV show Leverage? So, 5:35 their their hacker, he was this really 5:37 cool sexy guy who'd always say, "Age of 5:39 the geek, baby." And so, that's what my 5:41 friends and I always say now, "Age of 5:43 the geek, and nerd's cool." 5:44 >> That's it. 5:46 So, kind of piggybacking on that a 5:47 little like, you know, I want to talk 5:49 about kind of what is an IP lawyer just 5:51 for people that may not understand. What 5:54 does an IP lawyer actually do 5:55 day-to-day? Like, give us a plan in 5:58 plain language version of like copyright 6:01 versus trademark versus patent cuz I 6:03 think most creators think copyright 6:05 covers everything. 6:06 >> And I probably would too if I hadn't 6:08 grown up the way I did. So, 6:10 >> I think from TV a lot of people get the 6:13 impression that lawyers either are suing 6:15 people and spending their time in courts 6:17 or they're big fancy deal makers and 6:20 they're doing a lot of contracts. And I 6:22 do some of that, but most of what I do 6:25 doesn't make good TV. If I'm doing 6:29 things well, it definitely doesn't end 6:31 up in a courtroom and often it's never 6:33 public or at least my involvement in 6:36 something isn't public. 6:37 >> Mhm. 6:38 >> So, for me a normal day might be a lot 6:40 of behind-the-scenes work like talking 6:42 to a creator about why the DMCA they got 6:45 is bogus or maybe what changes they do 6:47 need to make in light of this challenge, 6:50 helping devs figure out whether have the 6:53 right contacts in place to make sure 6:54 they actually own the work their 6:56 freelancers made. I spend a lot of time 6:58 talking with the trademark office and 7:00 actually educating them on a new brands 7:03 or new technologies and why two things 7:06 that might look similar aren't actually 7:08 confusing or copying each other and they 7:10 should both be allowed. 7:13 I also do international work which is 7:16 something that's a bit of a specialty of 7:17 mine. So, I serve as a translator and an 7:20 ambassador moving things between 7:22 different legal and cultural systems and 7:24 trying to explain everything and make it 7:26 all make cohesive sense. And obviously, 7:29 I'm helping people identify their IP, 7:32 figure out what IP to register and what 7:34 IP not to register. And on that note, I 7:37 actually think it's important to comment 7:38 that I spend a lot of my time telling 7:40 people not to spend money. A lot of 7:43 founders have very limited budgets and 7:45 so I think it can be very easy to feel 7:47 like you have to do everything, be 7:50 everything, everywhere all at once and 7:53 sometimes the smartest move is to just 7:55 ignore some small problems. You can deal 7:57 with the bigger one that is going to 7:59 kill your project in 6 months. In terms 8:01 of what those might be, 8:04 you're right, copyright is probably one 8:06 of the biggest, the 80-lb gorilla in the 8:08 room when it comes to the gaming space. 8:12 Copyright is and then trademark is the 8:15 second. Patent, as I said, is for novel 8:18 innovations, which are less relevant, so 8:21 we'll put that aside for the moment. But 8:23 copyright protects original creative 8:26 expression. And what that means in the 8:28 gaming world is art assets, music, 8:30 story, dialogue, text, code, animations, 8:34 level design, or even level editing, how 8:36 you splice things together. 8:39 Trademark, on the other hand, protects 8:41 brands and the public, not creativity or 8:44 authors or creators. 8:47 A trademark is how you tell apart two 8:49 products in the same category. So, for 8:51 example, Ferrari and Subaru are both 8:55 cars, but you think something very 8:57 different when I say those two. So, a 8:59 trademark rolls up all of that brand 9:01 identity, what the product is, who makes 9:04 it, what category it's in, what its 9:06 quality is, any associated like 9:08 lifestyle or reputation or goodwill into 9:12 one symbol. And that symbol can be a 9:14 word like Nike, it can be a phrase like 9:16 just do it, it can be a symbol like a 9:18 swoosh, but it's how you tell who makes 9:22 something and what makes it different 9:24 than the identical product that it's 9:26 sitting next to you on the shelf. And 9:28 the important part for both copyright 9:30 and trademark is that they give an 9:32 exclusive right to something. They're 9:33 essentially a government-granted 9:35 monopoly on something, but it's not 9:38 unlimited. Copyright, for example, 9:41 doesn't protect ideas. It doesn't 9:43 protect things that are in your head or 9:46 abstract concepts. It has to be fixed in 9:49 a tangible medium, which is paper, a 9:52 computer, clay if you're a sculptor, 9:54 some sort of 9:57 something you can touch and, you know, 9:58 specifically point to something 10:00 discreet. And a lot of my job comes in, 10:02 especially in the gaming space, trying 10:05 to identify where the non-protectable 10:08 idea stops and the protected original 10:11 creative expression begins. So, for 10:13 example, game mechanics in the abstract 10:16 are considered an unprotectable idea. A 10:19 ball that drops or shapes that fit 10:21 together like in Tetris, unprotectable 10:24 ideas. If you only have four Tetris 10:26 pieces, there's oh the four little 10:28 squares, there's a limited number of 10:30 shapes you can make out of those, right? 10:32 You can only have the four line, the 10:34 four blocks, like there's just a set 10:36 number of iterations. So, those concepts 10:39 by themselves are not protected. Every 10:41 Battle Royale game has some of the same 10:43 themes and the same mechanics. 10:45 >> Yeah. 10:45 >> 100 people drop in, you're stealing some 10:48 stuff, the map gets smaller, 10:50 one person is left standing, you know? 10:52 But 10:53 >> Yeah. 10:53 >> at the same time, Fortnite and PUBG can 10:56 coexist because copyright the you know, 10:59 the other elements that they bring to 11:01 the table are different enough that they 11:04 aren't just copying each other because 11:06 they have those things in common. And a 11:08 lot of times disputes arise, including 11:11 DMCA takedown notices and all of those 11:14 fun things that creators lose sleep over 11:16 at night because people disagree about 11:19 what parts of a game are necessary 11:21 mechanics or genre elements that anyone 11:24 can use and what parts are unique to a 11:27 specific creator. 11:28 >> Yeah. 11:29 >> One of the interesting things, 11:30 especially in the gaming space, is that 11:32 that's changing all the time. If you 11:35 invent something new and creative and 11:37 are the first of your kind in a genre, 11:39 you may then have to tolerate other 11:41 people coming into that genre. On the 11:43 trademark side, 11:45 trademarks are also context specific. 11:47 So, a name or a studio or a logo is a 11:51 trademark, but only if you actually use 11:54 it as a brand. And this is the piece I 11:56 see a lot of creators get caught up on 12:00 because they think, "I made this name or 12:01 I invented this word, so I own it." And 12:04 the example I like to give for this when 12:07 I'm teaching my IP classes is, and I do 12:10 teach IP for startups, so some of this 12:12 is recycled, but Apple is a brand for 12:15 computers because no one needs to call 12:18 their computer an Apple or a Macintosh. 12:21 But no one can stop anyone else from 12:23 using the dictionary word Apple to 12:25 describe fruit or to describe 12:27 apple-scented perfume, apple pie, apple 12:30 flavor, apple cider. So, it really 12:33 depends not just on what you're using, 12:36 but where and how you're using it. 12:38 And the reason for that, as I mentioned 12:41 earlier, is that trademarks are what 12:43 help brands stand out from each other 12:45 and prevent people from being confused. 12:48 So, you may have 10 apple flavor 12:50 products, you're going to look at 12:51 something else to figure out which one 12:52 is the one you want. And on the flip 12:55 side, that means that you can have the 12:57 exact same words in different contexts 12:59 and it's not a problem. The example I 13:01 like to use there is Dove chocolate and 13:03 Dove soap because ain't nobody buying 13:06 soap when they want chocolate. 13:07 >> Yeah, yeah. 13:08 >> It's all about how similar are these 13:10 names, how similar are the products, and 13:13 is someone going to accidentally buy 13:15 something from company B because they 13:18 think it's company A, and then company A 13:22 is going to get in trouble, and that's 13:23 not good for anyone. 13:24 >> That was an incredible breakdown. It 13:26 definitely you can tell you teach, and I 13:28 think you you put it in 13:29 >> some of that out if it's too long. 13:31 >> No, I think it's perfect, and I think 13:33 it's needs to be said, and I and like I 13:35 said, there's we have people listening 13:37 from brand new creators, 13:39 um people who've been you know, in AAA 13:41 for 20 years, right? So, there's just 13:43 different levels. I think that you you 13:44 brought is like, you know, you you just 13:47 you explained it perfectly. Thank you so 13:49 much for that, and I think this is like 13:50 the perfect next question follow follow 13:52 up from that is like, when does a 13:54 creator actually need to call you? 13:56 You know, is it the first time they make 13:58 money, the first time they hire 14:00 freelancer, first time they get a DMCA 14:03 strike? Like, you know, I guess what's 14:05 one of the most expensive mistakes you 14:07 see indie creators make over and over? 14:10 >> Yeah. So, after that very long answer, 14:12 here's a very short one. 14:14 It depends. 14:15 >> Okay. 14:15 >> That's also the lawyer answer, right? 14:17 Cuz it really is very specific, but one 14:19 of the mistakes I see the most are 14:21 things that start with collaborations. 14:24 Someone brings in a friend to help with 14:25 the art, or they hire someone on 14:27 Discord, and they're just kind of going 14:29 on vibes, and then 6 months later, 14:31 everything goes really well, the game 14:33 blows up, money starts coming in. Yay! 14:36 But now you want to buy something, or 14:38 sell the code, or license a character, 14:41 and you're going back and trying to 14:43 recreate history, and everyone has a 14:45 different memory, or different ideas on 14:47 who owns or should own what. Or you find 14:50 out that that person you hired, they 14:52 copied something, and now you're on the 14:53 hook for it. So, if you're at the point 14:56 where you're monetizing, if you're 14:57 hiring people, if you're getting DMCA 15:00 notices, you're kind of [clears throat] 15:02 already past the should I talk to 15:04 someone stage, and one of the reasons I 15:07 started teaching this IP for startups 15:09 workshop is because there were so many 15:11 founders coming to me, and I was just 15:13 constantly saying like, I wish you 15:14 talked to me 6 months earlier. 15:16 >> Yeah. 15:17 >> Because fixing a problem after the fact 15:19 is almost always more difficult and 15:21 expensive than preventing it in the 15:23 first place. So, my general advice is 15:26 the time to find a lawyer is not when 15:28 you need one. It's before. So, start 15:31 meeting folks, start finding folks that 15:32 you can trust, and building your support 15:34 network, not just legal, but business 15:36 and finance and marketing 15:38 before you actually need it. 15:40 >> Yeah. No, that's very well said again. 15:43 Um and and hopefully creators are are 15:46 listening and make sure 15:47 >> And it's not hard. We went to You and I 15:50 were at World Builder, you know, 15:51 together, and it was fun. We all hung 15:53 out. We got to meet some people, but I 15:55 think those kinds of connections are so 15:57 important. 15:59 >> For sure. And I've I've brought this up 16:00 I think before in this podcast, and it's 16:02 just like you know, I've gotten lawyers 16:05 in the past, but they didn't necessarily 16:07 understand the gaming side of business 16:10 at all. And so, you know, meeting people 16:12 like you, meet meeting like there's 16:14 there's lots of people out there that 16:17 have actual specialized and actually 16:19 worked within these type of ecosystems, 16:21 like actually have real knowledge about 16:23 them, and it's worth its weight in gold. 16:25 You don't want to go hire your 16:26 mom-and-pop shop lawyer that may you 16:29 know, might maybe not know much about 16:30 about the gaming space and could leave 16:31 you open. So, long story short, her link 16:34 will be in the description. 16:35 >> [laughter] 16:35 >> We're friends. 16:37 >> But But anyway, like 16:39 you know, we're having fun here and and 16:41 I I want to kind of like a big big thing 16:44 going on in the UGC space right now is 16:46 is of course brain rots, right? It's 16:48 it's it's rampant. Everyone wants 16:50 copyrightable. Is it this? Is it that? 16:52 So, like I've really wanted to bring up 16:54 this this these questions around that 16:57 just and I I think it'll kind of even if 16:59 it's not brain rot, it'll kind of get 17:00 people an idea of what maybe some of the 17:02 laws or how this works. So, 17:04 on April 3rd, Epic dropped Tong Tong and 17:07 Ballerina Cappuccino, right? And they 17:09 were official Fortnite skins. So, these 17:11 are AI-generated TikToks with no clear 17:14 signal creator, essentially. Like from a 17:17 deal-making standpoint, like, what is 17:19 Epic's legal team have to do to put a 17:21 character like that in the item shop? 17:22 Like, are they licensing? Are they 17:24 betting nobody will sue, which we know 17:26 that's not the case, but like, what does 17:28 the paperwork actually look like? 17:31 >> Yeah. So, I'm not going to talk about 17:32 specifics of a specific deal, but I do 17:34 think it's good to talk about some 17:36 common high-level themes. 17:37 >> Yeah. 17:38 >> And as a lawyer, the word I use the most 17:41 is risk. And pretty much every IP deal 17:45 boils down to benefit and risk. Or 17:48 sometimes not even risk, but 17:49 consequences. 17:51 >> Yeah. 17:51 >> So, folks might take more risk if 17:53 there's a big enough potential upside. 17:56 Other folks might not want any risk at 17:58 all, or they don't have the resources 18:02 to, even if they want to take the risk, 18:04 deal with the consequences if they 18:06 happen. 18:07 So, most IP contracts are based around 18:11 balancing those benefits and those 18:13 risks. So, obviously, there are the 18:15 terms, like, what IP is being used, 18:17 where it's being used, how it's being 18:20 monetized, for how long, you know, fee 18:23 schedules, all of that. But, a lot of 18:25 the issues I get into in IP contracts 18:28 are focused on who owns or could claim 18:31 to own something, where's the proof of 18:34 that, and what happens if someone is 18:37 wrong. 18:37 >> Yeah. 18:38 >> So, when I'm working with creators, this 18:40 is where, as I mentioned earlier, if you 18:42 want a license, all of a sudden, you 18:43 might have a potential brand partner 18:45 saying, "Well, where's your contract 18:46 with that person showing that they 18:48 assigned all of that, you know, art over 18:51 to you if you had someone on Fiverr draw 18:54 it for you?" 18:55 >> Yeah. 18:56 >> You know, so they need to be able to 18:57 really explain what they made and how 19:01 what was made on their behalf, and back 19:03 things up with evidence. Which, 19:05 sometimes that's a trademark or a 19:07 copyright filing. Oftentimes, I like to 19:09 refer in the US to trademark and 19:11 copyright registrations is like a birth 19:13 certificate for a baby. You can have a 19:15 completely valid baby without a birth 19:17 certificate, but the paperwork makes it 19:19 a lot easier to say like this happened 19:21 at this date, and you know, deal with 19:23 some formalities. 19:24 But, beyond just the paperwork, you 19:27 know, having dev logs or screenshots or 19:30 contracts, all of those things really 19:33 can help add up to show that you own 19:36 what you own and help reduce that 19:38 perception of risk like, "Oh, this guy 19:41 can't even tell me who made this. I'm 19:42 definitely going to get sued." compared 19:44 [laughter] 19:45 to having that clear chain of title or 19:48 creation evidence. And on the flip side, 19:51 creators need to be really honest about 19:54 any potential limitations or problems 19:57 that they might be aware of. This is not 19:59 a time to stick your head in the sand 20:01 because a lot of contracts include 20:03 indemnification clauses, which means 20:05 that if something goes wrong and 20:08 anything the creator says turns out not 20:10 to be the case, the creator takes on the 20:12 responsibility to manage and pay for it 20:15 even if it's something that happened 20:16 with the other side. And if you're not 20:19 willing to go to court and stand up for 20:20 what you did and why you were right, why 20:23 on earth would someone else invest in 20:25 what you built? That's a huge red flag. 20:27 >> Yeah. 20:28 No, perfect answer. And And I know 20:31 there's a lot of confusion, like I said 20:33 earlier, like around the Brainrot. So, 20:35 like, what's actually protected when it 20:36 comes to Brainrot characters, memes, and 20:39 AI? Like, um I don't know if like what 20:42 you have if you have anything on that 20:43 subject. I don't know if you want to 20:44 walk us through misconceptions you see 20:46 people are getting wrong or anything 20:47 like that. 20:49 >> Why yes, Matthew, I do. Thank you for 20:52 giving me a chance to get up on my 20:53 favorite soapbox and clear up a few 20:56 really common misconceptions I see 20:58 around characters and memes and AI 21:01 because so many folks got this wrong. 21:04 And the first one I want to start with 21:06 is I think a lot of people think 21:08 copyright, trademark, those registration 21:10 certificates are magic paper. If you 21:13 have the registration, you own it. 21:15 That's not true at all. Someone can 21:17 commit identity fraud. They can steal a 21:19 baby's identity, right? So, you can have 21:21 the piece of paper and not actually have 21:22 the rights. Or, you can have the rights 21:25 and not have the piece of paper. In the 21:26 United States, big caveat, we'll get 21:28 into that later, but in the US, what you 21:31 actually own and what your paperwork 21:34 says are not always the same thing. 21:36 So, on the copyright side, there isn't a 21:39 checkbox that says character. Copyright 21:42 registrations, we talked about this, 21:44 cover tangible expression. So, they 21:46 might cover the art for a character, 21:48 they might cover the written text or 21:51 dialogue of a character, they might 21:53 cover music, but, you know, even for 21:56 something like the Batman comics, 21:57 there's nothing on that registration 21:59 that says Batman the character. And the 22:03 concept of is Batman a 22:06 copyright-protected character or is 22:08 James Bond a copyright-protected 22:10 character or is the Batmobile a 22:12 copyright-protected carrier character? 22:15 Those only get decided when it goes to 22:18 court. So, the issue here is that in the 22:21 brain law space, that hasn't been 22:22 decided yet. A lot of people are filing 22:25 for these pieces of paper, but it hasn't 22:27 really been tested in court. Some things 22:29 are starting to get filed, but they're 22:31 early, and so anyone who's out there 22:34 saying, "Oh, this is definitely 22:35 protected." or "This is definitely 100% 22:38 unprotectable." Both of them are 22:40 guessing. So, box two is on memes. So, 22:42 the second misconception I see a lot is, 22:45 "It's a meme, so it's free." And this is 22:48 the good and bad of the internet, right? 22:51 Like, we're all sharing and exchanging 22:53 ideas, and it is something where art 22:55 and, you know, culture are being 22:57 democratized in a way. Everyone is sort 22:59 of contributing to and building their 23:02 own worlds, but copyright still exists 23:06 and memes can absolutely be protected by 23:10 copyright. And the two examples I like 23:12 to use are Success Kid. Have you guys 23:14 have seen that little kid? 23:15 >> Yeah. 23:15 >> That picture is copyrighted. The parents 23:18 who took that picture own the copyright. 23:20 And Pepe the frog, it's a piece of art. 23:23 Someone drew him. That frog is 23:25 copyrighted. And in both cases, the 23:28 creators have successfully sued 23:30 politicians who tried to use those memes 23:33 in ads and make money off those memes 23:35 without the creator's permission. 23:38 But that doesn't mean that all things 23:41 are equal and just because 23:44 and not all uses are the same, you know, 23:46 someone might own a copyright, but be 23:48 okay with other people using it on 23:50 Reddit threads and in non-commercial 23:52 use. They're only going to go after you 23:54 if you're using it commercially or with 23:56 something that they don't agree with or 23:58 don't want to be associated with. So, 24:01 just because something spreads fast, 24:03 maybe it feels internet native, it has a 24:05 little bit of AI to it, it's a meme, or 24:08 it gets remixed a lot, that alone does 24:10 not put something in the public domain. 24:13 And the last one I want on that same 24:15 related note, the last misconception is 24:17 that if AI is involved, no one owns 24:20 anything. And that is 24:22 100% wrong. And not just 100% wrong in 24:26 Italy and the UK and China where, you 24:29 know, I think people are starting to 24:30 hear, "Oh, China protected a copyrighted 24:32 work." Or maybe you can get protection 24:34 in the UK. That is wrong here in the 24:37 United States. Copyrighted works do 24:39 require human creative contribution, 24:42 what we call human authorship, but 24:44 that's not all or nothing. So, even 24:47 before AI was a thing, there was another 24:49 case where a monkey took a selfie using 24:53 a nature photographer's camera and PETA 24:55 tried to establish the monkey as the 24:57 copyright owner, and the court was 24:59 really clear on that one, no person, no 25:01 copyright. 25:03 >> [snorts] 25:03 >> But unlike the monkey case, AI 25:06 authorship is, uh, 25:09 you know, creates a gray area because 25:11 some parts of a work might be 25:12 protectable. You might have an 25:14 AI-generated image, but you as a person 25:18 wrote the text, and so parts of a work 25:20 might be protectable or parts not or 25:22 maybe the collection of things is 25:24 protectable even if the individual 25:28 elements aren't. There's really no magic 25:30 formula. One of the earliest examples 25:33 was a graphic novel called Zarya of the 25:35 Dawn. And the author, Chris Castanova, 25:38 she's awesome, used Midjourney to 25:40 generate her images, and the copyright 25:42 office said, "Okay, the individual 25:44 images aren't protected, but the book as 25:46 a whole is. Not just the story, not just 25:50 the structure, but also how you chose to 25:52 select and arrange the images, do the 25:54 layout, you chose the order." Overall, 25:57 together that's a protectable 25:59 compilation. And we can think about that 26:01 pre-AI in terms of collage art. Even if 26:04 you're cutting out pictures in 26:06 magazines, or maybe you're cutting out 26:07 pictures that are entirely from the 26:09 public domain. They're over 100 years 26:12 old, no one owns them. Even though every 26:14 individual piece in the collage is 26:16 public, the new collage is a new 26:19 original creative work based on how you 26:21 put things together. After the first, 26:24 uh, decision on her comic book, 26:26 submitted another AI-assisted image to 26:29 the copyright office, and this time she 26:31 gave a lot more evidence about how she 26:34 created the work. So, her original 26:36 sketches, her detailed prompts, and a 26:38 lot of iterative changes. And this one, 26:41 this one was a picture of a rose. The 26:43 copyright office did grant her a 26:45 registration for that image, but again, 26:48 they carved out, it says, you know, 26:49 registered for this image minus 26:52 non-human expression. Does anyone know 26:54 what that means? No. Are we going to 26:56 find out? No, unless someone tries to 26:58 copy the image and go to court. But, for 27:00 now, she has a valid registration for 27:03 her art. And even last year, this 27:06 happened with a piece called a single 27:08 piece of American cheese. And what's 27:10 interesting about that picture compared 27:13 to the earlier picture is that the 27:15 single piece of American cheese was 27:17 entirely AI-generated. So, 27:20 there wasn't the original sketch that 27:22 then was transformed into AI art. This 27:24 was full AI art from start to finish. 27:26 But again, the artist went through 27:28 multiple rounds of refinement. He would 27:30 zoom in on specific sections and change 27:33 individual sections. It was this very 27:36 iterative, detailed process, and he gave 27:39 the Copyright Office evidence of that 27:42 process, and they granted him protection 27:44 for, again the collage thing, the 27:47 selection, coordination, and arrangement 27:50 of AI-generated components. 27:52 So, we have at least three examples 27:55 where an AI-assisted work or an 27:58 AI-generated work 28:00 has been granted copyright protection 28:03 in the US. That doesn't mean it's 28:05 guaranteed. On the flip side, there are 28:07 cases out there when I like to refer to 28:10 is someone took a basic photograph, they 28:13 uploaded it to an AI app, and they said, 28:15 "Make this look like Van Gogh's Starry 28:16 Night." And they tried to submit that 28:18 picture. And in that case, the Copyright 28:20 Office said, "Not enough. Not enough 28:22 human creative contribution. All you did 28:25 was upload a picture and say, 'Make this 28:28 look like someone else's.' You didn't do 28:29 any editing, you didn't do any other 28:32 sort of direction on dramatic lighting 28:34 or anything like that, and you didn't do 28:36 anything further to the picture after it 28:38 was edited. So, there's just not enough 28:41 or after it was created." So, there's 28:43 just not enough human contribution. 28:47 Which means we kind of have these 28:48 bookends, right? There's purely 28:51 AI-created works, which are not 28:53 protectable, and AI-assisted 28:56 human creative works, which are. 28:59 And this huge gray space in the middle, 29:01 and no one knows exactly where that line 29:03 is, and that's where I get to do all the 29:05 fun work in arguing. But, also quite 29:08 frankly, we're probably never going to 29:10 know where that line is. Copyright law 29:12 has been around for hundreds of years, 29:14 and you're still seeing courts every 29:16 cases every day, not about AI, but about 29:19 whether artist A copied artist B, 29:21 whether their songs are too similar, or 29:23 whether, 29:24 you know, like their particular art is 29:28 creative enough. I was mentioning 29:30 earlier a famous copyright case. There's 29:32 an artist out there who calls himself an 29:34 appropriation artist, and most of his 29:37 art is things like taking other people's 29:39 Instagram photos, just blowing them up 29:41 to 10 times the size, and selling them 29:43 in art galleries for millions of 29:45 dollars. That guy is constantly getting 29:47 in trouble, right? Of the like, is it 29:49 art? I don't know. If you just take a 29:50 toilet and put it on the wall, is it 29:52 art, right? So, this is just the next 29:56 version of that problem. 29:59 There are two caveats I want to give to 30:01 that long and detailed explanation 30:03 >> Yeah. 30:04 >> before everyone goes off and start tries 30:06 to start copyrighting everything. As I 30:08 mentioned first, most of these issues 30:10 haven't been litigated. So, everything 30:12 I'm talking about is what the Copyright 30:14 Office has done. They've told us how 30:16 registration works, but as I keep 30:19 saying, the paper you have and the 30:21 actual rights you have if this goes to 30:23 the courts, how judges will rule if 30:26 money is on the line, are completely 30:28 different things. 30:29 >> Yeah. 30:29 >> And the way this works in America is 30:31 different courts may land in different 30:33 places, and then that's going to go have 30:35 to go up on appeal, and eventually, if 30:37 enough different courts disagree, the 30:38 Supreme Court is going to have to weigh 30:40 in before we got sort of nationwide 30:43 clarity. 30:44 Second, speaking of the American legal 30:47 system, in this case, everything I'm 30:49 talking about is US law. IP rules differ 30:52 in different countries, which obviously 30:54 is a huge issue for creators on global 30:56 platforms like Fortnite and Roblox, 30:59 which we'll get into. But, the bottom 31:01 line is I don't care if it's a 31:02 character, if it's a meme, if it's an 31:04 AI-generated or AI-assisted character 31:07 meme, it's not automatically 31:09 unprotectable, but it's also not a slam 31:11 dunk. The more human input, creativity, 31:15 decisions, originality you can show, the 31:18 more likely it is to be copyright 31:20 protectable, and the stronger your 31:22 position is. 31:23 >> Makes sense. Sounds It's still the wild 31:25 west for sure, but it's I'm glad you 31:28 brought that up and and cleared some 31:30 things up cuz even I had that assumption 31:33 that, you know, AI isn't protectable. 31:35 So, I think this is, again, super 31:37 valuable for everyone, and I think it's 31:40 going to take more cases, of course, to 31:43 to 31:44 to I mean, I don't think it's ever going 31:45 to be clear like you you mentioned, but 31:47 maybe we'll get even more clarity, I'm 31:49 sure, over the remaining years. But, 31:50 like 31:52 super super fascinating. 31:54 And I'm I'm over here learning. I'm 31:56 >> [laughter] 31:56 >> So, so after all of that, like I want to 31:59 hone in on the trademark side a little 32:01 bit. Like, even with copyright being 32:03 murky, you can trademark an AI-generated 32:05 character name if you use it in 32:07 commerce. So, is trademark actually the 32:09 smart play for creators working with AI? 32:12 >> Another lawyer answer of it depends. 32:14 >> Okay. 32:15 >> I like to think of IP like a toolbox. 32:17 So, you need multiple tools. You need 32:20 not just a hammer or not just a 32:21 screwdriver. So, 32:23 trademark is a great source of 32:25 protection. It complements copyright, 32:27 but they solve different problems. 32:30 So, trademark, as we talked about 32:31 earlier, protects identity, not content. 32:34 You can and a character name if you're 32:36 using it as a brand, that if you use it 32:39 in commerce, hook is actually very 32:40 important. But, that doesn't stop 32:43 someone from making similar art or a 32:45 similar game. And, you also don't just 32:47 get a trademark because you filed an 32:49 application. We talked about that. The 32:51 rights and the paperwork are two 32:52 different things. So, after you file for 32:55 a trademark, it can take months or even 32:57 years to actually go from an application 32:59 to registration. And, in the meantime, 33:02 there's a government review process, 33:03 there's a public objection period, 33:05 there's an evidence and argument period, 33:07 and you have to sometimes go through 33:08 multiple hoops or rounds of things 33:10 before you get approved. And, that's 33:12 often a time when creators come to me is 33:15 they're like, "Oh, I filed this 33:16 paperwork. I thought this was going to 33:17 be really easy, and now they're citing 33:19 all of these other things, and they're 33:20 telling me I'm confusing, and am I going 33:22 to get in trouble?" And, 33:24 the first thing I say is like, "Take a 33:25 deep breath. No one dies in trademark 33:27 law." 33:29 But, I do think that that's a place 33:32 where a lot of people, again, have a 33:34 misconception about just exactly what is 33:37 involved in the process. And, this exact 33:40 same thing happened a few years ago when 33:42 the Supreme Court decided to allow swear 33:45 words as trademarks. There was a band 33:47 called The Slants. Um, you know, and 33:49 certain people thought that was a slur, 33:51 and there were some free speech 33:52 arguments over whether or not you should 33:54 be allowed to use certain words as 33:57 trademarks, and the Supreme Court said, 33:59 "Yes." So, right after that decision 34:01 came out, a ton of people rushed out and 34:03 were trying to trademark every profanity 34:05 you can think of, definitely the F-word. 34:08 And, almost all of those applications 34:10 failed because these people just 34:11 thought, "Okay, I'm going to slap it on 34:12 a T-shirt and say it's my trademark." 34:15 And, that doesn't work. The guy who did 34:17 get it and has multiple trademarks for 34:20 some words I won't say on a 34:21 family-friendly podcast, [laughter] 34:23 um, used the brand spelled F-U-C-T, 34:27 sound it out in your head, um, 34:29 as a brand for for apparel line for 30 34:31 years. And, he wasn't just putting it on 34:33 t-shirts, it was his store name, it was 34:35 on his tags, it was on his labels, it 34:37 was on his website, and he was using it 34:39 continuously. So, it's not just about 34:41 what you want to have. Great, you want 34:45 to own this word, good for you. It's 34:47 about how you're actually going to use 34:49 it. 34:50 Uh and that's the same thing with 34:52 trademark brain rot trademarks. There 34:54 was this rush of filings when they first 34:57 kind of started gaining traction. And 34:59 now, if you're keeping an eye on it like 35:01 I am, you're seeing those applications 35:03 just keep getting refused and keep 35:04 getting abandoned because these people 35:06 are encountering obstacles that they 35:08 weren't prepared for, or they're being 35:11 asked to spend money they didn't plan on 35:13 spending for a quick They thought, "Oh, 35:16 this is a quick easy, you know, 35:17 investment." And it's not. So, the money 35:19 they spent 35:21 filing the application, there are 35:23 government fees involved, it's just 35:24 wasted. It's not some cheat code where 35:27 you just like spend five bucks and, you 35:29 know, get a million points. So, my focus 35:32 when I'm working with creators, 35:34 including around this sort of content, 35:36 is not with the IP, it's with the 35:38 business. It's Is this a real brand? Or 35:40 is this just a moment or a phrase you 35:42 want to cash in on for a month and then 35:44 you're going to move on? What are you 35:46 actually building? What's your 35:48 contribution? And then let's go invest 35:50 IP protection in that. 35:52 >> Makes perfect sense. No, this is great. 35:54 You've been clearing a lot of things up 35:56 for creators. I want I'm curious about 35:58 like your own experience here. So, 36:00 bringing this into your practice, 36:01 without naming any clients, have you 36:03 personally worked on cases involving 36:06 viral content or memes? What is the most 36:08 surprising thing you have learned about 36:10 how this stuff actually plays out when 36:11 it hits courtrooms or a contract 36:13 negotiation? 36:15 >> Yeah, I mean, I I have, and it's one of 36:17 the things I love about my job is it's 36:19 always fun. 36:21 Uh it's great, you know, things to talk 36:23 about at parties. But I I the biggest 36:25 thing that creators, especially UGC 36:28 creators that I'm seeing now, should 36:29 keep in mind is that more often than not 36:32 in my world, in the legal world, and to 36:35 a lesser extent in the business world, 36:37 your audience has no idea what you do or 36:40 why it matters. If you're on the really 36:42 cutting edge of stuff and you're talking 36:44 to a judge or an investor or a brand 36:46 partner, you may have to get them up to 36:48 speed on internet culture. And it's 36:50 important to know enough beyond sort of 36:54 your little bubble world to find ways to 36:57 analogize to something they do 36:58 understand. I think a lot of people have 37:01 this misconception, this is just some 37:02 kids game, it doesn't really matter. And 37:05 even if you say, "Hey, this had 25 37:07 million concurrent players." they're 37:09 going to have no idea if that's a lot or 37:12 if it's a little until you explain that 37:14 that's more players than people who 37:16 watched the Grammys or watched the 37:18 Oscars this year. Or that's almost the 37:20 entire population of Australia. 37:22 >> Yeah. 37:23 >> And being able to tie these sort of, you 37:26 know, young new metrics into things that 37:29 people understand that are a little bit 37:31 more traditional and established 37:33 touchpoints can make such a huge 37:35 difference both to deals and to 37:36 investments and again to explaining to a 37:39 court or a jury why, you know, this 37:42 person knocking off your game isn't just 37:44 like, "Oh, it's internet culture, 37:45 everyone steals from everyone, it's 37:47 fine." Which is one of the reasons why a 37:49 lot of the examples I 37:51 I'll I'll tie it back to you. You've 37:53 heard me talk about collages or cowboys 37:55 or westerns or superheroes and it's not 37:58 because those are exactly the same 38:00 thing, but it's a common starting ground 38:03 that we can use to sort of build 38:05 understanding and then go from there. 38:07 >> Okay. No, that makes that makes sense. 38:09 This is incredible again. You've shared 38:12 so much information 38:14 and I'm we're going to kind of switch it 38:16 a little bit. I want to get into like 38:17 UEFN UGC specifics here. 38:22 Um but creators right now, they're kind 38:25 of weaponizing DMCA's against our 38:27 competition right now. Some of them file 38:29 maybe bogus claims. Um, you know, if the 38:32 rivals monetization gets suspended, by 38:34 the time it gets sorted out, you have 38:36 stolen their player base. You know, is 38:38 there actually legal remedy when someone 38:40 files a fake DMCA against you? 38:43 >> Without getting into legal advice, I 38:45 totally agree with that this is a huge 38:47 problem and it's as frustrating for me 38:50 as it is for you. I was talking to one 38:52 of my favorite law professors about this 38:55 and he's an economist and he had I mean, 38:58 when I was telling him about some of 38:59 these problems that UGC creators are 39:01 having, he was just like, "I don't think 39:03 anyone thought about this. I don't think 39:05 anyone Congress envisioned this when the 39:08 DMCA was being written. It was designed 39:11 for a world where there are sort of 39:12 these centralized, reputable IP 39:15 powerhouses like Disney or like Warner 39:17 Brothers. And so, the law wasn't 39:20 designed for a world where users are 39:23 building and monetizing entire 39:25 businesses on platforms and where, you 39:29 know, being offline for 2 weeks can 39:32 totally kill your game. The DMCA has a 39:35 10 to 14-day sort of time frame and 39:38 Congress thought, "Oh, that's really 39:39 quick and really easy." And now, all of 39:42 a sudden, in internet time, 10 to 14 39:44 days is an eternity. You're off the 39:46 algorithm. You're done. You know, so 39:50 the legal answer is yes, there's a DMCA 39:53 counter notice process. You can If you 39:55 get a strike, you can explain why you're 39:58 not infringing and theoretically, unless 40:01 you're sued after you file a counter 40:03 notice, that's that 10 to 14 days, the 40:06 platform is supposed to put your stuff 40:08 back up. The reality though is that a 40:11 lot of creators aren't going to do that 40:14 process because they can't afford to be 40:16 down for that length of time, or they're 40:18 scared of the escalation, or they don't 40:21 have the capacity or the resources, or 40:24 sometimes quite frankly they don't have 40:25 a good case. A lot of people come to me 40:26 and I'm like, "Yeah, maybe you are 40:28 infringing just a little." 40:30 >> you should take it down. 40:31 >> Yeah, maybe maybe focus on something 40:33 something else. But, bad actors, bad 40:35 guys, people who, you know, know this 40:38 and want to take advantage of it, 40:40 absolutely are. And there are options 40:43 outside the DMCA. There's Congress just 40:47 even more recently created a new sort of 40:49 small claims court for copyright 40:51 proceedings, you know, to try to address 40:53 some of these issues. But again, the law 40:55 is 5 to 10 years behind 40:59 reality. And so, this is one of the 41:01 places where 41:04 I think it's more important to know what 41:06 practically can be done than what 41:08 legally can be done. So, every platform 41:11 has its own strikes rules, its own abuse 41:15 reporting, you know, 41:17 policy or process. You know, I can go 41:20 out and file a lawsuit for unfair 41:22 competition or fraud. But you think 14 41:24 days is long, we're not even going to 41:25 get in front of a judge for 30 to 60 41:27 days. It's going to be another 3 months 41:29 before the other side has to show up, 41:31 right? That's just not realistic for 41:33 most creators. So, more often if I'm 41:36 working with someone and they get a 41:38 DMCA, maybe we'll first try just 41:40 responding with a sternly worded letter 41:43 on my law firm's letterhead. And maybe 41:45 the other side is like, "Oh, these guys 41:47 are serious." And then they back down. 41:49 Or, as I said, maybe I have a 41:51 heart-to-heart with the creator and say, 41:53 "Look, we can fight this, but is this 41:55 really the hill you want to die on? If 41:57 this is this really where you want to 41:59 spend all your time and energy for your 42:01 business, not just for the next couple 42:03 weeks, but for the next few years?" 42:05 >> Yeah. 42:05 >> And sometimes the answer is no, and they 42:08 decide to pivot. But this is also a 42:10 place where having your ducks in a row 42:12 before you get a DMCA notice, you know, 42:16 >> Yeah. 42:16 >> or having the documentation, having the 42:18 person you can call already ready, 42:21 knowing the right policies can you know, 42:24 setting yourself up to reduce the risk 42:27 that you get a DMCA claim in the first 42:29 place and then if you do, understanding 42:32 sort of what those options might look 42:35 like and being able to play that out in 42:37 advance can really make all the 42:38 difference. 42:40 >> Now, that that's perfectly said and I 42:42 think you know, any anyone listening, 42:44 you know, a lot of 42:45 we've seen it, it's happened to a lot of 42:47 us, a lot of my, you know, close people 42:49 I work with in friends in this industry 42:51 and and yeah, I mean, sometimes it's 42:53 it's warranted but most I mean, most 42:55 time it isn't and sometimes I mean we've 42:57 we've heard of just like they're fake or 42:59 there's nothing like they'll they'll be 43:00 totally not even, you know, a person 43:03 behind it. So, [laughter] like 43:04 >> Yeah. Yeah. 43:05 >> And so, anyway, it 43:07 you know, just just to summarize, I 43:09 think just making sure you're have your 43:11 ducks in a row up front and you have 43:12 everything documented and contracts and 43:16 working with somebody that knows their 43:17 way around these things is definitely 43:19 can be valuable. But yeah, it's 43:20 definitely something rampant and I hope 43:22 that, you know, the legal system kind of 43:24 changes things or makes it a little 43:26 quicker process and for for these new 43:28 ventures, these new especially with UGC. 43:30 It sounds It sounds like I'm glad you 43:32 brought that up. It sounds like the the 43:33 legal process cuz I think that's a 43:35 pretty important part of this. I did not 43:37 know that. So, uh 43:39 Okay, on the other side of this, you 43:41 know, Epic UEFN rules and I'm sure 43:44 similar on on other UGC platforms say 43:46 you cannot use anyone else's IP without 43:48 permission, but like enforcement and is 43:51 wildly inconsistent. You know, there's 43:53 SpongeBob GTA maps, um, you know, making 43:56 money sitting on platform. Other 43:57 creators get DMCA struck and lose 43:59 monetization overnight. Like how should 44:01 creators think about that gap between 44:02 the written rules and what's actually 44:04 happening? 44:06 >> Yeah. So, 44:08 on the one hand, as I said, that whole 44:10 not copying anyone else's IP without 44:12 permission, there can be valid, good 44:14 faith disputes over whether something is 44:17 someone's protected IP or whether it's a 44:20 game mechanic or something that really 44:22 should be free for everyone. On the 44:25 other hand, 44:26 SpongeBob is clearly not in that 44:28 category. And just because everyone else 44:30 is breaking the rules and seems to be 44:32 getting away with it, doesn't mean you 44:34 should or you will. 44:37 Um so, 44:38 back to the lawyer risk conversation. If 44:42 you build a map based on someone else's 44:44 IP, 44:46 you're choosing to live with a takedown 44:48 risk. That's a choice. You are accepting 44:50 those consequences. And some people are 44:53 willing to take that risk because they 44:55 might get some money in the meantime. 44:57 But it's it's not a magic loophole. Um 45:01 and if you don't want that risk, be more 45:04 original. It really is that simple. And 45:07 I think where creators do sometimes get 45:09 themselves in trouble is differing 45:11 conceptions about what it means to be 45:13 original or what it means to be 45:16 creative. And a lot of them think that 45:18 just means 45:20 making your own version of something as 45:22 long as you don't copy it exactly. But 45:24 that is not how copyright works. One of 45:26 my earlier experiences in this space was 45:29 that I used to work for a game developer 45:31 who did mobile apps for a lot of major 45:33 studios. And let's take as a 45:35 hypothetical, let's say they made a Kung 45:37 Fu Panda game. And other people were 45:39 constantly knocking the app off, and 45:41 we'd send a DMCA, and they'd say, "Well, 45:43 our pandas have purple eyes, and your 45:45 pandas have blue eyes." Or, "Well, we 45:48 use skunks instead of pandas." Or like, 45:50 "Well, we used a different art style. If 45:52 we just change this one thing or this 45:54 one thing, will you withdraw the DMCA?" 45:57 And 45:58 you know, you're rolling your eyes, I'm 46:00 rolling my eyes. There's no legitimate 46:02 reason to try to get as close to the 46:04 line as you can without going over. 46:07 >> Yeah. 46:08 >> If you're trying to get right up to that 46:09 line but not cross it and you're 46:11 pointing to those tiny details for why 46:13 you're not copying, you're probably too 46:15 close. 46:16 >> Yeah. 46:17 >> Like there's I can't tell you exactly 46:19 where the line is but I can tell you if 46:20 you're too close to it. And so that's 46:23 part of it is that it's not a science. 46:25 There's no magic formula. And the other 46:28 thing I think that it's really important 46:29 for people to remember is that copyright 46:32 doesn't just cover the exact thing. 46:36 Trademark protects you from not just the 46:39 exact trademark but anything that's 46:41 confusingly similar, right? If someone 46:43 makes the Gucci logo but they change the 46:45 G's to C's, like that's still 46:46 infringing. It's not that exact thing. 46:49 >> Yeah. 46:49 >> And in the same way, copyright doesn't 46:52 cover just the exact work. It also 46:54 covers what we call derivative works. So 46:57 the example there is like K-pop demon 47:00 hunter, you know, it was a smash 47:01 sensation. Netflix owns a copyright for 47:03 the movie. 47:05 But that copyright also gives them the 47:07 right to decide whether to do a live 47:10 action, whether to make a comic, whether 47:11 to make games or skins or costumes or 47:14 toys or a theme park. Even if they 47:16 haven't made those yet and even if they 47:18 don't have trademarks covering for them, 47:20 they have the right to decide to what to 47:23 do with that IP. And they can decide to 47:26 do nothing and that still doesn't mean 47:28 that you have the right to do something. 47:30 That's why it's called copyright. 47:31 >> Yeah. 47:32 >> You have right to decide what to do with 47:34 your creations. So I think that that is 47:37 one place where, you know, understanding 47:40 what copyright protects is really 47:41 important on the flip side because I 47:44 always like to argue both sides of 47:46 things. 47:47 Again, the line isn't always clear when 47:50 something stops being a derivative work 47:52 or a copy or confusingly similar and 47:54 starts being its own new thing. That is 47:56 a reasonable place for debate. And the 47:59 anecdote I like to give for that is your 48:00 fun trivia fact that you may not know, 48:03 50 Shades of Grey actually started out 48:05 as Twilight fan fiction online. 48:07 >> Oh, 48:08 I didn't know that. 48:09 >> Fan fiction is definitely infringing, 48:11 right? Like you're using the same 48:12 characters, the same world, the same 48:14 name. Over time, that series, she took 48:17 it off the fan fiction site and she 48:19 changed and reworked a lot of things, 48:21 you know, not just the names, not just 48:23 the setting, not just the plot, but she 48:25 combined all of these things together 48:28 and eventually it became its own 48:30 entirely separate franchise. So, one of 48:33 the themes from this 48:35 conversation that I keep coming back to 48:37 is the more original creative effort you 48:39 put in, the more likely you are to have 48:43 something that's protectable and the 48:44 lower your risk is that someone else is 48:47 going to challenge it. And it's not like 48:49 there's some bright line, it's just that 48:52 sort of degree. The other place to 48:54 really understand here again is knowing 48:56 the platform rules, right? Like Epic can 48:59 set up its own rules on what it wants to 49:01 do. There's actually a really 49:03 interesting article out there about how 49:06 Amazon has essentially rewritten the US 49:09 trademark system because they require a 49:11 trademark registration for their brand 49:13 registry. 49:14 >> Mhm. 49:15 >> You can have valid common law trademark 49:17 rights without a trademark registration 49:20 in the United States, but if you're 49:22 trying to sell on Amazon, you need a 49:23 registration. That's not a law, that's 49:25 just like you have chosen to operate in 49:26 this environment, you've got to play by 49:28 their rules. 49:29 >> Yeah. 49:29 >> So, in the same way, I think a lot of 49:31 creators want to argue the law and this 49:34 like this is my right, this is unfair, 49:36 this is whatever, and ultimately the 49:39 answer is it doesn't matter. You signed 49:40 a contract, you clicked past those terms 49:42 of service, you like did not actually 49:44 read that EULA, you know, but this is 49:46 where reading the fine print becomes so 49:50 important. Knowing what the platform's 49:52 policies are, what their terms of 49:54 service are, what their takedown 49:56 procedures are, what they count as 49:57 infringing is probably going to be more 50:00 important to whether or not your game 50:02 stays live than any exposition on 50:06 copyright law. 50:07 >> Yeah. No, 50:09 it makes sense. We've seen it in 50:11 Fortnite with like Squid Game is like 50:13 probably a perfect example. Before the 50:15 Squid Game's IP came into Fortnite 50:18 there was Squid Game in masks, right? 50:21 And very 50:22 you know, the Octo Game, they called it 50:24 but same look just like it, same games, 50:26 all those things. And as soon as they 50:29 decided to bring the IP in and allow 50:31 creators to build inside of it, they 50:32 started doing takedowns on some of those 50:33 games. And I'm sure I'm sure some of 50:35 those games did well and I'm sure if 50:38 Netflix wanted to, they could probably 50:40 go after them if they wanted to. 50:41 >> I think it's really easy to feel like 50:43 some of these bigger rights holders or 50:45 these omniscient, super powerful, like 50:47 everywhere, they know everything all at 50:49 once. But then 50:49 >> Yeah. 50:49 >> what you need to remember is these 50:51 companies are just people, too. They 50:54 maybe have three lawyers. Those lawyers 50:56 can only look at so many games and do so 50:58 many things in a day. They can only be 51:00 so many places at once. 51:02 >> Yeah. 51:03 >> So like yeah, maybe they haven't 51:05 submitted takedown because they've got 51:06 500 other takedowns. Everyone has to 51:08 kind of pick priorities. 51:10 >> Yeah, they're they're risk-tolerant, 51:11 yeah. 51:12 >> Yeah, you know, and so it's like again, 51:14 just because everyone is doing it 51:15 doesn't mean you should and I think also 51:17 giving sometimes brands and lawyer 51:20 Lawyers are people, too, you guys, you 51:22 know, like giving people a little grace 51:24 of like just because they haven't gotten 51:27 to it or just because no one 51:29 is going to enforce it doesn't mean that 51:32 you should just do whatever you want. 51:34 You know, just because a cop isn't there 51:36 like at every traffic stop doesn't mean 51:38 you should run every light. 51:39 >> It's true, true. No. No, perfectly said. 51:42 >> Not legal advice. 51:43 >> Not legal advice, yeah, yeah. But 51:45 we'll have that disclaimer somewhere. 51:47 >> [laughter] 51:48 >> Like it's scrolling across the bottom 51:49 like CNN. 51:50 >> So we've talked about international a 51:52 little bit, but mostly US. So I want to 51:55 touch more on international and 51:56 definitely have a wide audience. But 51:58 like UGC platforms are global, but 52:00 copyright law are not. So like the rest 52:03 of the world plays by different rules as 52:05 you've mentioned a few times. Like what 52:07 is the biggest difference between US IP 52:09 law and the rest of the world that 52:10 creators should know? 52:13 >> Great question and you are absolutely 52:15 right. Laws vary a lot from country to 52:17 country and it's a big place that 52:19 creators get tripped up. The biggest 52:22 place that I think US creators have a 52:24 problem is actually with trademark law. 52:26 When I'm teaching trademark law, you 52:28 know, I've talked about the baby and the 52:30 birth certificate and common law rights 52:31 and how the piece of paper is separate 52:33 from the rights themselves. The US is 52:35 very focused on actual businesses and 52:40 actual use and using it first. 52:42 We are almost the only place in the 52:44 world that does that. Almost the entire 52:46 rest of the world trademark law is 52:48 backwards. You get the paper first. Not 52:51 only is that an issue, but trademark 52:54 rights are almost entirely geographic. 52:57 There are countries where whoever has 52:59 the piece of paperwork first wins, full 53:01 stop. And it can be really frustrating 53:04 for creators and it's one of the reasons 53:06 why what we see as trademark squatting 53:08 is such a problem because someone will 53:10 see a game or a character or a brand 53:13 blow up in the US they'll file for the 53:16 trademark in their country and then, you 53:18 know, 6 months a year later the original 53:21 creator wants to expand and they find 53:23 out they're blocked somewhere else. Or 53:25 now all of a sudden they're having to go 53:27 negotiate for a license or like pay to 53:30 buy that trademark back. So 53:32 a lot of times with my clients what I'm 53:34 doing is we're sort of keeping an eye on 53:36 those things, right? And thinking very 53:38 strategically about, okay, it's not 53:40 realistic to try to own a trademark, 53:43 every trademark, everywhere, every 53:44 country, all at once. And even the 53:46 biggest companies in the world don't, 53:48 you know? Like you just can't. 53:50 Trademarks are, as we talked about in 53:52 classes, there's 45 different classes. 53:55 You know, like imagine multiply 45 by 53:59 the number of countries by the number of 54:00 trademarks, like hundreds of thousands, 54:02 right, of things. Like 54:05 it's it's just not realistic. So, it's 54:08 about being very strategic and figuring 54:10 out where you want to target, when you 54:12 want to target, thinking a little bit 54:14 ahead, right? Copyright's a little 54:16 easier. On copyright, the US is part of 54:19 an international treaty where most of 54:22 the countries in the world recognize 54:24 each other's copyrights. 54:26 So, in general, a copyright in one part 54:28 of the world can be enforced in another, 54:31 but that doesn't mean the rules are 54:33 identical. For copyright, I like to 54:35 think of it like passports. We can honor 54:38 foreign passports, but every country may 54:40 have different requirements on whether 54:43 and how you can get a passport and 54:46 different limits on what that passport 54:48 can be used for. And the US can still 54:50 have its own rules about what you can do 54:52 with a foreign passport in the United 54:54 States. Like you have to have a visa, or 54:56 they can still put you on a no-fly list 54:58 even if you have a valid passport. 55:00 >> Yeah. 55:00 >> So, US creators absolutely need to be 55:02 aware that you could violate someone's 55:05 rights, you know, and have to deal with 55:06 those consequences even if they're from 55:08 another country. At the same time, they 55:10 can use that to their benefit if it's 55:12 worth exploring whether there are 55:13 countries outside the US where you might 55:16 actually have better options for 55:17 protection 55:19 than you do here. So, you know, 55:21 I think this can all be very 55:23 overwhelming. Be smart, know when to ask 55:26 for help, and just keep in the back of 55:28 your mind that 55:30 ChatGPT is not your lawyer, and US rules 55:33 are not the only rules that matter. 55:35 >> No, per- perf- like thank you. And yeah, 55:38 is definitely again a lot of information 55:40 and and I think it's just it's just 55:42 things that none of us creators really 55:44 think about that. We when we first 55:46 start, you know what I mean? We just 55:47 love making games and making things. 55:50 >> know that. I mean, no one is born 55:51 knowing this stuff, so I get it. 55:54 >> And that's just it. You want to, you 55:57 know, hire somebody, consult with 55:59 somebody that understands these laws, 56:01 that's spent their life learning these 56:03 things, that can help you out later down 56:04 the road. So, 56:06 um I kind of want to leave people with 56:08 something they can do. We're al- almost 56:10 wrapping up. We've got a few more 56:11 questions here. I got some good ones 56:12 though, so don't go anywhere. So, if a 56:14 creator is listening right now and wants 56:16 to start protecting their IP today on a 56:18 and maybe they have a tight budget, what 56:19 are like maybe the first three moves and 56:21 what free res- resources do you actually 56:23 point people towards? 56:25 >> I love working with founders and 56:26 creators. It's one of my favorite 56:28 things, and this is something I see all 56:29 the time. Don't rely on AI for legal 56:31 advice, and I say that we started this 56:34 talking about my computer science 56:35 credentials. I love AI. I build my own 56:38 software. I build my own agents, but the 56:40 problem with how AI works is that it's 56:43 based on probability. It's going to 56:45 guess what the 80% 56:47 most likely answer is. 56:49 >> Yeah. 56:49 >> And almost my entire job is in that 56:52 messy 20% where things aren't clear and 56:55 facts and context really matter. So, 56:57 that's part of it. It might not give you 56:59 the right answer or the right answer for 57:01 you. It also creates a paper trail, 57:03 right? If AI says, "Hey, you might be 57:05 knocking this person off. Don't do 57:06 this." and then you do it anyways, that 57:09 can come out later and it's not a good 57:10 look. 57:11 >> Yeah. 57:11 >> So, you know, even if you delete the 57:13 chat, it lives on servers, so don't use 57:16 AI for legal advice. You can use it for 57:20 some basics, you know, summarize this or 57:22 explain this like I'm five, but be 57:25 really careful with it, you know, even 57:28 questions like, "Can I trademark this?" 57:29 or "What if this hypothetical happened?" 57:32 right? Can be 57:33 pretty risky. Best case, don't use it at 57:36 all, call your friendly neighborhood 57:37 lawyer, go to the library instead. So, 57:40 on that point, there are a lot of 57:42 official, reliable sources out there 57:44 that are actually really good. For US 57:47 trademarks, the US Patent and Trademark 57:49 Office has a ton of free resources. They 57:51 have video guides, they have workshops, 57:53 they have written guides, they have a 57:55 public database you can search. And so, 57:57 if you're willing to do the work and 57:59 actually read and pay attention, I think 58:02 they're genuinely helpful for a lot of 58:04 founders 58:06 There's a lot of the same equivalents on 58:08 the international side. There's both the 58:10 World Intellectual Property 58:12 Organization, which although there is no 58:14 such thing as an international trademark 58:16 in multiple countries, WIPO sort of is 58:19 the referee between, you know, it kind 58:21 of takes everything together and 58:23 consolidates it. And they have amazing 58:25 beginner-friendly materials aimed 58:27 specifically at starters, creators, and 58:30 small businesses, 58:32 you know, explaining international 58:34 trademark laws. They also have a global 58:36 trademark database so you can kind of 58:38 get a sense of what's already out there 58:39 outside the United States. There's also 58:42 the International Trademark Association. 58:44 INTA is another place where they have 58:46 free materials online, they host a lot 58:48 of workshops, they host a lot of 58:50 webinars. So, 58:52 some of this is knowing where to go to, 58:54 and then some of that is just actually 58:57 taking the advice that's out there. 58:59 Like, you know, a lot of people we 59:00 really do want to help. You just have to 59:03 accept the help when it's offered. Same 59:05 with Copyright Office, the US Copyright 59:07 Office and WIPO have copyright basics 59:10 PDFs and educational materials. They're 59:14 also 59:15 um [clears throat] you know, sort of 59:17 private groups or other groups that are 59:20 really focused on this sort of 59:21 education. I am fans, you know, I'm a 59:25 fan of the Electronic Frontier 59:27 Foundation and the Copyright Alliance. 59:29 They both do a lot of education. The 59:32 only thing with them compared to 59:34 government entities like the US 59:35 Copyright Office or WIPO is that those 59:39 other organizations do have an agenda. 59:41 So, they might be coming from more of an 59:44 advocacy point of view, but they might 59:46 then be really dedicated to helping 59:48 people like this. You know, the 59:49 Electronic Frontier Foundation is often 59:51 on the cutting edge of technology and 59:53 IP. So, just because someone has a 59:56 perspective doesn't necessarily mean 59:59 that 1:00:00 it's a bad place for advice. I think 1:00:02 it's just important to keep that in mind 1:00:04 >> Yeah. 1:00:05 >> as an informed consumer. And the last 1:00:07 thing to do, which we have talked about 1:00:09 multiple times already, is also the 1:00:11 easiest one and it's also the one that 1:00:13 most people miss and that's just 1:00:15 network. You know, just talk to other 1:00:17 creators. Ask your friends if they use 1:00:20 lawyers, [clears throat] if they like or 1:00:21 don't like their lawyers, what they ask 1:00:23 their lawyers for, what those things 1:00:24 cost. 1:00:25 >> Yeah. 1:00:26 >> Lawyer conversations are protected by 1:00:28 something we call privilege, so they 1:00:30 might not be able to tell you something 1:00:31 specific, but they can probably at least 1:00:34 give you a general idea of a law firm 1:00:36 name or what was helpful or not helpful. 1:00:38 And so, it's really helpful to compare 1:00:40 notes. You and I talked about World 1:00:43 Builder conference. You know, the 1:00:44 opening notes there were literally like 1:00:46 get out of your basements and from 1:00:48 behind your screens and meet people in 1:00:49 person. I really do think it's helpful. 1:00:52 Conferences, IP panels, they're also a 1:00:54 lot of community groups and schools out 1:00:56 there that offer free or low-cost IP 1:01:00 clinics. Most of the good connections I 1:01:02 see do not come from Google. They do not 1:01:05 come from LLMs. They come from personal 1:01:08 intros. So, really, if people take 1:01:10 nothing else away from this, I really do 1:01:12 think that community is the best 1:01:14 resource. 1:01:16 >> Yeah. No, that a great answer and and 1:01:18 for sure I think at the World Builder 1:01:20 there was actually a lot of lawyers 1:01:22 there. I was actually surprised. And so 1:01:24 I I think, you know, like 1:01:27 2 years ago, I didn't see any. So, I 1:01:29 mean, other events, not World Builder. 1:01:31 World Builder is new this year. But long 1:01:33 story short, I think more of that, you 1:01:35 know, more people are going to start 1:01:36 coming to some of our conferences or 1:01:37 events. Or if you're talking to other 1:01:39 creators that have been successful, most 1:01:41 likely they have, you know, a lawyer or 1:01:43 they've they've dealt with something of 1:01:45 this of this nature. But you gave so 1:01:47 much I don't even know I can't even say 1:01:48 go to the links. You gave me so many 1:01:50 >> Yeah, you're not going to read all those 1:01:51 things. This is the lawyer I got. And 1:01:53 this is the other reason why though that 1:01:55 I do think those these one-on-ones are 1:01:58 so important because I can send you a 1:02:00 hundred links. 1:02:01 >> Yeah. 1:02:01 >> Maybe only 10 of those matter to you. 1:02:04 And so by meeting someone for coffee, I 1:02:05 can take all of this broad, large 1:02:07 information and really distill it down 1:02:09 to like, "Here's what I think would be 1:02:10 best for you. Here's the thing you need 1:02:12 to know for the next 10 minutes." And 1:02:14 when you tell that, come back to me and 1:02:16 we can work on something else, right? 1:02:17 But that's it's like drinking from a 1:02:19 fire hose if you don't know where to 1:02:20 start. I totally get how overwhelming it 1:02:22 can be. And 1:02:24 you know, again, it's one of the reasons 1:02:26 lawyers we've been around. Like I we've 1:02:28 been to GDC. We're at TwitchCon, you 1:02:30 know, like we might not wear lawyer ties 1:02:32 cuz then no one wants to talk to us at 1:02:33 parties. But like we're there. 1:02:35 We do want to help you. I generally want 1:02:38 to help people protect themselves. They 1:02:40 are putting effort and time and blood 1:02:42 and sweat and tears into this, right? I 1:02:45 really care about the people that I work 1:02:46 with. 1:02:48 >> Yeah. No, it's same. Exactly. There's a 1:02:51 a huge camaraderie in in in our industry 1:02:54 as well. I mean, there's there's some, 1:02:55 you know, there's there's some camps 1:02:56 that don't have that, but there there's 1:02:58 a lot of people that, you know, do want 1:02:59 to share knowledge or help out other 1:03:01 creators. And it's just trying to find 1:03:03 those right people. Um and and yeah, at 1:03:07 the end of the day, you do want, you 1:03:08 know, to make sure you're you're 1:03:09 protected and not being taken advantage 1:03:11 of. So, just two more questions left 1:03:14 here. And I I think this one's a of 1:03:15 exciting. Um you know, what The first 1:03:18 question is like, "What is your IP story 1:03:20 you know, you are watching most closely 1:03:22 for the next 12 months that creators are 1:03:23 sleeping on?" 1:03:24 >> So, this is one where as I said, most 1:03:26 UGC issues haven't made it to the courts 1:03:29 yet. It's um, it's a case in Northern 1:03:31 District of California. It's a lawsuit 1:03:34 that involves Skibidi Toilet, so it's 1:03:36 fun reading. 1:03:37 >> Wow. 1:03:37 >> And it touches on a lot of the issues we 1:03:40 talked about here today. Involves viral 1:03:42 characters and platform rules and bad 1:03:45 faith DMCA takedowns. 1:03:47 >> And then the last question, wrap it up 1:03:49 here. For someone listening right now 1:03:51 who realizes they actually need a 1:03:52 lawyer, like what kind of clients do you 1:03:54 take on? What should they look for an IP 1:03:56 attorney? And what's the best way to 1:03:58 find you and Hansen Bridget? 1:04:01 >> Absolutely. Thank you for the uh, 1:04:03 opportunity for shameless 1:04:04 self-promotion. I am I'm pretty easy to 1:04:06 find on LinkedIn and on my law firm's 1:04:09 website. That's hansenbridget.com. 1:04:12 And I really do encourage people to 1:04:15 reach out because if I can't help, I 1:04:17 have lots of cool friends and you know, 1:04:20 I can help point you to someone else who 1:04:21 can or at least some good resources. 1:04:25 I There are lots of different firms and 1:04:27 so I think a lot of people see, "Oh, big 1:04:29 law firm, super scary. They're going to 1:04:30 be so expensive. Someone like that would 1:04:32 never talk to me." That's just not true. 1:04:34 As you can tell, I will talk to anyone. 1:04:37 I will talk your ear off. 1:04:38 >> Yeah, talk to me. 1:04:39 >> But yeah, 1:04:40 >> [laughter] 1:04:41 >> um, but there are also a lot of 1:04:42 different law firm models. You know, 1:04:44 some lawyers bill hourly, some do flat 1:04:46 fees, some do subscriptions and 1:04:48 everything has pros and cons. There's no 1:04:50 like one-size-fits-all. There's no 1:04:52 better or worse. It's just what works 1:04:54 for you. So, I work at a law firm. My 1:04:56 rates are higher than a solo lawyer. You 1:04:59 know, you know, one of the reasons I 1:05:01 like being at a firm is that my clients 1:05:04 don't just get me, they get my team. And 1:05:06 if there's a tax or some sort of 1:05:08 complicated litigation issue or 1:05:10 something that's I'm not familiar with, 1:05:12 I can phone a friend and pull someone 1:05:14 else in. So, you're really getting the 1:05:16 benefit of all of our collective 1:05:19 expertise. On the other hand, a lot of 1:05:22 small founders will work with smaller 1:05:24 solo law firms. I refer people out to 1:05:27 other friends all the time and sometimes 1:05:30 they'll send clients back to me when 1:05:32 they outgrow what one person can handle. 1:05:34 It's you know, we're a community, too, 1:05:36 and it's a network, not a hierarchy. So, 1:05:38 my my closing note is that it really is 1:05:41 important to find someone who 1:05:43 understands, you know, your business and 1:05:45 your platform, not just, you know, the 1:05:48 business and the law, not just one or 1:05:50 the other. And I am always happy to be a 1:05:53 starting 1:05:54 >> Amazing. All our links and everything to 1:05:56 follow her and and reach out to her will 1:05:58 be in the description. Reach out if you 1:06:00 need help or um you know, advice. She's 1:06:04 incredible. You like literally this was 1:06:06 such I think like this is a hot topic 1:06:09 like I said earlier in in um you know, 1:06:11 UGC and there's so many things that, you 1:06:14 know, I mean we're not like we you know, 1:06:16 there's still answers like some things 1:06:17 you just there's not answers yet, but 1:06:20 just I think I we've there's such so 1:06:22 many takeaways from this episode and I 1:06:23 think a lot of creators are going to 1:06:25 learn from. And thank you so much for 1:06:27 taking the time to come on and and 1:06:29 explain all this um in layman's terms 1:06:32 for easy terms for us to understand even 1:06:34 and and some great examples. So, 1:06:36 seriously, Rose, thank you so much for 1:06:38 coming on. 1:06:39 >> Thank you so much as well. 1:06:40 >> Huge thanks to Rose for coming on the 1:06:42 show and sharing so much with us. 1:06:44 Genuinely an incredible conversation. 1:06:46 You can find Rose on LinkedIn or at 1:06:48 hansonbrigit.com. 1:06:50 Reach out before you need her, not 1:06:52 after. And if you enjoyed this episode, 1:06:54 please do me a favor. Follow the 1:06:56 podcast, subscribe on YouTube, hit that 1:06:59 like button. And if you are listening on 1:07:01 audio, please leave a positive review on 1:07:03 your favorite podcast app. It generally 1:07:05 helps out more than you think. See you 1:07:07 in a fortnight, which is in 2 weeks, and 1:07:10 remember, don't hate, create.