“It gets dark so I can see the stars.”

This is Creator Economy Law, a newsletter dedicated to exploring and analyzing the legal issues surrounding the creator economy, creators, and internet platforms. If you enjoy what you’re reading, share with friends, and invite them to subscribe using the button above and share using #CreatorEconomyLaw.

Note: I’m publishing this week’s newsletter a day early. It’s been an incredibly tough week across tech and other industries following several rounds of layoffs. This morning, Meta announced it is letting go of 11,000 people, roughly 13% of its workforce. Today's music video selection is dedicated to all those impacted.

Have you ever been involved in a creative review meeting? They can be fun, but also difficult to navigate at times. Luckily, there’s a fantastic set of tips you can follow to ensure a productive, and kind, experience for all.

Here’s what’s been happening in the world of Creator Economy Law.

Elmo’s power trip.

Elon Musk is facing a debt burden and work overload. His grand revenue plans include having “regular users” pay Twitter $8 per month so that they can “afford long-form video, audio, podcasts, and we can also start sharing revenue with content creators.” He goes on to say that creators currently share links to YouTube and TikTok due to any lack of financial incentive, but that Twitter will be rapidly changing how it’s done business previously to allow for more media sharing and revenue opportunities. In the meantime, the company is focused on rolling out the next iteration of its Twitter Blue subscription. I posted about the iOS app update, but the company later delayed the paid verification component until after the midterms.

In the midst of searching for gold among the wreckage, Elon and teams at Twitter have been busy defending not free speech, but the ego of the new owner. Kathy Griffin and many other verified users have been testing the limits of how far Musk will truly accept free speech. It’s apparently not been far, especially for Kathy Griffin’s suspension following her impersonation of Elon by changing her name and pfp before sending parody tweets.

📖 Read:

• “Twitter’s Big Debt Bills Add Urgency to Musk’s Turnaround Plans” by Kurt Wagner via Bloomberg Businessweek (Apple News)
• “Elon Musk is Overloaded” by Will Knight via WIRED (Apple News)
• “Twitter to delay verification check mark rollout until after US midterm elections” by Manish Singh and Zack Whittaker via TechCrunch
• “Twitter Cracks Down on Impersonators, Permanently Suspends Kathy Griffin” by Abid Rahman via The Hollywood Reporter
• “Elon Musk has discussed putting all of Twitter behind a paywall” by Casey Newton via The Verge
• “A list of features Elon Musk has promised to Twitter” by Ivan Mehta via TechCrunch
• “Elon Must Says Twitter Will Soon ‘Share Revenue with Content Creators’. Will That Include Music?” by Mandy Dalugdug via Music Business Worldwide

🎧 Listen/Watch: 

• “Ron Baron Conference - Interview with Elon Musk” via YouTube

CCB by the numbers.

The Copyright Alliance crunched the numbers on the CCB activity. Here’s what they found: At the end of October, 225 total cases were filed with the Copyright Claims Board (CCB), an increase of 42 from the previous month. Seventy-nine of the cases are “smaller claims.” In at least 74 of the cases, the claimant is using legal counsel. At least 183 of the cases involve infringement claims, 36 involve Section 512(f) misrepresentation claims, and two involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (120 cases); Literary Works (30); Motion Picture and Audiovisual Works (33); Sound Recordings (18); Musical Works (11); and some cases include claims for multiple works. Thirty foreign resident(s) have filed claims. Eighteen claimants have filed multiple cases. Forty-eight cases have been dismissed for the following reasons: Due to Respondent’s Opt Out (Eight); Due to Failure to Amend Noncompliant Claim (30); and Claimant Withdrawal and Dismissal of Claims (10). There are three active proceedings.

Defining creators...

My working definition of creators is as follows: “Individuals, such as artists, entertainers, writers, and educators, who create content and distribute it through internet platforms.” I believe this definition can capture most, if not all, categories of creators including the following:

Marketers are learning to leverage a diverse range of creators when planning campaigns and ad spending. I'm in the midst of working on a casebook (Creator Economy Law) and have identified the below buckets to separate general platform users who are creating or generating content/data from creators and influencers who are intentionally crafting and publishing content.

However, as boundaries between sponsored content and organic content continue to be pushed, both marketers and creators are able to maximize the reach of content.

In a recent Adweek article, Kyle Wong explores the concepts further. “UGC creators’ value lies less in their personal brand and more in the inherent power of their content," he writes. "UGC creators don’t always share the content they’re paid to make; instead, brands often buy the content and promote it on their own channels.”

📖 Read: “Are UGC Creators the Next Evolution of Influencer Marketing?” by Kyle Wong via Adweek

TikTok is under fire... a lot of it.

Congress sent letters to Apple and Google inquiring about the foreign surveillance of Americans by mobile applications in the companies’ app stores. Specifically mentioned was research released in August that revealed apps use in-app browsers to track what sites consumers visit and what they do on those sites, including more “egregious” keystroke tracking activity by TikTok. 

📖 Read:

• The official press release and access PDFs of the letters.
• “Lawmakers Press Apple And Google Over TikTok's Keystroke Tracking Ability” by Thomas Brewster via Forbes

USPTO shortens response window for trademark applications

Starting December 3, trademark applicants will have three months to respond to an office action issued during the examination of a trademark application to the USPTO, a decrease from the current six months. According to the USPTO, this will allow the office to decrease the time it takes to get and maintain a registration and provide flexibility to request additional time to respond to more complex office actions.

📖 Read:

• More about the new deadline on the USPTO website.
• “USPTO Announces New 3-Month Deadline to Respond to Trademark Office Actions” by Chad Jalandoni via Gerben Perrott LLC

🎧 Listen/Watch: Gordon Firemark & Tamera Bennett discuss some of the practical implications of this change, plus some of the current states of affairs for trademark prosecution more generally. “Tattoos, Warhol, and Police Parodies” via Entertainment Law Update (Trademark discussion starts at 01:02:45)

MGM launches AI-powered licensing search tool

Need a clip of James Bond carrying a jacket? What about clips of every time someone says "wow" in a film or television show? MGM's new AI-powered search tool, Clip Locator, is here to help! The tool will add object recognition, talent recognition, and even logo recognition in the coming months. This a huge opportunity for streamlining the market for licensing to advertisers and brands, documentary and news outlets, or even film and television productions. Amazon acquired MGM earlier this year, so this is undoubtedly a way to drive revenues and maximize investment. Check out the tool.

📖 Read:

• “MGM Launches AI Tool to Search Library of Film, TV Clips” by J. Clara Chan via The Hollywood Reporter
• “MGM Taps AI to Make Its Archives More Accessible for Licensing” by Patrick Kulp via AdWeek

Apple takes down a YouTube channel

Brendan Shanks (@realmrpippy on Twitter) alleges that Apple issued DMCA takedowns for a YouTube channel he runs (or rather, ran) that focused on releasing old WWDC videos. Shanks has indicated he intends to upload the videos to the Internet Archive. A few days ago, the official @TeamYouTube support account on Twitter replied asking for Brendan to DM them for more information.

📖 Read: “Apple’s copyright claims ripped down a fan’s archival WWDC YouTube channel” by Emma Roth via The Verge

🗣️ Franklin’s Take: I get it from the perspective of Apple because: (1) these videos are Apple’s IP (#copyright and #trademark), regardless of personal/philosophical beliefs on them being historical or of public interest for other reasons; (2) these videos were shared on a commercial platform where others (especially YT/Google) earn ad rev on it (regardless of whether the channel was YPP or not); and (3) Apple may need rights clearances/waivers for the people involved (publicity, name image likeness, etc.) and music or other third-party content that is part of the archive videos. I’m curious if any or all of these WWDC videos have actually been registered with the U.S. Copyright Office. That’s a requirement if there’s a counternotice by Brendan, and Apple wants to file a lawsuit in federal court. Otherwise, Apple could file a claim via the Copyright Claims Board (CCB) in response to a counternotice with a pending application and not waiting for a completed registration.

That being said, I hate to hear that a person lost their entire channel, including personal elements tied to the Google account (YT TV, etc.). It’s an important takeaway for creators that rely on third-party IP — ensure there’s a separation between personal & hobby or business accounts.

YouTube, TikTok, and Twitch now offer group live streams.

Want to co-host a live stream session with someone else? YouTube, TikTok, and Twitch now offer that capability. Twitch offers "Squad Stream" for up to four creators to live stream together. In October, TikTok launched "Multi-Guest" for up to five creators to live stream together. On YouTube, the feature is called "Go Live Together" and is available to a limited set of creators, with plans for a wider rollout soon. The feature is also limited to mobile-only for YouTube. Here are some additional details:

💡 The host and co-host(s) both need Twitch or YouTube channels with mobile live enabled for YouTube or actively live streaming for Twitch. On YouTube, the host must have a verified channel with at least 50 subscribers, but there's no subscriber minimum for co-hosts. For Twitch, creators can send an invite to any channel on their friend list, is a teammate, or is a channel that follows them.

💡 Both the host's channel and the co-host's channel must be clear of any active copyright or other strikes (so this isn't a workaround for creators that may be unable to live stream due to a strike).

💡 Live stream sessions must comply with COPPA and privacy laws, so on YouTube it's required that a host indicate whether or not a stream will be made for kids or not. (Keep this in mind below re: who's most at risk for content during a live stream)

💡 Live stream sessions can be designated as only for adult audiences (18+) within YouTube, Twitch, and TikTok.

📖 Read:

• “Invite a guest to your live stream with Go Live Together" via YouTube Help
• “How to use Squad Stream” via Twitch Partner Program Support
• “Enhancing the Live Community Experience” via TikTok News

🎧 Listen/Watch: “SNEAK PEEK: Introducing Go Live Together!” via YouTube's Creator Insider

🗣️ Franklin’s Take: Here are some takeaways for creators:

✅ Only go live with trusted partners and brands. On YouTube, hosts remain responsible for the actions and content of their co-hosts. This includes violations of community guidelines and copyright. Regardless, for any group live stream, there is potential damage to a creator's brand, channel, or account which could create headaches or even result in a suspension.

✅ Plan ahead and have written documentation (email? contract?) for content, revenue share, and use of the content post-live stream.

✅ Ads (pre-roll, mid-roll, and, for YouTube, post-roll) are enabled for Go Live Together and Squad Stream sessions, but revenues go to the host's channel or primary, not the co-host.

✅ The host (on YouTube) and the primary slot (on Twitch) are the only accounts that can access analytics and receive the viewership calculations. On Twitch, the primary slot host will receive any revenue from viewer engagement (such as Cheer with Bits)

✅ Notifications on YouTube about going live and the live stream will only be broadcast from the host's channel. However, co-hosts can use the live stream re-direct feature to route their subscribers to the host's live stream. On #Twitch, it will display a banner on everyone's channel pages.

✅ If you manage multiple #YouTube channels from the mobile device being used to go live, make sure you select the right channel!

• YouTube adds 30 million subscribers in a little over a year. “YouTube Music and Premium Soar to 80 Million-Plus Paid Subscribers” by Jem Asawd via Variety
• Web Summit 2022, a tech industry event with over 70,000 attendees in Lisbon, Portugal, wrapped but you can catch some of the highlights and key takeaways over on the official YouTube channel. Jellysmack's blog offers a brief recap of their event, too.
• What's going on with NFT royalties? Are they dead? “In crypto, code is law,” writes Daniel Kuhn for Coinbase. Brian Zwerner shared some interesting thoughts on the practical aspect of managing NFT royalties.
• “Binance is buying FTX amid 'significant' liquidity issues. Here's how billionaire Sam Bankman-Fried's exchange got here.” by Phil Rosen via Insider
• “Kajabi acquires Vibely” by James Ledbetter via Observer
• The music industry wants more money from TikTok. Two reports this past week highlight the ongoing dance between the popular video app and labels. “Labels asking TikTok for share of ad revenue in new deal talks (report)” by Murray Stassen via Music Business Worldwide. “TikTok Pays Artists ‘Almost Nothing’ in Music Royalties – And the Industry is Losing Patience” by Elias Leight via Billboard Pro ($$)
• “What Dance Tells Us About the Uses and Limitations of Art” by Fran Velasquez via Coindesk
• “Their children went viral. Now they wish they could wipe them from the internet.” By Morgan Sung via NBC News
• It's almost time! Public Domain Day 2023 — What’s fair game now? Aaron Moss breaks down the latest works to fall out of copyright protection in a blog post over on Copyright Lately.
• “YouTube's automated copyright tool riles up musicians” by Peter Balonon-Rosen via Marketplace
• A fantastic and comprehensive breakdown of the breakdowns surrounding Ye / Kanye West by Fara Sunderji. Make note of the wonderful issues list for brands and influencers to consider when working on deals.
• “[I]n the future, content made by humans will be labeled as ‘certified organic content’ or ‘handcrafted artisanal content.’” I laughed so hard at this because it's so true. Read more in the article diving into the issues of AI-generated works. Authentication efforts, like the Content Authenticity Initiative (CAI), will become more vital to the tools used during digital creator workflow processes.

• I encourage creators to think about long-term growth.
• An Order in the HiQ Labs, Inc. v. LinkedIn Corporation litigation was unsealed. It highlights some of the risks that come with data scraping, also known as text and data mining (TDM). I took a close look at the order.
• As I head into Week 7 of publishing this newsletter, I shared some of what have I learned. Check it out.
• Check out my Amazon Storefront where I highlight awesome resources you can buy to explore Creator Economy Law more.

“It gets dark so I can see the stars.”

'It Gets Dark' by Sigrid

Watch on YouTube and Apple Music.

It’s been a tough couple of weeks for workers across tech and several other industries. In light of the layoffs, restructurings, and other events, this week’s music video is what I hope can be an inspirational and uplifting message of support to all those impacted.

For me, this song can represent the experience of going through dark and difficult times, when it can be difficult to see past what’s happening right now. However, once we make it through the darkness, or sometimes once there’s a brief opening in the sky to see beyond the darkness, that’s when we can start to make sense of what is happening around us, and slowly begin to build back up again and reach for the stars.

“I believe you need to feel the lows in life to feel the highs, and you have to know what sucks to then properly appreciate the good stuff,” Sigrid shared of the song.

I hope anyone finding themselves in a period of low can feel the support of the community. I, as well as so many others, are here so don’t hesitate to reach out – franklin.graves@gmail.com .

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No Legal Advice. This newsletter is published solely for educational and entertainment value. Nothing in this newsletter should be considered legal advice. If you need legal assistance or have specific questions, you should consult a licensed attorney in your jurisdiction. I am not your attorney. Do not share any information in the comments you should keep confidential.

Personal Opinions. The opinions and thoughts shared in this newsletter are my own, and not those of my employer or any of the third parties mentioned or linked to in this newsletter. No affiliation or endorsement is implied or otherwise intended with third parties that are referenced or linked.

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