The Briefing by the IP Law Blog By cover art

The Briefing by the IP Law Blog

By: Weintraub Tobin
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  • Summary

  • In The Briefing by the IP Law Blog, intellectual property attorney Scott Hervey and his guests discuss current IP issues related to trademark, copyright, and entertainment, as well as IP litigation and intellectual property in the news.
    Copyright 2021 by Weintraub Tobin Chediak Coleman Grodin
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Episodes
  • Scarlett Johansson vs Chat GPT What the Legal Claims Would Look Like

    Scarlett Johansson vs Chat GPT What the Legal Claims Would Look Like
    Jun 14 2024
    Did Scarlett Johansson's voice inspire 'Sky'? Scott Hervey and Jamie Lincenberg of Weintraub Tobin unpack the controversy between Scarlett Johansson and OpenAI's Chat GPT. Explore potential legal claims and the intricacies of voice rights in AI on this episode of The Briefing. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Scarlett Johansson claims that Chat GPT's voice of Sky is her voice, or is intended to be her voice. Despite Sam Altman, the CEO of OpenAI, attempting to engage Johansson to voice Chat GPT, Altman claims that Sky isn't her, that it's a voice actress OpenAI hired well before his initial discussions with Scarlett's agent. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by a fellow Weintraub lawyer and frequent “Briefing” contributor, Jamie Lincenberg. We are going to talk about the Scarlett Johansson OpenAI controversy, the claims she could bring, and how those claims may fair on today's episode of “The Briefing” by Weintraub Tobin. Jamie, welcome back to “The Briefing.” I think this one's going to be a good one. Jamie Thanks, Scott. It's good to be back. I'm excited to dive in. Scott This has been in the news for quite a while now, and the facts are mostly out there. In a nutshell, Sam Altman approached Scarlett Johansson in September 2023 about voicing Chat GPT. According to Scarlett Johansson, Altman said that he felt that by voicing the system, she could bridge the gap between tech companies and creatives and help consumers feel comfortable with the seismic shift concerning humans and AI. Apparently, Altman felt that her voice would be comforting to people. Scarlett Johansson ultimately declined. Two days before the Chat GPT 4.0 demo was released, Altman contacted Johansson's agent asking that Scarlett reconsider. Now, also sometime before the Chat GPT demo was released, Sam Altman tweeted, “Her”, which seems to point to the 2013 movie where Scarlett Johansson voiced a Siri-like AI assistant. Now, apparently, before the two could connect, the Chat GPT demo was released, and Scarlett began getting calls and emails from friends and family who thought that the Chat GPT voice, Sky, was her. Altman claims that the voice of Sky is that of a voice actor who was hired before he contacted Scarlett Johansson's agent. Jamie Thanks, Scott. I think that sums up the facts. That's far, fairly well. Let's now talk about the type of claims that Johansson could bring. I think the first logical step is a right of publicity claim. Scott Yeah, I agree with you, Jamie. Jamie California's right of publicity statute is Civil Code Section 3344 and prohibits the use of another's name, voice, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, such products, merchandise, goods, or goods without such person's prior consent. California also has a common law right of publicity that's a bit broader than the statute. If Johansson did bring a case, it would follow some of the soundalike recording cases that the Ninth Circuit has previously adjudicated. Scott Yeah, that's right. The first was Midler versus Ford, and the second was Tom Waits versus Frito-Lay. Both of those cases involved the use of a soundalike singer singing a song in the style of that particular artist in TV commercial. Both Midler and Waits sued for violation of their rights of publicity under the Civil Code and also under California's Common Law. The trial court in Midler initially granted Ford its motion for summary judgment. On appeal, the Ninth Circuit, addressing Midler's Common Law claim, held that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated that which is not theirs and have committed a tort in California. The Waits Court, which relied on Midler,
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    10 mins
  • Another Court Gets It Right in Tattoo Copyright Dispute

    Another Court Gets It Right in Tattoo Copyright Dispute
    Jun 7 2024
    The recent decision on Hayden vs. 2K Games is a big win for video game publishers. Dive into the fascinating world of copyright disputes over tattoos in video games. Scott Hervey and Jamie Lincenberg from Weintraub Tobin discuss how this case compares to past decisions and what it means for athletes, celebrities, and the video game industry on the latest episode of “The Briefing” Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Two years ago, I took the position that the District Court for the Southern District of Illinois and the Court of Appeals in the case of Alexander versus Take2 Interactive Software got it completely wrong when they found that the depiction of tattoos on wrestler Randy Orton in a video game published by Take2 Interactive infringed the tattoo artist's copyright in the tattoos. I said that both the court's rejection of Take-Two's defenses, defenses that won the day in the US District Court for the Southern District of New York in Solid Oak Sketches versus 2K Games was absolutely incorrect. Now, we have the US District Court for the Northern District of Ohio deciding another copyright dispute over an inked athlete depicted in a take two interactive video game, and this court got it right. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by frequent Briefing contributor, Jamie Lincenberg, and we're going to talk about this case, Hayden versus 2K Games, Inc, on this next installment of “The Briefing.” Jamie, welcome back to the briefing. Jamie Thanks, Scott. It's good to be here again. Scott So, let's dive right into this case because these tattoo lawsuits, I find them interesting. Well, this one decision that I previously noted, the Alexander case, really got under my skin. But let's talk about this one first. The result in Hayden versus 2K Games was a jury verdict. The jury found that 2K Games enjoyed an implied license to incorporate a depiction of certain tattoos on LeBron James and that the depiction, as depicted on a video game character, did not violate the copyright of Hayden, who was the tattoo artist that created these tattoos. This was the same result that the court reached in Solid Oak Sketches versus Take-Two Interactive. Jamie Yes, that case also involved LeBron James' tattoos and the NBA 2K video game. Scott That's right. Solid Oak was a licensing firm that represented or represents, probably still, the go-to tattoo artist for NBA players. And Solid Oak Sketches sued Take-Two Interactive Software, the game publisher behind the popular NBA 2K basketball video game. And Solid Oak Sketches alleged that the game maker's depiction of LeBron James and his tattoos, infringe the tattoo artist copyright in six tattoos. In ruling on the video game publisher's motion for summary judgment, the court found that the publisher had an implied license to depict the tattoos in the video game. Now, an implied license exists where one party created work at the other party's request and handed it over, intending that the other party copy and distribute or otherwise use it in the manner intended. The court in this case found that the players had an implied license to use the tattoos as elements of their likeness, and the defendants right to use the tattoos in depicting players in the video game derives from this implied license from the tattoo artist to the player. A crucial element of the court's finding that the tattoo artist knew their subject was likely to appear in public, on television, in commercials, and in other forms of media. That was a crucial element of the court's finding in Solid Oak Sketches. Jamie While we've only seen a copy of the verdict form, which noted a win for 2K Games based on an implied license, I do think it's safe to assume that the reasoning was the same or similar to that in Solid Oaks. Scott Yeah, I would agree with you, Jamie. We have two video game cases,
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    16 mins
  • Paramount Splashes Top Gun Maverick Copyright Lawsuit

    Paramount Splashes Top Gun Maverick Copyright Lawsuit
    May 31 2024
    Paramount triumphs in the Top Gun Maverick copyright case. Join Scott Hervey and Jamie Lincenberg of Weintraub Tobin on 'The Briefing' as they dissect the court's ruling. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott Paramount was finally able to shoot down Ehud Yonay's copyright infringement lawsuit, which alleged that Top Gun Maverick, the sequel to the popular 1986 motion picture Top Gun, infringed the copyright in his magazine article. The district Court granted Paramount's motion for summary judgment and dismissed Yonay’s complaint. I'm Scott Hervey from Weintraub Tobin, and I'm here today with Jamie Lincenberg from Weintraub Tobin and we're going to talk about the Court's ruling on this installment of “The Briefing.” Jamie, welcome back to “The Briefing.” Jamie Thanks for having me today, Scott. Scott Great. Well, first, let's get into the facts of the case a little bit. So, in May 1983, California Magazine published the article Top Guns by Ehud Yonay. This article was an inside look at the real Navy fighter's weapons school, Top Gun, based out of Miramar, California. The article begins with a vivid description of two Top Gun F-14 Tomcat aviators, Yogi and Possum, on a hop, a simulated dogfight training against two Top Gun instructors. Then, the article continues with a deep dive into what makes Yogi and Possum and the other fighter pilots at Top Gun tick. A look at the Top Gun training regimen, what life on the base is like, and the history of Top Gun. When the article was published, it was optioned. In the credits for Top Gun, Yonay is credited in the original movie as the writer of the magazine article. Jamie On January 23rd, 2018, the Yonays properly availed themselves of their right to recover the copyright to the story optioned by Paramount by sending Paramount a statutory notice of termination under the Copyright Act, and then filed it with the Copyright Office. As we have discussed previously on this program, Section 203 of the Copyright Act permits authors or their successors to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978, when certain conditions have been met. Upon the effective date of termination, all rights in the work that were covered by the terminated grant revert to the author. However, any derivative work prepared under the authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination. But this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. The Yonays sued Paramount for copyright infringement, claiming that the Top Gun Maverick infringes that Yonays rite in their original article. Scott In Paramount's motion for summary judgment, the court took into account expert testimony of both parties. The court found that the plaintiff's expert testimony was unhelpful and inadmissible because that expert failed to filter out the elements of the article and the sequel that are not protectable by copyright law. Jamie In order to state a claim for infringement, a plaintiff must show substantial similarity between the work's protected elements. Determining whether works are substantially similar involves a two-part analysis consisting of, one, the extrinsic test and two, the intrinsic test. The extrinsic test assesses the objective similarities of the two works, focusing only on those protectable elements of the plaintiff's expression. Whereas, on the other hand, the intrinsic test examines an ordinary person's subjective impressions. Although a plaintiff must prove both to establish substantial similarity, a finding of substantial similarity under the extrinsic component is a necessary prerequisite to considering the intrinsic component, which is expressly reserved for the jury.
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    9 mins
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