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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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

For the first time in decades, the US Supreme Court will engage with enablement in patent applications. On November 4th, 2022, the Supreme Court to review the Federal Circuit’s decision in Amgen v Sanofi, against the . Specifically, Amgen seeks to appeal a , in which the court found Amgen’s patents invalid for lack of enablement.��

The requirement of enablement in US patent law is codified in , which requires that the specification of a patent application “enable any person skilled in the art…to��make and use” the invention in question. The in Amgen v Sanofi is whether this statutory requirement governs enablement (that the specification teaches those skilled in the art to “make and use” the claimed invention) or whether it must instead enable those skilled in the art “to reach the full scope of the claimed embodiments” without “undue experimentation” (characterized by substantial “time and effort”).��

In 2014, Amgen sued Sanofi for infringing on its patents concerning drugs for lowering cholesterol. The genus patents specifically cover that bind to the PCSK9 protein in the body. The patents disclose the amino acid sequences for 26 antibodies that bind to one or more of 15 residues found on the PCSK9 protein. Importantly, the claims at issue are considered , in which the antibodies are not claimed based on their structural components but rather on what they do.��

On January 3rd, 2023, many interested parties submitted to offer the Supreme Court their take on the issue to be considered. For instance, in a brief submitted by a group of , it was argued that the Federal Circuit’s standard imposes “an impossible burden” on patentees and that such a decision represents “a categorical shift in thinking away from teaching the PHOSITA and towards a precise delineation of the boundaries of the claim”. The professors further submitted that such a heightened requirement would be especially burdensome for patentees seeking to protect their innovations in the fields of chemistry and the life sciences, as “a chemical genus with any decently large number of species will never be able to satisfy the new enablement standard”.��

Other parties in support of Amgen presented some other reasons as well. In their amicus brief, the stated that the court’s reasoning “leaves patent practitioners guessing about how to advise client-inventors regarding the extent of disclosure required”. The , warned of the adverse impact that the new enablement requirement might have on the effectiveness of patent incentives for investors to contribute towards research and development, especially in the case of startups and smaller companies.

Moreover, the has filed a motion for leave to participate in oral argument, claiming a “paramount and unique institutional interest and perspective” – that is, the perspective of individuals and companies working in the chemical, pharmaceutical, and biotechnology fields. CHAL asserts that the Federal Circuit’s enablement standard potentially jeopardizes the benefits of many modern innovations and that adhering to the plain meaning of 35 USC s. 112 should continue to be the prevailing approach.

The Supreme Court’s decision regarding the enablement standard for functional claims could also have wide-reaching implications that spill over into other fields, such as technology and computer-implemented inventions. By too narrowly focusing on the “full scope of the claim” and “undue experimentation” instead of on what those skilled in the art could determine from the specification, it is unclear how broader claims for (such as those that describe the desired result to be achieved by the AI rather than its structural components or any specific software solutions) might fare in the face of such a standard.��

Amgen v Sanofi is scheduled to be heard by the US Supreme Court in the upcoming Spring Term.

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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 91��ɫ, 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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Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

Controversy and uncertainty in the field of patent eligibility have resulted in decade-long fights over what can be patented and what cannot be, especially regarding diagnostic tests. There is currently a congressional push to let drug companies patent diagnostic tests in the United States. This push comes from Senator Thom Tills. On August 2, 2022, Senator Tills introduced Bill , titled the Patent Eligibility Restoration Act of 2022, which, in part, aims to change currently existing US federal patent law regarding patent eligibility for different classes of inventions. ��

History of Patenting Diagnostic Methods

The bill was largely motivated by several Supreme Court rulings over the past decade, which have created exceptions to patent eligibility in biotechnology and pharmaceuticals. Traditionally, an inventor can gain patent protection for their invention if it is novel, non-obvious, and has utility. However, in 2012, the court in ruled that diagnostic tests that reflect naturally occurring biological phenomena cannot be patented because one cannot have a monopoly on a relationship based on natural principles. This ruling was then reaffirmed later in . This exception in the eligibility of diagnostic tests led to widespread confusion regarding patent eligibility. In particular, the chief judge of the US’s top patent court, Kimberly A. Moore, saying that Federal Circuit judges are now unsure of how to apply the patent eligibility provision. Additionally, these exceptions have led to patents being rejected in the United States but approved in other jurisdictions with similar patent laws, such as Europe, thus discouraging biotech companies from investing in diagnostic methods. In response, Bill S.4734 is being presented to address this confusion and increase innovation in the United States via more specific patent eligibility standards that are likely to expand the ability to patent modified genes and pharmaceutical processes, including diagnostic methods.

The Debate over S. 4734

This proposed bill has drawn much debate. On the one hand, , such as the American Civil Liberties Union, have expressed concern that this bill will allow pharmaceutical companies to take advantage of this expanded patent eligibility by creating monopolies over essential diagnostic methods resulting in decreased access to these methods and overall harm to the health of Americans. However, , such as the Council of Innovation Promotion, argue that the bill will increase investment into diagnostic research, which decreased significantly after the Mayo decision. These groups point to the pharmaceutical industry’s response to COVID-19, arguing that patents were the basis for creating the vaccines.

If the bill can clarify patent eligibility in the US, it may be worth pursuing further. However, I also question the idea that patent eligibility is the driving force behind biotech innovation.�� The Invention-Induced Theory, argued by proponents for S.4734, posits that patents are an incentive for inventors and that absent patents, there will be no inventions. However, this theory fails to account for inventions induced by the market, scientific curiosity, accident, or ego. Additionally, have shown that patents are not a significant driver of most innovations. Thus, there may be a better way to both reward biotech companies for their creation of diagnostic methods and prevent harmful monopolies over essential lifesaving inventions.

Regardless of which side of this debate you fall on, it is still being determined if S. 4734 will be further explored. When this bill was introduced in August 2022, the Tillis planned to hold hearings focused on this legislation if the Republicans took the senate in the November midterm elections. However, with the , the future of this matter remains uncertain.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

At last, the on the protectability of the subjects of ‘pop art’. In 1984, Vanity Fair magazine received a licence from photographer Lynn Goldsmith to use her 1981 portrait of Prince, which she had shot on assignment for Newsweek. Fast forward to 2017, when Vanity Fair published a special issue to pay homage to the recently deceased musician that featured ‘Orange Prince’ – Andy Warhol’s pop art depiction of Goldsmith’s photograph. The question of whether Warhol’s Prince silkscreens may be considered fair use has now made its way up to the US Supreme Court, and on October 12th of this year, . This is the outlining the arguments that were made in the matter of Andy Warhol Foundation for the Arts v Goldsmith.

In determining fair use according to the statute, one of the primary points of contention involved the meaning behind the of the alleged use. The Warhol Foundation contended that the purpose of ‘Orange Prince’ was to comment on modern society, thereby conveying unto the original an entirely different meaning and message. Lisa Blatt, representing Goldsmith, proposed that one may just as easily argue that the “purpose” of both uses was the commercial licensing of the works for publication. Blatt’s arguments were supported by Yaira Dubin, representing the Justice Department, who also highlighted the foundation’s commercial licensing of Warhol’s work, saying that “using another artist’s work as a starting point to turn around and compete directly with their original has never been considered fair.”

Of course, the magnitude of such a household name as Andy Warhol’s was not lost to the court. Justice Kagan questioned the influence such a name might have on the query: “Now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it’s easy to say that there’s something importantly new in what he did with this image.” On the other hand, Justice Kagan also acknowledged that there must be a reason why Warhol’s art is hung up on the walls of museums: “[W]hy do museums show Andy Warhol? They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he made them mean something completely different.”��

The Supreme Court judges addressed a statement made by the , which ruled in favour of Goldsmith. The Court of Appeals had warned that judges “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Justice Alito, in particular, seemed to disagree with the statement, pondering the kind of perspective that would be appropriate in determining such distinctions: “Well, suppose that [somebody]...made an almost exact copy [of the Mona Lisa]…If you showed [the two works] to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?...But, if you called somebody who knows something about Renaissance art, the person would say that makes a big difference.”

The commentary strikes at the ambiguity often found in determining cases involving intellectual property, if only because there is an inherently subjective element to construing creations of the mind. However, though patent law has the “person of ordinary skill in the art” standard and trademark law has the “ordinary casual consumer somewhat in a hurry” standard, copyright law often relies on a judge’s evaluation of whether infringement has occurred.

There is much to be anticipated from the Supreme Court’s final decision, the kind of effect such a decision might have on the world of art and photography, as well as whether a ruling in favour of the foundation would indeed “decimate the art of photography by destroying the incentive to create the art in the first place,” as Blatt argues.

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Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.

Over 3 years have passed since New 91��ɫ’s District Court a ruling in the matter of Andy Warhol’s “Orange Prince”, and the ripples of the case have finally made their way up to the Supreme Court. On Wednesday, October 12th, 2022, the judges of the US Supreme Court heard from both sides, and considered whether Warhol’s , which he had based on a 1981 photograph of Prince by photographer Lynn Goldsmith, may be considered a use that is “fair”.��

The doctrine of fair dealing in Canada has long played an important role in balancing the scales of copyright law from leaning too far in favour of copyright holders. The fair dealing exceptions recognize certain uses of protected works as benefitting society, and thereby safeguard those uses from findings of infringement. The parallel doctrine in the US tracks along similar reasoning and is known as the ‘fair use’ doctrine. In determining whether a use of a copyrighted work is “fair,” courts consider numerous factors, including whether the use in question is “transformative” of the original material.

In , the Supreme Court was invited to assess whether a work was “transformative” when it conveys a different meaning or message from its source material, or whether, in cases where the accused work “recognizably derives” from its source material, judges are forbidden from deriving or considering such meanings. It was an engaging proceeding with an abundance of references to pop culture icons and current affairs, and was punctuated at times by laughter in the courtroom at an amusing hypothetical posited by one of the judges.����

Roman Martinez appeared on behalf of the Andy Warhol Foundation, and clarified the issue at hand, as well as the Foundation’s position: “[b]oth courts below agreed, and Goldsmith doesn’t dispute, that Warhol’s Prince Series can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph. The question in this case is whether that different meaning or message should play a role, any role, in the fair use analysis. Our answer is yes.” Martinez argued that while Goldsmith’s original photograph captured a “vulnerable-looking Prince,” Warhol’s depiction turned it into a commentary on celebrity and fame – an entirely different meaning and message.��

The judges somewhat pushed back against this argument. Justice Elena Kagan suggested that in Hollywood, while a movie adaptation of a book might introduce plenty of new elements that may make a derivative work “transformative” under Martinez’s proposed test (“...new dialogue, sometimes new plot points, new settings, new characters, new themes”), one would still expect some sort of licensing agreement to be required.

Chief Justice John Roberts and Justice Clarence Thomas also commented on Martinez’s arguments, albeit in more lighthearted terms. The Chief Justice wondered whether a claimant who depicted Prince with “a little smile on his face” may advance the argument that the “meaning or message” of the work was fundamentally changed to convey that “Prince can be happy” or that “Prince should be happy.” Justice Thomas in turn asked Martinez to imagine the Justice at a Syracuse football game as a Prince fan, “which [he] was in the ‘80s.” Justice Kagan interjected, “No longer?,” to which Justice Thomas replied, “Well…so only on Thursday night.” This elicited some laughter in the courtroom. Justice Thomas continued, “And I decide to make one of those big blowup posters of ‘Orange Prince’ and change the colours a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me for infringement?,” insinuating that the changes and add-ons may be considered to convey a new “message” to Warhol’s work, under the Foundation’s proposed test. In response, Martinez emphasized that the verdict in both scenarios would largely depend on the degree of transformation in meaning or message, as well as the other factors in the ‘fair use’ analysis, such that a holistic assessment may be applied.

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Alice Xie is an IPilogue Writer and a 1L JD Candidate at Western University’s Faculty of Law.

For die-hard Apple fans who were quick enough to get their hands on an iPhone 14 Pro or iPhone 14 Pro Max upon their release in early September, a new feature would have come as a pleasant surprise. Apple users have been dissatisfied with the “notch” — the black space sinking into the top of the screen. With the latest release, Apple introduced a new feature called “,” which is a smart tool that enhanced the notch. Apart from being an interactive upgrade, Dynamic Island has an interesting connection to Jamaica. Interestingly, Apple first for Dynamic Island with the Jamaican Intellectual Property Office (“JIPO”) back in July before filing it in the U.S. the day the new iPhones became available for pre-order.

The Logic Behind it

How was Apple able to do this? The United States Patent and Trademark Office (“USPTO”), the governing body for national trademarks, accepts foreign trademark applications as a valid basis for filing for the same trademark in the U.S. Specifically, allows applicants to claim a priority filing date of a trademark if they file the application with the USPTO within six months of the first application in a foreign treaty country. In this case, Apple filed the trademark application for Dynamic Island on July 12, 2022, in Jamaica, a member of the which recognizes the right of priority. This filing acted as a placeholder for Dynamic Island’s trademark until Apple eventually filed an application with the USPTO for the feature.

Now, why Jamaica? All thanks to the JIPO’s process for trademark search. Individuals or companies wanting to perform a trademark search in Jamaica must . In comparison, the USPTO’s trademark search process is significantly more accessible. Using the USPTO’s Trademark Electronic Search System, anyone can for free to see all the information of national trademark filings. Apple’s filing choice with the JIPO makes sense here. Individuals or companies must take a trip to Jamaica to find new trademark applications filed by Apple – a costly and timely effort. With the JIPO’s practically unsearchable database, Apple has a six-month window to hide its newest developments from the eyes of competitors and the curious public until, if it wishes, the product release day. By combining sections intent to use the trademark in the U.S., and 44(d), Apple filed a trademark application for Dynamic Island on September 9, 2022, with a priority claim date of July 12, 2022.��

It is not just Apple

Apple has a history of filing trademark applications in foreign jurisdictions going back to as early as , but is not the only company with knowledge of this strategy. The trademark filing history of other technology giants like shares the same pattern as Apple’s, but in different foreign jurisdictions. Google, for example, first filed the trademark application for Google Chromecast in the Kingdom of Tonga on before a month and a half later. Jamaica seems to be just one of many jurisdictions without a searchable online trademark database.

Loophole or fair strategy?

The method of foreign trademark filing raises the question of whether it is, on an extreme end, an exploitation of trademark law that regulatory bodies should address, or a perfectly legal strategy for those that are willing to spend the time and money to protect their privacy of developments. One concern is that smaller companies in the U.S. without the means to exploit this method ��cannot enjoy this competitive advantage as technology giants could. On the other hand, perhaps not all companies deem a six-month window of privacy valuable enough to pursue this lengthy process. After all, not many corporations have such high-stakes patents that receive widespread publicity. Thus, this strategy may not ever be sufficiently employed to be of concern.

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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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Raenelle Manning is an IPilogue Writer and 2L J.D Candidate at Osgoode Hall Law School.

If you have ever incorporated music into your Instagram or Facebook videos, you may have committed copyright infringement. But don’t worry, you won’t need to get a lawyer! On July 20^th, 2022, Meta Platforms Inc. (“Meta”) was hit with a $142 million lawsuit. The suit was filed in California Northern District Court by Swedish music label and publishing company, . They claimed that Meta, on its social media platforms, has stolen hundreds of their content. In the , they argued that Meta violated the US for direct, induced, and contributory copyright infringement.

Who is Epidemic Sound?

Influencer culture and, by extension, content creation on social media, has become increasingly prevalent in recent years. In the past, content creators have had issues incorporating music into their posts due to . YouTube, especially, has been known to enforce copyright law by either muting or taking down infringing content. solves this problem by offering music licenses to creators who publish on platforms like Facebook, Instagram, Twitch, TikTok and YouTube. For a $15 USD per-month subscription, users receive a license to use material from a catalogue of 125,000 sounds and songs. Epidemic holds the copyright to the content in their catalogues and offers their licensees (subscribers) guaranteed protection from copyright infringement claims. However, they that only subscribers are authorized to use their content. This is where Meta is implicated.

The Infringement

This action is primarily about Instagram’s “Reel Remix” and “Original Audio” features, which Epidemic claimed encourages and enables users to commit copyright infringement. The allows users to incorporate their own videos into existing reels. It is similar to TikTok’s Duet feature which simultaneously plays user’s videos on a split screen. The ““ feature also allows users to extract the music from existing video posts and include it in their own content. However, users who upload with these features usually do not have license to use the music in the original video which they extracted the music from. Even if the original video creator acquired their music through their Epidemic subscription, unsubscribed third parties essentially use Epidemic’s content without authorization. Epidemic’s suit also argued that Meta, itself, engages in copyright infringement by storing, reproducing, and distributing their content on Instagram’s Music Library. When users select songs for their posts, Meta makes a copy and transfers it to the user in violation of Epidemic’s exclusive reproduction and distribution rights. ��Epidemic predicts that there are currently over 80,000 infringing videos circulating daily on Instagram and Facebook.

Epidemic also mentioned that they Meta about this issue, but Meta has refused to provide them with compensation or the to identify and protect their works. The claimed statutory damages for this action are quite significant, but under , parties are entitled to $150,000 per infringement. Since Epidemic owns the copyright to the sound recording and musical composition of the 950 songs it suspects are on Meta platforms, the price will be high. It is interesting that Meta has not taken precautions against such expensive litigation. Meta has not yet responded to the lawsuit, so we will have to wait to see how this case unfolds.

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