shadow will follow from a series of interactions with, for example, media, fans, followers, volunteers, influencers, participants, users, customers, partners, suppliers, staff, investors or shareholders and regulators. When casting one’s mind back to original copyright ownership, it seemed straightforward to determine origination at input and output and establish provenance. For example, in 1953, the Supreme Court of the United States decided that in 1937 Walt Disney broke an agreement when an unauthorised copy of 32 copyrighted images was made. In 2023, the global artist Ed Sheeran was cleared by of a claim that he had breached copyright in Marvin Gay’s song ‘Let’s Get It On’. AI increases opportunities to conceal and confuse origination and provenance of recognised proprietorship concepts. This is apart from huge practical difficulties in enforcement with jurisdiction shopping and non-alignment of national laws. Most civil law and some common law systems require human input for artists’ copyright to exist. AI event happened when the president of the Spanish Football Federation, Luis Rubiales, is alleged to have kissed one of Spain’s leading players Jenni Hermoso on the lips without consent during the award presentation. Public perception of gender reputational issues highlighted by the ‘Me Too’ movement has evolved quite rapidly. Its origin can be traced to Myspace in 2006. However, when Harvey Weinstein was arrested in New York on charges of rape in 2018, the phrase became global news. The allegations against Mr Rubiales hardly warrants fair comparison with Mr Weinstein’s convictions. However, a shadow has been cast because of public attitude towards what is acceptable behaviour of a senior football official. In the entertainment sector, recent days have seen serious allegations against Russell Brand. The response from YouTube has been to take down the feed (and, therefore, the monetisation model) relied upon by Mr Brand, who is reported to have 6 million followers. Risk 2: Likely increasing challenges to the ownership and exploitation of intangible assets as a result of the evolution of technology including generative AI Monetisation of sport and entertainment brands has largely relied upon on an 24 LAWYER MONTHLY OCTOBER 2023 exclusivity of access model. Performing a song and streaming a record are both examples of the creation of an intangible asset. Such intangible assets may be recognised as intellectual property (IP) and in some circumstances exist as a combination of IP and contracts sometimes known as contract IP. IP can exist, for example, in names, images, likenesses, designs, works, performances, etc. In the sport industry, access might be through a sponsorship or endorsement agreement. Blockchain technology offers innovative new ways to monetise intangible assets through a tradeable instrument known as an NFT or smart contract. In the music industry, securitisation of a back catalogue – innovated, I believe, originally by David Bowie – has remained popular. The lawyer’s approach to is first to identify property or analogous rights in the point of their origination and then consider their further application at the point of output. This includes copyright, trademarks, patents, personality rights, unfair competition and goodwill. Identifying the proprietary basis of the asset is only part of the story. A paintert may own copyright in a painting. If Hockney was the artist, the painting would have an entirely different value. Brand values reflect the value of the reputational shadow. The extent of the My favourite quote of all time on reputation is that of Abraham Lincoln, who said: “Character is like a tree, and reputation is like a shadow. The shadow is what you think of it; the tree is the real thing.”
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