The Traklight Blog

One of the bedrock principles of our capitalist arrangement is that people have the ability to use what ability they have to make a buck for themselves, however that may be. We can debate about how that plays out in reality across multiple levels of society, but for the purposes of this article, let’s accept that as more or less true. 

A lot of attention in any intellectual property case is paid to either the plaintiff or the defendant, or both, and rightfully so: theirs is the dispute at the heart of the case. Far less attention is given to the judges in any of those cases, which again seems as it should be; like a referee or umpire at a sporting event, the job is to adjudicate the action between the two main parties and apply the rules as written, and if you’re becoming a principal actor in the story the chances are you’re doing something wrong. But what if you’re not supposed to be refereeing the game in the first place?

It’s nothing new, but the role and responsibility of social media platforms when it comes to the behavior of its users is something that will probably be contested until such time as the internet ceases to be a thing, which at this point seems concurrent with the end of humans as a species. Platforms profess to be little more than middlemen and -women, understandable not wanting to be responsible for the behavior of tens or even hundreds of millions of users, most of whom are shorn of the inhibitions that otherwise constrain them in real life. Arrayed on the other side are governments and rightsholders and anyone else troubled by the notion of a digital world largely free of the laws that govern civil society. 

A point often made, and worth repeating ad nauseum, is that it’s crucial to get your intellectual property affairs in order early, and to do so in a thorough, comprehensive manner. Scrambling after the fact to try and get whatever trademarks or copyrights or patents you need isn’t a good process, and rarely leads to good results. It’s all a bit reminiscent of doing an end-of-term paper in the two or three days before it was due and hoping for a generous grading curve from the professor. (Not, uh, that I have any experience with such things.)

It’s a common thread in IP stories that fans — those passionate, dedicated individuals that make up the core constituency of any successful product, particularly in entertainment — don’t know and often don’t care all that much about trademarks and copyrights when it comes to their fandom. The law surrounding IP isn’t something that most people are all that familiar with in the first place, and in the heat of their passion they’re not about to go digging about on the USCO or USPTO websites to see what they can and can’t do. And passions can run high particularly in sports, where there are wins to celebrate and results to measure, and as wins mount the fervor grows.

It’s always risky to overgeneralize, but broadly speaking it’s far more fun to be a kid than an adult. Sure, adults have things like money and cars and the freedom to do as they please within reason, but there’s also the crushing responsibility that tends to dampen that freedom. 

In a past life I was a student of governance and politics, and while that pursuit left me with little to show for it beyond a considerable raft of student loan payments, I did learn some important truths about how laws and rules actually work. There is of course the law as it’s proposed and written, the version of the law that is passed, and the law as implemented and interpreted. It’s in the latter stage where things can go a bit sideways, if they haven’t already done so previously, and where no small amount of public frustration with bureaucracy is born. 

An important tip frequently made in guides to starting your own business is that it’s smart to land on the right name the first time, because it can be hard to change. There are of course branding questions, and concerns about losing the equity that you may have built, but there is an equally salient point about choosing a name that you can use for intellectual property purposes because, again, it’s hard to make changes. 

I’m not privy to the thoughts of smart, creative people, but if I had to guess there are many ideas and stories bouncing around at all times, and enough creatives in the world to guarantee that there is going to be overlap between ideas, or similar ideas that occur concurrently, without any theft or misappropriation. Who could forget the summer of Dante’s Peak and Volcano, or the very next summer of Armageddon and Deep Impact? The point is that coincidences happen, and that we had a real taste for natural disaster movies in the 90s. 

If you’re of a certain age, you’re probably familiar with the many practices that were necessary to circumvent ownership and copyright in the halcyon days of the 1990s (and earlier). Given that many of us were too young to think about the relative morality of what we were doing, or to even be aware of copyright, taping songs off of the radio onto a cassette, or using the two-VCR method of making copies of the tapes you rented from the local video store was something you did without compunction. The point isn’t about the advance of technology or the relative behavior of kids decades ago, but rather that means of working around copyright protection have always existed, and persist to this day.  

Part of the problem with being an artist that is both world famous and also anonymous (or perhaps more accurately, pseudonymous) is that it presents a real challenge in protecting your work, should you choose to do so. Or at least one assumes; I am not a world famous anything, so I can’t speak definitively on the topic. But it seems to be a problem for Banksy, who has run into some trademark issues in the past that are undoubtedly harder to contest when you’re exerting so much effort to maintain a hidden identity. 

If you’re someone who prefers to go into a movie or show cold, with no knowledge of what might happen, then you’re living in challenging times. Regardless of how you feel about the concept, we’re in the age of spoilers, inescapably and ineluctably. Avoiding knowing how the hottest show or biggest movie of the moment involves staying off the internet entirely, which is wholly inconvenient; conversely, if you’re the impatient type who just has to know the big twist or shock ending, there are plenty of places to go to get the information you’re looking for — including, improbably, the Copyright Office. 

If you’re unacquainted with modern video games, having dropped out of that world as soon as the real world offered something more substantive to cling to (if you ever picked up gaming at all), you might assume that video games, by their nature, would be easy to find and play at any time. They’re entirely the creation of programming, so they would seem a likely candidate to be ported into whatever database to be replicated across platforms until the end of time. They aren’t, though, and while the game industry’s reasons for that decision requiring some explanation, gamers themselves have gone to great measures to circumvent those choices — often drawing action from game publishers and studios.

Anyone who has been in a grocery store is well aware of what are, for lack of a better term, knock-off or generic versions of more widely recognizable products. Indeed, as a kid there was few greater disappointments than asking your parents for a snack or sugary cereal from the store, only to have them return with the lesser version that they picked up because it was cheaper, because your parents had to think about things like budgets and not solely about snacks or the day’s Nickelodeon lineup. Brand names matter, is the point, and they matter a lot when it comes to candy, at least when you’re in the target demographic its makers are appealing to.

Non-fungible tokens (NFTs) are hard to escape in the news as the hot tech trend of the moment, as it seems that every business is jumping into the game trying to make some money. And if you’re wondering how exactly they make money, or what those buyers are purchasing, or really what any of it is about, you’re not alone; as prolific as stories about NFTs are articles attempting to explain what NFTs are to a public still working on wrapping its collective mind around how blockchain works. 

As a purveyor of IP news, there are certain stories you come across that, because of your age, make absolutely no sense to you as they pertain to the principal parties of the story. Conversely, there are other stories that, because of your age, appeal directly to you and those in your age cohort and likely no one else. The story that follows is of the latter variety. 

Capitalism as it exists in this moment (and for some significant portion of its history) prizes individualism, or at least a version of that ideology in which corporations as entities are considered individuals. It’s a zero-sum game, we’re led to believe, and so each company is out to claim some share of the market, thereby taking from or excluding competitors. There’s not much room for collective action, and as such each becomes in its way vulnerable to discrete actions from bad actors. 

Perhaps the best kind of IP story reads like a Mad Libs, with disparate entities who may have otherwise never interacted now thrown together to fight over a trademark or copyright filing or alleged infringement. Take something as mundane as, say, tires: a hypothetical story about Goodyear and Yokohama in some sort of scuffle might be interesting if you choose to dive into it, but there’s a far greater chance it’s written off as tire companies fighting over tire things like types of rubber or whatever they fight over. 

There is a future in which the text of the law fails to mean much of anything to those who wish to avail themselves of it, and instead it becomes merely a tool for stopping the things one simply doesn’t like. The latter pairs well with a mindset that the law is meant to protect you, and thus bind those who find themselves in opposition to you. In the space of intellectual property, it would mean going after any brand that used a logo or branding deemed too close to your own, without much time to sift through the relative merits of your case before potentially embarrassing yourself.

The notion of copyrighting dance moves might strike many of us as strange, given both the nature of the activity and our own relationship to it. Copyright involves setting something down in a fixed medium, and for those who enjoy it, dance is something that comes spontaneously from moments of joy, away from cameras and separate from the idea of trying to potentially profit. Then there are those of us who are terrible at dancing, and would spend any amount of money necessary to have recordings of ourselves moving on the dance floor scrubbed from the internet, if not the minds of those who witnessed it.