I attended the 2024 IP Owners Annual Meeting recently on behalf of the firm. It was a pleasure to meet and catch up with so many amazing and broad-based IP professionals in person. Sessions addressed a wide range of subjects, with AI and its influence and place in different forms of IP being an unsurprising standout. The last year has also seen big developments in the worlds of trademark and branding, copyright, and name/image/likeness/voice law. A DEI workshop was one of the ways in which attendees looked inward to ways to be more inclusive in their own worlds. To touch on just a few:
Generative AI
With respect to AI, a major question on copyright and patents that is furrowing brows in the courts has been the extent to which an invention or an original creation can include AI authorship and still be entitled to protection. It's solidly established that an AI standing alone cannot be an author or inventor. AI-generated content must be identified in any copyright application. The jury is out, however, on to what extent an AI when used (arguably) minimally more like any graphic design tool means the user can claim original rights in the whole work. One such outstanding case involves a visual artwork in which the AI was used to put sparkly color on parts of the image. Does that have to be disclaimed? Or not?
Takeaway: stay abreast of legal developments with respect to AI as it applies to intellectual property and call in a good IP lawyer for guidance on best practices.
Greenwashing
As concern about climate change and care for responsible management of resources grows among consumers, companies continue to use a broad range of words, symbols, taglines, and real or purported certifications to get people to buy their products. "Greenwashing" is when these claims are misleading, meaningless, or simply untrue. The Federal Trade Commission's "Green Guides" have in recent years provided branding marketing people with guidance on marketing claims, including how consumers are likely to interpret the newest claims (like "low carbon" or "net zero" or advanced recyclability claims). This year, the Green Guides were once again updated to address these concerns more completely, to better ensure green marketing claims are truthful.
Takeaway: any claims you make on your labeling need to be true as always, but if a company is making claims that suggest a product is environmentally friendly, those claims should be considered in light of the latest FTC guidance.
Publicity and Name/Image/Likeness
This area of the law is in constant development as AI and advanced media tools make false representations of actual people (such as sports figures or performing artists) in more ways than ever. In particular, concern has grown over the use of "deepfakes" to violate publicity rights, leading an ever-increasing number of states to adopt expanded "ELVIS" laws which expand "name, image, and likeness" protection to include stronger protection against advanced voice and image manipulation by bad actors.
Takeaway: Use of AI in marketing must be scrutinized to avoid falling afoul of current law on the subject.
DEI in IP
An extended lunch workshop on DEI had members brainstorming ways in which to attract and keep more diverse candidates. Attendees discussed the ways in which "diversity" might be expanded to better include, for example, neurodiverse professionals. Experts spoke of the already felt downstream effects of the Supreme Court's decision striking down race as a consideration in college admissions, including how to continue to be able to ensure diversity in the "pipeline" in the face of the shifting legal landscape.
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