Throughout her doctoral studies, Amanda Turnbull has grappled with the legal consequences of “machines doing things with words.” Her timely dissertation, Law, Language, and Authority: The Algorithmic Turn, completed in August 2024, offers a measured yet unflinching reflection on how artificial intelligence is transforming society and the law. Speaking over Zoom from her home in New Zealand, where she is now a at the University of Waikato’s Te Piringa Faculty of Law  Turnbull shared some insights from her research.

"With AI, there’s an algorithm at the end of the hammer.”

At the heart of Turnbull’s thesis is her contention that AI is “more than just a tool.” When we think of a tool, Turnbull suggests, we usually think of something like a hammer. There’s always a person at the end of the hammer, and they’re responsible for what the hammer does. In the context of algorithmic systems, commentators have proposed different alternatives for who that responsible party might be, including the programmer, the end user, and the company that owns the technology. But these approaches obscure the true novelty—and danger—of AI. With AI, Turnbull explained, “there’s an algorithm at the end of the hammer.”

Turnbull’s focus on algorithmically generated language reflects her thesis’s remarkable origins at the University of Ottawa’s Department of English. Although her original supervisor, the late Professor (Canada Research Chair in Ethics, Law & Technology), soon recognized that it belonged in a faculty of law, Turnbull’s dissertation maintains its indebtedness to mid-century philosopher of language, JL Austin—who, Turnbull was surprised to learn, was a close friend of the legal theorist . emphasized what words do in addition to what they mean. Adapting this framework to contemporary technology, Turnbull is less interested in what a generative AI like ChatGPT says than the difference it makes that a non-human actor says it.

The first of three “pillars” of Turnbull’s dissertation thus explores the consequences of AI’s participation in writing literary works. To be clear, “” according to Turnbull—but that doesn’t mean AI should have no legally cognizable role at all. Drawing on her early career as a classical flautist, Turnbull recognized that generative AI’s imitative reproduction of human-authored texts in its training data isn’t so different from the work of human artists. In her words, “there’s an amount of imitation that necessarily occurs when you’re being creative.”

Unexpectedly, Turnbull found inspiration in the “spectrum of authoring” developed by in the 13th century, long before the modern notion of authorship was developed. Generative AI, she asserts, resembles Bonaventure’s “commentator,” a mid-point between an author and a mere scribe, who clarifies and expands on pre-existing texts. By referring to generative AI as a commentator or “expositor,” lawmakers can reserve copyright for human authors without turning a blind eye to the authority embodied in algorithmically generated language.

That authority is at the centre of the second and third “pillars” of Turnbull’s research, which examine the legal implications of algorithmic contracting. As coined by , an algorithmic contract is a contract in which the main terms and conditions are drafted not by human actors, but by computer systems.

Key for Turnbull is how the systems behind algorithmic contracts exercise “derivative” authority without legal intent. For this reason, algorithmic contracting is “in no way” similar to earlier technologies such as click-wrap agreements, standard form contracts, or the archetypal pen and paper. In other words, there is no “functional equivalence” between algorithmic contracting and other platforms. Courts should therefore reconsider both the notion of technological neutrality and the application of intent-based contract doctrines, including the doctrine of unconscionability recently revived by the Supreme Court of Canada in .

In the third “pillar” of her thesis, Turnbull discusses how unconstrained algorithmic contracting creates the conditions for technology-facilitated sexual violence. She focused on Uber and the instances of sexual violence involving drivers and passengers documented in its 2019 safety report. Sadly, Turnbull described this chapter as “the easiest to write,” since it quickly “became obvious that this is a new way of exerting harm.” Yet the solutions to these problems are far from straightforward. In Uber’s case, the issue permeates the firm’s corporate culture and overall attitude toward innovation, she contends, which has failed to truly consider “the whole web of entanglements” impacting algorithmic language.

Ultimately, dealing fairly with AI will require “extraordinary ways of thinking” on the part of courts and regulators. But Turnbull is confident the law can adapt. The entire law of contracts and copyright, for example, can be seen as areas that have constantly adapted to new technologies. By approaching the algorithmic turn with both bravery and nuance, courts can learn to recognize AI as something that’s more than a tool, but no substitute for genuine human authority and intent.

Going forward, Turnbull is keen to use her dissertation, which was supervised by IP Osgoode Director , as a basis for further explorations of technology-facilitated gender-based violence such as platform violence and “onlife” harm—a term to describe the intersection between experiences online and in ‘real life.’ At the same time, Turnbull is interested in how algorithms have played a positive role in certain legal contexts. Although, as she says, “we’re hot to jump on technology and focus on the negatives,” in a forthcoming article on the 1999 Canada-US Pacific Salmon Agreement, she and co-author Donald McRae will explore how, “in this case, the algorithm solved the dispute.” Turnbull also plans to publish her dissertation as a book and to return to another book she began writing even before beginning her PhD—a fictional novel that is, aptly, about Austin, Hart, and the father of computer science, Alan Turing…

John Nyman is a student at Osgoode Hall Law School (JD '26) and an IP Osgoode JD Research Fellow

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Ivana Peloza is a 3L JD Candidate at Osgoode Hall Law School. This article was written as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.

The Globe and Mail is Canada’s foremost news media company, a nationally-distributed newspaper with one of the largest circulations in Canada. The newspaper’s print and digital formats reach over 6 million readers every week, with Report on Business magazine reaching over 2.5 million readers every issue in print and digital. When I was placed with The Globe and Mail as part of Osgoode’s IP Intensive program, however, I certainly did not expect the extent to which I would be intertwined in the world of tech. Publishing is, of course, one of the core copyright industries – if not the core industry historically associated with copyright. IP law in publishing, especially at The Globe –�� who is known for being an early provider of digital media and device-agnostic content delivery – goes far beyond copyright infringement and litigation. There are significant overlaps and considerations to think of with the roll-out of a privacy policy, consumer protection laws, and a range of different agreements including those related to advertising, purchase and sale, events, and content production freelancer rights.

Over the course of my time at The Globe, I gained vast and multidisciplinary experience, but three major themes emerged within my practical and research work: privacy, contracts, and data protection. On my very first day, my supervisor (thankfully) lent me a copy of The Tech Contracts Handbook: Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople by David Tollen to start familiarizing myself with these themes. Complying with privacy regulations, especially in IT contracts, is as important as it can be misunderstood. Especially in an era of rapidly developing regulation and technology surrounding privacy, corporate organizations have a strict duty to continually follow the developments in Canadian privacy and data protection law as it relates to different jurisdictions.

My internship also allowed me to reflect on and speak with my supervisor about the differences – between working in-house versus private practice. For instance, private practice may have an entire staff dedicated to accomplishing just one specific aspect of a privacy or contracts matter whereas in-house lawyers might deal collaboratively with the whole breadth of a legal process. In-house has the potential to, therefore, offer a much greater variety and scope of practice and expertise. If my experience at the Globe has taught me anything, it's that this type of legal work makes the days more interesting, in my opinion!

An in-house legal department is also intimately intertwined with the organization’s commercial decision-making. Learning how to navigate the specific challenges of interdisciplinary brainstorming, drafting, and decision-making was a significant takeaway as well. Often, legal professionals or a corporation’s legal team will be coming late compared to the business process and left out of major contractual decisions. Sometimes, however, as was the case with the incredibly accomplished lawyers who I was lucky enough to learn from at The Globe, just by virtue of experience, the legal professionals have beneficial insight into the commercial deal process. Sometimes this is helpful, sometimes it leads to “spinning of wheels” but the point is there is deal structure expertise that isn’t always brought until after the deal is “set.” One of the jobs is to try to get further upstream – even if you’re not necessarily trying to be involved in the day-to-day happenings – but you need to find a way to have some perspective and plan more effectively.

To this point, I often reflected on a piece of advice I was given on the very first day of the IP Intensive Seminars. When I asked the alumni speakers their advice for someone who has never had a summer legal placement before, Denver Bandstra, Associate at Bereskin & Parr LLP, reminded me that I would get used to it “just like any other job.” Like any job, there will always be work-place procedure and workflow that requires orientation and practice. Learning the workflow of a contract renewal and negotiations, or the day-to-day contrast for an in-house lawyer compared to a private practice lawyer, only comes from experience. The experience given in the IP Intensive program, for that reason, is the most worthwhile part of my legal education so far. And particularly, as all things in IP and technology law are proving to be, developing knowledge and familiarity with data and privacy, the Internet and disruptive technology is worthwhile – not just for a career in IP law, but also for any person using social media in the digital age.

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

On October 25, 2022, following a string of antisemitic remarks and hate speech from Ye (formerly known as Kanye West) on social media, Adidas their decision to terminate their co-branding partnership with Ye and end production of all Yeezy branded products. The termination of this seven-year partnership, most famously known for its development of the Yeezy sneakers, raises important questions about IP ownership when business collaborations collapse.

While Ye’s company, Mascotte Holdings Inc. (“Mascotte”), owns a portfolio of 160 trademark applications in the US connected to the “Yeezy” brand, Adidas solely owns all design rights to existing products, as well as previous and new colorways under the partnership. This includes at least eight filed by Adidas in 2016 that claim the ornamental design of the Yeezy sneakers. A licensing agreement between Mascotte and Adidas exists for the “Yeezy” trademarks. The dissolution of this contract will rely on the termination clauses that stipulate the division of IP between the parties or whether any “moral” clauses allow early termination of the contract.

Adidas intends to take advantage of its design rights by selling the Yeezy sneakers using its own branding. Adidas has the right to continue to manufacture identical sneakers to Yeezys, so long as they do not use the trademarks owned by Ye. However, the inherent link between Ye and this distinguishable sneaker design may prove problematic to Adidas regardless of the name etched onto the shoes.

How can businesses protect their public perception in co-branding partnerships?

The success of Ye and Adidas’ co-branding partnership demonstrates how cross-licensing IP, including industrial designs and trademarks, can be a strategic marketing scheme to tap into different markets or classes of consumers. Ye and Adidas join the rank co-branding fails including the for Pepsi with Kendall Jenner that was pulled back 48 hours after release; the partnership between Lego and Shell, which due to Shell’s negative environmental reputation; and, more recently in Canada, the of Lululemon and Peloton due to alleged unfair competition from Peloton. These examples stress the need for companies to protect their public perception through strategic negotiation and drafting of co-branding licensing agreements, particularly through “moral” clauses.

Moral clauses hold contracting parties to a behavioural standard so as not to bring scandal to the other party. These clauses should address the potential for “tarnishment, loss of goodwill or reduction in brand value that may stem from reputational damage experienced by either party” (). Remedies for breach of such clauses include corrective advertising, damages, and contract termination.

Before entering into co-branding agreements, especially those involving celebrities, contracting parties should also ensure their shared goals and values are aligned to mitigate the risk of negative backlash or future fallout. For Adidas, a risk assessment of entering this partnership with Ye in 2016 may have involved balancing the precarious public perception of Ye against the potential commercial market for Yeezy-branded shoes.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

Beyoncé's new album released on July 29, 2022, Renaissance, was the subject of a lot of backlash this month.��Her song “Heated” was “ableist” and “offensive” from listeners for using the word “spazz,” and many more were heated about “Energy,” interpolated Kelis’ 2003 R&B favourite, “Milkshake.”

On August 8, 2022, Kelis was how she felt about Beyoncé’s use of her song, stating that she was neither notified nor asked for permission before the sample was used in “Energy.”��Beyoncé fans Kelis for vocalizing this issue, saying that the singer should have just “been happy to be on the album,” but Kelis continued to voice the disrespect she felt by this act. In a viral Instagram story, she exclaimed, “from one artist to another, you should have the decency … to call reach out … a manager, an agent, anybody … even if you’re going to do it anyway.”

From a legal standpoint, lawyers have been clear that Beyoncé’s team their legal obligations. Artists only require permission from original composers and the record labels if they wish to borrow work, and unfortunately for Kelis, she didn’t fall within this category due to a contract she signed when she was nearly 20 years younger and did not fully understand. Kelis also that, back then, she was falsely promised that she would receive an equal split for the song.

Shortly after being publicly called out, Beyoncé the problematic sample from the song on versions available on several streaming platforms. She also removed the credits for Pharrell Williams and Chad Hugo, the creator and producer of “Milkshake” - a move to “manage ‘potential fallout’ from the public.” Kelis has no legal ground to stand on but her quarrel with Beyoncé illuminates a prominent and recurring issue in the music industry. Young artists continue to be pressured into signing contracts that they don’t fully understand, signing off rights that lead to catastrophic results later in their careers. We saw this with when she re-recorded some of her most famous albums in an attempt to own her own work. She stated, "This is what happens when you sign a deal at 15 to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says, ‘Music has value,’ he means its value is beholden to men who had no part in creating it."

Moreover, contract with label and management company Love Renaissance was in the limelight late last year for its debilitating demands. The draft document harshly demanded that the singer “give up a chunk of all her non-musical earnings, even in areas like acting” and offered low advance payment and royalty rates in comparison to the standards then.

Often blinded by their ambition and pressured by the power imbalances with their labels, younger musicians need to ensure that they are securing their full rights at the time of music creation. This would require the artists to understand the individual actors that the musical composition would be split amongst, preferably a “split sheet,” where everybody’s contributions would be documented to avoid any confusion later down the road. Just a few minutes of extra due diligence in the recording room can spare an artist from losses decades into their career.

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

One of the biggest names in golf that is not Tiger Woods, for breach of a $145 million deal for the exclusive use what is being Nicklaus, also known as The Golden Bear, is 82 years old and widely regarded as one of the greatest golfers of all time. During his career he won 117 professional tournaments and 18 major championships, which is 3 more than Tiger Woods. Retired Nicklaus now heads his golf course design and construction company, . Nicklaus is one of the most prominent names in golf, so this recent filing has garnered the attention of sports reporters.

On May 17, the reported court filings involving Nicklaus involved both IP use and NIL issues. In May 2007, before the concept of name, image, and likeness became ruling for college athletes, Nicklaus appears to have made a similar deal except it was for . This involved three parties: 1) Jack Nicklaus; 2) GBI Investors Inc.; and 3) Nicklaus Companies L.L.C. Nicklaus incorporated GBI Nicklaus in 1984 and he remained manager when the deal was made in 2007. This deal involved selling business and assets of GBI that related to Jack Nicklaus to Nicklaus Companies. The IP rights and activities related to both Nicklaus as a person and his golf course design and construction activities made the deal worth more than

Nicklaus Companies claims they have paid and continue to pay both Nicklaus and GBI who are not meeting their obligations. Niklaus Companies seems to have put forth for which they are seeking injunctions and damages: 1) Jack Nicklaus continues to make deals regarding his IP and excluding Nicklaus companies from them; 2) these actions are damaging to Nicklaus Companies; and 3) Jack Nicklaus has threatened to continue to do these activities by unilaterally reclaiming ownership of those rights he sold. At first, the deal appeared to transfer the numerous patents and trademarks from GBI to Nicklaus Companies, but in recent years Jack Nicklaus and GBI have not satisfied the deal. Jack Nicklaus has deals regarding his golf course designed in addition to entering a deal to profit of his NIL that excluded the company.

Notably, this story broke within days of Jack Nicklaus turning down to be the face of a new golf series. Though not directly related to this case, his decision may be relevant to broader branding issues associated with his name.

This interesting case will likely become a battle over the terms of the contract with strong arguments on both sides. From an equitable perspective, it appears Nicklaus entered an unfavourable deal in 2007 that meant in the long term he was . This term mirrors the contracts of most universities (like) where professors are not the exclusive IP owners for independent work completed during employment. These contracts can be contentious if they give off the impression that those with money can exploit resource-strapped inventors. On the other hand, the Jack Nicklaus company paid a substantial sum of money on the belief that they would retain the Jack Nicklaus IP into the future. Under the principle of of contract, the Nicklaus Company does not appear to have violated the terms of the agreement and they just want to receive what they have paid for and did not force Nicklaus and GBI to enter the contract. As this was just filed, it will likely be some time before a decision or settlement is reached. But if it gets to trial, there will likely be interesting arguments on the contracting of IP.

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

In March 2021, Rogers Communication Inc. announced an upcoming to buy Shaw Communications Inc for a US$26 billion takeover. If successful, Rogers will become Canada’s -largest cellular and cable company operator. Canada would resultingly have wireless providers to choose from instead of four. This deal is now facing opposition from some of Canada’s key regulatory powers. On March 3 2022, Canada’s of Innovation, Science and Economic Development Francois-Phillippe Champagne stated that “The wholesale transfer of Shaw’s wireless licenses to Rogers is fundamentally incompatible with our government’s policies for spectrum and mobile service competition, and I will simply not permit it.” But why should Canada prevent industries from extremely profitable mergers and acquisitions?

Ottawa’s main concern with this deal is the monopolization of essential services like cell phones and Internet. With a monopoly, Rogers is free to raise prices because no other competitor could offer a better price matching Rogers’ breadth of services. Many are concerned that they will not be able to compete with Rogers, and consumers worry they will suffer higher cell phone prices without other options. Rogers gave an assurance that it would not raise prices until at least years after the deal’s closing. But that assurance may not be enough to stop Rogers from continuing to competitors in the future, leaving fewer choices for Canadian consumers. Financial analysts acknowledge that while the government may try to reject the deal, the government’s statements are not necessarily fatal. predict that the deal will close, but, to maintain competition in the industry, Rogers will not be able to buy all of Shaw’s wireless business.

The Rogers-Shaw deal is likely moving ahead. On March 24, the Canadian Radio-television and Telecommunications Commission (“CRTC”) Rogers’ acquisition. The CRTC stated that, subject to modifications, Rogers’ proposal would not unduly affect Canada’s competitive landscape. The CRTC made stipulations to its approval that could once again balance Rogers’ acquisition and fair competition in the wireless service marketplace. Rogers will contribute towards various initiatives promoting local news and independent projects. Rogers must also create an news team with journalists in all provinces to provide news content to First Nations, Métis, and Inuit communities. These stipulations could help stimulate local journalism and production companies, addressing concerns regarding the survival of local wireless services after this big merger.

While Canadian government officials seek to discourage anti-competitive behaviours, Canada’s Competition Act was last reviewed in . Since then, Internet giants like Google, Facebook, and Amazon have often participated in anti-competitive practices online to dominate the marketplace. In Canada, Google and Facebook pocket of online advertising revenues, yet no laws have come in to stop them. Minister Francois-Phillippe Champagne announced on , to modernize competition law through legislative reform of the Competition Act. Through a broad review, the Competition Bureau has suggested changing the in the current competition law. This defence saves mergers that harm competition so long as the deal creates cost savings or other efficiency gains. Rogers may rely on this defence to keep the deal moving forward. Though not yet rejected, the Rogers-Shaw deal may be a catalyst for Minister Francois-Phillippe Champagne to implement changes to competitive practices.

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Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

There is no question that the virtual gaming and e-sports industry has seen exponential growth in the last decade or so. In 2021, global e-sports revenue is said to have reached a whopping USD, and is projected to increase to $1.6 billion USD by 2024. Moreover, there are currently about who are said to be following e-sports worldwide, with that number expecting to climb to 577 million in the next few years.

Part of what makes the question of intellectual property in e-sports so unique is the myriad of overlapping rights that exist, being held by a including game designers, sound engineers, programmers, user interface developers, the players themselves, broadcasters, event/league organizers, advertisers, sponsors, and even spectator fans. But among these actors, whose rights can really be enforced? E-sport tournaments are an amalgamation of various intellectual contributions from a variety of actors. This is in stark contrast to traditional sporting events—after all, it cannot be said that !

It is accepted that the copyright (or the to the source code, maps, sound effects, and characters of a game is . As a result of the considerable power held by video game publishers in the e-sports industry, the associated IP regime is often considered as having a , in which a few actors own all the IP. Game publishers can decide what teams/players may compete, who may host tournaments, and how tournaments are advertised and broadcasted.

However, much of this power is effectuated through end-user license agreements or applicable terms of service with individuals and tournament organizers. Moreover, these rights can then be further assigned to others through contractual means. For instance, in 2015, a Twitch streaming channel named , another video game streaming service. SpectateFaker had broadcasted games played by popular e-sports player Lee Sang-hyeok. Azubu, having contractually obtained the exclusive streaming rights for Sang-hyeok’s games, filed a complaint against Twitch alleging copyright infringement. Interestingly, Riot Games—the publisher who owned the copyright to the game—was not involved in the dispute at the time. The matter never ended up being litigated.

Other disputes have arisen involving video game copyrights, though none such matters have yet to meaningfully challenge the status quo of the “top-heavy” e-sports regime in the courtroom. For instance, in the late 2000s, , including from Korea e-Sports Association (KeSPA). After years of failed negotiations, Blizzard decided to license the exclusive right to broadcast its game StarCraft to another South Korean organization and brought lawsuits against KeSPA.

The matter was ultimately settled outside of court, but it calls into question whether any other actors in the e-sports industry can assert some kind of right to their content. For example, can players enforce some kind of copyright or performer’s right in their gameplay? Many argue that mere gameplay or one’s “style of playing” is comprised of , that it , or that it is to be protected by copyright. That being said, it may also be argued that skilled gamers employ the use of considerably nuanced , which ultimately dictate how the game will go.

The gaps and barriers between IP and e-sports certainly will stop at copyright protection. As the industry continues to grow, we can expect to see more IP-related disputes, including ones involving for things like game titles, gamer tags, team brands and merchandise, or even popular characters, as well as protecting gaming consoles, software programs, and user interfaces. Several gaming patents have already been filed, such as U.S. Patent No. 8,882,576, or , which denotes an algorithm that evaluates the proportionate dependence of an outcome on skill versus chance. And while traditional sports and entertainment industries have long been regulated by established rules and best practices, Canada in particular has (as stated by Erika Carrasco, partner and chair of Field Law’s Emerging Technologies Group). Having a robust IP strategy in place for such a rapidly developing industry with enormous economic prospects makes the most sense.

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

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Anita Baker is a legendary soul and R&B singer-songwriter who rose to fame in the 1980s. The iconic singer has won and various notable awards for her popular and timeless ballads. Earlier this year during Grammy season, Baker requested that fans not . Through Twitter, she expressed that she had outlived all her recording contracts and that her master recordings should legally belong to her. On September 3, Baker in her masters fight and gave fans the go-ahead to listen to her music once more.

Baker’s tweets and subsequent support from fans come as no surprise. In recent years, popular artists have spoken out about compensation from and Ownership of masters within the music industry has become a contentious and popular matter, particularly after Taylor Swift’s legal battle resulted in This case is a bit different as it likely relies on a lesser-known section of U.S. copyright law. When Baker described outliving her contracts, she was referring to her , which lets her reclaim her copyright after 35 years. states that authors or their survivors are entitled to “terminate grants of copyright assignments and licenses that were made on or after January 1, 1978 when certain conditions have been met.” It is not clear what the conditions were in this case besides length of time, however Baker advocated for ownership effectively and succeeded.��

Baker was not only upset that she did not own her masters, but also that the current recordings available were of inferior quality. Baker that the songs currently available lacked the original instrumentation, the recordings were sped up, and the vinyl sold today are not from analog masters, but rather re-processed digital copies. She believes her fans deserve better. Fans encouraged her in a dedicated fashion, with some stating that they just so they could enjoy her music without having to stream it.

Between March and September, Baker frequently provided legal updates through short tweets. Notably, she shared that with Warner Music Group (formerly WEA Records) began in May 2021 and that she was making progress. Finally, on September 3, she published a photo of her catalog and announced that all . Her advocacy on Twitter garnered tremendous support from her fellow musicians. Fun fact: Taylor Swift and tweeted following Baker’s success.

In the words of Anita Baker, “.”

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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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American actress Scarlett Johansson, known for playing the Black Widow in Disney & Marvel’s The Avengers franchise, took action against Disney on July 30, 2021 for an alleged breach of contract involving the recent Black Widow film’s distribution. According to , Johansson’s contract read that Black Widow would be guaranteed a ‘wide release’, meaning that “the film would be shown .” The caveat here in the streaming service age is the term ‘screens.’ Johansson’s legal team argues that ‘screens’ means movie theatre screens exclusively. This implies a theatrical release, where a . Disney countered the argument, stating that Black Widow received a theatrical release, but that this release does not imply an exclusive release to theatres only. As such, Disney was within their rights to simultaneously launch the film on their streaming service, Disney Plus.

Experts argue that this may be a case of ambiguity with the phrase ‘wide release.’ In contract law, ambiguity is addressed in several ways. Absent fraud or misrepresentation, the court may choose to examine —verbal agreements made between parties, usually in the negotiation stage. Johansson’s legal team stated that they between them and Marvel’s Chief Counsel, Dave Galluzzi. In the email, the studio attorney promised a release “like our other pictures” and that if plans should change, they would be “discussed with [Johansson’s legal team].” Further, even without the email, courts generally resolve ambiguity , which in this case is . Therefore, Johansson is likely to win in court.

On August 21, 2021 Disney responded to Johansson’s suit with a motion to move the suit to . Arbitration is a method of whereby parties choose a sole arbitrator and venue of arbitration to settle a dispute. The arbitrator’s ruling is . Hollywood dispute lawyer would make this move back in July. Moving this issue to arbitration helps and contract drafting out of the public eye and protects their public image from damage. But �پ����Ա��’s representatives counter this view, stating that they simply wish that was agreed upon between both parties to the contract. Disney also argues that the company made good on its contract by displaying the movie on .

Additionally, instead of coming after Marvel, as the party involved in the contract, Johansson’s team is pushing for a public suit against the parent company Disney. Disney suggests that Johansson is participating in “gamesmanship” by making Johansson’s compensation �پ����Ա��’s responsibility, rather than carrying out the dispute in arbitration with Marvel. is a dubious technique where lawyers create additional expense or agitate the other side to put them in a tough position where they must either settle or abandon the case. Since arbitration is often dispute resolution than a public lawsuit, Johansson’s team may indeed be partaking in gamesmanship with the constant push for a public lawsuit.

Whether the parties decide to settle the dispute confidentially or publicly, this contractual disagreement emphasizes the new contractual landscape for actors and production companies. With the rise in streaming services and decline of theatre capacity during the COVID-19 pandemic, movie production companies should work to be more explicit in their compensation plans and in their definition of ‘wide release.’ 30,000 movie theatre screens versus 30,000 users on Disney Plus can make millions of dollars of a difference.

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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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Costumes can memorialize iconic movie characters even off-screen. Behind every costume is a designer whose vision and design breathes life into characters. But behind every designer, other figures may undercut and miscredit them.

�پ����Ա��’s Cruella, , tells the story of two haute couture designers battling for recognition in the fashion industry. The film is also an origin story for . Oscar-winning costume designer created the film’s mesmerizing costumes with plenty of colour, whimsy, and, of course, animal prints. Life now imitates art as Beavan battles Disney for attribution for her work.

Beavan that Disney discussed co-branded products for Target and Singer Corporation as well as a possible fashion collection. But these talks ceased once production on the movie ended. Then, in May 2021, the fashion brand advertised a new, officially-licensed Cruella-inspired collection—without Beavan’s knowledge or attribution.

This is not the first time this has happened, even recently. In 2020, a licensed Harley Quinn-inspired did not involve the film’s costume designer, . These incidences raise the question: are creators unfairly excluded from these licensing processes?

The answered that question in June 2021 by calling out �پ����Ա��’s practice in reference to the Cruella-inspired licensing. Disney has . CDG President Salvador Pérez Jr. : “Our work is reproduced for toys, costumes, fashion collections and more. Not only are we not allowed to participate in the profits made off of the merchandising, we aren’t even credited for our work on the original designs.”

Licensing requires ownership of the designs, which calls into question who owns a costume—the costume designer or the production company who them? Many costume designers’ contracts with big production companies currently . There are, however, some exceptions. , the designer for the television show Mad Men, entered a multi-year collaboration for a .

Conflict arises in contracts’ terms. Contracts typically allocate the rights to the film, , to the company. However designers may push back by arguing that . Many designers believe that they do not sign away their ownership rights for external merchandising or collaborations, while production companies counter that this is implied in their contracts. Two apparent approaches can resolve these contractual issues.

First, designers can negotiate and carefully draft s. But this approach can be unpredictable. Merchandising opportunities may only arise when designs become popular or if the film is successful. Further, it is uncertain how much of the costume design will be included in future merchandise. Creating a film character involves many contributors, so the merchandise may not relate to the character’s costume and therefore for the costume designer.

The second approach is more collaborative. Costume designers can pitch collaborations with certain brands to the production companies, , to ensure their attributions. But this approach also carries uncertainty based on whether companies would agree to such collaborations prior to the film’s release.

While the Cruella-inspired line continues to generate discussions on designer ownership and compensation, the issue still depends on whether big production companies will collaborate with individual designers beyond what they create for films. With the CDG’s continued public support, the film industry could implement changes to allow designers to receive compensation for not just their designs, but for their ability to immortalize characters through merchandise and fashion lines.

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