Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

America’s AI Action Plan:  Strength Through FAFO

ai

With an introduction that combines the quasi-erudition of Big Tech utopianism and just enough dipshit to sound like Donald Trump, the White House unveiled an action plan on artificial intelligence that is part magical thinking and part policy statement. It all adds up to one bottom line: “Let Big Tech do what it wants, and things will be great.”

In fairness, letting Big Tech do what it wants has a solid bipartisan tradition in U.S. policy, but the naivete of the late 1990s is ancient history. The public and Members of Congress are now well versed in the many negative consequences of laissez faire policy that allowed Web 2.0 to run amok liability free, and yet, despite hearing after hearing with Senators proclaiming outrage at the tech giants, we are poised to approach the development of artificial intelligence with the same doe eyed, babes-in-the-woods innocence of people who cannot learn from experience.

Regarding most of the action plan’s content, the language itself describing each initiative—from science and medicine to national defense—is innocuous and irrelevant. Because no matter what is proclaimed as a goal, the question of AI development that can benefit the American people comes down to guardrails and oversight—and usually some combination of the two. Unfortunately, we have neither.

The tech companies have repeatedly demonstrated that they possess no ethics that would prioritize public interest over profit; the Trump administration has no credibility about anything; and Congress has largely been reduced to performance art, promising for the last eight years that it will finally “rein in tech.” Thus, the AI action plan, like so many plans of the current administration, boils down to fuck around and find out (FAFO).

Unlike major transformative undertakings of the past—the action plan cites the space race—no technology has had the potential to crawl into every aspect of social, economic, and political life as AI. Data runs the world, which means those who control the data run the world. Hence, the promise of what AI could do for society rests entirely on the guardrails and oversight which the industry rejects out of hand and the Trump administration believes are unnecessary.

As one obvious example, a whole section of the plan discusses “empowering American workers,” which is boilerplate for any administration except that most predictions about AI include job loss at unprecedented scale. To navigate this fresh terrain—either to mitigate job loss or address the consequences of job loss at scale—requires leadership that is intelligent and gives a damn about people. But this administration is neither intelligent nor cares about anyone, including the people who voted for them.

Consider one example from a friend who is sanguine about AI’s potential, and who recently mentioned the likelihood that an AI will soon be much better at reading a medical scan or X-ray than a human radiologist. That prediction, and the penumbra of medical advancements it implies, is entirely reasonable but also invites a cascade of ethical considerations that the party of Trump would sweep into the dustbin called “over regulation.”

So, sure, in theory we could be the beneficiaries of faster, more accurate, and cheaper diagnostics with the potential to alleviate scenes like the bottleneck seen every day in my local ER. But ordinary Americans will not truly benefit from these and other promised advancements without public oversight, and I imagine the party that wants to kick millions of Americans off health insurance rolls and scale back essential services doesn’t give a flying fuck.

As the mantra about Web 2.0 preaches, “If the service is free, then you’re the product.” That was and remains a dangerous consequence of social media platforms. But what happens when the same principle applies to access to medical or other critical services wholly controlled by one or two AI companies—say Meta or Amazon?—run by leaders with zero morals? Maybe the out-of-pocket price comes down initially and revitalizes the utopian “age of abundance” rhetoric from tech’s cheerleaders, but the real implication of having a handful of companies providing essential services is technological feudalism. And that prospect undermines the animating imperative of the AI action plan—i.e. to “beat China” in this new cold war.

But at present, we’re just too stupid to beat China at this game because we’ve reached a crisis state when we have no fucking idea who we are as a nation anymore. One section of dipshittery in the action plan states that AI will “protect speech and American values” and that these ends will be achieved, in part, by “eliminat[ing] references to misinformation, Diversity, Equity, Inclusion, and climate change.” Right. Fuck the best and brightest for the sake of the vested whitest. Because that’s how we won the space race, right? Without mathematicians Katherine Goble Johnson, Dorothy Vaughn, and Mary Jackson.

Meanwhile, the White House built on misinformation, sedition, hate, crime, grift, ignorance, and authoritarian tactics has a plan to “protect American values” by behaving exactly like China and other anti-democratic societies. I’d call that burning down the village to save it, but especially with AI, it’s actually erecting a Potemkin Village and calling it America. Web 2.0 has been a multipronged disaster because congressional leaders on both sides of the aisle naively decided to let the experiment run for years until finally expressing regret circa 2017. Now, we are poised to double down on the errors of the 1990s and FAFO with a tech fraught with uncertainties for the American people. Beat China? We’re not smart enough to meet the moment.

Photo by Yacobchuck

A Brand Divided: Trademark and the Legacy of Frida Kahlo

frida kahlo

In 2018, when Mattel introduced the Frida Kahlo doll as part of its “Inspiring Women” collection in the Barbie portfolio, some consumers saw a strong feminist statement, but many observers familiar with Kahlo’s life and work saw a commercial exploitation the artist would have hated. Indeed, Kahlo was a sharp critic of American capitalism and the kind of bourgeois sensibility that would presume to commoditize a plastic gloss on her complicated and painful story—let alone a false rendering of her likeness and traditional Tehuana dress.

In rejecting the label “surrealist,” Kahlo said that her famously tortured self-portraits (e.g., The Broken Column) were not expressions of haunting dreams but depictions of her reality—a reality largely defined by a shattered body. Kahlo was born with polio and then, at the age of eighteen, was impaled by an iron handrail when a trolley crashed into the bus she was riding in Mexico City. The near-fatal accident foreclosed her intended career as a physician, and Kahlo spent months of cast-entombed recovery painting in bed by means of an easel her mother rigged to allow her to work in a supine position. With the aid of a mirror also suspended nearby, her own face became her most consistent model.[1]

Although Kahlo said that she frequently painted herself because she was so often alone, it is paradoxically this abundance of self-portraiture that makes her, perhaps, the most widely recognized visual artist in the world. Relatively obscure between her death in 1954 and the 1983 biography by Hayden Herrera, Frida Kahlo’s story and artworks now comprise, for better or worse, a brand—and one that her family is trying to regain control of to prevent inappropriate applications like Kahlo Barbie.

Whether Frida Kahlo herself would have scorned the notion of becoming a brand, it is the inevitably careless uses of a famous artist’s name and likeness that emphasize both the value of protecting intellectual property and of having that IP managed by thoughtful stewards. Most often, this means family heirs, and in the eyes of Kahlo’s grandniece Mara Pinedo, the Frida Barbie was among the more offensive breaches of an already souring arrangement between Familia Kahlo, a Mexican entity, and Frida Kahlo Corporation (FKC), a Panamanian entity. [2]

The roughly thirty years between Frida Kahlo’s death and the explosion of interest in her story and work—the term Fridamania applies—emphasizes the role of trademark as a means for family heirs to control the artist’s legacy. In Kahlo’s case, the copyrights on the paintings have either expired or are controlled by other parties, and the right of publicity under Mexican law expired in 2004. But because trademarks are indefinitely renewable, these become the IP crown jewels that need to be enforced and protected.

In 1954, all rights descended under Mexican law to Kahlo’s niece, Isolda Pindeo Kahlo and subsequently to her daughter Mara Pinedo, presently owner and officer of Familia Kahlo. Under the terms of a 2005 agreement, Familia Kahlo transferred trademarks to FKC but states in court briefs that they conditioned FKC’s authority to make licensing agreements upon obtaining permission from the family for every deal. Oscar Gomez, attorney for the family tells me via email:

Over time, FKC repeatedly engaged in the commercial use of Frida Kahlo’s name, image and likeness without consulting the family or obtaining the approvals required under the 2005 agreement. Products and partnerships were launched — including consumer goods the family and general public found culturally insensitive or inappropriate — without the family’s knowledge or involvement. These actions were in clear disregard for the approval process intended to protect Frida Kahlo’s legacy.

Based on the alleged breaches of the 2005 agreement, Familia Kahlo seeks to revert all trademarks back to its exclusive control, and this matter is presently being litigated in Spain and Panama. “In Spain, the court is focusing its review on whether certain European trademarks were wrongfully revoked and otherwise who holds rightful ownership. In Panama, there is a separate legal action to resolve the corporate control of the FKC entity,” says Gomez.

Litigation in Florida Federal Court

Meanwhile, in 2022, FKC filed a lawsuit in a Florida district court alleging that Pinedo and Familia Kahlo were liable for tortious interference by attempting to prevent what FKC argues are its legal rights to exploit the marks it claims to own. The litigation was triggered by cease-and-desist notices sent by Familia Kahlo advising four FKC licensees of the ongoing litigations abroad and notifying these parties that they could be held liable for trademark infringement. Only two of the four letters were directed at U.S. entities operating in Florida, and all four were written and sent by Familia Kahlo general manager Alfonso Durán.

Without addressing the merits of FKC’s claim, the district court held in 2023 that it lacked personal jurisdiction over defendants Pinedo and Familia Kahlo—Pinedo is a Mexican citizen with no ties to the State of Florida—under both corporate shield doctrine and comportment with due process under the 14th Amendment. On that basis, the district court dismissed FKC’s claims, and in May 2024, the plaintiff filed an appeal to the 11th Circuit. In response, the family’s brief states, “Plaintiffs are attempting to bypass the laws of Mexico and the legal disputes ongoing in Panama and Spain by filing this action in Florida to try to gain some form of authentication for their false claims to the intellectual property rights of the Frida Kahlo mark.”

It would be a major project (and one well outside my wheelhouse) to attempt to unpack the contractual details applicable to trademark ownership in several jurisdictions. But Gomez states that “[The Spanish and Panamanian] proceedings could resolve key questions of ownership and standing before the U.S. case ever reaches the merits.” Consequently, he theorizes that FKC may be forum shopping, hoping that a U.S. court might be a more favorable venue to find that it rightfully controls the Kahlo brand. But unless the 11th circuit reverses, finding that the lower court erred in its holding on personal jurisdiction, the core matter of ownership will presumably be resolved outside the U.S.

Both Licensing and Enforcement at Stake

In addition to licensing uses of the Kahlo brand that both the family and the public find inappropriate, FKC also engages in legal enforcement actions against parties who may not be making inappropriate uses. For instance, in a long post about these ongoing disputes, Laurel Wickersham Salisbury for Center for Art Law, describes FKC’s action against folk artist Nina Shope. “Shope handmakes a variety of embroideries and dolls, many of which represent Frida Kahlo and are sold [on Etsy] using her name,” Salisbury writes.

Shope’s derivative works based on Kahlo’s paintings are legal if the paintings have fallen into the public domain, but whether a court would find that her use of Kahlo’s name, an unavoidable description, constitutes trademark infringement is a separate question. From a cursory review, I am not certain Shope’s use constitutes infringement under U.S. law, but more important for the moment is whether FKC or Familia Kahlo has the right to make that determination and pursue (or not) legal remedy.[3]

Two Different Futures

A recurring theme in Kahlo’s self-portraiture includes several depictions of herself as divided, as two Fridas simultaneously occupying two realities laden with symbols of her fraught and chronically painful life. In that light, it is notable that today the Frida Kahlo brand is divided between an entity that appears willing to capitalize on any use without regard to appropriateness and a family seeking to keep “Fridamania” within the bounds of respect for who Frida was rather than commoditizing any Frida people wish to see.

Although the U.S. case is currently procedural and one that may never affect ultimate control of the Kahlo brand, it raises important considerations for well-known artists and families contemplating management of a potential legacy. “We see it happening more frequently now that artists are seeking to reclaim the rights to their works and their brands from the parties who they hoped could help them grow,” says Gomez. Although Frida Kahlo’s biography is unusual, her posthumous fame, more than a half century since her passing, reveals the need for balancing legacy management between exploitation and reverence.

[1] Frida – documentary by Carla Gutierrez

[2] As a result of litigation in Mexico, the court there enjoined sale of the doll pending further proceedings.

[3] Notably, trademark, unlike copyright, is a use-it-or-lose it IP right. Failure to enforce can be a basis for loss of the mark.

Inapt Mixing of National Defense with Copyright Law Raises Broader Questions

defense

Dr. Rebecca Grant, Vice President of Lexington Institute, alleges in a recent post that copyright owners—specifically the bogeyman of “Hollywood”—form an obstacle to national security in the effort to win the AI cold war with China. Out of respect for her credentials as a security expert, I shall assume that all of Dr. Grant’s specific references to the role of AI in defense operations are accurately, if broadly, stated. But her references to fair use, akin to Open AI’s March memo to the Office of Science and Technology Policy, are misguided, if not intentionally misleading.

After overstating the significance of the findings in the Bartz and Kadrey opinions, Dr. Grant writes, “It’s not Hollywood’s job to factor in national security.  Discussions around AI and creativity will persist.  However, a new key issue is indeed emerging: allowing American AI models to continue training on the highest-quality data is crucial to maintaining the lead over China.”  Later in the post, she cites literature, especially works of fiction, as “high-quality data,” and even if she is correct on the science and its role in defense operations, the erroneous invocation of fair use (and Hollywood for that matter) casts doubt over the entire premise of her argument—especially in the era of Trump 2.0.

To reiterate what I said in response to Open AI leaning too hard on national security in this context, Dr. Grant’s argument has nothing to do with the affirmative defense of fair use in a copyright infringement claim. Fair use is a case-by-case consideration for the courts, and in fact, Judge Chhabria in Kadrey forecasts several reasons why AI developers in many of the other cases are likely to lose. What Dr. Grant is advocating is a blanket exemption to mass copyright infringement with the urgency of “beating China” on an accelerated timeline. If that is the goal, it is neither practical nor well founded to even mention fair use, but it is hard to say whether copyright law is simply outside Dr. Grant’s wheelhouse, or if “fair use” is being used rhetorically, like so many terms mangled by the current administration, to mask the real agenda.

Should Authors Subsidize AI Whether They Like It Or Not?

The days of the WWII-era total effort are both a distant memory and inapplicable to a cold war, while the principle that politics stop at the water’s edge is one of many American virtues eroded to an empty slogan. I do not dispute that China is an adversary, but sadly, the beacon of U.S. democracy is a sputtering fluorescent tube in the hands of an administration that emulates the policies and propaganda of our adversaries. Presently, more Americans are concerned about becoming the Chinese Communist Party (CCP) than beating it in the new AI-driven cold war. And I will venture to guess that some version of that view is held by most authors of creative and cultural works protected by copyright law.

In any era, it would be wrong to insist that the nation’s authors and artists are required to contribute to a national defense effort, but even if every novelist in the country were committed to that idea, Dr. Grant overlooks a few complications. For instance, she acknowledges that the AI war relies upon the massive private investment of Big Tech in contrast to historical defense initiatives funded by the government. But she appears unconcerned by the assertion that America’s authors should subsidize all AI applications, including all commercial interests of the tech companies, on the basis that some uses will be applied in defense operations.

Absent the fog in the present climate, a traditional conservative might notice that this model looks a lot like Communism. Even defense related acquisition in the U.S. entails billions in public dollars paid to private industry contractors and suppliers who pay for the materials and labor needed to build planes, write software, etc. Yet, stunningly, the press release linking me to Dr. Grant’s post dings “lefty Hollywood” while the post itself argues that America’s authors must be compelled to underwrite both the commercial and military applications developed by Big Tech.

This sleight of hand is exacerbated by the fact that Web 2.0 was the principal catalyst in weakening the American democracy allegedly being defended against CCP. The current administration’s assault on the pillars of democracy is a direct consequence of a dangerously disinformed electorate, a paradoxical result of the “information age,” which includes, by the way, unfettered access by adversarial nations to the American public. As a policy matter, the abysmal failure of the information revolution is a consequence of allowing Big Tech to do whatever the hell it wants, which stands in stark contrast to the litany of rules and regulations that guide the manufacture of the many warplanes Dr. Grant knows so well.

Generative AI already reveals its many toxic applications—from sextortion to parties imitating the voice of the Secretary of State, and so on. The implications for AI deepening epistemic crisis and dangerous chicanery are obvious to a thirteen-year-old reading her first sci-fi novel. And amid that chaos, few authors or artists trust any of the parties leading the AI cold war—from the President to the techbros—to give a damn about democracy in the opaque and classified race with the Chinese.

I’ve said it before and will keep saying it: there is no virtue in beating the CCP if it means becoming the CCP in the process. The ethical development and application of AI goes to the heart of whether the U.S. will completely abandon the principles that made it the indispensable democratic leader—a reputation already damaged without the assistance of artificial intelligence. In that context, I think it is fair to say that few authors and artists would consider it a patriotic duty to contribute their works to “national security” while simultaneously allowing the richest companies on Earth to exploit their labors for profit without permission or compensation.

Photo by: Tanaonte