AccelPro | Intellectual Property Law
AccelPro | Intellectual Property Law
On IP, Copyright, Social Media and Small Businesses
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On IP, Copyright, Social Media and Small Businesses

With Autumn Witt Boyd, Partner at the AWB Firm | Interviewed by Neal Ungerleider

Listen on Apple Podcasts and Spotify.

Welcome to AccelPro IP Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re talking with Autumn Witt Boyd, Partner at the AWB Firm.

Small businesses operate in a world of constant self-promotion. Social media has drastically lowered the cost and difficulty of marketing and advertising while infinitely expanding reach. However, the rise of social media has led to a host of new IP and copyright questions for small businesses.

Boyd is a Tennessee-based lawyer whose firm specializes in working with creators and other small businesses. In this interview, Boyd discusses copyright and social media, how creators learn about copyright and IP on the job, the changing role of online businesses in the ecommerce ecosystem and more. The supplemental materials and episode transcript are available below.

Listen on Apple Podcasts and Spotify.


Interview References:

Supplemental Materials:


TRANSCRIPT

I. COPYRIGHT AND IP FOR ONLINE CREATORS

Neal Ungerleider, Host: Can you tell our listeners a little bit about you and your firm and your background?

Autumn Witt Boyd: Absolutely. I started my firm in 2015. Prior to that, I was a copyright litigator. I worked for a firm doing plaintiff's work, mostly for photographers. We worked all across the country, suing people who were using their photos either without permission or in excess of license limits.

That was really fun. I got to travel and it was exciting to litigate in federal courts all over the place. I had twin boys in 2011. As they got a little bit older, some of that travel that was very glamorous and fun with the late nights and preparing for court, became less glamorous. As my family was growing and responsibilities were changing, I decided to branch out and start my own firm.

This did not lessen my ambitions at all. We have grown into about a 10 person company that works with some of the premier online businesses. Most of them sell online courses or are in life coaching, health coaching, and similar fields.

NU: For online creators, what are some of the most common copyright and IP issues they face?

AWB: It kind of depends on what type of creator you are. I would put them in two categories. 

One: Our listeners are probably very familiar with what we would consider influencers. These are people who basically make their money on social media by promoting other companies, products or services, or sometimes their own products or services.

They often create their own content. Maybe they're creating video reels or TikToks. All of that content is protected by copyright law but what I find is they are not typically registering their copyrights because it is ephemeral and they are creating a ton of it. It's a flash in the pan; maybe if something goes viral and is copied, then maybe they would look into actually protecting it.

But what we find is the real issues are not necessarily protecting their copyrights. It's more of their relationships with the sponsors or companies that they are promoting for. We're also seeing a lot in that sphere with Federal Trade Commission regulations and enforcement. They are admitting and disclosing that it's sponsored content basically.

And we've seen some big names, including Kim Kardashian, get in big trouble for not disclosing some of those relationships. So while those businesses, if you would even call them businesses, while those influencers are very IP-heavy, we don't see a lot of IP action in that realm. 

On the other hand, the kind of businesses that my firm works with are also IP heavy. They are creating digital courses. Generally everything that's in their curriculum often has videos, worksheets, sometimes other kinds of resources like spreadsheets or other things that they share as part of their course materials. All of that is also protected by copyright. As these businesses are growing and becoming more established, they are starting to see the advantages of actually protecting those copyrights. And we're also seeing some action there on brand protection–-a lot of cease and desist and enforcement activity in those areas.

NU: For entrepreneurs who are making online courses and for influencers, typically, how savvy are they about copyright and IP laws? 

AWB: I would say 95% of our clients come to us never having worked with an attorney before, even those who are at the multi-million dollar annual revenue level and are growing quickly. These are very fast growing companies.

Unless they have a brother or someone in their family or a friend who's an attorney who maybe has talked with them about some of these issues, they are often coming to it totally fresh. I would say often, at least the ones we like to work with, they are eager to learn. Once we educate them on the ins and outs of what is may be worth protecting, what things maybe they don't need to worry about so much.

They often will become very savvy because they realize that their IP is basically the value of their business. It is really what makes all the money come in. Even if they don't know exactly how it works, they usually come to us knowing that it's something they need to make sure it is protected, but they may not understand why or how in the beginning.

NU: And how does the use of generative AI complicate copyright, patent and other issues for small businesses?

AWB: I forgot to give my standard disclaimer, which is that I am a lawyer, but this is not legal advice. So I'll mention that here. And my other disclaimer is I'm a copyright and trademark lawyer, which we call soft IP.

I am not a patent lawyer, so I know just enough about patents to be dangerous. But what I am seeing in generative AI right now, which is changing really quickly –- if you're listening later, this may have changed a little bit –- but what we are seeing are kind of two ways that generative AI is being used a lot.

One is the ChatGPT model. These algorithms that are gathering, I don't know, billions and billions of different sources of texts and amalgamating them. And then you type in a demand or a request and it will spit something out. That is not taking any specific sentence or paragraph from any other work.

When we think about copyright law, copyright protects works of authorship. It typically is not going to protect something as short as a sentence. And so, ChatGPT and other algorithm-based AI generators are not even taking that much. They're not even taking as much as a sentence. They're really pulling together text and ways of writing from so many different sources that I don't even think that you could say that they are taking enough that it could be considered copyright infringement. 

I want to start there because that's a question I've gotten a lot. “ChatGPT spit out something similar to my book. Is that infringement?” The answer is probably not. Although, again, this is changing. 

Very quickly, before we hopped on, I went to the Copyright Office website just to see if they had said anything, and they actually issued new guidance recently on kind of a different angle to this–-which is that copyright law only protects things that are created by humans.

And there was a very famous case that our listeners may have heard about involving a monkey that took a photograph and whether that photograph could be protected by copyright law after it was infringed. The answer was no, because a monkey is not a human. And so that work was not protected under copyright law.

By the same token, these computer generated texts or images we're also seeing are kind of made by the same thing. They are not protectable under copyright law, so you can't register them. That was the guidance that the Copyright Office was giving. If they receive an application for something, you have to disclose if it has anything created by AI in it.

If the entire work was created by AI, that is not going to be protectable and is not registerable. The other area where I'm seeing this in is the images, and I think some of you may have seen this where you get 50 headshots, you pay $5 or $10 and you upload a bunch of selfies. 

Then, it will kind of stick your face on an image of somebody else's hair, someone in a professional suit or someone at the beach. It's not your body. Often the facial features are really weird, like they're not very good yet, but I could see these becoming much better. That is interesting and that's a little different from the ChatGPT example because they are integrating an underlying copyrightable work.

Your photo–even a selfie that you take on your camera that's protected under copyright law–is a creative expression that you created. Of course, if you are the one plugging your photo in, you're using your own work. But what happens if I plug in a photo of Jennifer Aniston or another celebrity and create some of these AI generated images and then use them in an advertisement or use them in some other way?

I think there's a lot of issues that we're going to be seeing. I think, again, it's computer created, but could that be a copyright infringement? I think there's definitely an argument there. So I think we're gonna see a lot of action here.

II. SOCIAL MEDIA PRACTICE AND IP LAW

NU: And are there any specific copyright and IP issues around social media posting and advertising that small business owners and their contractors should be aware of?

AWB: Absolutely. This is something I talk about with our clients a lot. Social media is no different under the law. A lot of people think different rules apply or that you can take a photo that someone posts on their Instagram account and repost it.

I get on my soapbox and I tell them that under our US copyright laws, you are infringing someone's copyright if you use their work without permission. It is very simple with a clean, bright line unless it's fair use, which is a pretty limited exception. If you're just reposting someone's image, you don't have permission.

That is probably technically copyright infringement. Now that bangs against the norms that we have developed around social media, which is that lots of people repost other people's content. It is often desired by the person whose content is being reposted because it might share their account, broaden their audience or might share about products or services they're offering.

So we're in this weird in between where the law says one thing, but we're all acting another way and it's become very accepted. 

But what I generally recommend to my client is to just follow the rules because one out of a hundred times you may get that one person who is not happy that you reposted their stuff without permission, or maybe you didn't tag them the way they would've preferred or said the right thing.

So I always recommend you just go ahead and ask permission. Nowadays, the nice thing about social media is it's very easy to get in touch with people. So if you see something you like on Instagram or Facebook, you can send the person a message or a DM and just say “Hey, I loved this image. Do you mind if I repost it?”

99 times out of 100, they're going to say yes. I think this is great because you're forming more relationships. Maybe you got in touch with someone that you wouldn't have otherwise. And if they say no, then great. That was the one person out of 100 who would not have liked it. And so you avoid any of those issues that could come up.

That is my general advice. I want people to follow the rules, even though most people aren't. Again, the more a business grows, the bigger your profile is, the more you kind of get a target on your back. And if you do something that may be following the norms, but is technically illegal, it becomes very easy for someone to see there's an opening.

When we talk about advertising, I would just mention what I touched on earlier, which is Federal Trade Commission regulations. This has kind of been the Wild West for a long time, especially with larger companies and higher dollar amounts, and especially in the crypto area where we're seeing a lot of scams. We’re seeing a lot of people losing money, a lot of that is happening on social media. 

I have had my profile hacked. Unfortunately, I do not have a very large following, but I had a hacker, or I don't even know what to call it, but they scraped all of my content and there are probably a hundred fake Instagram accounts out there with my family's pictures on them trying to get people to engage in crypto schemes.

The FTC is aware that this is a problem and they are cracking down on it. Now, Instagram does not care. I've tried to get these taken down. They do not care. But if there's a single company that is ripping people off, which we are seeing happen, and there's celebrities involved, or there's other advertising issues, they are starting to crack down on that.

I would just advise you if you are doing advertising—especially sponsored content, working with an influencer or someone else—to make sure that you are checking into those guidelines. The FTC has great guidance and it’s in plain language. It's very easy for business owners to read to make sure that they're following.

NU: What recommendations do you have for attorneys for working on copyright and IP with online creators?

AWB: I would say the most important thing, because this is changing so rapidly, is to make sure that you are following court decisions and any industry publications. Like I mentioned, the Copyright Office just put out guidance.

The great thing is that you can sign up for alerts from both the Copyright Office and the US Patent and Trademark Office. They send a lot of emails, so I would say don't be afraid. It's a fun area. It is exciting. The companies are energetic, they're innovative, but you have to stay on top of things.

This is not an area where I would recommend a business lawyer that has never done anything with trademark to jump in. It's not something to dabble in, but there are lots of resources out there if you're interested in these. There are great CLEs. I'm in several Facebook groups where people are really generous with sharing knowledge and answering questions for each other, and providing referrals.

Like I said, I don't do patent work, but that's where I go first if I need a referral for a patent issue. Stay up to date, but don't be afraid to jump in if it's something you're interested in. I think there is a lot of potential in this area of law, especially now that so much work is remote.

There is state trademark law but, you know, copyright law is all federal. You can practice it from wherever. Most trademark is done at the federal level as well. So as long as you have a license in one state, you can work with clients all over the place. So there's a lot of flexibility there that I think is very attractive.

NU: What copyright and IP issues are you keeping an eye on right now for your clients over the next couple years?

AWB: The Supreme Court actually has a copyright case and a trademark case pending right now, which is unusual. Usually we get a decision once every five or 10 years, but it's often on something kind of esoteric.

But the decisions that are coming up are really interesting and they kind of touch on some of what we've been talking about as technology evolves. And the way that we do business evolves, how things are changing. One of them involves Jack Daniels, the liquor company. You all may have heard of this, it's been in the news because it's kind of a fun case. [Note: see link in references above.]

They have sued a manufacturer of a dog toy. It's actually one of the largest manufacturers of pet toys who created a kind of parody of the iconic Jack Daniels bottle on a dog toy. So that has been through oral argument. If you want a laugh, the oral arguments were actually really kind of entertaining.

In that case, the justices were cracking jokes. The hypotheticals were kind of funny. So that is interesting. And the issue in that case is basically how close is too close when you're looking at two different products. Obviously a liquor bottle is very different from a dog toy. So, in the normal analysis, we're not really worried about customers being confused.

But there are also questions like: Is this a parody? How does the First Amendment play into all of this? What is someone allowed to do versus not allowed to do in Trademark law? It's continuing to evolve. And we have seen a big difference with the Trademark Office. 

There's been an absolute influx of Chinese applicants filing fake documents. They are pretending to be attorneys. They have issued all kinds of watchouts for attorneys. They've changed the authentication so that you have to really prove that you are an attorney before you can file things because foreign applicants have to have an attorney to file, and we've also seen just a crackdown in general. 

The US Patent and Trademark Office is taking a much closer look at all the documentation that's being filed to make sure it's legit because these Chinese applicants are faking things. So I think we're seeing that kind of ripple effect, that there's just been a bit of tightening around what is going to be protected under trademark law that has been pretty loosey-goosey for a long time.

But when we think of the underlying purpose of trademark law, it is issuing a limited monopoly to a company or a person to be able to use that trademark in connection with a particular service or product. So they want to make sure that is well reasoned and that there's a good basis for that before they issue that limited monopoly. I think that trend is just going to continue, and it's been a little frustrating as a trademark attorney because I'm like “I filed this exact same example last year and today they say it's not good enough.” 

It's kind of been some extra jumping through hoops and I know it's been frustrating for our clients as well, but I think this is just the new normal in our worldwide economy. Things are changing quickly.

III. THE PATH TO COPYRIGHT LAW

NU: I wanted to shift gears a little bit and learn about your own personal path. Were you always planning on copyright law? What made you choose it as a specialty?

AWB: Yeah. I think I sometimes joke when I go to Copyright Society events that everyone there is a frustrated artist of some sort.

There's a copyright conference that actually has a band made up of all copyright lawyers. So I was a musical theater nerd. I've always really enjoyed music and theater and went to law school hoping to do more of an entertainment law practice. That's always been an interest of mine. I went to school to study music and was not good enough, so I made a quick pivot there.

I think I had always wanted to do this work. I took a more traditional path out of law school. I had a clerkship with a federal judge, which is what landed me here in Chattanooga where I still sit. And it will not surprise you that there is not a lot of copyright work in Chattanooga, Tennessee, which is kind of a small manufacturing town.

I kind of got lucky and fell into that last law firm I mentioned that was representing photographers. It was a virtual law firm back when that was not really a thing. I joined in 2008 and we were using AOL Instant Messenger to communicate. This was way before Slack or anything that we have now.

So it's just kind of interesting to see how it's evolved. But yes, copyright has always been an interest..

NU: What were some of the most unexpected things on your professional journey?

AWB: I've had a couple twists and turns. One was just falling into that job. As I mentioned, the law firm that I worked at here, which was just a big kind of commercial law firm, needed local counsel for a local artist that they were suing on behalf of, and it was in front of the judge that I had clerked for. They reached out to me and I was past my period where I couldn't appear in front of him. Usually at a local counsel gig, you're not doing very much. You're just kind of carrying the briefcase and telling them if there's anything weird they need to know about with local practice.

That law firm was very busy, so I ended up doing a lot of the substantive work. This is unusual, but they were happy for me to do it, and I was happy to do it. And so at the end of that initial case, they were kind of saying “We're looking for someone. We need to hire another attorney. Do you know anyone with all these qualifications?”

I was not at all unhappy at the law firm that I was working at in Chattanooga, but I really liked the work. I was excited about the opportunity to do some copyright work. And I just kind of said, “I don't know if you're making an overture, but I would be open to a conversation.”

That felt like a big jump at the time. I was leaving a very steady, stable job, and I remember talking with my now-husband about it at the time. He just looked at me and he was much more of a risk taker than I am. I think most lawyers are not very risky, but I remember him saying like, “You can always get another job.”

Like “If this doesn't work out, it'll be fine.” And so I think I've carried that feeling into some of my other career moves when I decided it was time to leave that firm. He very much encouraged me to start my own firm, when I would've told you I did not have an entrepreneurial bone in my body. But it's the same thing. He said, “I don't think you'll fail, but if you fail, you can go get a job.”

It's fine. You're a lawyer with a very solid skillset. I ended up just really being surprised at how much fun it is to run a business. I had not taken any business classes. I had never done any marketing or any of that. That's really how I fell into this area of practice of working with online businesses; I was listening to podcasts, trying to learn how to market because I didn't know how.

A lot of these businesses had Facebook groups that I just started asking questions in, and there were no lawyers in those groups. I would ask a question and someone would say, “Hey, I need a contract reviewed,” or “I have this copyright question,” and I would just answer and be helpful. Literally just people started kind of flooding in, asking for help.

So that was surprising. It was not my intention at all to be in this kind of little corner of the internet that I've landed in, but it's been really wonderful. So fun to just kind of follow where the past leads and be willing to take those risks.

NU: What advice do you have for folks who are thinking of starting a firm of their own?

AWB: Oh gosh. I have learned many lessons in the past eight years. I would say don't be afraid, but also do some planning. I felt really great starting my own firm, especially as a solo, because I had been a lawyer for around eight years at that point. So I knew how to be a lawyer. 

I think early on when you are still just learning, What do I say in court? How do I talk to people? How do I write this? What's appropriate here? What are the ethical issues there? 

It's really helpful to have someone down the hall whose door you can knock on or somebody to review your work and tell you like, “We don't do that,” or  “This is not really what you wanna do.” Getting those drafts back with just tons and tons of red marks is really helpful.

I would say if you're thinking about it and you feel like you are competent, to do it on your own without someone's door to knock on. I was a little surprised at how lonely it was in the very beginning, and so I definitely reached out and found some friends. There's a little group of us here in town who all have either small or solo law practices, and so that was really helpful in the beginning for things like “Where’s the best bank to open my account?”

Just things that don't come up when you are just practicing at a law firm that you might not have even known to think about. But a little planning goes a long way. I'm a big researcher, so I had all these documents and spreadsheets. I don't know if that's necessary, but it did feel good to have a plan so that when I quit my last job, I was ready to hit the ground running.

Listen on Apple Podcasts and Spotify.

This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on April 27, 2023.

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AccelPro | Intellectual Property Law
AccelPro | Intellectual Property Law
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