Regulated gaming is booming in the United States. This is particularly true of newer forms of gambling, such as skill games, fantasy sports, and social casino games played on the internet and mobile applications. In fact, gaming is now legal in some form in 48 out of 50 states and the District of Columbia, and 36 states have legalized sports gambling since 2018. Gaming revenues in 2021 amounted to $53 billion with the American Gaming Association (AGA) reporting that commercial gaming revenue for Q1 2023 reached $16.6 billion.

This growth in remote gaming presents unique compliance challenges that may be exacerbated by the absence of face-to-face customer interactions, including new and enhanced money laundering risks and social responsibility obligations. To date, the web-based and app-based gaming sector has not been subject to significant enforcement by U.S. federal or state criminal or regulatory authorities. But, as rapid expansion of this sector of the gaming market continues, we should expect that criminal and regulatory scrutiny will also increase.

Continue Reading Mapping Future Enforcement in US Gaming Law Based on Recent UK Enforcement

Perkins Coie’s Digital Media & Entertainment, Gaming & Sports and Artificial Intelligence industry groups look forward to seeing you at Digital Hollywood’s free virtual summit titled “AI: Breaking the Net” on July 18, 2023. Meeka Bondy, senior counsel and co-chair of the Film and Television industry group, will moderate the following session:

Session III: Generative AI & Intellectual Property Rights of the
Creative Artist

At the moment an artist, writer, producer, performer, or network or publishing executive grasps the power of generative AI, they will immediately call their lawyer or legal department. When they understand that massive AI supercomputers in the cloud “scrape data,” or what artists know as their life’s work, they will involve scores of legal professionals, especially in New York, Los Angeles, and the Silicon Valley. 

In this session, Meeka Bondy, along with other industry leaders, will explore this topic and its implications.

Moderator: 

• Meeka Bondy, Senior Counsel, Perkins Coie LLP

Panelists:

• Dawn Botti, Executive Vice President, Legal and Business Affairs, AMC Studios and Streaming Services, AMC Networks
• J. Scott Evans, Senior Director, IP & Advertising, Adobe
• Randi Pollack, Senior Vice President and Associate General Counsel, A+E Networks 

This a virtual event and there is no charge to attend. Please register for access to the conference.

Follow us on social media @PerkinsCoieLLP, and if you have any questions or comments, contact us here. For more on IP issues raised by generative AI, check out part one and part two of our three-part series on the subject. We invite you to learn more about our Digital Media & Entertainment, Gaming & Sports industry group and check out our podcast: Innovation Unlocked: The Future of Entertainment.

The Federal Trade Commission (FTC) issued a policy statement on May 18, 2023, addressing concerns relating to the collection and use of biometric information. The Biometrics Policy Statement, which the FTC’s Commissioners voted 3-0 to issue, outlines practices related to biometric information that the FTC views as violations or will take into account when evaluating possible violations of the prohibition against unfair or deceptive acts and practices in Section 5 of the FTC Act.

Continue Reading FTC Issues Policy Statement Regarding Biometric Information

We recently attended the Annual Meeting of the Copyright Society of the USA, a two-and-a-half day, in-person conference focused on emerging issues in copyright law (perhaps the country’s largest annual get-together of copyright nerds like us). Here are our Notes from the Field on what was being discussed during—and after—the sessions that we attended.

Continue Reading Notes From the Field: 2023 Annual Meeting of the Copyright Society of the USA

As Age of Disruption readers know, the landmark NYC Local Law 144 (the AEDT law) raises issues for companies using artificial intelligence (AI) tools to recruit and retain talent. We invite our readers to listen to Perkins Coie’s latest Innovation Unlocked podcast, which features an in-house perspective from the company SeekOut related to AI recruiting and the AEDT law.  Enforcement of the new law is scheduled to begin in a few weeks, on July 5, 2023.

In the podcast, our colleagues Sam Jo and Cyrus Ansari are joined by Sam Shaddox, vice president of legal for SeekOut, a human resource (HR) tech startup based in Bellevue, WA, to discuss the use of AI to recruit and retain talent and the potential impact of the new AEDT law regulating AI and automated employment decision tools to evaluate job candidates and employees. The conversation begins with the story of SeekOut in the HR tech space and touches on the future of AI regulation more generally.

Our hosts recorded this episode in two segments, before and after the NYC Department of Consumer and Worker Protection (DCWP) announced AEDT implementing regulations. Listeners to the podcast will first hear perspectives prior to receiving such guidance, and, in the second half of the episode, will learn about how SeekOut adapted its approach after the draft regulations were announced. Both recordings took place before the final rule was announced on April 6, 2023.

Listen to the podcast here.

In what may be the beginning of a trend, Judge Brantley Starr of the U.S. District Court for the Northern District of Texas recently issued a new mandatory rule regarding the use of artificial intelligence (AI) in legal briefings.[1] The directive, known as the “Mandatory Certification Regarding Generative Artificial Intelligence” rule, stipulates that “[a]ll attorneys . . . appearing before the Court must file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence was checked for accuracy, using print reporters or traditional legal databases, by a human being.”[2] Similarly, Magistrate Judge Gabriel A. Fuentes of the U.S. District Court for the Northern District of Illinois recently adopted a standing order providing that “any party using any generative AI tool in the preparation of drafting documents for filing with the Court must disclose in the filing that AI was used” with the disclosure including the specific AI tool and the manner in which it was used.[3]

Continue Reading Use of Generative AI in Litigation Requires Care and Oversight

A surprising, unannounced collaboration between Drake and The Weeknd—a song called “Heart on My Sleeve”—went viral on social media a few weeks ago. It generated millions of streams across music and social media platforms, but it wasn’t Drake and The Weeknd singing on the track; rather, it was an AI-generated simulation of the two.

Here’s what happened: “Heart on My Sleeve” was written and produced by TikTok user ghostwriter977, who released the track on Spotify, YouTube, and several other platforms on April 4, 2023. The track really took off after a one-minute snippet of the song was shared on TikTok on April 15, where it would go on to receive over 15 million views. ghostwriter977 reported creating the track by using AI to replace their voice on the track with vocals that sounded like Drake and The Weeknd.

Universal Music Group (UMG), the record company with whom both Drake and The Weeknd are associated, soon rushed in to have the track taken down. UMG’s takedown request was reportedly based not on the simulated voices of the two UMG-affiliated artists, but rather on a two-second audio tag owned by UMG that had been incorporated into the song’s opening.

But what if the track had not incorporated the UMG-owned sample? Would UMG still have been able to have the song removed from the platforms on which it appeared?

Under the Digital Millennium Copyright Act (DMCA), online platforms are shielded from copyright liability for hosting infringing user-generated content so long as they expeditiously remove such content following receipt of a DMCA-compliant takedown notice from the applicable rightsholder. However, this protection for online platforms is limited to copyright infringement claims; if the online platform is hosting user-generated content that violates other rights, such as the right of publicity, the DMCA does not shield the platform from liability as to such other rights.

While the UMG-owned sample incorporated into “Heart on My Sleeve” constitutes copyrightable subject matter and can serve as the basis of a DMCA notice, the sound of Drake and The Weeknd’s voices are not protected by copyright; rather, their voices are protected under the right of publicity, and, as noted, the DMCA’s notice-and-takedown requirements do not apply to publicity rights.   

Accordingly, if ghostwriter977 had omitted the problematic sample, objections to “Heart on My Sleeve” would need to focus on whether the track’s unauthorized commercial use of Drake’s and The Weeknd’s voices (or at least uncanny reproductions of the same) violated the two artists’ respective rights of publicity in the sound of their voices.  

Although there may be a technical legal issue as to whether UMG could enforce publicity rights on the artists’ behalf, certainly Drake and The Weeknd could have directly demanded that the platforms hosting “Heart on My Sleeve” remove the song on right of publicity grounds, right? It turns out that it’s not that simple due to a different safe harbor for online platforms, Section 230 of the Communications Decency Act.

Section 230 generally shields online companies from liability as the speaker or publisher of content posted to their platforms by consumers and other third parties. While a platform can lose its DMCA copyright safe harbor related to hosting user content if the platform fails to remove content after receiving a rightsholder request, the platform’s immunity under Section 230 is not conditioned on removing user content in response to takedown requests. In other words, if Section 230 is applicable, it protects a platform from liability even if the user content at issue is never removed from the platform.

Section 230 does not, however, shield platforms from intellectual property (IP) infringement claims—so an online platform presumably would not be shielded by Section 230 from right of publicity claims, right? Well, it’s complicated.

The U.S. Court of Appeals for the Ninth Circuit—in Perfect 10 v. CCBill—interpreted Section 230’s IP infringement carve-out as only applying to federal IP claims. Right of publicity claims are state law claims; as a result, in the Ninth Circuit, platforms would be immune from right of publicity claims based on AI-generated voices incorporated into musical works, such as “Heart on My Sleeve,” created and uploaded by platform users.

Platforms may also be shielded from right of publicity claims under Section 230 to the extent such claims do not constitute IP claims. Earlier this year, in Ratermann v. Pierre Fabre, the U.S. District Court for the Southern District of New York reached such a conclusion, finding that claims under New York’s Right of Publicity Law (NY Civil Rights Law §§ 50 and 51) are privacy claims and not IP claims. As a result, in the Southern District of New York, as in the Ninth Circuit (albeit for a different reason), Section 230 immunizes online platforms from right of publicity claims, and such platforms have no obligation to remove user content alleged to violate publicity rights. 

Not all jurisdictions shield platforms from right of publicity claims under Section 230, however. The U.S. Court of Appeals for the Third Circuit, in Hepp v. Facebook, interpreted Section 230’s IP infringement carveout as applying to both federal and state IP claims. Moreover, unlike New York’s right of publicity, the Third Circuit held that the right of publicity under Pennsylvania law is an IP right (and not, as in New York, a privacy right). As a result, the court concluded that the plaintiff’s publicity rights claims against several online platforms were not barred by Section 230.

Many online platforms may have license agreements in place with record companies that would require such platforms to remove content that violates artists’ rights of publicity even when the platforms may not otherwise be legally obligated to do so. But there will always be artists and platforms not covered by such agreements. Given how many artists and celebrities reside in California (within the Ninth Circuit) or New York City (within the Southern District of New York) and the fact that publicity rights are typically tied to one’s place of residence, CCBill and Ratermann are likely to create significant hurdles for rights holders in their efforts to force platforms to remove generative AI-created works that make unauthorized commercial use of a person’s name, image, voice, or likeness but that do not actually incorporate any infringing materials—at least until the U.S. Supreme Court gets around to resolving the split that has emerged among the circuits on this subject.

Follow us on social media @PerkinsCoieLLP, and if you have any questions or comments, contact us here. For more on IP issues raised by generative AI, check out part one and part two of our three-part series on the subject. We invite you to learn more about our Digital Media & Entertainment, Gaming & Sports industry group and check out our podcast: Innovation Unlocked: The Future of Entertainment.

As digital media continues to supplant physical media, e-commerce sites offering digital content have experienced unprecedented growth. These sites offer consumers access to video games, music, movies, e-books, and many other types of digital media at the click of a button. Although purchasing digital media—as opposed to physical media—has become commonplace for consumers, a recent case, McTyere et al v. Apple, Inc., suggests that consumers’ understanding of terms like “sell,” “buy,” and “purchase” have not fully caught up to our new digital reality. When a consumer buys a book in a physical bookstore, they own indefinitely the physical copy of the book that they purchased. However, when consumers click a “Buy” button on an e-book platform, they almost always receive a license to a copy of the e-book, a license that typically can be terminated by the e-book platform or the book’s publisher under certain circumstances. McTyere has highlighted this important legal distinction between buying physical and digital media and raises the question of whether it is deceptive to describe the licensing of rights to digital media using the same terminology as has traditionally been used to describe the sale of books, CDs, DVDs, and other physical goods.

Continue Reading Buy Today, Gone Tomorrow: Is a “Buy” Button for Digital Content Deceptive?