By Xiang Zhang

“To write poetry after Auschwitz is barbaric.” With this stark provocation, articulated not a prohibition on artistic expression, but a profound ethical challenge to culture itself: how can expression remain meaningful in the aftermath of catastrophe, and what conditions must exist for culture to serve as a site of witness, critique, and hope? It was this philosophical tension—between the fragility and necessity of expression—that framed Professor ’s 2026 at the University of Toronto Faculty of Law. Like Adorno, Silbey’s inquiry was animated by a concern with the conditions under which expression remains possible, and by the recognition that cultural and legal structures can either sustain or foreclose the emancipatory potential of art, knowledge, and communication.

Silbey’s central thesis is that contemporary copyright law is undergoing a gradual but profound transformation. Doctrines historically designed to facilitate the circulation of ideas and preserve the public domain are increasingly weakened, enabling the commodification and enclosure of knowledge, facts, and expressive fragments. Where copyright once functioned as a structural safeguard for expressive freedom, it now frequently operates as a mechanism for proprietary control, allowing private actors to assert ownership over the fundamental materials of communication. In this respect, Silbey’s critique closely parallels Adorno’s broader diagnosis of modern culture: both identify systemic forces that transform culture from a domain of human freedom into an instrument of economic rationality, commodification, and control. In both accounts, culture’s emancipatory function is displaced by the logic of ownership and monetization.

Silbey situated this doctrinal and cultural transformation within the broader political context of the contemporary United States, emphasizing that artistic and expressive practices are essential forms of democratic witness, particularly during periods of political instability and crisis. Expression, she argued, is not merely aesthetic but ethical; it enables individuals and communities to bear witness to injustice, preserve memory, and imagine alternative futures. The fundamental purpose of copyright law, therefore, must be to facilitate, rather than frustrate, this expressive function. Yet, as Silbey observed, copyright law, once a “public domain protecting doctrine” is now suffering from what she described as a “death by a thousand cuts”: a gradual erosion driven by expanding proprietary claims, restrictive licensing regimes, and doctrinal narrowing. Echoing Marx’s metaphor of capital as a vampire sustained by extraction, Silbey suggested that contemporary copyright increasingly survives through the extraction of control over culture itself.

To illustrate this erosion, Silbey anchored her lecture in three foundational doctrines of copyright law: the exclusion of facts from copyrightability, the de minimis defense, and personal use liberties. These doctrines, deeply rooted in both common law and transnational copyright traditions, have historically functioned as structural limits on copyright’s reach, preserving the public domain and ensuring the continued circulation of knowledge.

The first doctrine, the exclusion of facts from copyright protection, reflects the foundational principle that facts belong to the public domain. Although this principle was affirmed by the United States Supreme Court in , Silbey argued that the decision oversimplified the nature of facts by characterizing them as merely “discovered” rather than socially produced. Drawing on the history of journalism and scientific inquiry, she emphasized that facts are constructed through institutional processes of verification, expertise, and consensus. This insight carries profound contemporary implications, as private entities increasingly assert proprietary claims over data, technical standards, and functional information. Silbey pointed to examples such as insurance companies asserting copyright over climate risk assessments, private organizations licensing building codes incorporated into law, and manufacturers restricting access to repair manuals for essential technologies. These practices represent not merely legal disputes but a broader cultural shift toward the privatization of knowledge, threatening public safety, scientific progress, and democratic accountability.

The second doctrine, the de minimis defense, historically permitted courts to dismiss claims involving trivial or insignificant copying, recognizing that expressive communication necessarily involves reference, quotation, and reuse. Silbey argued that this doctrine has been significantly weakened in the digital age. Courts increasingly subject even minor uses to complex fair use analyses, raising the costs and risks of expression. At the same time, industry practices have normalized pervasive licensing, transforming even incidental uses into licensable events. The result is a cultural environment in which expressive practices once understood as ordinary and permissible are now subject to proprietary surveillance and control.

The erosion of personal use liberties represents perhaps the most profound transformation identified by Silbey. Historically, ownership of physical copies conferred broad autonomy, enabling individuals to lend, resell, preserve, and adapt cultural works. The transition to digital distribution has replaced ownership with conditional licensing, fundamentally altering the relationship between individuals and culture. Through cases such as , , and , courts have narrowed the scope of personal use, treating activities once understood as legitimate cultural participation as acts of infringement. As Silbey observed, practices central to cultural life: reading, sharing, preserving, and referencing, are increasingly framed as morally and legally suspect.

Silbey concluded her lecture by invoking Jessica Litman’s observation that personal use is not incidental but central to copyright’s constitutional purpose. Copyright was never intended to prohibit engagement with culture, but to facilitate it. The freedom to read, share, and build upon existing works is essential to cultural vitality and democratic life. The erosion of these freedoms reflects not merely doctrinal change, but a broader transformation in how culture itself is governed.

In this light, Silbey’s lecture returns us to the ethical question posed by Adorno’s opening provocation. Adorno’s warning that “to write poetry after Auschwitz is barbaric” was ultimately a reflection on the fragility of expression in the face of systemic forces that threaten to render culture hollow, commodified, and incapable of bearing witness. Silbey’s critique suggests that contemporary copyright law risks producing a parallel condition, not through violence, but through enclosure. When facts become property, fragments become licensable, and personal engagement becomes suspect, the structural conditions necessary for expression itself begin to erode. In defending these doctrinal edges, Silbey ultimately affirms that artistic expressive practices remain indispensable forms of democratic witness, and that copyright law itself bears a profound responsibility to preserve the structural conditions that enable such witnessing, by safeguarding access to knowledge, protecting the public domain, and ensuring that the legal framework governing culture facilitates, rather than forecloses expression, during periods of political instability and crisis.

Xiang Zhang is a doctoral student at Osgoode Hall Law School and an IP Osgoode Research Fellow, with a strong interest in advancing open-source and open access to knowledge.

The post Copyright’s Edges and the Ethics of Expression in the Digital Age appeared first on IPOsgoode.

The development of copyright law in Canada has never been quick to move but rather advances like a river carving its course, slow, persistent, and shaped by centuries of cultural and legal history. From the imperial statutes imported in the nineteenth century to the quiet but profound pronouncements of today’s Supreme Court, its progress has been less a leap than a measured accumulation of meaning across generations. Each judgment is a stone laid carefully in the stream, sometimes uneven, sometimes contested, yet together forming a path that reflects Canada’s patient effort to balance the rights of creators with the needs of users, tradition with innovation, and private reward with the public’s access to knowledge.

In March 2004, the Supreme Court of Canada released CCH Canadian Ltd. v. Law Society of Upper Canada, (“CCH”), a case that began as a dispute over library photocopying but grew into one of the most influential copyright rulings in Canadian history. In a single unanimous judgment, the Court redefined the purpose of copyright, reshaped its doctrinal foundations, and projected Canada’s legal voice onto the international stage. Twenty-one years later, on a bright, sunny weekend in , scholars, practitioners, professionals, and observers gathered at the Centre to reflect on the enduring legacy of CCH at home and abroad, asking: what did this ruling truly accomplish, and what did it set in motion?

The CCH ruling addressed four critical questions. First, the Court adopted the “” test for originality, rejecting the idea that mere industrious effort, what had been called the “sweat of the brow”, was enough to qualify for copyright protection. Originality required more: an intellectual contribution that reflected thought and decision.

Second, the Court narrowed intermediary liability. Simply providing the means for infringement, such as photocopiers in a library, would not make an institution liable unless it the infringing use.

Third, it clarified “,” a concept increasingly relevant in the digital age, limiting how far publishers could stretch their rights against libraries sharing works with their patrons.

And fourth, and most famously, the Court recognized fair dealing and other exceptions as “.” With this declaration, the Court placed access and fairness at the heart of copyright law, ensuring that copyright was not simply a monopoly for rightsholders but a balanced framework serving creators, users, and the public interest.

As with any turning point in law, CCH’s legacy is complex. Supporters celebrate it as the moment Canada broke from overly restrictive copyright models and embraced a fairer balance between access and control. Critics, however, argue that the decision distorted the legislation and accelerated the decline of Canadian educational publishing. While Quebec largely charted its own cultural path, much of English Canada embraced the Court’s expansive vision of user rights, leaving local publishers crying foul as they struggled to adapt and compete in the digital era.

Even within institutions, the embrace of user rights has been uneven. While fair dealing has flourished through subsequent cases in the Supreme Court’s “” and amendments to of the Copyright Act, other exceptions, such as disability rights under , remain under-utilized. Libraries and universities, wary of litigation, often adopt risk-averse policies that fail to reflect the spirit of CCH. It is a reminder that judicial doctrine alone cannot change practice; institutions (and the people who work for them) must also to carry the torch.

Though born of a Canadian library, the CCH decision quickly echoed abroad. In India, the Supreme Court adopted Canada’s “skill and judgment” test in (2008), and today Indian courts continue to revisit CCH as they grapple with generative AI disputes and the role of user rights in text and data mining. In South Africa, reform efforts to decolonize and modernize copyright law have built upon CCH, with the proposed seeking to expand exceptions and incorporate fair use principles that mirror Canada’s emphasis on balance. Across Africa’s music economy, the narrowing of intermediary liability established in CCH resonates strongly: while limiting liability can promote innovation, in regions with weak enforcement institutions, it risks enabling exploitation—highlighting the danger of transplanting doctrines from well-resourced systems into fragile infrastructures. Meanwhile, in Europe and Latin America, Canada’s approach has sparked reflection of another kind. European scholars contrast Canada’s robust recognition of user rights with the EU’s narrower framework, while in Brazil, cultural policy debates under Gilberto Gil in the early 2000s similarly sought to reframe copyright as more than just a market commodity. In each of these contexts, CCH has functioned as both compass and caution—proof that a single Canadian decision can shape global debates, but also a reminder that law must always be adapted to the realities of place and culture.

CCH Canadian Ltd. v. Law Society of Upper Canada stands as a milestone not just in Canadian copyright, but in the global story of how law adapts to new technologies and shifting cultural priorities. Its vision of user rights has shaped debates from Ottawa to Delhi, Cape Town to São Paulo.

Looking back, CCH reminds us of the slow dance of law in Canada. It did not arrive with fanfare but unfolded through a quiet dispute about photocopiers and fax machines, carried by careful words and judicial reflection. Yet over time, its influence spread like ripples on water—shaping institutions, and practices, inspiring courts and policymakers abroad, and offering copyright law a compass for navigating entirely new technological challenges.

Law evolves slowly, but its slowness is part of its strength. In a world of disruption, it anchors us to principles that endure: fairness, balance, and the recognition that the rights of users and the public are not afterthoughts but part of the very purpose of copyright. As Canada reflects on the case twenty-one years later, it is worth remembering the lesson woven through its legacy: law does not race to keep up with every innovation, but moves like water in a stream, guided by the memory of where we have been and the hope of where we might yet go.

Links to the recorded panel presentations, speakers' bios and paper abstracts are now available .

A lawyer and graduate of the Osgoode Professional , Shadi Nasseri's doctoral research addresses the profound legal and ethical concerns arising from neurotechnologies, including issues related to mental integrity, human dignity, personal identification, freedom of thought, accessibility, autonomy, and privacy.

The post Currents, Waves, and Ripple Effects – CCH’s Legacy at Home and Abroad appeared first on IPOsgoode.

International Conference: The Legacy of CCH Canadian Ltd. v. LSUC and the Future of Copyright Law

Co-hosted by IP Osgoode and the Centre on September 19-20, 2025, this collaborative international conference was co-organized by Professors (IP Osgoode's Director and Academic Director of the ); (Associate Professor and Chair in Law, Intellectual Property, and the Digital Marketplace, and Director of the ); (Distinguished University Professor Emerita at the University of Windsor Faculty of Law); and (Associate Professor at the University of Toronto Faculty of Law).

The full agenda for this packed two-day conference is available , complete with links to speaker bios, paper abstracts, and video recordings of the panel presentations.

The IP Osgoode Speaks series invites leading scholars and professionals working in the field of IP law and technology to present their current projects, works-in-progress, and recent publications to the IP Osgoode community, in person and online.

Book Launch: Intellectual Property Futures: Exploring the Global Landscape of IP Law and Policy (Ottawa UP)

On February 5, 2026, IP Osgoode was proud to host the book launch for this important new collection on , featuring discussion with the editors (, , and ) and presentations from chapter authors ( and ). Stay tuned for a forthcoming write-up of the event in the IPilogue! 

Copyright, Openness, and Inequities: Licensing African Datasets

3 October 2024

Speaker: , founder of the and Assistant Professor at the University of Pretoria, South Africa. She is an Africa correspondent at , associate editor of South African Intellectual Property Law Journal, and the author of several articles on intellectual property and information justice issues in Africa.

Professor Okorie's presentation identified inequities in existing open licenses for African datasets and proposed guiding principles for an alternative approach.

Additional comments were offered by �첥��Ƶ’s Professor , an IP Osgoode Affiliated Researcher and Ontario Research Chair in Governing AI.

A Zoom video of this hybrid event is available .

The Dabus Story: Can an AI be an Inventor?

22 Nov 2023

Speakers: Professor Ryan Abbott, University of Surrey School of Law, is leading the international litigation to establish whether DABUS, an AI, can be designated as an inventor under IP law.

Professor Abbott was joined in this panel discussion by Professor and IP Osgoode Director , and leading Canadian lawyers and (Bereskinn & Parr LLP).

Discussants: Osgoode graduate students (who was also the organizer of the event), Luna Xiaolu Li and Shadi Nasseri.

A Zoom video of this hybrid event is available .

Finding the Right Balance between Control and Access in a Developing Country Context—IP Law and Policy Making in Africa

12 Oct 2024

Speaker: is the Director of the IP Unit and the iNtaka Centre for Law & Technology at the University of Cape Town, South Africa. He serves on the Open Science Advisory Board for South Africa’s Department of Science and Innovation and has led numerous development and innovation oriented research and capacity building projects, most notably the Open African Innovation Research network ().

This presentation highlighted some of the key considerations for IP law and policymakers in Africa as they seek to modernize and contextualize colonial-era IP laws in the quest to promote innovation and development.

A Zoom recording of the session is available .   

Reframing Copyright’s Key Exclusive Rights in the Age of Access: Lessons from SOCAN v. ESA (SCC 2022)

13 Sept 2023

Dr. Cheryl Foong was a Visiting Scholar at Osgoode Hall Law School in fall 2023. She is a Senior Lecturer in the Faculty of Business and Law at Curtin University in Australia, and an expert on copyright law and dissemination technologies. Her work was cited with approval by the Supreme Court of Canada in the ground-breaking case of 2022 SCC 30, which was the focus of her presentation.

Dr. Foong's parsed the reasoning of the Supreme Court of Canada, commending its efforts to avoid the overlap and duplication of copyright's exclusive rights while also querying the future role and relevance of the reproduction right.

A Zoom recording of this hybrid presentation is available .

Balancing Freedom of Expression, Copyright, and Trademark Rights: Art of Science?

31 August 2022

Speaker: Dan Bereskin is a founding partner of Bereskin & Parr LLP and serves as a mediator and arbitrator for a variety of intellectual property disputes.

The scope of copyright and trademark rights has expanded judicially for decades. A direct consequence is court decisions that arguably impact adversely on freedom of expression guaranteed by the Charter of Rights and Freedoms. In this lecture, Dan Bereskin discussed how a balance between these competing rights may be achieved, either judicially, by remedial legislation, or both.

Toronto IP Scholars' W-I-P Workshops

In 2023, IP Osgoode hosted the inaugural Toronto IP Scholars' Works-in-Progress Workshop.

This workshop series offers an opportunity for locally-based IP scholars, whether established or emerging, to present draft papers and workshop their work-in-progress with other colleagues and experts in the field.

If you have a current project you would like to workshop, please contact us at iposgoode@osgoode.yorku.ca.

The post Past Events Archive appeared first on IPOsgoode.

The post A.I. Paintings: Registrable Copyright? Lessons from Ankit Sahni appeared first on IPOsgoode.

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.

The post The US Copyright Office Clarifies that Copyright Protection Does Not Extend to (Exclusively) AI-Generated Work appeared first on IPOsgoode.

Every year on January 1, works protected under copyright law enter into the public domain due to their copyright protection expiring. Thus, as a new year approaches, those in the field of copyright look to see which works will expire at the end of the year. As the world entered January 2023, many excitedly anticipated that Disney’s copyright protection of Mickey Mouse in the United States (US) would expire at the end of 2023, allowing Mickey Mouse to . This means that  reproduced, adapted, published, publicly performed, and publicly displayed by anyone in the United States without infringing upon Disney’s copyright.

As a general rule in the U.S., for works created after January 1, 1978,  for the life of the author plus 70 years. However, for works created before January 1, 1978, the duration of copyright protection depends on several factors as set out by  in the United States. Mickey Mouse  in the US in 1928 with the film “Steamboat Willie,” so its copyright protection term was dictated by several factors outlined in chapter 3.Additionally, the expiration of the copyright term only applies to the original version of Mickey Mouse displayed in Steamboat Willie; later versions of Mickey Mouse will still be protected by copyright. This original version of Mickey Mouse is a black and white rat-like depiction with a long snout and black eyes, whereas later versions of Mickey Mouse include the version of Mickey with his signature red shorts and white gloves.  

Copyright law in the US has evolved many times in part as a result of Disney lobbying for copyright term extension. Originally, the Mickey Mouse copyright was supposed to expire in 1983 because when Mickey Mouse was first debuted to the public in 1928, copyright law only protected works for 56 years. However, in 1976 Congress passed the  which extended the copyright term to 50 years after the death of the author or 75 years after the death of the author if the author was hired by an employer to create the work. As a result, the Mickey Mouse copyright was then set to expire at the end of 2003.

Starting in 1990, Disney pushed hard for an extension of copyright protections. This resulted in the  which extended copyright protection to 70 years after the death of the author. This extension is why Mickey Mouse’s copyright protection is set to expire at the end of 2023. The extreme lobbying from Disney to extend copyright protections earned the 1998 act the nickname of the “Mickey Mouse &�Բ�����;������.”

Although the original Mickey Mouse’s copyright protection will expire at the end of 2023, Disney will still be able to protect the Mickey Mouse brand through trademark law. Mickey Mouse is  as Disney’s property because . Trademark protection can theoretically last forever if Disney can continually show that Mickey Mouse is associated with its company.  Disney will likely be able to continually show an association with Mickey Mouse. In 2007, Walt Disney Animation Studios  to incorporate the original version of Mickey Mouse. Therefore, although someone may use the original version of Mickey Mouse in a work, they are not able to use this version of Mickey Mouse for any branding purposes or any purpose that would cause consumers to be confused about the source of the Mickey Mouse product. These intersections between trademark and copyright law may stop Mickey from strolling into public use for the coming years.

The post Mickey Mouse to Enter Public Domain in 2024 appeared first on IPOsgoode.

Eligibility

To be eligible, you must be currently enrolled as a JD candidate at Osgoode Hall Law School.��

All applicants must possess strong grades, exemplary organizational skills, be proficient in legal research and writing, and have a strong interest in intellectual property law.

Term

May-August 2023, with a possibility of continuing on for the academic year.

The successful candidates will receive compensation.

Application Procedure

To apply, please submit:

1. A cover letter;
2. A copy of your resume;
3. A copy of your grades (can be unofficial grades; please include any previous degrees); and
4. A sample of your written work on any topic of your choice (please limit to 3-5 pages).

to��iposgoode@osgoode.yorku.ca��by��March 31, 2023.

We thank all applicants in advance, only those students who will be interviewed will be contacted.

The post CALL FOR APPLICATIONS - Research Assistants (Summer 2023) appeared first on IPOsgoode.

Cynthia Zhang is a 3L JD Candidate at Osgoode Hall Law School.

Recently in , a jury of the US District Court of the Southern District of Illinois that tattoo artist Catherine Alexander has a valid copyright claim in the designs she tattooed on World Wrestling Entertainment Inc. megastar Randy Orton. Orton’s likeness was licensed through defendant WWE to defendant Take-Two Interactive Software, a video game publisher. Since 2005, Take-Two has owned the that produces the popular WWE 2K series of pro wrestling sports simulation video games. Interestingly, the jury only awarded plaintiff Alexander $3750 USD in damages. This is a far cry from the revenues earned on the WWE 2K games, which have sold . This development has led legal commentators to observe that, unfortunately, the copyright law surrounding celebrity tattoos .

Copyright protection over tattoos has been a hot topic for some time. IPilogue writers have previously discussed the Kat Von D and the NBA 2K , the latter having also featured Take-Two as defendant. Some tattoo artists may see copyright protection and the ability to raise an infringement claim as a just outcome or a validation of their art. However, numerous considerations give pause for thought when it comes to copyright and tattoos.

An oft-deliberated concern is that the medium of tattoos is a human body. This discussion raises questions of personal agency and asks how an artist can have ownership over their client’s body, even though it’s how their work is physically fixed. Another important factor that’s less often discussed is how increasing copyright protection will affect the tattoo industry itself. Tattoo artists currently benefit greatly from lax copyright enforcement – popular subject matter for tattoos includes famous artworks, celebrity portraits, and quotes from books and movies. As seen in the Kat Von D case, treating tattoos identically to other artworks can open the door for claims in the opposite direction as well. Furthermore, many popular tattoo designs are very similar to one another and can be virtually indistinguishable from one artist’s execution to the next. Take Orton’s tattoos that were the subject of debate in the Alexander case, for example. They were as “tribal tattoos, skulls, a bible verse, and a dove and rose”. All these elements have been common building blocks of tattooing since the early days of the industry. Their combined application on Orton’s body may be technically unique but is certainly not groundbreaking. Indeed, copyright vests in any original work – but are these common types of tattoos original enough?

If copyright protection of tattoos becomes more rigorous, celebrities will likely circumvent the issue by always demanding a contractual assignment of rights before getting tattooed. The tattoo process could follow the model of other commissioned work, such as logo design. For now, the law is still hazy. Alexander has shown that even a successful claim of infringement in such cases may not be worth the effort for a tattoo artist.

The post Still No “RKO” for Copyright Law After US Court’s Damage Award in Randy Orton Tattoo Dispute appeared first on IPOsgoode.

Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

The conflict of laws has often resulted in interesting dilemmas for courts where precedent cannot be readily applied, necessitating a case-by-case approach. The United States Court of Appeals for the Ninth Circuit a that held a French court’s ruling was unenforceable due to a conflict in copyright laws between the countries.

Background

The case between De Fontbrune and Alan Wofsy regarding photographs of Picasso’s paintings dates to 1991. taken by Christian Zervos, with added creative elements through deliberate choices of lighting, lens filters and framing, were published in Zervos Catalogue in 1932. In 1979, the rights to the publication were acquired by De Fontbrune. In 1991, Wofsy, with , published De Fontrbrune’s images in “The Picasso Project”. De Fontbrune held the position that the to approve such use. , in 1998, the police confiscated copies of Wofsy’s book, and De Fontbrune sued for copyright infringement.

In 1998, the French courts ruled that the photographs were used for , and thus were not entitled to copyright protection. This, however, was in 2001 with a ruling against Wofsy, who became responsible for . The appellate court agreed that Zervos’ photographs were protected by copyright, as it involved sufficient creativity. ��Wofsy appealed to the French Civil Supreme Court, but his case the damages owed to De Fontbrune.

In 2011, to enforce the decision in the States, De Fontbrune brought the case to California who . The District Court held that the French decision infringed Wofsy’s freedom of speech and that Wofsy’s books are “ and that astreinte (monetary damages for copyright infringement) do not apply because of the US’s fair use doctrine. The plaintiffs argued that the book has a commercial purpose, which weighs against fair use. The District Court held that such nature of use does not create a presumption against fair use for public policy reasons. The US’s disregard of another country’s ruling ��indicated that the court found it “repugnant” to domestic law.

Appeal

De Fontbrune the District Court’s holding — one that rejected the French judgement. The appellate court, the Ninth Circuit, noted that there is a high bar for repugnancy, and that a mere conflict of laws is insufficient to meet it. Further, the judgment must be to recognize standards of morality and the general interests of the citizens. The Ninth Circuit also notedd that the French judgment is identified under the California Recognition Act.

The Ninth Circuit that the book ��was non-infringing for the purposes of — that is, the Court does not consider it to be “criticism, comment, news reporting, teaching, scholarship, or research purposes.” ��Rather, the Court held that the use was infringing because it is simply a and the one that could rebalance fair use in Wofsy’s favour.

The Ninth Circuit used the following four fair use factors to reach their conclusion:

• the purpose and character of use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used; and
• the effect on potential market or value of the copyrighted work

The Court had doubts whether Wofsy could use the fair use defence in the States and thus the inability to use the defence under French law was not in “.”

The discrepancy between the decisions of the District Court and Appellate Court may have stemmed from the subjective methodology of the judges of balancing the copyright laws and fair use defence scope with First Amendment freedom of speech rights. Nevertheless, the fair use defence remains a gamble for artists and creatives.

On December 2, 2022, counsel for Wofsy for a Writ of Certiorari —judicial review— to the Supreme Court of the United States.

The post Photographs Taken 91 Years Ago Still in Conflict Today appeared first on IPOsgoode.

Rosie Giannone is a 1L JD Candidate at Osgoode Hall Law School.

Image from the

EUTM 17981629 in the name of Pest Control Office Limited

The European Union Intellectual Property Office’s (EUIPO) Board of Appeal has a EUIPO decision from May 2021, rendering invalid a trademark registration for Laugh Now, better known as the monkey sign image, by anonymous U.K. street artist Banksy.

Background

Banksy’s graffiti artwork Laugh Now first appeared in Brighton, England, in 2002. The work depicts an image of a monkey wearing a sandwich board around its neck, reading, “Laugh now, but one day we’ll be in charge.” , a U.K. company specializing in greeting cards depicting street art, subsequently used this image in their products.

On November 7, 2018, Pest Control, Banksy’s authentication body, filed an EU trademark claim on behalf of the artist for Laugh Now. Typically, artists protect their artwork using only copyright law. However, artists are required to when claiming copyright infringement. Trademark law allows Banksy to remain anonymous and maintain his mysterious artistic persona.

On November 28, 2019, Full Black Colour applied to cancel Banksy’s trademark under the European Union Trademark Regulation (). Full Black Colour claimed that the work was More specifically, Aaron Wood, a trademark lawyer, argued on behalf of Full Colour Black that . A trademark holder must make of a registration by using it to acquire market share in relation to distinguishable goods or services. that Banksy only registered the trademark to prevent others from using his image and to avoid revealing his identity under copyright infringement claims.

On May 18, 2021, the EUIPO Cancellation Division ruled in favour of Full Colour Black. The decision repeatedly referenced a by Full Colour Black in 2019, which challenged the registration of a trademark for Banksy’s work, The Flower Thrower. The EUIPO found that since the art is a work of graffiti originally spray-painted in a public place, Furthermore, the Board accepted Banksy’s 2007 book Wall and Piece as damning evidence that this trademark was registered in bad faith. In the book, Banksy famously claimed that “copyright is for losers” and stated that

The EUIPO also accepted that Banksy knew that his works were widely photographed and reproduced by third parties between these parties and himself. The EUIPO noted that Banksy provided high-resolution versions of his work on his website and invited the public to download them. Essentially, the court found that and that the artist had done nothing to prevent this. Ultimately, the EUIPO declared the trademark registration of Laugh Now .

Appeal

On October 25, 2022, the EUIPO Board of Appeal reversed the Cancellation Division’s decision, ruling that Banksy’s trademark registration for Laugh Now was not made in bad faith.

The Board found that the wide-scale commercial use of Banksy’s artwork had not been proven. Although Banksy makes his artwork available online for free downloading, he these images from being used for commercial purposes.

Furthermore, that a work of art subject to copyright protection could also act as a trademark. Registering a trademark to prevent others from using one’s work does not amount to bad faith when the applicant is the legitimate owner.

Moreover, the Board notes that the trademark was cancelled only six months into Banksy’s . During this time, the rights-holder is not required to use their trademark. In this case, it was for the Cancellation Division to assume that Banksy never intended to use the trademark or allow legitimate third parties to use it as licensees.

Finally, the Board reasoned that accepting Banksy’s statement that “copyright is for losers” as supporting a finding of bad faith .

According to Lee Curtis, a trademark specialist, this case is a for Banksy and Pest Control, as it allows the artist to maintain his anonymity, contributing to his artistic success. Full Colour Black has brought invalidity proceedings against 7 of the 15 European Union Trademarks (EUTM) filed by Pest Control on behalf of Banksy. In 6 of these cases, the Cancellation Division invalidated the trademarks, finding that they had been filed in bad faith. To date, Laugh Now is the only case successfully appealed.

Full Colour Black has expressed with the outcome of the appeal, noting that it is out of line with the Board’s decisions thus far. However, the company has no plans to appeal the decision.

Ultimately, the Board of Appeal’s decision clarifies that a trademark should be presumed to have been registered in good faith unless proven otherwise, leaving Banksy the one laughing now.

The post Who’s Laughing Now? EUIPO Board of Appeal Rules that Banksy Can Keep his Trademark and Anonymity Too appeared first on IPOsgoode.