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AI vs. IP

The U.S. Patent and Trademark Office (“PTO”) recently issued a second request for public comments on the impact of artificial intelligence on intellectual property laws and policies, this time with a focus on copyright and trademark related issues. 

Among the questions recently posed by the PTO:

Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not?;

Would the use of AI in trademark searching impact the registrablity of trademarks? If so, how?; and 

Are there any other AI-related issues pertinent to intellectual property rights (other than those related to patent rights) that the USPTO should examine?

You may submit comments in writing through December 16, 2019. The full list of questions is presented in the Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation, available in the Federal Register here.

The PTO previously issued a Request for Comments on Patenting Artificial Intelligence Inventions, available here, and has extended the deadline to submit comments through November 8, 2019.

Sweet Emotions: Supreme Court Declines to Hear Copyright Case on Protection of Fictional Characters

Earlier this month, the Supreme Court of the United States (SCOTUS) denied certiorari for a Petition seeking the Justices clean up the legal “chaos” over the protection of fictional characters under U.S. Copyright Law.  In the November Brief in Opposition, Respondents alleged “[t]he petition’s premise is false.  There is no chaos.  Instead, there is striking coherence and comity among the circuits, which freely cite each other’s decisions as a shared explication of a legal standard first articulated by Judge Learned Hand in 1930.”


In 2017, Denise Daniels and The Moodsters Company (Plaintiffs) brought suit against The Walt Disney Company (Defendant) in the U.S. District Court of Central District of California.  See Denise Daniels and The Moodsters Company v. The Walt Disney Company, et al, 17-CV-4527 PSG (SKx) (C.D. Cal. 2018).  In its complaint, the Plaintiffs’ alleged copyright infringement of the individual characters and the ensemble of characters “The Moodsters”, a cartoon world populated by characters that embody individual emotions, to help children understand and regulate their emotions.  Each Moodster is color-coded and anthropomorphic, and each represents a single emotion: happiness (yellow), sadness (blue), anger (red), fear (green), and love (pink).  In the 2015 film Inside Out, Disney Pixar introduced the public to anthropomorphized emotions living inside the head of an 11-year-old girl featuring five color-coded emotions as characters—joy (yellow), sadness (blue), anger (red), fear (purple), and disgust (green).  The District Court granted the Defendants’ Motion to Dismiss after finding the Plaintiffs’ characters lacked “specific traits on par with those of the iconic characters” that had achieved independent copyrightability, such as Sherlock Holmes, Tarzan, Superman, and James Bond.


Although characters are not an enumerated copyrightable subject matter under the Copyright Act, see 17 U.S.C. §102(a), there is a long history of extending copyright protection to graphically-depicted characters.  See, e.g.Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1452 (9th Cir. 1988); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 755 (9th Cir. 1978).  Characters standing alone are not entitled to copyright protection absent the character (1) having “physical as well as conceptual qualities,” (2) being “‘sufficiently delineated’ to be recognizable as the same character whenever it appears,” AND (3) being “‘especially distinctive’ and containing ‘some unique elements of expression.’”  See DC Comics v. Towle, 802 F.3d 1012, 1020-21 (9th Cir. 2015).  Consistently recognizable characters like Godzilla or James Bond, whose physical characteristics may change over various iterations, but who maintain consistent and identifiable character traits and attributes across various productions and adaptations, meet the test. See Tono Co. v. William Morrow & Co., 33 F. Supp. 2d 1206, 1215 (C.D. Cal. 1998) (finding Godzilla is consistently a “pre- historic, fire-breathing, gigantic dinosaur alive and well in the modern world”), Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Corp., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995) (noting James Bond has consistent traits such as “his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; his sophistication”).


In 2020, the Ninth Circuit affirmed the District Court’s dismissal of the Plaintiffs’ suit because “lightly sketched” characters such as The Moodsters, which lack “consistent, identifiable character traits and attributes,” do not enjoy copyright protection.  See DC Comics v. Towle, 802 F.3d 1012, 1019, 1021 (9th Cir. 2015).  The Ninth Circuit found the notion of using a color to represent a mood or emotion is an idea that does not fall within the protection of copyright and that colors themselves are not generally copyrightable.  The Ninth Circuit concluded the Plaintiffs could not copyright the idea of colors or emotions, nor could she copyright the idea of using colors to represent emotions where these ideas are embodied in a character without sufficient delineation and distinctiveness.