Podcast

Ethan

Welcome to the social media lawcast. I'm your host social media attorney Ethan wall along with my friend and co-host Sean Depasquale.

Shawn

Hello I am not an attorney but I am married to one. Ah Ethan I've got a lot of questions for you today because I've been thinking a lot about the stuff that we put.

Ethan

And it's not me what what are we talking about today.

Shawn

On Social media stuff that we create for social media and our ownership over it. So today. We're talking about the highly fascinating, always interesting topic of user generated content and intellectual property and how those things connect. And what our rights are as Consumers. So Let's quickly start with.. How do we? Define user-generated content and how do we define? What are we using to. Basically traditional the defined I p rights right? like who holds an I P and what does that mean.

Ethan

Yeah, so user-generatd content sometimes referred to as ugecs basically anything that we as human beings or users of a social media platform create an upload to social media. So commonly I think the common example of. User-generated content might be I take a photograph I upload it to my Facebook page or perhaps I create some sort of video or real and I post it on some brand's social media page. And so I as the user have generated that content and uploaded it to a platform where other third parties have the ability to access it and there are certain terms and conditions of the platform itself that might govern usage rights ownership rights over that platform. But that's what I would say ugc is.

Shawn

Ah.

Ethan

From a high-leve perspective and we're talking about ip rights in the context of ugc ip I mean intellectual property. We're usually talking about copyrights and trademarks so real quick. Step back. Intellectual property is basically anything that has value that we cannot touch. Not tangible so real property would be like a house or land personal or tangible property would be this beer glass I'm drinking water out of or my Ipods this actual personal tangible property intellectual property are things that have value but can't be seen or touched like a brand Nike. Has value and part of it is the name Nike it's the Nike swoosh those things are typically trademarks. They're brand identifiers and with ugc the main thing is going to be copyright so those are my ownership rights over photographs videos designs. Um, music movies film Tv other types of content. So it's but writes over that intangible audio visual type content.

Shawn

So and then now we're talking about this in the context of social media right? So typically when you sign up for social media for Twitter for Facebook for Instagram any social media site. Part of the sign up process. Is you agree to terms of service right? A big long contract that nobody reads and they just go like yeah okay, cool I mean I've never run one are there provisions typically in those types of terms of services. Um, that afford rights to the user. Or are they typically? Ah um, not that forgiving as far as like ah what goes on to those sites then becoming property of the the social media company itself. So example I I draw a picture right. And draw a picture of a pretty flower my drawings. My creation came out of my brain I posted on Twitter to show to people do I still own that drawing or does Twitter.

Ethan

Yeah, so it comes down to what the terms and conditions say and generally the direct answer to your question is that on nearly all social media platforms or at least the major ones you own the content that you upload to these sites. But you give the social media site a license or permission to use that content in certain ways and you also acknowledge that once you share this with the general public you might lose certain types of privacy rights to that content because other people. Have the ability to take it and share it and so that's really the direct answer to the question generally speaking when I see these things all the time where people might post something on Facebook they make a status update and they say attention Facebook pursuant to. Us law 1 2 3 4 from like the district of narnia I do not give you permission to whatever you know use my content and I'm like oh my gosh people are still saying that shit like ten years later it's not a real law.

Shawn

Um.

Shawn

Right. My mom did it literally two days ago my mom was like this is just a call to attention then anything I post here cannot be used by Facebook or anyone else and I was like mom this does not work and Facebook absolutely can do whatever they want with anything you post. Because that's the truth right? if so if if Twitter in my scenario decides. Okay, this is cool. It's got a million legs people. Love this freaking picture of this flower and they want to turn around now and they want to make a commercial advertising. How cool Twitter is and they put my flower in the commercial. Or a picture of my tweet of my flower is that okay should I get paid for that will i.

Ethan

Okay, so should you should you could you would you is ah is going to depend upon the terms and conditions of Twitter's or x's now. Um service. Yes, so the artist formerly the platform formerly known as Twitter.

Shawn

Sure I refuse to acknowledge that name.

Ethan

Ah, generally what they say in a nutshell is that you continue to own the rights to the content that you post but you give the platform themselves certain types of license or permissions to use that content.

Shawn

Um.

Ethan

And so usually it comes in 1 of 2 places and your example really hits the second place but the first place basically you give Twitter permission to do stuff like to use your photo for purposes of executing the function of the platform. What I mean by that is. You want it to appear on Twitter's feed you want to have the ability for people to like it or share it or for their algorithms to dispense it to other people. So you're granting first Twitter the right to use the content for purposes of the application itself that I think everybody is okay with. Then there usually is a second provision that says you give Twitter a worldwide non-exclusive perpetual right? to use any content for purposes of marketing promotion or a number of other uses which would probably fit in your scenario there and so a lot of people become really afraid. Thinking oh shit the platform formerly known as Twitter is going to steal my picture of a flower and make millions off of it and I'm never going to see a dime and a plain reading of the terms and conditions might reach that logical conclusion as the terms are written. So I understand where the concern comes from. But I don't think that it is a real practical concern because of the following if the platform formerly known as Twitter or any other social media site starts taking the content that you as users post and use it to make money for themselves all right.

Ethan

Eventually people are going to say screw that I'm going to leave the platform formally known as Twitter and move over to threads or another platform itself and so I don't think it's really in these sites. Best interest to be able to use your content in marketing and promotion ways.

Shawn

Ah.

Ethan

Without kind of reaching out to you and saying hey look our terms say this. But really we want to use this for something bigger and we want to get your permission and we'll either compensate you or we'll credit you and and kind of give you some incentive to be able to do so and so I think that you. Do give up certain rights to your content to the platforms to allow them to use it for certain purposes and that could include using it for potentially marketing purposes but practically speaking these platforms aren't in the business of stealing your ideas and stealing your content and using it for themselves because they know that if they did that. It would be a Pr nightmare and people would run to their competitor sites.

Shawn

That's interesting that I've never really considered that aspect of it. But I think it's totally correct. Um I have anecdotal experience of working for someone with some significant reach who Twitter reached out to to say hey we're doing a campaign. Advertising campaign in like times square and we want to run your tweet across ah a thing and make a whole thing out of it. What do you think? and I always thought at the time I was like oh it's interesting. They would even do that because I think they can just do whatever the hell they want but to your point they probably didn't want this. Person to then be able to turn around and be like I didn't tell them they could do that and I don't want to post here anymore because I don't want them to be able to use my name like that you know freely like that.

Ethan

Totally and this this actually comes up with startups that we work with all the time we might either draft website or app terms and conditions and a privacy policy that includes the the rights for our clients able to use the content in some of the ways that the social media platforms will. Or we might create let's call like a media release and saying that you were going to be on my podcast I want to use your name image likeness and this content and I want to be able to edit it crop it color it in any way that I want to be able to to use it I'm usually going to draft my client's release forms or their terms and conditions. To give them the broadest rights possible so that they have the flexibility for their business but I would always advise them in the same way that your friend had that experience with Twitter which is if you're just going to use this in the normal course of business as the user or as the person who's signing the release would reasonably expect. Do it. But if you're going to start taking this stuff and creating a gigantic marketing campaign behind it putting it up on television putting it on a billboard running a really expensive ad campaign behind it and the other person didn't expect that to happen. But your terms really give them permission to you should reach out to them and ask them.

Shawn

Here.

Ethan

And try to reach some sort of agreement as opposed to using it because you're going to get much more flak in return if people are feeling that their rights are being violated or that they're being taken advantage of even if they signed away the rights to that within the terms and conditions that nobody reads. But.

Shawn

Have.

Shawn

Interesting. Um, so okay, what do you think are the what are the responsibilities of platforms like Youtube or Instagram or Tiktok.

Ethan

Ah, social media lawyers.

Shawn

When it comes to this kind of thing monitoring controlling like ip rights or or you know ip rights as related to user-generated content Youtube being a great example. Um to to talk about for this one because Youtube only really exists because of user-generated content right? like. Every Youtube channel in the world is some dude's I p so to your earlier point Youtube would be remiss to start abusing that because then people would be like well I don't want a Youtube channel anymore. They're going to do some messed up stuff and make a bunch of money off my face. Um, so what kind of responsibilities do they actually. Legally have but but but then from a more ah moral place. What? what should they be doing to to to better serve the consumer.

Ethan

Yeah, I'm actually going to fit totally let me throw on a hold another layer because right now what we're talking about are what the social media platform's rights are between them and the user themselves and that is assuming that the user generates their own content and publishes on that platform. But a very popular scenario particularly on Youtube is where a user generates content that uses some 1 else's intellectual property and then post it and then the question comes down to what are the platform's legalponsibilities. So I'm going to talk about both of these situations.

Shawn

Sure.

Ethan

Let's start by just continuing the discussion. Ah yeah, yeah, yeah, so glad this is on video. Ah so let's start talking about the the easier scenario which is um I upload my own content onto a platform.

Shawn

I Want to talk about everything. Ah so happy.

Shawn

Ah, ah.

Ethan

What are the legal responsibilities that these sites have and what are the moral responsibilities and we'll tidy that up and then we'll go into the more complex area legally speaking the terms and conditions of the platform that a user accepts governs what the rights and responsibilities are of both parties in relation to that content. And so I think what these platforms need to do is be incredibly clear as to what the rights are to be as transparent as possible because those terms and conditions are a legal contract that's going to govern this use and if there's any disagreement or dispute about this that contract. Um. Going to govern the relationship. So from a moral perspective I think that Facebook and other sites have been under immense scrutiny and have been fined millions if not billions of dollars by regulators in the Eu and even experienced tons of legislative problems here because they haven't been. Transparent with their usage rights or their data collection practices and and how they're using our activities and user-generated content and so I think morally speaking legally speaking the more transparent a platform can be. Explain these things in plain english and let people know what they're going to do the better because while they might limit their rights of what they can do. They're going to create more goodwill and make it feel like it's a safer environment for me to spend my time energy and effort and use that platform. So I think the rights are a little bit clearer in that instance.

Shawn

Yeah.

Ethan

Going to get more complicated in a moment when we talk about third party rights as well.

Shawn

Which would be your example of using like someone else's video in your video you know in your video right? like like I I decide to do a recap video of a Tv show that I'm watching and I take clips from the show and I.

Ethan

Yes.

Shawn

Intersperse it in between me talking about the show.

Ethan

Yes, and let's say that I create a video of me baking pies. Okay, and it's my right like Apple pies cherry pies cranberry pies, fish pies blueberry pies I'm making open.

Shawn

No high wish.

Shawn

Blueberry Pies Mud pies.

Ethan

Can a whole I'm not not doing mud pies. Ah but I'm making pies So it's all my content but then I take I don't know show him? What's the song you're listening to these days that you love wasn't that another pie tasters is not arent they a skyb band.

Shawn

Um, oh you he has the pie tasters. Yes a pie taster song. Sure yeah.

Ethan

Okay, so I think I take a song from the pie tasters and I lay that song on the top of my video because it relates to pies. Okay, now I have used someone else's intellectual property. The pie tasters music without their permission on my video now. The question is. What are the legal rights and responsibilities of a social media platform like Youtube to protect the rights of these third parties and the answer is something called the digital millennium copyright act or the dmca. Yes.

Shawn

Ah, here.

Shawn

Sexy.

Ethan

I'm bringing sexy back dmca style. So what does this mean? um the digital millennium copyright act essentially says in a nutshell that internet service providers like Youtube or a social media platform is not going to be liable. Or responsible for their users posting or infringing on somebody else's intellectual property rights by uploading content that use that so long as a they take reasonable steps to protect these third parties and include certain types of provisions to. Satisfy the requirements of the safe harbor provision of the digital millennium copyright act by allowing rights owners like the pie tasters to flag when my content violates their intellectual property rights. And so long as they have a workable process in place that makes it easy for rights owners to notify the site that their rights are being infringed upon that that they take down the content once they receive this and then give notice and an opportunity for those users who upload that content to respond. See if maybe I had permission. Maybe I had a contract with the pi tastes that I can use it. Um then Youtube or those sites are going to be complying with the law and not be held responsible for those activities.

Shawn

What do you know? what? um where the dcm a comes from was that like was there some kind of landmark legal case that led to this happening or did it just happen because it was a necessary thing to get created.

Ethan

Um, yeah I mean I think that this ah don't quote me on this because I wasn't practicing law at this time but I think really this kind of started me.

Shawn

Okay, one I Just want to write this quote down so I can quote you on it. Go ahead. Oh.

Ethan

Think they start with like Napster limewire right? If you remember I was in college Napster was a thing and we would Pirate Bay was another like major case like these sites started to allow users to be able to upload content. And I would be able to kind of infringe upon somebody's copyrights and at the time I forgot what the record company was that was kind of enforcing these things they like are.

Shawn

Well Metallica was the big that was the big enforcer right was when Lars from Metallica started to directly go after people that were downloading Metallica music to like an insane degree and was suing them for like millions and millions of dollars. To be like yeah you stole our music and you can't have it and like I'll destroy you I don't care if you're a fan.

Ethan

Yes, and it was like I think it's the the r I a a which is the recording industry association of America basically this is like a guild that supported these rights owners and what they were doing was they were suing.

Shawn

Oh.

Ethan

Users like not me but like people like us to to make examples of us of if you download this music. We're going to come after you and started this really big ad campaign or like Pr campaign about we're going after you for like $16000 or whatever the the minimum or mac from statutory fee was per song.

Shawn

Gallop.

Ethan

And this created this major backlash as these record these big giant record of executive record executives are there all the money in their pockets are going after the little guy who just downloaded a a few tracks online like go after yourself. So. Instead what was happening is as the technology began to evolve into platforms that allowed for this to happen. They said look where it's bad for us to go after all the users and it's way too expensive for us to be able to do so instead we can go after a number of these different platforms and say. That you now have rights and responsibilitys that you need to follow and you need to be able to to take reasonable steps to police your users and so I think that's kind of where this law ultimately evolved from and this is why I think Youtube now is kind of the largest platform.

Shawn

Minimum.

Ethan

Of ah u gc being uploaded that usually includes third party writes they now automatically scan content that you upload to see if it intersects with their copyrighted library and will not allow you to upload that in the first place. Um, which I think is a further step of saying hey look it's it's not enough. You just to give us the ability for for us to do it. We got to hire somebody to search every single video instead you need to have a different process in place. So I think it kind of was born and evolved out of different ways in which copyrights were being infringed upon in this new Millennia. And in this new digital world and trying to find a workable solution that allowed people to um, use these platforms and all these platforms to exist well at the same time trying to balance the third party rights of of other rights owners.

Shawn

All right? and so how do people how do content creators protect themselves when it comes to Ip rights and engaging with Ugc like what and and and what can people do if they find that their stuff is being used without permission. Like where do you do you have to immediately hire an Attorney do I have to call you immediately.

Ethan

Right? So let's say you created a song Sean what's what's Nate make a what's what's your band.

Shawn

Oh my band is called ah, regretful tendencies and the song is called Daytime salad.

Ethan

Um, okay, a regretful tendencies daytime salad. It's you put this thing up on Soundcloud. Okay, it's starting to starting to gain a lot of traction. You're kind of like.

Shawn

Um, yay.

Ethan

Kind of like Donald Glover in a way where like he kind of started throwing your tracks up there kind of got popular and became one of the biggest rappers in the world of cowdish Gambino. Um, so now you are finding that your song is now being used on other people's videos without your permission and you as the person that spent.

Shawn

Left sure you my rich yet.

Ethan

Geez I Remember what is it relentless. That's your band's name. What was your band's name again. Okay, you spent all this time energy and effort creating this music right.

Shawn

I'm sorry oh I forgotten to ready.

Ethan

That you deserve that if other people are going to use it. You should profit from us. You start seeing these things on other people's titoks reals Youtube videos. What can you do? Um, so first you don't have to go out and call a copyright lawyer or a social media lawyer immediately. There's things that you can do right now. Ah, first thing that you can do.

Shawn

Leaving.

Ethan

Is file take down notices on the respective platform saying I'm the owner of this content. Someone else is using it without my permission I want you to take this content down and that's going to be your path of least resistance because these sites have hired people to. Um, just process requests on these intellectual property takedown notices to remove this content online. There's two problems with that process. However, first the process is kind of like whack-a-mole meaning you like squash one person who is using your video and they just do it on another video. Or somebody else comes up and you got to keep bopping people and and and keep doing it all the time and so one it's it's not a great solution even though it's a solution that you can do but 2 is that usually when you fill out these takedown forms. They're going to ask? Do you have a copyright over this work and if you. Don't have it the odds of the platforms taking the content down is much lower and so this creates some sorts of responsibilities on the content owner like you that if you believe that your content is important and you don't want other people using your materials without your permission. And you want to have them be able to easily take that content down. You should file copyright protection over that song or over that album so that it's easier for you to take to to file these takedown notices with a reasonable degree of success.

Shawn

So if okay so this this makes me think of Tiktok now though, right? because now Tiktok is is a weird thing where I can make a video. And I can pick a song to go along with that video and I can put it out there and it can be doge cat I mean they may seemingly have a library of any number of famous songs that I can pick to put on my video. So how is that legal and and. Does that mean that I now have the rights to use that Doja Cat song in my video or does Tiktok have the rights to use that song in my video and is it even my video.

Ethan

Yeah, so lots of loaded questions. But let's tackle the big one which is is it legal for tiktok to make dojacat available for you to put on your your videos and um, what is the extent of that right? What ownership rights? Do you do you have? so when Tiktok was first created. People were creating videos all the time using other people's intellectual property and brands owners were getting pissed but well some brand owners were getting pissed. You have to think that if I use somebody else's song on my video without their permission or without the service having negotiated some sort of permission for me be able to use it. That's technically copyright infringement some people like their content being shared however because it gains popularity and so they're fine with people using Tiktok videos for it because now people are getting to know their song people are buying their album. They're becoming more popular. They're getting more deals so they're kind of cool with it.

Shawn

Right. Right.

Shawn

Yeah.

Ethan

Um, other people aren't and usually this occurs in in a situation where someone is using. Someone's song to promote their business. So it's 1 thing if you're a 13 year old teenage girl that's making dance videos with their friends and using dojacat. Don't you cats like cool? Great yeah, you're infringing upon my.

Shawn

More people are hearing my song and then that's gonna kid get shows kids listening to my song it really helps more than it hurts her.

Ethan

Yes, now I'm Perry Kushner's used car dealership and I'm now creating reels with doja cat on it to sell my cars so now in this instance, um.

Shawn

This. Yeah.

Ethan

Perry just imagine in your heads like a late 30 s bearded kind of like buzzed haircut former basketball player now kind of runs those latenight Tv commercials where they're selling these different types of used cars. He's now using the dojacat in his Tiktok videos for promoting the new use cards that he has.

Shawn

Again.

Ethan

This situation Doja Cat's not going to be happy with it and feel like you are using their copyrighted material to ah, promote your own business and this.

Shawn

Um.

Shawn

Not to mention that to the consumer. It seems like oh doja cat must love these used cars because she gave this guy her songs to use to sell them to me I should buy 1 Yeah.

Ethan

Exactly and so in the very beginning all of these influencers this kind of hybrid area where influencers were now promoting different products that they got ah on their channels and they were doing like Tiktok dances with this video but they're making money from it and so. The the record industry. Um, and these rights owners in Tiktok had to have a come to Jesus moment and be like look. We're cool with 13 year old girls using it or just basically personal users were not cool with businesses or brands and potentially creators from using it. So ultimately what I believe happened was that Tiktok negotiated a deal that said we're going to have all this audio available on our platform if you have a personal account. You can use copyrighted material like dojacat in your videos. But if you have a business account. You are not allowed to use certain types of copyrighted material and in that way it kind of just stopped people from being able to use it then they would have to try to like use it in a different way to kind of get around their algorithm or get around their terms and services. But that's kind of how that ultimately shook out and so.

Shawn

Um, yeah.

Ethan

Without looking at Tiktok's terms I can't tell you exactly what they say but I have to assume that what it's going to say based upon that is you can use this music. You have a license or permission to use it on the Tiktok platform for your personal account so long as you're not using it for these types of purposes which might include.

Shawn

Manage.

Ethan

You know, making money off of the videos. You don't own it. You don't own the song but you can use it for purposes of the video and I think that that's kind of where the terms come from and I think that a brand or even a creator that's using copyrighted permission to make money. Is likely not complying with the terms of Tiktok's terms of service and more likely also not complying with copyright laws and and can and and creators have been putting themselves at legal risk by doing this over the years and as they become more and more popular more brands have kind of gone after people who have used their copyrighted materials.

Shawn

But are you so so you don't think Tiktok is paying these artists to include their songs on the platform like.

Ethan

For purposes of promoting their business.

Ethan

So item.

Shawn

I would be so see because like I get it from the perspective of okay I'm doge a cat. Do I really care that this thirteen year old girl is like dancing to one of my songs. No, but do I care that people are flocking to Tiktok which is making money to be able to make videos using my song. Yes.

Ethan

So yes, so again I don't have personal knowledge of this. But here's what I believe I think the situation with the tech talks of the world and even Instagram and reals like Mr Muer tech platform 1

Shawn

Ah, do care sure.

Shawn

Yeah, yeah, cause they're we miss now too. Sure.

Ethan

I think that this is probably a very similar relationship to the one that Spotify might have and so what I mean is that Tiktok is not making deals with every single of these hundred thousands of artists that are there. But instead they go to the labels and say labels. You give us permission to be able to sample portions of your songs on this platform. We're going to collect the data as to how much of these songs are being used. We've got a deal with you as the record label that kind of says how this is going to be broken down and I think an artist that has. More plays or more usage on their platform versus onces. It are less are going to get a percentage of these payouts based upon kind of how this deal works and I think in that way there is a bridging of the gap between individual artists rights because even though dojacat makes music.

Shawn

And ice.

Ethan

I Don't know what their specific breakdown is over their copyrights but usually their managers or their record labels own the copyrights. It's doja cat Probably that's why people that's why artists.

Shawn

Um, that's true. She could be signed to a label that then already has a majority ownership over any music that she makes for as long as she's in that contract with that label. Yeah.

Ethan

And that's why you're usually not finding very obscure indie artists music on these platforms. But you're finding very popular ones because they're with the larger record labels and this is why artists want to sell Merch. Sell vinyl and perform live because they're making a lot more money over over those than they are having their songs sampled on streaming platforms because they probably are getting a one hundredth of a penny for every one thousand listens of their song on these different types of platforms.

Shawn

Ever.

Ethan

And so really, it's kind of the the record industry is kind of evolved over the years they make a lot of their money over owning such a large volume of music that can then be streamed and make this income over time as opposed to how they were doing it before which is selling Cds. Or or other ways that they'll be able to make their money.

Shawn

Right? So and then if you looking towards like the future of all of this right? Especially as we start to get stuff like ai generated content and deepfake technology and all of these things that are really at their core taking something that already exists. And kind of remixing it into something now whether that is something new enough to pass for new I p or not I think is currently being debated even in courts right now I know there was recently a ruling about Ai generated work not being copyrightable. Because it's not made by a human and that the fundamental. Yeah, the fundamental basis of being able to copyright something is that a person did it not just some algorithm. Um, so how does so so what do you think the future looks like what is the relationship between.

Ethan

An artist if.

Shawn

User-generated content and ip rights gonna look like as we go forward with this kind of Ai art and you know deep fakekes which is like the ability to how do you explain it use Ai to um, basically regenerate. Something so like you can I could put my face on a video of you talking and make it look like I'm doing this.

Ethan

Yes, so for example, 1 of my really great friends christopher florence flow what's up buddy. He's a comedian and he's really plugged into all this stuff and he sent me a reel of a video and it wasn't. Not Samuel L Jackson Morgan Freeman basically was Morgan Freeman dancing in an alley in some like cool way and he's like Morgan Freeman is never going to see a dime for this like you know and so it was a classic example of of someone.

Shawn

Yeah, yeah. Sure.

Ethan

Using an Ai platform to create a deep fake that was able to use these things and it's it's a real problem. Um, so where do I think that this is going to go here's here's here is my concern and I'm going to actually borrow this from someone that I that I appointed you to a gentleman by the name of z bashu.

Ethan

Um, very popular Youtuber who makes dungeons and dragons videos. Um, and he has this thing called the animated spellbook. They're these really great videos but then he kind of did this one off video about his his wife and her mother. Making music in their living room and these are like the end of this generation of artists of people making music because now people are using computers and Ai and algorithms to to create this themselves and in doing so these algorithms are incredibly intelligent. Um.

Shawn

Ah, need of.

Ethan

But they are not creating music out of whole cloth. They're pulling information from all different sources including but not limited to other people's copyrighted work to either mix or blend in or to gonna be inspired with with what's happening there and he was kind of saying look. I don't take issue with technology I'm here on Youtube I'm using my computer to edit these things like we're all doing this and like maybe the old way of art in certain ways is going by the way of the dodo as we start relying more and more on these technological tools but his kind of suggestion was that. If this is the direction that they're going that there should be some sort of a union some sort of a law some sort of protection that if your works are sampled by these ai tools and used in some other way that there's some way that you can make some sort of a monetization off of it. Similar perhaps to how dojacat might be receiving a percentage of streaming over this particular platform itself something where we kind of embrace the reality of the situation which is ai is here people are using technology to be able to create things at the most rapid rate that we've ever seen in history and it's only going to get.

Shawn

Is rough.

Ethan

Faster. Um, how do we? How do we craft laws in a way that's going to balance innovation and reward people for creating cool new Ai tools with also balancing the rights of creators themselves and I thought that hes was a really unique solution one that perhaps a lot of people can get behind so I do think that.

Shawn

Ah, hunt.

Ethan

The more that we see ai tools using other people's content. The more legal problems that we're going to see and the more this is going to be worked out in court playing back on the d and d or dungeon and dragons example I forward a you an article where a dungeons and dragons artist. Used Ai to create artwork for d and d and users were kind of like wait a minute his arm doesn't look the right size something is up. He admitted hey I used ai for part of the design and I think it's Mattel who is kind of the parent company that owns wizard dragon for the code which is for the code.

Shawn

Right? or.

Shawn

Dragons of the coast. Yeah yeah, where's this of the coast. Yeah.

Ethan

Kind of said like hey moving forward. It's our policy that you can't use Ai for these different types of designs and so I think a lot of this is Goingnna is going to play out but I think that there's just like when social media first came around and I sort of practicing this in the very beginning and I remember I hired a pr company because I created.

Shawn

Yes.

Ethan

The world's first social media law firm and they work with this Pr company put a press release out and they were kind of saying like the laws on social media are like the wild wild west where there aren't rules yet and people are just trying to figure this thing out as they go and it doesn't mean that certain things are legal or illegal.

Shawn

Right.

Shawn

Learning.

Ethan

What it means is that until there's kind of clear rules of the road on how Ai kind of protects these artists rights through laws or through court decisions the harder it's going to be for us to be able to predict what is reasonable. What's not reasonable. What's legal and what's not legal. So I think that each one of these new decisions that starts coming out is going to be the like. The brick and the mortar that these laws are going to be built on that's going to provide clarity into how Ai and third party rights are going to evolve over time and I'm sure you and I are going to jump on a podcast one month three months six months from now and have new information based upon these case decisions and see how this is kind of being evolved over time.

Shawn

Yeah I mean I think so too. It's an interesting time to have a social media law podcast because there's so much of this is developing weekly like as we talk and new things are happening and. New laws are being created. New problems are cropping up where we now need to have new court cases to figure out these new things. Um, so it's it's interesting to me, you know and there's I mean I could talk about the layers of problems and questions for for hours. Although I do think your solution.

Ethan

Um, then.

Shawn

Or rather this guy's suggestion is a good 1 right? because there has to be because 1 or 2 things are going to happen either. All of these artists are eventually going to collectively start suing the companies that create this this ai and they're going to say hey take my stuff off of there untrained your ai for my my content. Or these companies are going to have to compensate these artists in some way. There's really only two ways it can go right? and so I think having some sort of system in place like you said, um, you know like a Spotify or like the music industry ended up doing which is hey we're going to give you 1 big fee and. Ah, you know, based on how popular or how often this is used then you'll get like a smaller payout you know over time that makes the most sense right? because something has got to give here I mean right now I've seen artists fully say hey ah you know.

Ethan

Yes.

Shawn

Fully call out some of these you know like stable diffusions some of these um art generating websites and say hey man this is my art but I'm not credited and your Ai and literally to the point of and here's the prompt that made this picture that says in the style of. Me this artist so that's a problem like if you can tell a computer draw it like Bill Sykovvich draws and then it draws just like bill sykov its draws. It's probably steal it for Bill Sankkovitchch's drawings.

Ethan

Yeah, and like I agree with everything up until potentially that that very end and what I mean by that is right is like someone else can create a social media law podcast I can't stop people from doing that and I can't stop some from saying make art in the style of whomever.

Shawn

No.

Ethan

That's that's okay, what they can't do is that last piece which is use the actual art in a way to create a new piece now I can look at someone's painting I can make my own version of that painting and maybe depending upon the copyrights there I'm still infringing upon their copyright because I'm just.

Shawn

Yes.

Ethan

Mimicking it. But it's but it's certainly going to be a violation of the law for me to like take their pieces of art and like trace over it and overlay it and then just add a little bit more color or add some other design and be like it's a new work and I think that's what Ai is doing ai is taking these pieces and using it. And I do think that bringing this back to the Youtube example I think your your other option is one that's going to be likely which is how how can ai service providers exist in a way that provides a service that's really cool.

Shawn

And here.

Ethan

Gathering the internet and and and being able to spit out information designs different types of things but also insulate themselves from liability for using third parties similar to Youtube's scenario or going back to the Napster scenario I think this is really history repeating itself again. In a slightly different way with its own nuances and while if create creators out there who are listening First of all I know and feel and understand and acknowledge your frustration. It sucks and at the same time It's also just going to be important to remember that while this sucks.

Shawn

Round.

Ethan

Technology advances so much faster than the law can adapt so it is going to take time for court decisions to move their way through for bills to move their way through so I don't think this is something that's going to be resolved in one month three months one year maybe even 3 years like it's going to take time for this to happen and I can tell you. The time. A new law comes out there'll be brand new technology that's already been created. That's going to operate different from the law just like the moment you bought your Android or iphone. There's already one development somewhere else that's going to have new features that is what it is.

Shawn

Ah, was all my head spinning Ethan is stop this crazy world all right? Well listen I think that I think that that is a good note to wrap things up on because we can talk about this forever. But as you said. Even in us talking about it. There's probably already been 3 more advances in technology that we'll find out about a week from now that will make this entire conversation. Irrelevant. So let's wrap it up before we become irrelevant in the moment and do a little something that is my favorite part of the show which is where we plug stuff. What is my plug. I would like to plug me seandi pasquali I'm a great friend I'm a good guy and I'm an all-round wonderful catch. Unfortunately I'm currently taken. So there's not much I can do for you there but you can always reach out to me if you want I'm on social media at Sean writes. And I host a podcast called oh Mr Sheffield podcast also on the internet Ethan.

Ethan

Yeah, um, if you like this episode if you found this helpful. We'd love for you to subscribe like and follow our are the social media. The social media lawcast Why they got be smoother at delivering these things by now that.

Shawn

Yeah, overrated.

Ethan

Yeah, ah do you agree? Do you disagree. Let us know in the comments. We'd love to engage in a discussion with you and if you want more social media law news tips and resources for creators, entrepreneurs and startups give us a follow on social media by searching for the social media law firm.

Shawn

Yeah, and don't forget to smash that bell that's the thing they do on Youtube they go. They go like the channel and smash that bell for notifications smash the bell baby all right by Ethan.

Ethan

Um, yeah, smash the bell man see you John see you guys.