wjlta

Duped or Duplicated? The Difference Between A Counterfeit And An Accessible Homage

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: HR Fitzmorris

Even non-legally versed consumers know that counterfeit or fraudulent products are illegal. In fact, some may have even experienced the euphoria of getting what they thought was a steal on a new designer product only to find out that it was a different type of ‘steal’ altogether. 

But what about “dupes”?

Unlike counterfeit products, which are copies of trademarked consumer goods meant to be passed off as the real thing, dupes (short for duplicate or duplication) are products that mimic other companies’ popular products without seeking to trick the consumer into thinking it’s the real deal. Dupes usually mimic high-end, in-demand goods and are sold at a much lower price-point—essentially the Gen Z version of a “knock-off.” Dupes have become extremely popular with the rise of social media advertising aimed at younger demographics. Teens that may not be able to afford a wildly trendy Cartier ring ($2,995) certainly may be able to scrounge up the change for the Amazon dupe ($12.99, with free next day shipping!).

The “Real” Fakes

To the everyday consumer the distinction between a counterfeit and a dupe may seem dubious, but in legal terms it’s significant. Counterfeiting is a concept used to “indicate an infringement of intellectual property rights, namely acts (use, manufacturing, or sale, for example) carried out without the consent of the intellectual property right holder.” “Counterfeiting” is the “act of making or selling fake products with the intent to deceive consumers. In the United States, it is illegal to produce, distribute, or sell counterfeit goods.” 

There are more issues with counterfeit goods outside of intellectual property infringement and their morally dubious nature. There are also possible health and safety issues with fake products that flout FDA or consumer protection standards.  There’s of course, the economic harm to legitimate businesses that lose money when their customers are lured away. The ever-present environmental harms associated with the flood of mass-produced, easily discarded items lurk behind the scenes. There’s even concern that counterfeit goods play a role in funding broader criminal enterprises.

Dupes: Duplication or Duplicity?

One of the important elements of counterfeiting is the “intent to deceive,” and this element is a significant piece of what separates dupes from counterfeits. Dupes do not claim to be the real-deal. In fact, part of their allure is that purchasers are getting the same or similar quality and functionality of the original without the original’s branding (and the associated price mark-up). As Claire Kane put it in her article for online publication MIC: 

While “fake” is a dirty word in fashion and “counterfeit” sounds unethical, the more neutral-sounding “dupe” suggests making savvy purchases and “somehow cheat[ing] the system” to get the look for less.

Companies hoping to crack down on dupes and knockoffs face an uphill battle in court. Without distinctive, trademarked branding that makes counterfeits fall within the reach of traditional trademark infringement, brands find little sympathy in the law. The current state of U.S. copyright law as it pertains to clothing and accessories has significant gaps. U.S. copyright law does not fully protect items defined as useful articles, which are “objects having an intrinsic utilitarian function” and “clothing” is the very first example of what counts. So, without the direct, obvious infringement on the branding, companies are unlikely to prevail.

Can You  Smell the Difference?

An especially interesting sector of dupes gaining popularity are designer fragrance dupes. Most dupes, like a certain handbag or shoe dupe, the knockoff brand doesn’t need (or want) to explicitly refer to the original product—it relies on the consumer to ‘get’ the reference. Not so with replica fragrance brands such as Oakcha, Dossier, or ALT Fragrances, which directly rely on references to their designer counterparts in their marketing. In fact, they often list the fragrance they were “inspired by” right on the bottle, or in the product description. So, what makes fragrance such a fertile ground for direct and blatant knockoffs without running afoul of trademark or copyright law? 

The answer is a combination of technology and law. First, new technological developments have made it extremely easy to reverse engineer specific fragrance formulations. Also, while the branding or packaging of a perfume may be eligible for copyright protection, a perfume’s scent is not because the scent serves as the “functional purpose of the product.” This makes it, under trademark law, ineligible for registration with the USPTO (functionality is a bar to registration). Perfumers can look to other avenues of protection such as obtaining a patent over the perfume formula, or trade secret protection, but these protections are difficult and costly to obtain and have drawbacks like disclosure. 

The legal landscape concerning dupes is unique and developing. It is inconsistent across products and complicated across industries. Whether you think dupes are simply knockoffs with a moral makeover or a legitimate industry that provides consumers with accessible choices, the law is unlikely to be the force that stems the tide.

Fan Creativity in Gaming and IP Infringement

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Alexander Kovalev on Pexels.com

By: Yixin Bao

Gaming is known to be a big and rapidly growing industry. In recent years, the COVID-19 pandemic has contributed to a surge in gaming activity and revenue. Many people turn to gaming as a form of entertainment during their time at home. According to The NPD Group, the average time people spent on gaming rose from 12.7 hours per week in 2019 to 14.8 hours per week in 2020 and to 16.5 hours per week in 2021. Statista data further shows that the estimated global gaming market will increase to $268.8 billion annually in 2025 from $155.89 billion in 2020. 

There are many different types of gaming. The most commonly recognized ones include mobile gaming, console gaming, and PC gaming. In addition, new categories have emerged, such as esports and virtual reality gaming. With the increasing popularity of gaming and the increasing number of players, the gaming industry is expected to continue to grow in the future. 

As popularity of the gaming industry is on the rise, so are related intellectual property infringement issues. Intellectual property can include inventions, artistic works, designs, and names that are used in commerce. Normally, IP infringement includes patent infringement, copyright infringement, or trademark infringement. IP infringement can result in legal action taken by the owner against the infringing party, including but not limited to injunctions and monitary damages. 

A “fan” or “fanatic” is defined as someone who exhibits intense admiration and enthusiasm for something or somebody. Without a doubt, the gaming industry has its own fans. In fact, this number can be huge. For example, League of Legends (“LoL”) is known to be one of the most popular online games in the whole world. It is said that there are currently 180 million League of Legends players right now in 2023. Esports also heavily influenced the growth of the game’s popularity. Each year, the World Championship is organized so that teams from all different countries gather together and compete for the best team. In 2018, 99.6 million unique viewers watched the World Championship. Although it can be difficult to accuralty measure how many fans a game has, as some will not identify themselves as fans, it is reasonable to assume LoL’s fanbase is enormous. 

Many fans of the gaming industry make their own content. This includes, for example, creating new characters or inventing new storylines based on the original characters and artworks. On one hand, this benefits the gaming industry because fans give free promotion for the games. On the other hand, however, this is when the fan creativity ends, and IP infringement occurs. Kostya Lobov, a partner at a United Kingdom (“UK”) law firm, discussed the balance between fan creativity and IP infringement. Lobov admitted that companies didn’t want to alienate genuine fans, but some bad actors tried to profit from making use of the others’ IP rights. This might lead to trademark and copyright infringement. This also happens in the United States. 

Gaming companies often issue take-down requests in response to content created using their intellectual property. While some companies have a zero-tolerance policy and remove most potentially infringing content, others are more lenient and only take action when the content is being used for commercial purposes. Although fair use may allow for some creative use of copyrighted material without permission, it is important for fans to be cautious. Non-commercial use may support a fair use argument, but it is not definitive. Other factors, such as the nature of the copyrighted material, may also play a significant role. Overall, as long as one creates something that uses the gaming company’s IP rights, he or she bears a degree of risk of infringement. 

In conclusion, the companies in the gaming industry should consider carefully how to set up their line between fan creativity and IP infringement. There can be thousands of potential content that can technically infringe on the gaming companies’ IP rights. Enforcement can be infinite and difficult if the line is too blurry. The legal actions might also “promote” their games in a negative way. In the end, the gaming industry should learn how to coexist with fan creativity and learn to profit from the efforts of fans while at the same time protecting its own rights.

AI Art: Infringement is Not the Answer

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by tom balabaud on Pexels.com

By: Jacob Alhadeff

In the early 2000s, courts determined that the emerging technology of peer-to-peer “file-sharing” was massively infringing and categorically abolished its use. Here, the Ninth Circuit and Supreme Court found that Napster, Aimster, and Grokster were secondarily liable for the reproductions of their users. Each of these companies facilitated or instructed their users on how to share verbatim copies of media files with millions of other people online. In this nascent internet, users were able to download each other’s music and movies virtually for free. In response, the courts held these companies liable for the infringements of their users. In so doing, they functionally destroyed that form of peer-to-peer “file-sharing.” File-sharing and AI are in not analogous, but multiple recent lawsuits present a similarly existential question for AI art companies. Courts should not find AI art companies massively infringing and risk fundamentally undermining these text-to-art AIs.

A picture containing text, person, person, suit Description automatically generated

Text-to-art AI, aka generative art or AI art, allows users to type in a simple phrase, such as “a happy lawyer,” and the AI will generate a nightmarish representation of this law student’s desired future. 

Currently, this AI art functions only because (1) billions of original human authors throughout history have created art that has been posted online, (2) companies such as Stability AI (“Stable Diffusion”) or Open AI (“Dall-E”) download/copy these images to train their AI, and (3) end-users prompt the AI, which then generates an image that corresponds to the input text. Due to the large data requirements, all three of these steps are necessary for the technology, and finding either the second or third steps generally infringing poses and existential threat to AI Art. 

In a recent class action filed against Stability AI, et al (“Stable Diffusion”), plaintiffs allege that Stable Diffusion directly and vicariously infringed on the artist’s copyright through both the training of the AI and the generation of derivative images, i.e., steps 2 and 3 above. Answering each of these claims requires complex legal analyses. However, functionally, a finding of infringement on any of these counts threatens to fundamentally undermine the viability of text-to-art AI technology. Therefore, regardless of the legal analysis (which likely points in the same direction anyways) courts should not find Stable Diffusion liable for infringement because doing so would contravene the constitutionally enumerated purpose of copyright—to incentivize the progress of the arts. 

In general, artists have potential copyright infringement claims against AI Art companies (1) for downloading their art to train their AI and (2) for the AI’s substantially similar generations that the end-user prompts. In the conventional text-to-art AI context, these AI art companies should not be found liable for infringement in either instance because doing so would undermine the progress of the arts. However, a finding of non-infringement leaves conventional artists with unaddressed cognizable harms. Neither of these two potential outcomes are ideal. 

How courts answer these questions will shape how AI art and artists function in this brave new world of artistry. However, copyright infringement, the primary mode of redress that copyright protection offers, does not effectively balance the interests of the primary stakeholders. Instead of relying on the courts, Congress should create an AI Copyright Act that protects conventional artistry, ensures AI Art’s viability, and curbs its greatest harms. 

Finding AI Art Infringing Would Undermine the Underlying Technology

A finding of infringement for the underlying training or the outputs undermines AI Art for many reasons: copyright’s large statutory damages, the low bar for granting someone a copyright, that works are retroactively copyrightable, the length of copyright, and the volume of images the AI generates and needs for training.

First, copyright provides statutory damages of $750 to $30,000 and up to $150,000 if the infringement is willful. Determining the statutory value of each infringement is likely moot because of the massive volume of potential infringements. Moreover, it is likely that if infringement is found, AI art companies would be enjoined from functioning, as occurred in the “file-sharing” cases of the early 2000s. 

Second, the threshold for a copyrightable work is incredibly low, so it is likely that many of the billions of images used in Stable Diffusion’s training data are copyrightable. In Feist, the Supreme Court wrote, “the requisite level of creativity is extremely low [to receive copyright]; even a slight amount will suffice. The vast majority of works make the grade quite easily.” This incredibly low bar means that each of us likely creates several copyrightable works every day. 

Third, works are retroactively copyrightable, meaning that the law does not require the plaintiff to have registered their work with the copyright office to receive their exclusive monopoly. Therefore, an author can register their copyright after they are made aware of an infringement and still have a valid claim. If these companies were found liable, then anyone with a marginally creative image in a training set would have a potentially valid claim against a generative art company.

Fourth, the copyright monopoly lasts for 70 years after the death of the author. Therefore, many of the copyrights in the training set have not lapsed. Retroactive copyright registration combined with the extensive duration of copyrightability means that few of the training images are likely in the public domain. In other words, “virtually all datasets that will be created for ML [Machine Learning] will contain copyrighted materials.”

Finally, as discussed earlier, the two bases for infringement claims against the AI art companies are (1) copying to train the AI and (2) copying in the resultant end generation. Each basis would likely result in billions or millions of potential claims, respectively. First, Stable Diffusion is trained on approximately 5.85 billion images which they downloaded from the internet. Given these four characteristics of copyright, it is likely that if infringement were found, many or all of the copyright owners of these images would then have a claim against AI art companies. Second, regarding infringement of end generations, Dall-E has suggested that their AI produces millions of generations every day. If AI art companies were found liable for infringing outputs, then any generation that was found to be substantially similar to an artist’s copyrighted original would be the basis of another claim against Dall-E. This would open them up to innumerable infringement claims every day. 

A picture containing text, fabric Description automatically generated

At the same time, generative art is highly non-deterministic, meaning that, on its face, it is hard to know what the AI will generate before it is generated. The AI’s emergent properties, combined with the subjective and fact-specific “substantial similarity” analysis of infringement, do not lend themselves to an AI Art company ensuring that end-generations are non-infringing. More simply, from a technical perspective, it would be near-impossible for an AI art company to guarantee that their generations do not infringe on another’s work. 

Finding AI art companies liable for infringement may open them up to trillions of dollars in potential copyright lawsuits or they may simply be enjoined from functioning.

An AI Copyright Act

Instead, Congress should create an AI Copyright Act. Technology forcing a reevaluation of copyright law is not new. In 1998, Congress passed the DMCA (Digital Millennium Copyright Act) to fulfill their WIPO (World Intellectual Property Organization) treaty obligations, reduce piracy, and facilitate e-commerce. While the DMCA’s overly broad application may have stifled research and free speech, it does provide an example of Congress recognizing copyright’s limitations in addressing technological change and responding legislatively. What was true in 1998 is true today. 

Finding infringement for a necessary aspect of text-to-art AI may fundamentally undermine the technology and run counter to the constitutionally enumerated purpose of copyright—“to promote the progress of science and useful arts.” On the other hand, finding no infringement leaves these cognizably harmed artists without remedy. Therefore, Congress should enact an AI Copyright Act that balances the interests of conventional artists, technological development, and the public. This legislation should aim to curb the greatest harms posed by text-to-art AI through a safe harbor system like that in the DMCA. 

Cheaters Never Win, Bungie’s 4.3 Million Dollar Award Against AimJunkies

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by Soumil Kumar on Pexels.com

By: Perry Maybrown

Does anyone else remember being a kid, getting stuck on that super hard level and having to insert a Game Genie or GameShark into their machine to activate cheats? Apparently Nintendo really did not like these types of add-ons, so they sued the company that made them, and lost. But in today’s internet age, cheating has gotten more sophisticated, and much more illegal. 

Earlier this month, AimJunkies.com, a website that offers video game cheats for sale, was ordered by an arbitration judge to pay Bungie 4.3 million dollars after being sued for copyright infringement and violations of the Digital Millennium Copyright Act (DMCA). Bungie followed up by filing a motion with the court, to affirm this monetary award. 

Bungie brought nine claims in its original complaint filed in 2021 . The company argued that AimJunkies had infringed upon their copyright of Destiny 2, by “copying, producing, preparing unauthorized derivative works from, distributing and/or displaying Destiny 2 publicly all without Bungie’s permission.” Under those same facts, AimJunkies also infringed upon Bungie’s Destiny 2 trademarks. Furthermore, by making use of Bungie’s trademarks and copyrights, AimJunkies was also accused of false designation of origin. As well as two separate DMCA violations, breach of contract, tortious interference, consumer protection act violations and unjust enrichment. 

Later in 2022, a court dismissed Bungie’s copyright infringement allegations, for failure to state a claim. And while the copyright issue was dismissed, the door was still left open by the judge for Bungie to refile the claim later, with more evidence. Which Bungie unsurprisingly did. The court later upheld this amended complaint when AimJunkies once again tried to get it dismissed. 

After substantial litigation, Bungie decided to change tactics. Rather than attacking AimJunkies in court, they would drag them into mandatory arbitration.  This was accomplished by citing Destiny 2’s user agreement. Whenever a user plays games online, they are usually required to sign some kind of user agreement, which almost alway includes a mandatory arbitration agreement. Arbitration is a process that happens out of court, where two sides argue their case to a neutral arbitrator (usually a retired judge). There is a lot of controversy surrounding mandatory arbitration. For one thing, the “neutral” party deciding the case is usually paid/hired by whatever company included the arbitration agreement in the first place. It’s also difficult to overturn an arbitration agreement, as decisions can only be challenged for a limited number of very specific issues. 

A judge agreed to allow claims four through nine in Bungie’s lawsuit to be decided by mandatory arbitration. This meant that JAMS, one of the world’s largest private alternative dispute resolution providers, would be overseeing these six claims. Thus beginning the long, 9 month, process of arbitration. Bungie won and was awarded more than $4 million in damages as reported by TorrentFreak. 

So how did the arbitrator reach that huge number? It’s mostly thanks to the DMCA. The DMCA is an amendment to the copyright act from 1998 which seeks to address the relationship between the internet and copyright. The DMCA includes a section also referred to as the anti-circumvention law, which makes it illegal to knowingly circumvent a copyrighted work’s electronic security measures. For example, most video games have some kind of security measure, or Digital Rights Management (DRM) that stops users from getting into the source code. But some bad actors will sneak around these protections, so they can get a peek into the code. This allows those same bad actors unfettered access to the games, making it possible for them to reverse engineer different systems or download the game itself and share it. In this case the arbitrator found that AimJunkies had circumvented Destiny 2’s DRM to see the code and develop an effective cheat. Following § 1203 of the DMCA, the arbitrator awarded Bungie 2,500 per violation. With  102 violations, that meant AimJunkies was fined $255,000 for just one of Bungie’s six claims. 

Additionally, by hosting the cheats and selling them, the arbiter found that AimJunkies was in violation of the anti-trafficking provisions of the DMCA. This is where the costs really start to stack up. Just like the previous issue, Bungie was granted $2,500 per violation. With more than  1,316 copies of the Destiny 2 cheat sold, AimJunkies faced a whopping  $3,402,500.00 in anti-trafficking violations.

Finally, Bungie was awarded a further $738,722 in costs and attorney’s fees after proving AimJunkies had committed spoliation, the intentional destruction of evidence. This was found on the grounds that AimJunkies failed to keep proper financial records even after receiving a cease and desist letter from Bungie, which the arbitrator found to be a purposeful choice.

While this is a huge win for Bungie, the war is not over. As of February 28, 2023, AimJunkies is attempting to contest the arbitration decision. While it is unclear whether they will succeed, it’s a good lesson for us all. Just like the old saying goes, cheaters never win.

Virtual Reality? Depictions of Real Locations May Land Video Game Developers in Hot Water

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by Polina Tankilevitch on Pexels.com

By: Matt Williamson

One of the most interesting, and sometimes annoying, parts of being a law student is that legal analysis starts to seep into even the most mundane aspects of your life. Recently, as part of my workout routine, I stumbled across something odd in a virtual world which led me down a rabbit hole of legal considerations that video game developers must navigate when including real locations and buildings in their games.

Biking Up a Bagel

Anyone who knows me can attest that I absolutely love riding my bike. In fact, I love it so much that last October, staring down Seattle’s 3:30pm sunsets and months-long drizzle, I invested in an indoor bike trainer. To make the experience of indoor riding slightly less monotonous, I got a subscription to the popular fitness app, Zwift. Zwift is a video game-style program that allows users to bike (via a trainer or stationary bike) through an animated world, complete workouts, and compete with one another. 

One evening, I noticed a new route available in New York City, specifically around the internal Central Park Perimeter Loop. I was intrigued as I have personally spent lots of time running this exact loop while training for a marathon a few years ago.

Excited to pedal around the familiar loop, I started my ride. It was almost surreal to watch my avatar pedal around a digitally animated version of a mixed-use path I knew essentially by heart. I was especially struck by how accurate the twists and turns were and how many of the roadside landmarks were faithfully rendered. However, as I made my way up to the Northeast corner of the park, I noticed a feature that I had never seen in the real Central Park: a giant glass tube opened up before me, stretching into the sky. Myself and a pack of other riders dutifully climbed up its glossy surface. That’s right – Zwift designers added a giant bagel-like glass causeway to the iconic New York skyline.

As I sweated up the absurd glass-bagel climb, I couldn’t help but wonder: Why the hell is this here? 

Too Close to Reality

As it turns out, the answer may be as complicated as the relationship between video games and the real location and buildings they portray virtually.

Back in 2022, the perennially popular video game franchise Call of Duty released the newest installment in its Modern Warfare series: Modern Warfare II (“MWII”). Even before the full launch of MWII, fans noticed something intriguing about several of the maps featured in the game – they were remarkably similar to real world locations. Three maps in particular stood out: Crown Raceway, Breenbergh Hotel, and Valderas Museum. Each bore a striking resemblance to a real place: the Marina Bay Street Circuit in Singapore, the Conservatorium Hotel in Amsterdam, and the Getty Museum in Los Angeles, respectively. 

At first, little attention was paid to these maps beyond their expected gameplay characteristics, but things quickly started to take a turn. Valderas Museum was featured heavily in the game’s open Beta, a limited release that allows developers a chance to mass test a game before it is fully released, yet it suddenly and without explanation dropped out of the game’s map-pool at launch. Though neither Activision, the game developer behind MWII, nor the Getty, commented, widespread speculation arose that the developer had been forced to remove the map from the game over concerns about possible copyright infringement claims raised by the museum.

New rumors arose when early marketing for MWII featured a map called Marina Bay Grand Prix – a faithful depiction of the Marina Bay Street Circuit in Singapore complete with both signage and car models that directly evoked both the real life racetrack and the immensely popular motorsport series Formula One. Yet, the map never appeared in the Beta and, by the time the game was released, these assets had been altered to reflect a more generally branded race track called Crown Raceway.

The final act in this string of mishaps came when the game was released with the third of these controversial maps as a part of its core gameplay rotation. Breenbergh Hotel is easily recognizable as the Conservatorium Hotel, a 5-star establishment located in Amsterdam. The owners of the Conservatorium were incensed by the use of their building in a game that depicts intense and realistic violence. The hotel’s manager, Roy Tomassen, was quoted by Dutch newspaper de Volkskrant as saying: “The game in no way reflects our core values ​​and we regret our apparent and unwanted involvement.” Though de Volkskrant also reported that the Conservatorium was considering legal action, the map is still playable in MWII, and is even a common battleground in the game’s eSport championship series the Call of Duty League. 

Toeing the Line

MWII clearly ran afoul of a number of parties with its map design, but, perhaps as Breenbergh Hotel illustrates, the legal options available to these parties are a bit murky, and even more ephemeral than one might expect.

One type of legal cause of action these parties might try to employ is copyright infringement. Copyright infringement occurs when copyrighted works are used by parties other than the owner of the copyright without the owner’s consent. 

However, unlike many kinds of intellectual property, a great deal of architecture is no longer protected by copyright law and is therefore freely available for use in art. Most famous buildings like the Empire State Building are considered part of the public domain, as are all private buildings constructed before 1990. Thus, this seems like a legal avenue that is unlikely to provide actual relief to parties that may try to utilize it.

What if video game developers included trademarks in their games? Trademarks are symbols or words that have been legally registered or established by use as representing a company or product (think McDonald’s Golden Arches logo or Nike’s “Just Do It” slogan). One fundamental aim of trademark law is giving trademark owners the ability to prevent other parties from copying or closely mimicking a trademark in such a way that might trick consumers into believing that what they are seeing is somehow sponsored, produced, or endorsed by the trademark owner. At first glance, this cause of action seems like it might present a more viable recourse for someone like the owners of the Conservatorium Hotel. However, previous lawsuits show us that developers often need to take only minor steps to effectively head off these sorts of trademark infringement challenges.

For example, in 2008, the owners of a Los Angeles strip club called the Play Pen, sued Rockstar Games, the developers of the Grand Theft Auto series, when they discovered that Rockstar’s GTA – San Andreas game featured a knock-off version of their club called the “Pig Pen.” In deciding the case, the Ninth Circuit assessed Rock Star’s assertion that the inclusion of the Pig Pen was protected by the First Amendment. Notably, the First Amendment protects the use of trademarked images or words in art unless the use has no artistic relevance to the work in which it has been included, or the use “explicitly misleads as to the source or content of the work,” (i.e., makes it seem like the trademark owner has signed off on the inclusion or is behind the game).

In applying this test, the court ultimately ruled in favor of Rockstar. The court’s decision (which I assure you is as hilarious a read as you would imagine) articulates the panel of judges’ belief that the depiction of the strip club had some artistic relevance to the game and was not explicitly misleading. The judges pointed to subtle changes that had been made to the appearance of the club that differentiated it from the real thing, and noted that no one would reasonably believe that the strip club owners had produced the game. 

These and other similar cases show that, while it is theoretically possible for a video game developer to be sued for incorporating a real location or business into the virtual world it creates, it seems as though developers need only take small precautionary measures like subtly changing the look of a building or location, to effectively shield themselves from serious danger. In the end, as much as I might like to believe in some sort of Zwift legal team conspiracy, it seems pretty unlikely that their developers added the glass bagel to the Central Park course as anything other than an extra challenge for cyclists and runners. However, you can be sure that if they ever make a Burke-Gilman trail expansion pack, my eyes will be peeled.