In March 2022, the Canadian Intellectual Property Office (“CIPO”)  its first artificial intelligence (AI)-authored copyright registration of a painting co-created by the AI tool, RAGHAV Painting App (“RAGHAV”), and the IP lawyer who created RAGHAV, Ankit Sahni. RAGHAV is the first non-human “author” of a copyrighted work. However, Canadian courts  that “[c]learly a human author is required to create an original work for copyright purposes” (para 88). Though the AI tool is a co-author with a human, the registration suggests that both RAGHAV and Ankit Sahni can constitute an author under the copyright regime and  amongst Canadian artists. Though the landscape in Canada is still unclear, the US Copyright Office (“Office”)  a clarification on March 16, 2023, about its practices for examining and registering works that contain material generated by artificial intelligence (AI) technology.

The Human Authorship Requirement

The Office  that the term “author,” used in both the US Constitution and the Copyright Act, excludes non-humans. To qualify as a work of ‘authorship,’ a work must be created by a human being and works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author are not registrable. This threshold reflects the Canadian copyright regime,. The author  significant original expression to the work that is  to be characterized as a purely mechanical exercise.

The US Copyright Office’s Approach to AI-Generated Work

The Office provided important  on assessing the protectable elements of AI-generated works. It begins by distinguishing whether the ‘work’ is one of human authorship, with the AI tool merely being an assisting instrument, or whether the protectable elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were conceived and executed not by man but by a machine.

If the machine produced the expressive elements of the work, it is not copyrightable. This guidance is critical for  surrounding Chat-GPT, where the AI tool receives a prompt from the user, and the user does not exercise ultimate creative control of the output. The Office provided an  where a user instructs an AI tool to “write a poem about copyright law in the style of William Shakespeare”. Given that the user contributes little to no expressive elements to the AI-generated output, the output is not a product of human authorship or protected under the US Copyright Act.

However, the Office also  that, in some cases, AI-generated works might contain sufficient human-authored elements to warrant copyright protection. This may apply in cases where the human selects or arranges the AI-generated elements or modifies the AI-generated material to a degree where it constitutes original expression. The analysis seeks to determine whether a human had ultimate creative control over the expression and formed the traditional elements of authorship.

This guidance is in response to a recent review by the Office of a  titled “Zarya of the Dawn” containing human-authored elements combined with AI-generated images. While the Office  that the author, Kristina Kashtanova, owned the work’s text and the selection, coordination, and arrangement of the work’s written and visual elements, copyright protection did not extend to the images generated by the AI tool, Midjourney. Though Kashtanova edited the Midjourney images, the Office held that the creativity supplied did not constitute authorship.

How will this apply in Canada?

Given the registration of RAGHAV as an author under Canadian copyright law last year, it remains to be seen whether CIPO will follow a similar assessment as the US Office and revisit the decision to register an AI-generated work as a work of joint authorship. However,  question whether moral rights, which are not part of the US regime, will extend to AI authors and if AI authorship will alter the copyright term of the last living author’s death plus 70 years. The increasing traction of AI warrants similar guidance from CIPO regarding the status of AI authorship under Canadian copyright law.

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Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

On January 10, 2023, Justice Pratter of the United States District Court for the Eastern District of Pennsylvania that storing melted rink ice from championship hockey matches in a piece of memorabilia is not copyrightable. Justice Pratter confirmed that the scope of copyright law extends only to the expression of ideas, but not the ideas itself.

The , William Grondin, sued sports merchandise company Fanatics Inc. (“Fanatics”) for copyright infringement. Mr. Grondin alleged that he owns copyright for “Slice of the Ice”, a Stanley Cup-shaped piece of hockey memorabilia incorporating melted ice from championship hockey games. He also alleged that Fanatics unlawfully copied his work in its own ice-filled hockey puck-shaped memorabilia. To establish copyright infringement, the following criteria must be met:

1. Grondin owns valid copyright in “Slice of the Ice”; and
2. Fanatics unlawfully copied the original, protectable elements of Mr. Grondin’s work.

While the court found evidence that Mr. Grondin owned valid copyright in “Slice of the Ice”, Fanatics succeeded in its motion to dismiss on the basis that the elements allegedly copied from Mr. Grondin’s work were not copyrightable.

Justice Pratter relied on the longstanding notion in copyright law (as early as ) that copyright does not protect ideas, only the expression of ideas. The sole element which Mr. Grondin alleged Fanatics copied was the “hockey puck-shaped piece with a hollow cavity into which melted rink ice is placed.” The idea of storing melted rink ice in hockey memorabilia is not protected by copyright. The question became whether Mr. Grondin’s specific expression of this idea in “Slice of the Ice” is copyrightable and if Fanatics substantially copied this expression.

The court Fanatics’ argument that the use of a hockey puck to express the idea of storing melted ice in memorabilia is inevitable and simply inherent in the underlying idea. This argument was supported by the fact that Fanatics also stored melted ice in Stanley Cup- and snow globe-shaped memorabilia. However, Justice Pratter that hockey pucks are inseparable and indispensable from the sport of hockey. Allowing Mr. Grondin to establish substantial similarity merely on the shared use of this element would effectively provide him a monopoly on the underlying idea of hockey memorabilia. The court also held that the elements of the hockey pucks in both works, notably its clarity and hollow cavity to hold melted ice, are merely utilitarian features which permit the idea of a water-filled puck. These utilitarian features are not protected by copyright. Since the sole element by which Mr. Grondin alleged copying by Fanatics is an idea not within the scope of copyright protection, the court held that there was no basis for a copyright infringement claim.

Interestingly, the court granted the without prejudice. This ruling leaves open the possibility that the action could be amended. Alternatively, Mr. Grondin could allege copying of other aesthetic or non-utilitarian features from which substantial similarity might be established against Fanatics or other sports companies.

(Alt Text: Comparison of Mr. Grondon’s work with the allegedly infringing hockey memorabilia; Source: )

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Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Vogue’s publishers have rappers Drake and 21 Savage for unauthorized use of Vogue’s trademarks and false representations in marketing their newest album, “Her Loss”. This follows Vogue’s controversial asking a small English pub called “The Star Inn at Vogue” to change its name.

Condé Nast, the owner of Vogue Magazine, filed a for trademark infringement and false advertising against Drake and 21 Savage on November 7, 2022, in the United States District Court after the artists released a parody promotional cover of the widely acclaimed Vogue Magazine, featuring a photo of Drake and 21 Savage atop the Vogue logo and multiple fake story headlines. The magazine was part of a , including a fake NPR Tiny Desk Concert and a fake Saturday Night Live performance. Drake and 21 Savage jointly promoted the fake magazine on their Instagram with the caption:

“Me and my brother on newsstands tomorrow!! Thanks @voguemagazine and Anna Wintour for the love and support on this historic moment”

The artists also mimicked Vogue’s promotional activities by distributing copies of the fake magazine in North America’s largest metropolitan areas, including New York, Los Angeles, Atlanta, Miami, Houston, and Toronto, and plastering posters of the counterfeit cover along streets and buildings in these cities.

This lawsuit followed a week of repeated demands to Drake and 21 Savage from Vogue and its counsel to cease their allegedly infringing activities and take remedial actions to curtail further public confusion. Given that the artists refused to take action and continued to benefit from the social media posts, Vogue requested and was immediate injunctive relief to prevent Drake and 21 Savage from using fake covers to promote their album. This injunction also prevents Drake and 21 Savage from using Anna Wintour’s likeness, including a doctored photograph of Vogue’s long-serving editor-in-chief and Drake, a full-page feature in the fake magazine. Vogue also requests statutory damages of up to $4 million US, though the court has yet to address these damages.

Though the post containing the counterfeit magazine was taken down from Instagram and the posters of the counterfeit cover along streets and buildings were removed because of the injunction, distributed copies of the fake magazine remain and are now being sold for upwards of on e-commerce sites. Ample evidence demonstrates that this false representation caused confusion, including various online articles from which claim that Drake and 21 Savage landed the December Vogue cover and social media posts indicating users’ excitement for the fake cover.

U.S. District Judge Jed Rakoff agreed with Vogue and Condé Nast that there was sufficient proof that consumers were being confused and the publisher had been "irreparably harmed”, a temporary injunction for the production and distribution of the fake magazine. On Drake and 21 Savage agreed to this preliminary injunction and also agreed to stop using Vogue trademarks for their album promotion.

The counterfeit marketing that went into promoting “Her Loss” may have paid off, with the album reaching during its first week and a . However, it is unclear if these sales can offset the potential damages of up to $4 million US requested by Vogue and other remedies that NPR and NBC may seek for the artists’ fake Tiny Desk and Saturday Night Live performances, respectively.

(Photo Credits:��) (Alt text: Screen capture of Drake’s now-deleted Instagram post containing multiple copies of the impugned magazine cover)

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Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Mariah Carey’s 1994 tune “All I Want For Christmas Is You” is one of the most iconic songs of the holiday season. It is the to be certified diamond, earning an estimated . With over 1.15 billion streams on Spotify alone, it would be hard to find someone unable to complete the lyrics after hearing the opening line, “I don't want a lot for Christmas…”

After 28 years on air, it might be a surprise to see a new copyright infringement lawsuit filed against the song in Louisiana on June 3. Novelty musician Andy Stone, also known as Vince Vance and the Valiants, against Carey, her co-writer, and Sony Music for copyright infringement, alleging that Carey knowingly infringed the rights to Vance’s . According to the lawsuit, Vance’s lawyers contacted Carey in April 2021 but were unable to come to any agreement regarding the rights and distribution of “All I Want For Christmas Is You.” Vance seeks $20 million dollars in damages for Carey’s failure to obtain permission to use Vance’s song to create a derivative work.

The US statute of limitations is from the last incidence of infringement, but due to the nature of the song’s annual return, the statute has not run. While the untimeliness is certainly odd, the lawsuit itself is even odder. The complaint does not explicitly allege that the two songs are substantially similar. Instead, states that Carey’s work “was designed to exploit [Vance’s] popularity and unique style, causing confusion as to the association” between the two artists. In doing so, Carey effectively sought to “capitalize on the goodwill and unique talent of [Vance] in an effort to obtain commercial advantage.” This argument is questionable considering that in the 90s, Carey sold over ﷟ 100 million albums and released 14 No. 1 singles compared to Vance’s song, which on �����������Dz�����’s Hot Country Singles and Tracks chart in 1994.

In order to prove that Carey’s song is an unlicensed derivative work, Vance will need to show that Carey’s work is a derivative work in the first place. Beyond the obvious fact that the two songs share a name, there appears to be little else supporting the vague allegations made in the lawsuit. Words and short phrases such as names, titles, and slogans are . In fact, Vance’s song with the same title listed on the US Copyright Office’s Catalog. As a layperson, the two songs do not sound quite ��alike – one is an upbeat pop song, the other a country tune. Song lyrics do fall under the scope of copyright protection, but Christmas imagery such as stockings and mistletoe fall under the doctrine and cannot be protected due to the generic or universal nature of the song’s theme.

If the case does go to trial, only a jury can decide whether Carey’s song “resulted in confusing the public in addition to resulting in a substantial loss of income” to Vance.

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Andrew Masson is an IPilogue Writer and 2L JD candidate��at Osgoode Hall Law School.��

A business’ success is strongly tied to the ability to protect Intellectual Property. However, the USA appears to use patent protections as a sword to attack and acquire large market shares, instead of as a shield to protect from other companies’ encroachment on another’s IP. This position is demonstrated by the , which suggests that the primary use of patents is protection of the market share and not innovation.

The patent office’s enforcement and issuance process greatly impacts the number of competitors that can enter a market. The patent office has therefore become a fundamental part of the economy, as patent protection plays an important part of many businesses’ strategies. Priti Krishtel, Attorney and Co-Founder of the , states that . This naturally leads to questions about the role patents should play in society, especially in the USA, where the enforcement and granting of patents has been seen .

Purpose of Patents

The ‘sword and shield’ metaphor likely oversimplifies the patent process. The data suggests that in practice, patents are not used for innovation. . Thus, many ��incorrectly view the patents primary function as protecting or fostering innovation. Patents ��are instead being used to .

Some believe that using patents as a sword abuses their purpose and others support the protection of businesses it provides. It may be a subjective question if patents should serve this role in business, but this use may have gone too far. Practically speaking, the , and if successful – these issued patents will limit competition and can permit industry monopolies.

How the System Can Be Exploited

It is important to dissect society’s perspectives on the role of patents. For example, one way to “game” or exploit the USA patent system and . “New” medical devices can obtain faster regulatory approval by showing regulators that a product is like an existing product warranting approval. At the same time, the companies will also submit to the patent office that it is novel enough to require a new patent. This process has allowed medical devices to ��is granted through incremental changes.

Conclusions

The problems highlighted are of much greater concern currently in the USA but do not exclusively occur there. The actual rules and laws appear similar to those in Canada but in the USA, the to benefit businesses or large corporations. This perspective initially could have been useful in protecting companies and establishing markets but can result in monopolies and stifle small companies’ innovation. The patent office may need to reform in some way because they have allowed patent “swords” to become common practice. The US ��patent system should ensure patents are not morphed into solely a tool to control market shares. Unfortunately, wielding patents as swords can harm innovation and to solve the problem, the patent office should consider their ability to dull the edge of the patent sword.

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Photo by Comfreak ()

Shawn��Dhue��is an��IPilogue��Writer and a 2L JD Candidate at Osgoode Hall Law School.��

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The US has started a worldwide complaint about China’s new legal strategy against intellectual property (IP) theft claims. Since the beginning of 2020, four claims of IP theft have gone to Chinese courts. Three of these claims were against some of China’s largest telecom companies: , , and . , one of Sweden’s most prominent tech corporations, brought a fourth claim against , a South Korean telecom company. These claims have ended with the Chinese courts granting the Asian telecom companies anti-suit injunctions against their complainants.

These developments came after Beijing promised to develop a better relationship with the US during their 2020 trade deal talks. Beijing said that it would “.” However, the US is now concerned that Chinese courts will not fulfill these promises.

The Decision that Turned Heads:

In September 2020, the Hubei Province Wuhan Intermediate People’s Court of the People’s Republic of China released the first decision in the four major cases. Xiaomi is the world’s largest smartphone producer, selling millions of devices since 2013. However, Xiaomi has been using a patent by InterDigital Inc. (InterDigital) to produce those devices. InterDigital, based in Delaware, USA, holds multiple patents for digital technology used in smartphones across the world.

When Xiaomi and InterDigital began to sever ties around July 2020, InterDigital for patent infringement. In retaliation, Xiaomi applied for an anti-suit injunction in Wuhan. The Wuhan Court granted Xiaomi an injunction, prohibiting InterDigital from taking Xiaomi to any court. The consequence of breaking this injunction is near $1 million per week for the Delaware-based company. The world, especially the US, was shocked as this decision was the first outcome for an IP theft claim between the US and China. Little did they know that this would become the first of many.

Competing Perspectives

The US is unsurprisingly the leading complainant about China’s legal strategy. In an article describing China’s anti-suit injunctions as a “new legal weapon,” Charles Boustany, Member of the Commission on the Theft of Intellectual Property in the US, states: “.” Importantly, the anti-suit injunction is neither new nor a legal strategy that China has created recently. commonly issue anti-suit injunctions. These injunctions help prevent identical intellectual property thefts in multiple jurisdictions.

Brian Pomper, a partner at Akin Gump Strauss Hauer & Feld LLP, says: “.” The Chinese Embassy in the US has not responded to these comments. Many are now looking to China to respond in the wake of these actions, which conflict with Beijing’s promises mentioned above in the 2020 US-China trade deal. Beijing made these promises on behalf of political trades, speaking on behalf of the Chinese economic market without considering what private entities may do in the future. Chinese courts seem to have different plans in mind to protect the country’s flourishing technology sector.

��Importance

Concluding the war between Xiaomi and InterDigital, the two companies have reached settlements. These settlements come after InterDigital brought claims to courts in and . Both courts agreed that Xiaomi’s anti-suit injunction was inconsistent with the law and . However, these settlements don’t change the outcome in the Wuhan court, nor the outcomes in the three other anti-suit injunction applications in different Chinese courts.

China has always departed from standard Western practices. Nevertheless, anti-suit injunctions are commonly used around the world. Therefore, the question remains of whether the US and UK using anti-suit injunctions are any different from China using them. It is important to recognize that a country may use these injunctions to protect against IP theft claims. However, if it is common in one jurisdiction, it should be allowed in others. The complaints are valid as it is a new strategy. But time is better spent thinking of new legal strategies against China’s “” than trying to ban a whole country from using a typical legal claim.

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Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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On , The Hershey Co. chocolate company (“Hershey”) filed a lawsuit against Californian cookie maker The Cookie Department Inc. (“Cookie Department”) for copying Hershey’s famous Kisses shape. The design of Hershey’s cone-shaped small chocolate “Kisses” has been a registered trademark with the United States Patent and Trademarks Office (USPTO) . Hershey alleges in their complaint that Cookie Department released for cookie products with the same conical shape. Cookie Department rejects this claim, stating that the shape used was the When it comes to food designs, how far can a trademark go?

This case is one of many battles between Cookie Department and Hershey. , Cookie Department accused Hershey-owned company One Brands LLC of copying one of their trademarks in a California federal court lawsuit. One Brands sold a product labelled “Tough Cookies Only” which Cookie Department argued infringed on its “Tough Cookie” trademark. In response, on August 28, Hershey sent a cease-and-desist order on its Kisses trademark, which led to the September 28 lawsuit.

Hershey’s Kisses trademark may not be considered inherently distinctive since Kisses look like any other chocolate chip on the shelf, making Hershey’s Kisses a rather than a mark registrable on the USPTO’s . Under U.S. trademark law, a is a common reason for the USPTO to reject a trademark registration—so how was the possibly indistinctive Kisses mark registered?

Hershey’s Kisses trademark has of 7/8 of an inch in height and 15/16 of an inch in diameter, perhaps to ensure the Kisses are a distinct shape in comparison with other smaller chocolate chips on the shelf. In establishing a potentially such as the Kisses’ specific dimensions, the trademark could be eligible for registration due to its inherent distinctiveness.

A trademark can be so long as it indicates the source of one’s goods and services; shapes are often deemed as or “” trademarks. Some choose to register shapes because they are fast, visual s. Further, registering a specific shape ensures that if another business requires said shape, they can only go to one maker. However, the exclusive rights over a shape can prove problematic. For example, in 2019, Hershey’s Kisses were manufactured leaving many bakers upset by the quality. Yet, bakers likely had no other option but to utilize Hershey’s broken Kisses, because no one else could make them without being subject to a possible trademark infringement suit.

The current Cookie Department and Hershey battle does not appear to have a clear winner. Hershey’s recent lawsuit requires examining whether The Cookie Department’s use of the chocolate chip symbol could create a as to which brand, Hershey or Cookie Department, is the source of the Cookie Department product. On the one hand, Cookie Department argues that they have with the Hershey’s Kisses product line. Therefore, there may only between the two marks. In addition, the chocolate chip’s shape is a for over eighty years. With this level of , Cookie Department may challenge the overall validity of the Hershey’s Kisses mark. Further, Hershey did not complain about Cookie Department’s products that used chocolate chips until Cookie Department filed the first complaint. The current complaint could therefore be conceived as , rather than protective of the Hershey’s Kisses trademark.

Conversely, Hershey is a well-known brand, first establishing and now having many registered marks to further protect its popular confectionary designs. The specific dimensions and widespread marketing can lead consumers to associate a particular chocolate chip shape with the Hershey brand, therefore possibly constituting of Hershey’s Kisses, affirming the mark’s validity, and warranting Hershey’s broad scope of trademark protection in this lawsuit. With justifications for both parties use of a chocolate chip mark, this case highlights the challenges of creating a strong, delicious, and distinctive non-conventional trademark.����

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The majority of technology and e-commerce platforms have been investing in research and development in the fashion tech space for a numbers of years. In 2017, Amazon began developing a fashion design-specific AI initiative, which creates garment designs that can then be physically manufactured by humans. In developing this initiative, the question of became a predominate concern.

This past year, the United States Patent and Trademark Office (USPTO) and other trademark offices around the world, began to assess the considerations in naming a . DABUS, which is short for “Device for the Autonomous Bootstrapping of Unified Sentience”, is an AI system that was listed as the inventor in this patent application. The USPTO issued a decision refusing to award the patent on the basis that American patent law requires that an inventor be a natural person – a requirement that is not met by AI. The that interpreting patent inventors to encompass machines would “contradict the plain reading of the patent statutes that refer to persons and individuals”.

With tech giants like Amazon growing and expanding their reach in the fashion industry, it is not surprising that initiatives such as have come to fruition. Though the USPTO rejected DABUS as an inventor, questions still remain as to whether AI as an inventor may be accepted in other jurisdictions, specifically in Canada. And if so, how will AI designers impact the current traditional landscape of how human designers and natural persons currently create and disseminate their designs with retailers and in the fashion industry more broadly?

With the current pandemic encouraging retailers to grow their online presence, it will be interesting to see how the global fashion landscape recovers, pivots, and hopefully innovates, from the opportunities that may now be more readily available in its intersection with technology.

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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The Internet Archive, which has been around since 1996, is a dedicated to building a library of internet sites and cultural artifacts in digital form. Their website, Open Library, claims to be digitizing from all around the world. You may be wondering, how does this effect copyright holders? Well, they from rights holders before adding books to their digital archives.

The Internet Archive is technically considered a library, and they use a technology called ‘’ (“CDL”) to simulate how traditional libraries loan out books. Ultimately, they believe their archiving is exempt from copyright infringement - but this is an extremely grey area in the law. Traditional libraries are allowed to loan out printed books they own because no copy is created in the process (as well, of the U.S. Copyright Act gives exceptions to libraries and archives to reproduce works in certain circumstances). CDL works as follows: the library digitizes a legally acquired print version of a book, then they only allow a limited number of users to access the book at any given time - this simulates people renting a book from a library and returning it. You can imagine that many authors and copyright holders are not excited about this process.

Last year, The Writers Union of Canada, along with 36 other creator groups, wrote an to the Internet Archive explaining how their conduct is illegal. They purport that any number of copies can be made when you have access to the book online, and they showcase this in the attached to their appeal letter. Truthfully, no one knows if what the Internet Archive does is illegal because it hasn’t been litigated. In the appeal letter, the writers argue that one reason for this is that no singular author has the time or money to litigate such a big case.

That may soon change with the announcement of the National Emergency Library, which no longer limits the number of users who can access a book at the same time. This new change, which is only available until June 30, 2020 (or until the National Emergency is over), contradicts the whole principle of CDL, which is meant to simulate lending physical copies. Furthermore, the Internet Archive made this decision , without contacting any rights holders who may be affected by this decision.

If you’re an author, content creator, or website owner, I encourage you to check out to see if your book, works, or website has been archived. Currently there is no sure fire way to get your content removed, but their website explains a method to to remove your content. That being said, I suspect we will be seeing litigation about the legality of internet archiving in the future.

Written by Luca Vaez Tehrani, IP Innovation Clinic Senior Fellow and JD Candidate at Osgoode Hall Law School

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Fulk was allegedly by MS MR, a group signed to Columbia/Sony Records and therefore under the same label as Beyoncé, to direct one of their new videos. According to the filmmaker, Palinoia was then sent to multiple individuals working for the label, including Bryan Younce, senior vice-president for video production at Columbia Records. Younce, who had previously made videos for Beyoncé, asked for Fulk’s email five months before work on the Lemonade trailer began. He later asked the plaintiff for story boards and a development plan for the record label. The filmmaker claims that the access to his work explains “.”

How strong is Fulk’s case?

Like many copyright infringement cases, the outcome of this lawsuit will mainly depend on where the line between influence and copying is drawn. According to , the following must be proven in order to establish infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Proof of copying consists in two elements: (1) evidence of access to the plaintiff’s work and (2) probative similarities between the works.��More importantly, the law only protects and not ideas themselves.

While some might be more about Fulk’s chances of winning this lawsuit, the filmmaker seems to have, at first sight, a strong case. In his complaint, the plaintiff mentions nine different instances where substantial similarities between the two works can be seen. These elements make up . The mentioned resemblances, with the proof of access to Fulk’s work, allow the burden of proof to be shifted to the defendant who will then have “.”

However, when taking a closer look at both parties’ work, one could easily argue that some of the similarities Fulk mentions in his complaint lie within the scope of non-copyrightable elements.��This lawsuit could therefore end up like one of the most recent and similar cases to Fulk’s: .

After being by the agency 72andSunny for a potential Starbucks campaign and eventually declining a deal, Maya Hayuk, a muralist known for her use of colorful geometric patterns, sued the chain, claiming that their new packaging shared too many similarities with her own work. A month later, her complaint was tossed out by the District Court in Manhattan. The judge that “what the Plaintiff [had] described as the 'core' of her work in the��aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred.”��Ultimately, Hayuk’s work and creativity both rely on the use of “raw material” such as colors and geometric forms, which are part of the public domain. He later added that “the total concept and feel of the protectable expression of those ideas in the Hayuk Works and the expression of those ideas in the Frappuccino Works are not substantially similar.”

Unfortunately for Fulk, some of his claims do rely on the similarities between elements that might be deemed original. For instance, one of the nine scenes he mentioned include a shot of a person with their head down, next to graffiti. As mentioned previously, ideas cannot be protected under copyright law and showcasing a distressed character lying against a wall with their head down is most likely not original enough.

Fulk also mentions the similarity between the black-and-white title screens in both works. However, these screens have been used in multiple movies before (for instance, and , just to name a few). Moreover, as colors and fonts are considered "", Fulk’s title screens cannot be protected under copyright law.

As for more abstract similarities, the plaintiff's complaint mentions��that both videos have a “heavy, dark and angst-laden” mood and that both works’ paces are “a rapid succession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” But just like for black-and-white title screens, “Palinoia” does not create a new genre. As have previously pointed out, even some perfume commercials are filmed and put together in the same manner. Proving that the substantially similar elements between Fulk’s “Palinoia” and Beyoncé’s “Lemonade” trailer are protected under copyright law might therefore be harder than it seems.

A potential court decision could be very enlightening in regards to the current state of copyright law. Realistically, the chances of this lawsuit ever making it to court are fairly low - most cases like this are settled out of court -��as they are with involving visual arts.

Aicha Tohry is an IPilogue��Editor and an��Université de Montréal LLB holder.

The post When Life Gives You Lemons, Make (Your Own) Lemonade: Beyoncé Sued for Her Latest Album Trailer appeared first on IPOsgoode.