Posts in Copyright Litigation

 On Monday, the U.S. District Court for the Northern District of California filed an order granting in part and denying in part motions to dismiss the first amended complaint in Andersen v. Stability AI LTD, a critical lawsuit which may pin down several issues relating to generative artificial intelligence (GAI) platforms. The allegations stem from a complaint against four technology companies for incorporating the AI software product Stable Diffusion into their individual platforms. The Plaintiffs, consisting of several artists, alleged that their copyrighted works were scraped in a large-scale dataset to be used as “training images” for the software, which then outputted images “in the style” of those copyrighted works.   

The family of singer-songwriter Isaac Hayes, who died in 2008, has become the latest in a growing list of artists who have threatened to sue Donald J. Trump when it published a letter yesterday claiming unauthorized use of the song “Hold On (I’m Coming)” at Trump’s campaign rallies. Hayes co-wrote the song with David Porter and it was originally recorded in 1966 by R&B duo Sam & Dave. According to the letter, which was sent by the family’s attorney, James Walker, and which the Hayes family posted to X on August 11, the song has been used more than 100 times without authorization, adding up to a “very discounted fee” of $3 million that the family is requesting be paid for the multiple counts of copyright infringement.

On Thursday, the United States Court of Appeals for the Eleventh Circuit published an opinion in Compulife Software, Inc., v. Newman, a copyright infringement and trade secret misappropriation case that has been winding through the courts for some time. The original claim alleged that the defendants, consisting of multiple individuals, obtained access through improper means to the data used by Compulife in its software. The software in question allowed users the ability to calculate an individualized quote for life insurance policies using publicly and privately obtained data from different providers. Through various means, including a supervised scraping attack of Compulife’s website, the complaint alleged the defendants gained access to millions of quotes generated by its software and implemented the quotes into their own websites, decreasing Compulife’s sales.

AI has progressed within the last several years to do remarkable things. In February of this year, OpenAI unveiled Sora, an impressive text-to-video AI generator that produces high quality videos.1 This new generative AI innovation uses basic text prompts to generate up to 60-second videos.1 Like all generative AI tools, there are concerns about how the model is trained and the composition of the training data. The potential ethical and societal ramifications for a tool such as this may be cause for alarm, as there are certainly IP concerns that must be addressed before the tool is distributed for public use. OpenAI has started a dialogue with lawmakers and artists as a result.

Bette Midler. Vanna White. Marylin Monroe. Each of these women has undoubtedly shaped pop culture in some meaningful way. Perhaps what is lesser known is that litigation surrounding each of these women has shaped the legal world’s understanding of an individual’s right to publicity. Many states still do not formally recognize a right to publicity, while other states that do recognize such a right are not uniform. Some of these states recognize the right by statute, others by common law. Some states allow for posthumous rights to publicity, while others terminate the right at death. And some states only accord rights of protection to certain characteristics (e.g., name and image), while other states extend rights of protection to other identifiers, such as one’s voice.

The rise of artificial intelligence (AI) in the music industry has brought about a complex and contentious landscape where innovation intersects with intellectual property rights. Recently, two leading text-to-music AI tools, Suno and Udio, have found themselves at the center of this debate, facing lawsuits for copyright infringement filed by the three major record labels, and led by the Recording Industry Association of America (RIAA). The record labels allege that Suno and Udio used their recordings without a license to train Suno’s and Udio’s respective AI models. These claims bring to light broader issues regarding the ethical and legal implications of AI-generated content, the need for regulatory clarity, and the evolving relationship between technology and creativity.

Few, if any, artists own the master recordings to their early albums. Not the Beatles, not Dylan, not Springsteen. Taylor Swift is no different. Labels gamble on acts and part of the upside if they hit—the quid pro quo, if you will—is owning valuable master recordings. Without control of these potential assets, they would likely walk away from most deals.

Artificial Intelligence (AI) systems, such as Microsoft’s Copilot and ChatGPT, have seen a drastic increase in consumer adoption. However, this rise in use has come with challenges in applying traditional copyright principles to this new field. For a work to be copyrightable in the United States, it must be the product of human authorship. The U.S. Copyright Office (“the Office”) has recently taken the position that “[w]hen an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.” Thus, if the material is not the product of human authorship, the Office will not register it. However, this position has complicated other areas of copyright law as they relate to generative AI.

As artificial intelligence (AI) becomes increasingly powerful, its applications continue to expand, and its use gains widespread adoption, new legal challenges in the intellectual property space come with it. From a simplified view, generative AI is the term used to describe algorithms that can create content such as images, written works, audio, and videos. These algorithms work by inputting similar types of content (i.e. “training”) from which the algorithm learns patterns. After a sufficient amount of training, the algorithm can create new content based on the patterns learned from its training.

Celebrity tattoo artist Kat Von D recreated a photograph of a famous musician in ink on her client’s arm and posted photos of the process online. Netflix docuseries “Tiger King” incorporated video footage of a real-life funeral as part of its documentary coverage of the deceased’s husband. The two parties were sued separately for copyright infringement—of the photograph, in Kat Von D’s case, and the video, in Netflix’s case.

Several major educational publishing companies, including Macmillan, Elsevier and McGraw Hill, have sued Google in a New York district court alleging contributory and vicarious copyright infringement, trademark infringement and violations of New York’s General Business Law. The companies claim that Google’s search engine is facilitating infringement by promoting pirate sites that sell heavily discounted versions of educational textbooks.

The U.S. Supreme Court today issued its decision in Warner Chappell Music v. Nealy, a case that asks whether a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. The Justices ruled 6-3 that “the Copyright Act entitles a copyright owner to recover damages for any timely claim,” with no limit preventing recovery for infringement that happened beyond three years. As to the issue of when a claim for infringement “accrues,” the Court said it “assumes without deciding” that accrual occurs upon discovery of the infringement.

Picture this: You own a women’s swimwear business. You engage your customers by curating eye-popping images on social media that exude athleticism and style. While browsing online, you find a photo posted by someone else of a woman in one of your pink swimsuits diving into a pool. You instantly know that this woman is exactly who your customers want to be! You share it on your profile with the caption, “Making waves wherever I go” and link to your swimsuit for purchase. Within hours the post racks up 50,000 likes and 2,000 swimsuit orders. But the excitement quickly wears off when you receive an email from a law firm representing the photographer, claiming you infringed her copyright.

On April 10, Dr. Stephen Thaler filed a reply brief  at the U.S. Court of Appeals for the D.C. Circuit, continuing the artificial intelligence (AI) technologist’s legal challenge to the U.S. Copyright Office’s refusal to register copyright to an artwork generated by Thaler’s Creativity Machine. The reply brief argues that there is no human authorship requirement under the U.S. Copyright Act preventing Thaler from claiming copyright in the AI-generated work, and that standard principles of property law enables ownership of the work to vest in Thaler, who created the AI system at issue in the case.

A spate of recent lawsuits is shining light on how some generative AI (GenAI) companies are using copyrighted materials, without permission, as a core part of their products. Among the most recent examples is the New York Times Company’s’ lawsuit against OpenAI, which alleges a variety of copyright-related claims. For their part, some GenAI companies like OpenAI argue that there is no infringement, either because there is no “copying” of protected materials or that the copyright principle of fair use uniformly applies to generative AI activities. These arguments are deeply flawed and gloss over crucial technical and legal issues. They also divert attention from the fact that it is not only possible but practical to be pro-copyright and pro-AI.