Zamani thomas legal Archives | Miami IP, Trademark & Entertainment Lawyer

Civil Rights, Copyright, and Owning a Movement

When Dr. Martin Luther King Jr. said, “ I Have a Dream,” I’m pretty sure he wasn’t considering for one second the copyright implications. There will be many posts today celebrating his great achievements, but why not also talk about some copyright law. All his iconic speeches are still under copyright and not free for the public domain to access as yet. So the bigger question then, who owns the IP of social movements?

I probably spend too much time thinking about the legal side of history when it comes to too many things, especially IP law. I’ve noticed a battle that’s been brewing for years between protecting someone’s IP and making sure the public can learn and be inspired by their work. What’s even more complicated is when the work and that person happens to be a civil rights legend who reshaped history.

Things have gotten tricky in the digital age; Tik Tok, Instagram, X etc. can reach millions each day. The advent of these platforms have made it more difficult for the estates of these social movement pioneers to keep the messages authentic.

Add in AI to this and you get a barrage of deep fakes, voice cloning and you may see Dr. King giving a speech he never gave.

Here are a few ideas on how to keep Dr. King’s legacy (and others like his) safe from misappropriation while allowing people to learn and share his message freely for proper usage in our 24/7 digital world.

Limited-Term Copyright for Social Impact Works – Possibly let crucial civil rights speeches and works enter the public domain faster (currently life span of the author + 70 years), while still protecting the financial interests of the estates.
Open Licensing for Educational Use – Give teachers, historians and educational institutions the ability to teach the content without having to jump through hoops.
Fair Use Expansion – Allow educators and activists to use more of the speeches and works and not have to worry about a copyright takedown for every little snippet posted.
AI Ethical Guidelines – Create some concrete laws and ground rules so we are not facing a future where all our heroes and icons aren’t selling toothpaste or coffee mugs, unbeknownst to their estate.

As an IP Attorney, I admit I’m biased to keeping the law relevant and with the speed of social media and AI, we need to seriously consider how we protect important social messages. We need to try our best to keep history accurate. Should social movement speeches and texts remain locked behind copyright, or free for the public to share? And how does AI fit into this?

Drake v. UMG: From Booth to Courtroom, a New Style of Rap Battle

By Zamani Thomas Blog Roll

What started as a threat a month or so ago has now become an actual case. I guess this is what happens now when the two biggest names in rap clash. While I am not here to pass judgement on either side, there was a time, in which I grew up, not long ago when rap beefs never entered the courtroom (admittedly they still too frequently end in the streets with violence).

Leaving the hip hop cultural taboo of bringing this clash to the courts rather than the booth aside, I thought it would be interesting to look at the legal issues involved here. Many of these issues I’ve litigated or been involved in during my career and I am looking forward to seeing how they play out.

Without opinion nor bias, below are the legal issues Drake is bringing to the table in his lawsuit against Universal Music Group (UMG):

Defamation (Libel):

– Drake alleges that UMG knowingly published and promoted the song “Not Like Us” which accuses him of being a pedophile.

– Drake must prove that false statements were made and they cause reputational harm and were made with negligence or malice.

– UMG can claim as a defense that the lyrics were artistic expression and protected under the 1st Amendment.

Negligence & Duty of Care:

– Drake can argue that UMG owed him the duty of care as an artist on their label

– If UMG published the song and knew the lyrics were harmful, negligence could be considered..

– UMG may posit the question of whether they owed Drake a duty to prevent reputational damage caused by another artist signed to them.

Breach of Fiduciary Duty:

– Labels owe artists a duty of good faith and fair dealing.

– Drake will try to show that UMG prioritized Kendrick’s success at his expense and breached this duty.

Misrepresentation & Fraud:

– Drake could argue fraudulent representation if UMG assured him of label support but promoted damaging content.

– Drake must prove intentional deception and financial or reputational harm.

Contractual Violations:

– Depending on the contract between Drake and UMG, there may be violations constituting breach.

Tortious Interference:

– Drake could look to argue UMG interfered with his career and led to some lost business opportunities.

– Drake must prove UMG’s actions intentionally harmed him professionally and earnings wise.

First Amendment Defense by UMG:

– UMG will argue “Not Like Us” is artistic expression and thus protected speech under the 1st amendment.

– In most cases courts are likely to lean on the side of protecting lyrics as free speech unless proven to be statements made intended to cause harm.

This isn’t the first time a recording artist has sued their label, it is the first time to my knowledge that a hip hop artist is suing his/her label over a diss-track by a label mate. If successful this landmark case could have a chilling effect on rap beefs going forward and would alter the competitive sport of rap battles in the future.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

AI Assisted vs AI Generated: What is the difference and when does it matter?

By Zamani Thomas Blog Roll

The Year is now 2025 and the informational landscape has shifted drastically. There was a time not too long ago that the only question you had about someone’s blog, article or book was whether they wrote it with original ideas or stole the ideas from someone else. Now that question is murkier. We now ask, did someone or something write it and to be more precise, even if they did, was it generated by a machine and edited by a human or written by a human and edited by a machine?

The real question if we are being honest with ourselves is this: Does it even matter if it was assisted or generated?

Clearly the first items to discuss given the proposed question of this post are; what are the definitions of AI Assisted and AI Generated? For this i plugged the question directly into Chat GPT and the answer it gave were as follows:

AI-Assisted: Content, work, or decisions that are created with human input and guidance while using AI as a tool to enhance, refine, or accelerate the process. The human remains the primary creator, using AI for support in tasks such as editing, brainstorming, drafting, or automation.

AI-Generated: Content or work that is primarily or entirely created by AI with minimal to no human intervention. The AI independently produces text, images, code, or other outputs based on a given prompt or dataset.

The definitions show that the key distinction between the two rests on the level of human input and involvement of the work output. with Assisted works, humans remain primarily in control and Generated works relying mainly on AI to assume the responsibility of the work product.

When and why does it matter?

Below are some quick bullet points of when it is generally accepted to use, avoid and why for various forms of work and creative endeavors.

Academic & Research Work

Use AI Assisted for brainstorming, organizing etc, but your research and findings should be your own thoughts.
Avoid AI Generated because many research elements are not accurate as well as hallucinations that AI is known for can cause inaccurate or unverified conclusions.
Why it Matters: Most Academic Institutions prohibit AI Generated work that isn’t disclosed.

Professional Writing & Journalism

Use AI Assisted for grammar, some research as long as accuracy is verified
Avoid AI Generated with sensitive information, especially items that may cause legal issues
Why it Matters: Journalists in theory require accountability, credibility and oversight.

Creative Writing & Content

Use AI Assisted for writer’s block, or refining ideas while using your own style and uniqueness
Use AI Generated for drafts, concepts or sketches but refine and edit to make it your own
Why it Matters: Readers want to know that they are reading a unique work and creation out of the mind of the author.

Legal/Business Documents

Use AI Assisted for drafting preliminary contracts or summaries that comply with legal standards and is thoroughly reviewed and fact checked by a lawyer.
Avoid AI Generated because AI can’t guarantee the accuracy of a legal document and pulls information from many sources that are either old law or bad law. Also some clauses drafted are unenforceable.
Why it Matters: Legal errors can have catastrophic consequences for clients and can lead to ethical issues and possible disbarment for lawyers.

Marketing/Branding

Use AI Assisted for ideas, and strategy ideas but refine for brand synergy
Use AI Generated for media posts, descriptions of products etc.
Why it Matters: AI lacks brand nuance and the human feel that goes into creating a personal touch.

Code/Software Development

Use AI Assisted for generating repetitive code and assisting with security features etc.
Use AI Generated for simple code and scripts but refine and review for errors
Why it Matters: AI code contains security risks and requires human validation.

There are many sites online now claiming they have the best AI detector out there and that their programs can identify the precise amount of AI used or not used. However, false positives are common on these sites thus human oversight and improved methods to distinguish between AI Assisted and Generated content is still needed.

In Summary, Using AI Generated and, to a lesser extent, AI Assisted content requires human discretion as we move in this new digital world. Only the author truly knows how much use of AI they have incorporated. When using primarily AI Generated content it is the responsibility of said author to disclose that use.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

6 Differences Between U.S. and Canadian Trademarks

By Zamani Thomas Blog Roll

Canadians should consider trademarking their brands in the U.S. due to its much larger consumer market, for protection against cross border infringement and to secure their brand’s identity in cross-border trade (particularly now with e-commerce etc.). Without a U.S. trademark, many Canadian brands risk losing their competitive advantage in the United States. Below are some differences between the two country’s processes.

The Use Requirements for Registration & Filing Basis
- U.S.: An applied for trademark in the United States has a requirement that it is currently being used in commerce for it to be registered with the USPTO. Applicants are able to file for a trademark with an “Intent to Use” 1(b) filing basis, however, the examiner will not register the mark until there is evidence of that mark in use with a 1(a) filing basis.
- Canada: Trademarks in Canada are not required to be “In Use” in order for the registration to occur, thus no filing basis is required. However, in order to maintain your trademark long term, the mark must be In Use or the trademark could be removed from the Register of Trademarks

Trademark Duration and Renewal
- U.S.: Registered marks in the United States must be renewed every 10 years and a declaration of continued use must be filed between the 5th and 6th year to maintain the registration.
- Canada: Registered marks in Canada must be renewed every 10 years, however do not require any midterm declarations

Distinctiveness
- U.S.: The USPTO maintains that distinctiveness is a critical element of a registered mark. If your mark is generic or descriptive it is not registerable. If your mark is descriptive the USPTO may ask for proof of “Secondary meaning”
- Canada: Distinctiveness is important in Canada but is not as narrowly monitored as in the States. The Canadian Intellectual Property Office (CIPO) may accept broader descriptive elements than its U.S. counterpart.

Trademark Opposition
- U.S.: Oppositions in the U.S. are filed with the Trademark Trial and Appeal Board (TTAB) which operates as a semi-judicial body.
- Canada: Oppositions in Canada are handled by the CIPO itself and not as formal as the TTAB procedure.

Examination of Applicants and Scope of Protection
- U.S.: The USPTO has a stricter and more in depth examination process; Particularly their assessment of “likelihood of confusion” analysis with existing registered (and times applied for) marks.
- Canada: The CIPO process is not as rigorous overall, but does include a broader assessment of descriptiveness and registerabilty.

Nationwide Protection
- U.S.: Federal and State registrations are available in the U.S.. However federal registrations are considered superior and only available if the mark is being used in interstate commerce.
- Canada: Registered trademarks in Canada enjoy federal protection even in cases where there is no inter-provincial or international trade.

Disclaimer

The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any matter.

The Warhol Prince Conundrum and How it Affects Creatives

By Zamani Thomas Blog Roll

The importance of clarity when it comes to legal decisions that impact artists and creatives is essential in intellectual property analysis and practice. Today, I aim to provide you with an in-depth analysis of the recent Supreme Court ruling on the copyright dispute involving Andy Warhol and his portraits of Prince. This ruling is of great significance, as it delves into the complexities of intellectual property law, fair use, and the delicate balance between creativity and infringement.

Intellectual Property Law and Fair Use:

In order to grasp the Supreme Court’s ruling, we must first explore the foundations of intellectual property law. Copyrights exist to protect the rights of creators, granting them exclusive control over their original works. However, fair use acts as a crucial limitation on these rights, allowing certain uses of copyrighted material without the need for explicit permission.

The Fair Use Doctrine:

Fair use is a legal doctrine designed to strike a balance between the interests of creators and the broader public. It acknowledges that certain uses of copyrighted material contribute to the enrichment of society, fostering innovation, creativity, and the free exchange of ideas. The concept of fair use allows for transformative uses of copyrighted works, facilitating the emergence of new and original expressions.

The Andy Warhol Case:

Now, let’s turn our attention to the copyright dispute at hand. The case centered around Andy Warhol’s creation of a series of portraits based on a photograph taken by Lynn Goldsmith. Goldsmith argued that Warhol’s use of her photograph constituted copyright infringement, as it was done without her permission.

The Supreme Court’s Ruling:

In its ruling, the Supreme Court made a significant decision in favor of Andy Warhol and his artistic practice. The Court recognized that Warhol’s portraits of Prince were not mere replicas of Goldsmith’s photograph. Instead, they constituted distinct artistic expressions infused with Warhol’s signature style and transformative vision. By applying the fair use doctrine, the Court acknowledged the creative reinterpretation by Warhol, ultimately protecting it as a legitimate artistic endeavor.

Implications for Artists and Creatives:

This ruling has far-reaching implications for artists and creatives. It reinforces the notion that fair use plays a vital role in fostering innovation, cultural enrichment, and the continued progress of art. By acknowledging the transformative nature of Warhol’s work, the Court has emphasized the importance of artistic freedom and creative expression.

The Boundaries of Creative Expression:

The ruling in the Andy Warhol case also sparks a broader discussion on the boundaries of creative expression and the potential dangers of excessive copyright protection. It recognizes that creativity often thrives on building upon existing works, reimagining them, and adding new perspectives. By carefully considering fair use and transformative qualities, we can strike a balance that allows for artistic innovation while respecting the rights of original creators.

Maintaining the Balance:

It is crucial to understand that fair use is not an absolute defense. Each case must be examined on its individual merits, considering factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the potential impact on the market value of the original work. We must preserve the delicate balance between the rights of creators and the public’s interest in accessing and engaging with creative works.

In conclusion, the Supreme Court’s ruling in the Andy Warhol copyright dispute marks a significant milestone for artists and creatives. By recognizing the transformative nature of Warhol’s work and its contribution to artistic development, the Court has reaffirmed the importance of fair use in fostering a vibrant cultural landscape.

Rules and Regulations of NIL

By Zamani Thomas Blog Roll

If you’re a college athlete, you may have heard the term NIL (name, image, and likeness) thrown around a lot lately. It refers to the ability of college athletes to profit from their own name, image, and likeness. However, the rules and regulations surrounding NIL can be a bit confusing. In this article, we’ll break down everything you need to know about NIL.

What is NIL?

NIL stands for name, image, and likeness. It refers to the ability of college athletes to profit from their own name, image, and likeness. This means that if you’re a college athlete, you can make money by selling autographs, promoting products on social media, or appearing in advertisements, among other things.

Who can take advantage of NIL?

As of July 1, 2021, all college athletes can take advantage of NIL. This includes athletes in all sports, regardless of whether they play at a Division I, Division II, or Division III school.

What are the rules surrounding NIL?

There are a few key rules and regulations surrounding NIL that you need to be aware of:

You cannot receive compensation for athletic performance. This means that you cannot be paid to play your sport or to win games.
You cannot enter into NIL agreements that conflict with your school’s existing contracts. For example, if your school has an apparel contract with Nike, you cannot enter into an NIL agreement with Adidas.
You must disclose all NIL agreements to your school. This includes providing your school with a copy of the agreement and any compensation you receive.
You cannot use your school’s logos or trademarks in your NIL activities. This means that you cannot use your school’s name, logo, or mascot in your social media posts or advertisements.
You cannot use your school’s facilities or equipment in your NIL activities. This means that you cannot use your school’s weight room or practice field to film a commercial or photoshoot.

How can you take advantage of NIL?

If you’re a college athlete looking to take advantage of NIL, there are a few steps you should take:

Educate yourself on the rules and regulations surrounding NIL. Make sure you understand what you can and cannot do.
Build your personal brand. This means creating a strong social media presence and cultivating relationships with brands and businesses that align with your values and interests.
Seek out NIL opportunities. Look for brands and businesses that are interested in working with college athletes and reach out to them directly.
Disclose all NIL agreements to your school. Make sure you provide your school with a copy of the agreement and any compensation you receive.

In conclusion, NIL provides a new and exciting opportunity for college athletes to profit from their own name, image, and likeness. However, it’s important to be aware of the rules and regulations surrounding NIL and to make sure you’re following them closely. By educating yourself, building your personal brand, and seeking out NIL opportunities, you can take advantage of this new landscape and potentially earn some extra income as a college athlete.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

IP differences between NFTs and Traditional Art

By Zamani Thomas Blog Roll

When it comes to the legal issues surrounding intellectual property (IP), there are many similarities between non-fungible tokens (NFTs) and traditional art. However, there are also some key differences that you need to be aware of if you are buying, selling or creating either.

Ownership and Copyright

In both cases, the owner of the artwork owns the copyright, which gives them exclusive rights to reproduce, distribute, and display the work. However, with NFTs, the ownership of the digital artwork is recorded on a blockchain, which can make it easier to prove ownership and track any transactions related to it.

Licensing

Both traditional art and NFTs can be licensed to others for reproduction or display. However, the terms of the license should be clearly stated and agreed upon by both parties to avoid any disputes later on.

Fair Use

Fair use is a legal doctrine that allows for the use of copyrighted material without permission in certain circumstances, such as for criticism, commentary, news reporting, teaching, scholarship, or research. However, the boundaries of fair use can be complex, and it is important to seek legal advice if you are unsure whether your use of a work falls under fair use or not.

Plagiarism

Plagiarism is the act of passing off someone else’s work as your own. This is a serious issue in both traditional art and NFTs, and can lead to legal action being taken against the plagiarizer.

Contracts

Contracts are an important tool in both traditional art and NFTs. They should be used to clearly outline the terms of any transaction or license, including the rights and responsibilities of each party. It is important to have a lawyer review any contracts to ensure that they are legally sound and protect your interests.

In conclusion, while there are many similarities between the intellectual property legal issues of traditional art and NFTs, there are also some key differences that you need to be aware of. By understanding these issues and seeking legal advice when necessary, you can protect your rights and interests when dealing with both traditional art and NFTs.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The importance of IP protection in the Crypto World

By Zamani Thomas Blog Roll

If you’re involved in the world of cryptocurrencies, you likely know how important it is to protect your digital assets. But what about your intellectual property? In this article, we’ll explore the significance of intellectual property protection in the crypto space and provide practical advice on how to safeguard your creations.

What is intellectual property?

First, let’s define intellectual property. It refers to intangible assets that are created by human ingenuity, such as inventions, literary and artistic works, designs, symbols, and names. Intellectual property can be protected through legal means, such as patents, trademarks, copyrights, and trade secrets. These protections are designed to give the creators of intellectual property the exclusive right to use, distribute, and profit from their creations.

Why is intellectual property protection important in the crypto space?

The crypto space is a hotbed of innovation, with developers creating new and exciting products every day. However, this innovation also creates a need for intellectual property protection. Here are some reasons why:

Crypto products are easily replicable: Digital assets are easily copied and replicated, which means that without proper protections, your innovations can be stolen and profited from by others.
The crypto space is largely unregulated: The lack of regulatory oversight in the crypto space means that intellectual property theft can go unpunished. Without legal protections in place, there is little recourse for those whose intellectual property has been stolen.
Intellectual property is often the key to success: In the highly competitive crypto space, intellectual property can be the difference between success and failure. Protecting your creations can give you a competitive edge and help you stand out from the crowd.

How to protect your intellectual property in the crypto space

Now that we’ve established the importance of intellectual property protection in the crypto space, let’s look at some practical steps you can take to safeguard your creations.

Register your intellectual property: The first step is to register your intellectual property with the appropriate authorities. This might include patents for inventions, trademarks for logos and names, and copyrights for literary and artistic works.
Use open source licenses: If you’re developing open source software, consider using a license that protects your intellectual property. There are many open source licenses available, such as the MIT License or the Apache License, that allow you to share your code while still retaining some control over how it is used.
Monitor for infringement: Keep an eye out for intellectual property infringement in the crypto space. This might include monitoring social media, forums, and other online platforms for unauthorized use of your creations.
Enforce your rights: If you do discover infringement, take action to enforce your rights. This might include sending cease and desist letters or taking legal action against the infringing party.

In conclusion, Intellectual property protection is crucial in the crypto space. Without it, your innovations can be easily stolen and profited from by others. By taking steps to register, license, monitor, and enforce your intellectual property rights, you can safeguard your creations and give yourself a competitive edge in the fast-moving world of cryptocurrencies.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

How to (possibly) overcome a Likelihood of Confusion Trademark application refusal

By Zamani Thomas Blog Roll

Are you struggling with a Likelihood of Confusion Office Action from the USPTO? Don’t worry – with the right approach, you can overcome this obstacle and secure your trademark registration. Here are some steps you can take to respond to a Likelihood of Confusion Office Action:

Understand the issue: First and foremost, it’s essential to understand what the issue is and why the USPTO has raised a Likelihood of Confusion Office Action against your trademark. You should review your application and the cited mark that the examiner has identified as potentially conflicting. This will help you to identify the specific reasons why the examiner believes there may be a likelihood of confusion.
Analyze the marks: Once you’ve identified the specific issues, you need to analyze the marks and identify the similarities and differences between them. This will help you to determine whether the examiner’s concerns are valid or not.
Determine the scope of protection: Next, you need to determine the scope of protection for your mark and the cited mark. This involves analyzing the goods and services associated with each mark and determining the degree of similarity or overlap.
Develop a response strategy: Based on your analysis, you can then develop a response strategy. This may involve amending your trademark application, submitting evidence of acquired distinctiveness, or arguing that there is no likelihood of confusion. You may also consider negotiating a coexistence agreement with the owner of the cited mark.
Submit a response: Once you’ve developed your response strategy, it’s time to submit your response to the USPTO. Be sure to include a clear and concise argument that addresses the examiner’s concerns and provides evidence to support your position.

Remember, the key to overcoming a Likelihood of Confusion Office Action is to be proactive, thorough, and strategic in your response. By taking the time to understand the issues, analyze the marks, and develop a response strategy, you can increase your chances of securing your trademark registration.