Lawyer Cat

 

Firstly, I would like to make the point that I’m not as sad a person as the rest of this post is going to strongly indicate. I do get out a good bit. I’m married (she’s hot too) with three kids and dog. Secondly, I’m not suggesting for a second that anybody has done anything ‘wrong’ here, or that there is actually any real legal issue to be determined. All that being said, go get yourself a cup, nay, a mug…..to hell with it A POT of tea, because this is a doozy. We are going down the rabbit hole. This is a Matrix-Style Red Pill – Blue Pill situation. Choose wisely.

“Lawyer cat, lawyer cat what are they feeding you? Lawyer cat, lawyer cat, it’s not your fault”

This post is a follow up to my post on Who Owns Bernie Sanders (which you should totally read when you’ve finished this post by the way, it’s great). The purpose of the posts is only to make people aware of the amount of intellectual property (IP) that is involved in, well, sort of any content really and to ask some questions many of you (lawyers and creative content creators alike) probably haven’t thought of before. In many cases, there aren’t easy answers. And that’s fine. Most of the questions posed are theoretical more than practical, in the sense that it’s unlikely (in the extreme) to ever result in any genuine legal action or question. But, as someone once said to me “the law, is the law, is the law”

Just as a starting point, by intellectual property, we usually mean some sort of creative output. The most common forms are Patents, Copyright and Trademarks, but it can also involve trade secrets, goodwill and reputation and all manner of other discrete branches. The intellectual aspect generally refers to the creative/new/intelligent output or creation. It’s the area I specialise in.

Interestingly, any post like this, which discusses any potential breaches of intellectual property rights almost inevitably leads to questions about whether this post breaches any IP itself. For example, I’ll be posting ‘screengrabs’ from various websites below, are they infringements? I’ll let you know if I get sued. Luckily, I know a guy.

So, let’s start at the start. This is the viral video I’m talking about:

 

First up, forget the law, per se, this is freaking hilarious.

Now, this is a video on YouTube. And actually, it’s a very specific video, for a very specific reason. This is the video from the YouTube channel of “394th District Court of Texas – Live Stream” – For you see kids, the forward thinking folks of Texas (take note Courts Service of Ireland!) have set up live streams accessible via YouTube for all their district court sittings accessible and searchable across their, wait for it 1,284 judges! Shut the front door! Outstanding work Texas.

Ok, so what’s the importance of my picking that particular YouTube video? Well, I’m glad you asked. If you search YouTube for “lawyer cat” right now (1pm GMT on 11 February 2021, about 36 hours after the video was first posted online) there’s about 300 uploaded videos on YouTube which are or contain that video. Are they allowed? Is that possible? Can you upload anything you want onto YouTube? SO. MANY. QUESTIONS.

Well, as a starting point, when you go to upload a video to YouTube you actually agree to three separate things:

See. You agree:

1. to Youtube’s Terms of Service;
2. to Youtube’s Community Guidelines; and
3. that you do not violate others’ copyright or privacy rights

Helpfully, to save you having to read all of that legal mumbo jumbo, in big bold writing on the ‘learn more’ about copyright, Youtube says::

So, straight away, it seems clear that all these videos that have been uploaded must be a breach of rights. They didn’t make the videos and/or they contain content that someone else owns the copyright to? Right? RIGHT?

Yes….and no.

Here’s where the plot thickens for the first time. Trust me, this plot thickens to the point of some sort of sinking-sand type goop by the time we’re done.

Who ‘owns‘ the copyright in the original video?

Well, actually, the video was recorded (and technically, that may not actually be the correct term) as the output of one of the Texas District Court’s live streams. By that I mean, this happened in real time originally, and was ‘broadcast’ live on the internet via the livestream that was being fed live from the Courtroom via https://www.youtube.com/channel/UC0DxZETliWgvqsL0CHKR49w. OK, so the video first came into existence as a live stream. TO THE TERMS AND CONDITIONS!!

Under the YouTube Terms and Conditions (and these differ from country to country and region to region, but I’ve picked the US, since we’re in Texas) livestreams are governed by separate terms and conditions which fold into the main terms and conditions, specifically:

 

“Livestream terms and conditions
These terms regarding live streaming (the “Terms”) are for you, the content provider that has contracted with Google (“You”), through the Content License Agreement, Content Hosting Services Agreement, Sound Recording and Audiovisual Agreement, Channel Distribution Agreement and/or the YouTube Terms of Service (any of which are referred to below as the “Agreement”). Through the live streaming account feature, You may live stream content (the “Live Content”) through Your YouTube channel and You may be provided with the option of archiving the Live Content for subsequent viewing (the “Archived Content”). The Live Content must comply with the YouTube Community Guidelines. Notwithstanding anything to the contrary in the Agreement, You represent and warrant that You have all necessary rights for the exploitation of the Live Content on the Google Services throughout the world, including, without limitation, music licensing rights from artists, record labels, publishers (including public performance licenses) and any other royalty participants. You agree to comply with all applicable laws, rules and regulations regarding the Live Content. The Live Content and the Archived Content, if any, will constitute “Provider Content”, “Original Channel Content” or “Your Content” as applicable, pursuant to your Agreement with Google and are subject to the terms of that Agreement. Provider warrants and represents that it has satisfied all regulatory requirements in the Live Stream Territory, including without limitation all licensing, registration or notification requirements, and will maintain such licenses (including any broadcast licenses), registrations, consents, notifications or approvals for the duration of the Live Stream Terms.”

Firstly, you could argue that if the Judge isn’t the person who entered the contract with YouTube, then he isn’t/wasn’t the content creator in the first place and therefore perhaps doesn’t and never owned the rights to license in the first place. Now, In Ireland, the Courts tend to have an inherent jurisdiction to do, mostly, whatever they want in the regulation of their own internal affairs. So, for the purposes of this argument, let’s assume that Judge Ferguson either was the contracting party and therefore the rights owner or had the right to give permission to use footage of what happened in his own Court (which would make sense). Does THAT fix everything?

NOPE.

To the extent that the Judge had or has the right to license the content, the license provided was to media outlets. The content was also purportedly released for ‘educational purposes’. But a lot of the large YouTube channels that have amassed millions of views are commercial entities. The first video I get when I search ‘Lawyer Cat’ for example is The Guardian Newspaper group. So to the extent that commercial entities use the content to leverage views, followers, advertisers, is that in keeping with the purposes of the limited license (for educational purposes)? Questionable. Shouldn’t all YouTube channels that carry the video have ads disabled? What about posting the video or embedding it on the web pages of commercial media organisations which carry ads etc? Tricky

And there’s another issue. Back to Youtube’s Terms and Conditions:

The following restrictions apply to your use of the Service. You are not allowed to:
access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders;

There is two implications arising from this:

One, its (quite strongly arguable) that because the content originated from a YouTube Livestream, it isn’t possible for the Judge or the contract holder of that YouTube channel to license it in the firs place without the people wanting to use it also having to get written permission from YouTube. And even if it is or was, it may not be permissible for all the other accounts to reproduce that content notwithstanding any license. What is a bit, well, confusing and complicated…..

I think I need a sit down.

And let’s just take this one step further. Let’s assume that all of the above is all ok. So all the media organisations (and lets say everybody else too) are allowed use this video any way they want. What if the video you choose to copy or republish or re-upload isn’t the original video, but one of the subsequent videos that contains that original (and legitimately licensed video). BOOM, your head just exploded.

Other Intellectual Property (and other) Questions

 

To what extent did the participants in the original Zoom call consent to their image and likeness being broadcast around the world? Was the consent limited to being broadcast on the original live stream? Were separate releases required to authorise the other Youtube uploaders to broadcast, or re-broadcast or re-upload?

What about posting this Youtube content to other mediums like Twitter/Instagram/Facebook etc?

Mostly I’ve been looking at the issues around re-posting this on YouTube or re-broadcasting it and embedding the original (or other) YouTube videos on your site. But look at it this way, the original video, which originated in a YouTube livestream, and was original then published on YouTube has about 7m views. But this tweet, which doesn’t embed the YouTube video or link to it has 33m views….and its on Twitter.

 

So, view that from YouTube’s perspective, content which originated on its platform has over 4 times more views on its rival site Twitter. And not a YouTube logo in sight. If you were a YouTube exec, would that bother you? (spoiler alert, YES!)

And finally spare a thought for the person who uncovered this to start with and is largely going unsung. The judge posted his original tweet at 6.06pm. 5 minutes later and quick as a cat (sorry not sorry), Kendle spotted it and re-posted it.

She has 808 loves for her efforts, which is what happens when you don’t get the h/t in the main tweet, I guess….

MEMES and More

What about the very many videos and Memes that have spun out of this already, and are going to continue to?

What about this?

 

Apart from how incredibly quickly Julie Birke managed to turn this around (seriously, I mean to get this done so quickly is so impressive) is she entitled to use the audio like this? Yes, I would argue, certainly under Irish Law (where I am) under a fair use or fair dealing exception, even if it wasn’t covered by the above licence from the Judge we have already discussed. Most jurisdictions (as I mentioned in the Bernie Sanders post) have some sort of copyright carve out for comedy or parody in their ‘fair use’ exceptions.

So, Julie is (thankfully) in the clear.

What about the fact that TikTok’s logo and Zoom’s logos (both of which are registered Trademarks) appear on all these broadcasts and re-broadcasts. Is that ok? And if it is, can I take TikTok’s logo (for example) and put it on any video I want, whether or not it was created in TikTok?

What Happens Next for Lawyer Cat

 

Lawyer Cat Trademarks

I will bet $100 with anybody willing to take the bet that within the next week there will be at least 10 trademark applications with the USPTO to register “I am not a cat” other cat-formative (that’s what we call a trademark based on the word “cat” BTW). As at the time of writing, only trademark applications filed up to 7 February 2021 are currently searchable, so while someone has probably already applied for a trademark, I can’t see it yet.

Are they allowed do that? Isn’t that phrase copyrighted or something?

OH LORDY

Well, that’s a hornet’s nest I’m not sure I’m willing to poke. Could “I am not a cat” be capable of attracting copyright protection? Probably not. If it could, who would “own” it, the lawyer who said it Rod Ponton or the Judge or Youtube?

Could it function as a trademark? Possibly, in certain circumstances. But almost certainly most of the applications will be for t-shirts and some for pet food. And for each of those classes of goods, probably not.

My guess is that 90-100% of the trademark applications that are filed for “I am not a cat” (or similar) will be refused. And even if they are not, it will take at least 6 months for the registration to come through, at which point “I am not a cat” will no longer be a thing.

Lawyer Cat Filters

Interestingly, the world has gone made looking for the filter to re-create lawyer cat. I haven’t gotten into that, but there’s intellectual property involved in the creation of those filters, and how they are uploaded to the various platforms that utilise them.  This lawyer cat filter actually seems to be a legacy filter on old Dell machines:

So quick, dig out the old Dell machines everybody!

BUT, it’s only a matter of time before someone accurately recreates perfectly this filter for Instagram / Tiktok / Snapchat, and then what? Will they use a photo of the cat, will they re-create it from scratch? How will this be done. And will the result infringe the original creators IP (probably).

Lawyer Cat Brand Activations

I promise you that clever marketers (and plenty of not so clever marketers) are trying to figure out how to jump on this bandwagon. Expect some brands to come out with their own viral “I am not a cat” output in the next 24-48 hours. Whether any of them stray too far into IP infringement remains to be seen, but probably.

 

Conclusion

As I said at the outset, the real purpose of this post isn’t to highlight what anybody has done ‘right’ or anybody has done ‘wrong’. The purpose is to show you just how many potential legal (and particularly intellectual property law) questions can arise from a 43 second video. And bear in mind, all these issues have just arisen in the last 36 hours. There’s still a good bit of content to be created that will (or at least should, in theory) have to deal with and tackle these issues. In truth, unless someone with deep pockets slips up, nobody is likely to end up in Court for IP infringement arising out of this.

However, if you do (have deep pockets and mess up) call me!