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