Hank's IP Brew — Issue #4

Howdy, y'all.

This week, all three stories are really about the same question: who gets to decide what you own?

One's about a filmmaker who fought back against a studio — and won more than she expected. One's about a room full of politicians deciding the future of college athletes — without any athletes in it. And one's about the Supreme Court quietly closing a door that some people were hoping would stay open.

Let's go.

Warner Bros. didn't plan to make The People's Joker famous. They just wanted it to disappear.

In 2022, filmmaker Vera Drew created an unauthorized mashup: the story of The Joker, reimagined as a trans coming-of-age allegory. No studio deal. No license. No permission from DC's corporate overlords. Warner Bros. sent a cease and desist. Drew's film got pulled from its TIFF premiere screening before it could screen a single frame.

Case closed, right?

Not quite. What followed was a run of underground and guerrilla screenings that generated more buzz than a wide release ever would have. Eventually the rights situation got sorted out, and the film found its audience — because of the legal drama, not in spite of it.

Here's what makes this legally interesting: Drew had a real argument. Copyright's fair use doctrine gives breathing room to works that are transformative — meaning they add new meaning, message, or expression, rather than just copying the original. A trans coming-of-age story that uses a Batman villain as its vehicle? That's not a bootleg. That's commentary. Courts have protected transformative works even when they borrow heavily from the original, going back to the Supreme Court's 1994 ruling in Campbell v. Acuff-Rose — the one where 2 Live Crew won the right to parody "Oh, Pretty Woman."

Did Drew have a bulletproof case? Not necessarily. Fair use is a defense, not a permission slip — you still have to survive the lawsuit first, and that's expensive even when you're right. Warner could have pushed harder and probably tied the film up in litigation for years.

But here's the lesson for any creator: a C&D letter from a major studio isn't the same thing as a legal verdict. If you're building something new on existing characters, stories, or music — for commentary, parody, or genuine artistic transformation — you may have more runway than you think. Just make sure you understand the difference between transformative and derivative before you go guerrilla.

On March 6th, President Trump convened a college sports roundtable in the East Room of the White House. The guest list was impressive: NCAA President Charlie Baker. Nick Saban. The Power Four commissioners. Ron DeSantis. House Speaker Mike Johnson.

Current college athletes: zero.

The conversation covered NIL, revenue sharing, transfer portal rules, and the general sense — shared by nearly everyone in the room — that the current college sports landscape is a mess that only federal legislation can fix. Trump was characteristically direct: "If Congress doesn't take action fast, it could destroy college sports."

He also teased an executive order, though details were thin. The legislative vehicle most likely to move is the SCORE Act, which would preempt the patchwork of state NIL laws with a single federal framework. Johnson signaled that congressional Republicans intend to push it forward.

The part athletes — and their advisors — should notice:

The people making decisions about the NIL system aren't the people living inside it. When Trump complained about "a seven-year freshman" and players "not wanting to go pro because they make more money in college," it wasn't framed as a success story for athletes. It was framed as a problem to solve.

A federal NIL framework could bring stability — and that's genuinely good for some athletes. Uniform rules across states, clearer contract standards, less exposure to the kind of compliance traps we've seen. But preemption cuts both ways. Several states have enacted NIL laws that are more athlete-friendly than anything Congress is currently considering. A federal floor can also be a federal ceiling.

For athletes in the room right now — signing deals, building brands, negotiating with collectives — the practical takeaway is the same one it's been since 2021: don't sign anything without understanding the terms, and don't assume the rules you're operating under today will be the rules next year. That uncertainty isn't going away, and a roundtable with no athletes at the table isn't going to fix it.

On March 2nd, the Supreme Court declined to hear Thaler v. Perlmutter — and that quiet "no" is actually a pretty big deal.

Here's the backstory. Stephen Thaler is an AI researcher who created a system called DABUS. DABUS generated a piece of visual art. Thaler tried to register the copyright — but instead of listing himself as the author, he listed DABUS. The Copyright Office rejected the application in 2022. The D.C. Circuit upheld that rejection. And last week, the Supreme Court said: not our problem.

The ruling that stands is this: copyright requires a human author. AI-generated work, standing alone, doesn't qualify.

If you're a creator, this is clarifying — and it matters in both directions.

The bad news: If you're using AI to generate content and planning to own it outright, the current legal framework is not on your side. Pure AI output — a prompt goes in, an image or essay comes out, you clip it and publish it — is not protected by copyright. Anyone can copy it. Anyone can sell it. It's nobody's property, legally speaking.

The good news: The rule isn't "AI-assisted = unprotectable." The Copyright Office has been pretty clear that human creative input still counts. If you're making meaningful choices — selecting, arranging, editing, building on AI output with your own creative judgment — there's a real argument that the resulting work has human authorship. The more human creative control, the stronger the claim.

What this means practically: if you're building a content business that relies on AI generation, your intellectual property strategy needs to be rooted in something other than copyright in the raw output. Your brand. Your curation. Your editorial voice. Your relationships with your audience. Those are protectable in ways that a prompt-to-publish pipeline isn't.

The door the Thaler case was trying to open — copyright for work made by AI — is now closed, at least for the foreseeable future. The question going forward is how much human authorship you can credibly put into the work. That's a question worth thinking through now, before the issue becomes urgent.

See you next time,

Hank

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