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February 1, 2024

January 2024 Roundup of Copyright News

by Courtney Lang

In January, there was big copyright news coming out from the courts, including two final judgments entered by a court involving concessions of willful copyright infringement and forfeiture of the fair use defense by the appropriation artist Richard Prince. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of January as well as a few events to look forward to in February.

Copyright Alliance and Music Law Pro Host ‘Music Royalties 101’ Webinar: On January 24, the Copyright Alliance and Legal Advisory Board (LAB) member Music Law Pro’s (MLP) Jesse E. Morris and Alexandra Mayo hosted a free webinar titled Music Royalties 101. The session, which drew 240 attendees and included opening comments by Copyright Alliance Copyright Counsel Rachel Kim, was intended to help music creators successfully navigate the music industry, especially in terms of understanding the various revenue streams to ensure proper collection of royalties. A video of the event will be shared in the near future.

Copyright Alliance Blogs: At the top of the month, we published several year-in-review blogs on U.S. Copyright Office’s Activities, Copyright Cases, AI and Copyright In the Courts, and Federal Government Activities related to AI.

CCB Status Update: At the end of January 2024, 729 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 296 are “smaller claims.” In at least 200 of all cases, the claimant is using legal counsel. At least 644 of the cases involve infringement claims, 124 involve Section 512(f) misrepresentation claims, and 23 involve claims for declarations of noninfringement. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (320 cases); Literary Works (110); Motion Picture and Audiovisual Works (140); Sound Recordings (73); Musical Works (51); and some cases include claims for multiple works. Ninety-nine foreign residents have filed claims. Of all the cases filed, 579 have been dismissed for the following reasons: Due to Respondent’s Opt Out (69); Due to Failure to Amend Noncompliant Claim (280); Registration Issues (14); Due to Failure to Provide Proof of Service of Process (112); Claimant Withdrawal and Dismissal of Claims (55); Bad Faith Claimant (13); and Settlement (36). There are 42 active proceedings and 18 final determinations.

USCO Publishes NOI to Initiate Review Process of Existing DLC and MLC Designations: On January 30, the U.S. Copyright Office published a notification of inquiry required by the Music Modernization Act (MMA), regarding whether the existing designations of the mechanical licensing collecting (MLC) and digital licensee coordinator (DLC) should be continued. This is the first of the review processes that the Copyright Office is statutorily required to conduct every five years. Initial submissions by the currently designated MLC and DLC must be received by April 1. Written initial public comments must be received by May 29 and reply comments from the public must be received by June 28. Reply comments by the currently designated MLC and DLC must be received by July 29.

USCO Publishes NPRM for Group Registration Option for News Websites: On January 3, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) setting forth regulations to create a new group registration option to register updates to news websites. The proposed rule would permit news publishers to register groups of updates to news websites published within the same calendar month as a collective work for a fee of $95. The proposed rule also directs applicants to file deposit copies consisting of PDF files that each contain a complete copy of the home page of the website. Comments on the NPRM are due to the Copyright Office by February 20.

USCO Publishes Final Rule on CCB ‘Smaller Claims’ Proceedings: On January 16, the U.S. Copyright Office published a final rule clarifying certain procedures and rules for “smaller claims” proceedings before the Copyright Claims Board (CCB). This final rule will become effective on February 15. The final rule, among other things, clarifies that (i) a CCB claimant may change its election for a “standard” CCB proceeding to a “small claims” proceeding before service of the claims and (ii) a CCB Officer can address and impose remedies to address both the failure to submit evidence in accordance with the CCB’s request and/or the submission of evidence that was not served on the other party or provided by the other side. The final rule also states that CCB Officers can hold a conference to explore the possibility of consolidating separate CCB proceedings and claims that arise out of the same facts and circumstances that involve the same or substantially the same parties.

USCO Launches New Webpage for MMA Audit Notices: On January 24, the U.S. Copyright Office announced the launch of a new webpage dedicated to notices submitted under the Music Modernization Act (MMA) of audits of the Mechanical Licensing Collective (MLC) by copyright owners and audits of Digital Music Service Providers (DMPs) of the MLC. The webpage provides instructions on submitting MMA audit notices to the U.S. Copyright Office. To commence an audit, a notice of intent must be filed with the Copyright Office’s General Counsel’s Office and delivered to the parties being audited. The Office must then publish a notice in the Federal Register within 45 days.

CRB Issues Final Rule for Certain Sound Recording Royalty Rates for Business Establishments: On January 3, the0 Copyright Royalty Board (CRB) published a final rule setting forth the royalty rates for the making of ephemeral copies of sound recordings to business establishments for the period of January 1, 2024, through December 31, 2028.

CRB Issues Corrections to Final Rules on Various Royalty Rates: On December 21, the Copyright Royalty Board (CRB) issued a correction to its final rule governing certain sound recording royalty rates for commercial and noncommercial noninteractive webcasters. On the same day, the CRB also issued a correction to its final rule governing musical works royalty rates for making and distributing phonorecords.

SJC PTL Subcommittee Holds Hearing on AI and Journalism: On January 10, the Senate Judiciary Committee’s (SJC) Subcommittee on Privacy, Technology, and the Law (PTL) held a hearing titled Oversight of AI: The Future of Journalism. Hearing witnesses included Danielle Coffey, President and CEO of the News/Media Alliance; Curtis LeGeyt, President and CEO of the National Association of Broadcasters (NAB); Roger Lynch, CEO of Condé Nast; and Jeff Jarvis, Leonard Tow Professor of Journalism Innovation at the City University of New York’s Craig Newmark Graduate School of Journalism. During the hearing, Subcommittee members generally agreed that AI companies should pay media outlets to use articles and other published works for AI training and development. Both Senators and witnesses expressed interest in licensing structures and pointed to other content fields, such as music and television, to demonstrate that a successful licensing regime is possible.

Senate Rules Committee Holds Hearing on Use of AI at LOC, GPO, and Smithsonian: On January 24, the Senate Rules & Administration Committee held a hearing titled The Use of Artificial Intelligence at the Library of Congress, Government Publishing Office, and Smithsonian Institution. Hearing witnesses included Dr. Carla Hayden, Librarian of Congress, Library of Congress; Hugh Nathanial Halpern, Director, U.S. Government Publishing Office; and Meroë Park, Deputy Secretary and Chief Operating Officer, Smithsonian Institution. Senators used the hearing as an opportunity to learn more about AI usage and priorities at the three organizations. Toward the end of the hearing, Senator Hagerty (R-TN) expressed concern over the impact of AI on recording artists and songwriters, and asked Dr. Hayden how the U.S. Copyright Office planned to protect copyrighted works and unauthorized uses of performing artists’ voices at the federal level, what the Office is doing to ensure appropriate licensing from AI companies to use copyrighted materials or other materials implicating a person’s right of publicity or privacy, and whether the Office is considering transparency measures like auditing and record-keeping. Dr. Hayden replied that the Copyright Office is examining these and other related issues, pointing to the Office’s previous public webinars on AI topics and the ongoing AI study.

House Administration Committee Holds Hearing on AI Innovations Within the Legislative Branch: On January 30, the House Administration Committee held a hearing titled Artificial Intelligence (AI): Innovations within the Legislative Branch. The hearing focused on the potential risks and rewards of AI in legislative branch operations. Chair Bryan Steil (R-WI) and Ranking Member Joe Morelle (D-NY) emphasized the need for AI governance plans and transparency. Witnesses included Taka Ariga, Chief Data Scientist and Director of the Innovation Lab, Science, Technology Assessment, and Analytics, Government Accountability Office (GAO); John Clocker, Deputy Chief Administrative Officer, U.S. House of Representatives; Judith Conklin, Chief Information Officer, Library of Congress; and Hugh Halpern, Director, U.S. Government Publishing Office. Chair Steil asked Conklin to explain how AI could be used in relation to Copyright Office records. Conklin replied that the Library of Congress is currently experimenting with the Copyright Office’s historical data to make it more discoverable and searchable to make it beneficial for researchers. Representative Sewell (D-AL) asked Conklin about the Library’s stance on copyright and ethics concerns in relation to AI generated content. Conklin replied that the Library has been considering bias and ethics concerns in their research and collaborations and that the Library remains committed to providing trustworthy and authoritative data. Top takeaways from the hearing is available on the Committee’s webpage.

Rep. Leger Fernandez Reintroduces Creative Workforce Investment Act: On January 10, Representative Teresa Leger Fernandez (D-NM) reintroduced the Creative Workforce Investment Act (formerly known as the Creative Economy Revitalization Act), H.R. 6935, which would create a $300 million Department of Labor and National Endowment for the Arts Grant Program to fund workers in the creative sector to create public art projects and initiatives. In addition to the change in the bill title, the new bill ensures that arts educators can benefit from the grant program.

Deborah Robinson’s IPEC Confirmation Heads to Senate Floor Following SJC Vote: Following Deborah Robinson’s renomination to become the Intellectual Property Enforcement Coordinator (IPEC) by President Biden on January 9th, the Senate Judiciary Committee (SJC) held a hearing on January 18th. Robinson was voted favorably out of the committee, 13-8, meaning her nomination will head to the Senate floor for the second time. The Copyright Alliance issued a statement in support of Robinson’ re-nomination and recirculated a prior industry letter in support of her nomination.

Go Pack Go Act Introduced: On January 11, Representative Mike Gallagher (R-WI) introduced the Go Pack Go Act. The bill would amend the Communications Act and Copyright Act to require cable, satellite, and other video providers to grant their Wisconsin subscribers access to programming from broadcast television stations in a Wisconsin media market. According to the office’s press release, 13 Wisconsin counties are assigned to an out-of-state local TV market in either Minnesota or Michigan. This bill would ensure that every Wisconsin cable or satellite subscriber who lives in these 13 counties has the choice of receiving an in-state broadcast for every major network, so they would always have access to Wisconsin-based news, information, and sports. Senator Baldwin (D-WI) previously introduced companion legislation in the Senate, S. 2857.

Biden Administration Activities

USTR Releases 2023 Notorious Markets Report: On January 30, the Office of the U.S. Trade Representative (USTR) released its 2023 Review of Notorious Markets for Counterfeiting and Piracy, which highlights online and physical markets that engage in or facilitate substantial trademark counterfeiting or copyright piracy. This year’s report identifies 39 online markets and 33 physical markets reported to engage in or facilitate intellectual property theft, including 2embed, The Pirate Bay, LibGen, Sci-Hub, Fmovies, and Aniwatch. “The trade in counterfeit and pirated goods harms workers, consumers, and small businesses, and ultimately hurts the U.S. economy,” stated Ambassador Katherine Tai.  “This year’s Notorious Markets List is significant because it underscores the potential dangers of counterfeit goods and why robust enforcement to combat trade in these goods is important to growing our economy from the middle out and the bottom up.” More information is available in USTR’s press release.

Final Judgments Issued Against Appropriation Artist, Richard Prince, in Two Copyright Infringement Cases: On January 25, the district court for the Southern District of New York issued final judgments in two copyright infringement lawsuits brought by photographers against appropriation artist, Richard Prince. InGraham v. Prince, photographer, Donald Graham, sued Prince in 2015 over the unauthorized use by Prince of Graham’s photograph, Rastafarian Smoking a Joint, in a portrait that was featured in a catalog, compilation work, and billboard. Graham was represented by Copyright Alliance Legal Advisory Board member Cravath, Swaine and Moore LLP. In McNatt v. Prince, photographer, Eric McNatt, sued Prince in 2016 over the unauthorized use by Prince of McNatt’s photograph in a portrait that was featured in an exhibition and a book. The district court held in favor of the photographers in both cases in May 2023, denying Prince’s and co-defendant art galleries’ motions for summary judgment in the two cases and finding that the fair use exception did not excuse the infringement. In both of the final judgments for the McNatt case and the Graham case, Prince was found liable for willful infringement of the photographs, and relinquished all defenses, including the fair use defense. This is a remarkable and significant departure from Prince’s history of fighting and prevailing in copyright infringement lawsuits on the basis of fair use, marking a new era in fair use jurisprudence following the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith last year. In both Graham and McNatt, Prince was liable for damages in an amount equal to five times the respective retail prices of the infringing portraits in addition to other costs incurred by the plaintiffs. The Copyright Alliance initiated a statement, applauding the two final judgments and their impact in a post Andy Warhol Foundation v. Goldsmith fair use landscape. Prince’s representatives made statements in a feeble attempt to reduce the impact of the final judgments. Thjose statements are wrong as  Prince clearly admits to all claims that were filed, including willful infringement, and he paid more than either plaintiff, especially Graham, could have received in statutory damages had the cases gone to trial. We commend the legal team at Cravath, Swaine & Moore, who worked on the McNatt and Graham cases for many years to ensure that two independent artists could prevail against the significant resources of Richard Prince and his galleries.

Jury Finds No Substantial Similarity in Copyright Infringement Case Against Tattoo Artist, Kat Von D: On January 26, a jury in the Central District of California found in favor of tattoo artist Kat Von D in a copyright infringement suit brought by Jeff Sedlik in 2021 for the unauthorized use of his photograph of Miles Davis in the preparation, promotion, and creation of a Miles Davis tattoo. The jury found that the tattoo and some of the social media posts were not substantially similar to the photograph. Out of 15 social media posts, the parties agreed that four contained a substantially similar laser printed copy of the photograph, and so the jury was only asked to make a fair use decision on those posts, which it held in favor of Von D. Sedlik’s attorney stated that Sedlik will appeal the decision to the Ninth Circuit. More background on the case, including the court’s order on motions for summary judgment, can be found here.

George Carlin’s Estate Sues Media Company Over Audio Work Replicating Carlin’s Voice and Style: On January 25, the estate of George Carlin filed a lawsuit against Dudesy, a media company behind an AI-generated hour-long audio work that replicates Carlin’s voice and comedy style, in the Central District of California for state rights of publicity violations and willful copyright infringement. The complaint alleges that the AI-generated material, titled “George Carlin: I’m Glad I’m Dead,” was created by making unauthorized copies of five decades of Carlin’s copyrighted stand-up comedy routines and ingesting them into an AI model called Dudesy AI. The complaint also appears to address potential forthcoming fair use arguments by explaining that the material does not “satirize Carlin as a performer or offer an independent critique of society” and that it acts as a substitute because “it discourages people who may be unfamiliar with Carlin’s work from seeking it out.”

Briefs Filed in SCOTUS Copyright Damages Case: On January 5, respondent, Nealy, filed his brief in the U.S. Supreme Court (SCOTUS) case, Warner Chappell Music, Inc. v. Nealy. The case involves questions over whether the Copyright Act permits damages to be collected from the date of infringement even if such damages occur more than three years before a lawsuit was filed. The Eleventh Circuit had held for the respondent, ruling that he may collect damages for a timely filed infringement claim where the infringing acts occurred more than three years before the filing of the lawsuit. The respondent argues that under the express language of the relevant provisions in the Copyright Act, the Court should adopt the Eleventh Circuit’s rule. On January 12, various amicus briefs were filed by multiple parties in support of respondent, including the Solicitor General, former Register of Copyrights Ralph Oman, The Authors Guild, Graphic Artists Guild, Songwriters Guild of America, and the National Society of Entertainment & Arts Lawyers. Oral arguments for the case are set for February 21.

Thaler Files Appellate Brief in AI Copyright Authorship Case: On January 22, Dr. Stephen Thaler filed a brief with the Court of Appeals for the District of Columbia appealing a decision by the district court for the District of Columbia, which ruled that the U.S. Copyright Office rightfully rejected Thaler’s bid to register an image wholly generated by his AI machine, The Creativity Machine, because the image lacked human authorship. The brief argues that the express language of the Copyright Act does not require “human” authorship and that this is reinforced in the Act’s recognition and mechanics of the work-made-for-hire doctrine.

Court Partially Rules on Motions to Dismiss Claims in Software AI Class Action Lawsuit: On January 22, in Doe v. Github, the court granted and denied in part Microsoft and OpenAI’s renewed motions to dismiss claims brought by a group of anonymous software coders alleging that Microsoft and OpenAI were liable for violating open source licenses and scraping plaintiffs’ code to train Microsoft’s AI tool, GitHub Copilot. District Judge Tigar of the district court for the Northern District of California declined to dismiss plaintiffs’ claims for damages for Does 1, 2, and 5, but dismissed the claims for damages made by Does 3 and 4 with prejudice because they did not sufficiently demonstrate injury because they failed to allege instances where their code had been output by Copilot. However, the court ruled that all parties had standing to pursue their claims for injunctive relief. The court also dismissed the state claims with prejudice and the Section 1202(b)(1) and (b)(3) claims under the DMCA made by the plaintiffs but granted leave for the plaintiffs to amend relevant defects in the complaint with regard to the dismissed DMCA claims.

Authors File New Class Action Lawsuit Against Microsoft and OpenAI: On January 5, two nonfiction book authors and journalists, Nicholas Basbanes and Nicholas Gage, filed a class action lawsuit against Microsoft and OpenAI over the unauthorized use and reproduction of the plaintiffs’ books to train the ChatGPT AI model. The plaintiffs allege that the defendants are liable for direct, vicarious, and contributory copyright infringement.

Meta Files a Response to AI Class Action Lawsuit Brought by Authors: On January 10, Meta filed its response to the class-action lawsuit brought against it by a group of authors, including Richard Kadrey and Sarah Silverman, for the use of Plaintiffs’ books to train Meta’s AI model, Llama. In its response, Meta admits that portions of the Books3 dataset were used to train the first and second versions of Llama. For its affirmative defense, Meta argues that fair use excuses their infringement of any copyrighted works. It also asserts that it may use public domain works, unregistered works, abandoned works, and works otherwise unprotectable under copyright law.

Anthropic Moves to Dismiss Music Publishers’ Lawsuit: On January 16, AI company, Anthropic, filed an opposition to a preliminary injunction request made by a group of music publishers, who had sued the AI company for the unauthorized use of plaintiffs’ musical works to train the AI model, Claude. The plaintiffs had requested a preliminary injunction to prohibit Claude from generating output of plaintiffs’ works and require extraction of the plaintiffs’ musical works from the training datasets for unreleased models. Anthropic argues that it is inappropriate for the court to grant plaintiffs’ preliminary injunction because the plaintiffs cannot show irreparable harm from Claude’s output or training on the musical works due to the safeguards built into the AI model and because Anthropic did not itself create the infringing output copies that were included in the complaint. Anthropic further accuses plaintiffs of strategically manipulating Claude by bypassing guardrails to produce the infringing output examples included in the complaint. Anthropic also argues that plaintiffs cannot show a likelihood of succeeding on the merits of the infringement claims since its use is excused under the fair use exception.

Italian Court Rejects ISP Challenge to Dynamic Website-Blocking Measures: On January 22, the Regional Administrative Court for Lazio in Italy rejected a bid by the Association of Independent Providers, a group of small to medium-sized Italian Internet Service Providers (ISPs), ruling that the country’s dynamic website blocking measures as implemented by the country’s telecom regulator, AGCOM, are permissible as the system was implemented to further the public’s interest in protecting copyright. Mainly targeting live broadcast events including sporting events, Italy’s dynamic website blocking measures use a system called “The Piracy Shield,” where rightsholders upload information about illicit websites and evidence of infringing activities. The information is provided to ISPs who are directed to block relevant IP addresses within 30 minutes. The new system is expected to go into effect in February.

UK Government Confirms It Is No Longer Considering Broad Copyright Exemption for TDM: On January 9, the UK Committee on Culture, Media, and Sport of the House of Commons issued its report on Connected Tech: AI and Creative Technology: Government Response to the Committee’s Eleventh Report of Session 2022–23, which confirms that the UK government will not move forward with its proposal for a broad copyright exemption for text-and-data mining. The report makes intellectual property recommendations including how the government can examine ways to increase transparency over AI use of creative works and to prevent unauthorized use of creators’ likeness and performances in emerging technologies like AI. The report notes that the government is instead engaging stakeholders in a working group to develop a code of practice on copyright and AI to be shared in early 2024.

UK Opens Consultations on Performance Rights for Sound Recordings in Foreign Nations: On January 15, the United Kingdom’s Intellectual Property Office launched consultations to examine reciprocity of sound recording public performance rights and the country’s treatment of recordings and performances from such countries in light of its international treaty obligations.

EU Parliament Adopts Resolution to Address Various Music Streaming Royalties and Issues: On January 17, members of the European Parliament voted to adopt a resolution to address the issue of allocation of streaming royalties for musicians, promotion of EU musical works on streaming platforms, and transparency of streaming platform algorithms and AI generated music.

Industry Activities

New Nonprofit Launches to ‘Certify Copyright-Friendly AI Practices’: On January 17, a non-profit called Fairly Trained was launched to “certify generative AI companies for training data practices that impact creators’ rights.” Per the announcement, Fairly Trained, which is led by CEO Ed Newton-Rex, “has assembled an advisory committee that brings together voices from a range of disciplines to help ensure that they develop certifications in a manner that takes into account a diverse set of viewpoints.” The advisory committee is comprised of Maria Pallante, President & CEO, Association of American Publishers (AAP); Tom Gruber, Co-founder and CTO of Siri and LifeScore; Elizabeth Moody, Senior Partner, Chair of New Media at Granderson Des Rochers; and Max Richter, composer, pianist, and producer. At the time of launch, nine AI companies—Beatoven.AI, Boomy, BRIA AI, Endel, LifeScore, Rightsify, Somms.ai, Soundful, and Tuney—have been certified by the organization for a range of creation types, such as image, music, and singing voice generation.

Look Forward To And Save the Date For…

HJC IP Subcommittee Holds AI Field Hearing in LA: On February 2 at 9 a.m. PT at the Los Angeles Convention Center, the House Judiciary Committee’s (HJC) Subcommittee on Courts, Intellectual Property, and the Internet will host its field hearing, titled Artificial Intelligence and Intellectual Property: Part II – Identity in the Age of AI. Witnesses include Lainey Wilson, 2024 Grammy Nominee, 2023 CMA Entertainer of the Year, and 2023 ACM Female Artist of the Year; Harvey Mason Jr., President and CEO, the Recording Academy; Christopher Mohr, President, Software and Information Industry Association (SIIA); and Jennifer Rothman, Nicholas F. Gallicchio Professor of Law, University of Pennsylvania Law School.

Next CPMC Meeting: On February 15 at 1 p.m. ET, the Library of Congress will virtually host its sixth bi-annual meeting of the Copyright Public Modernization Committee (CPMC). During the meeting, Library and Copyright Office staff intend to provide updates on the development of the Enterprise Copyright System and a live demonstration of the Library’s system for onsite access to rights-restricted content. The meeting will also feature discussions among the members of the CPMC of their reflections over the past three years since establishment of the committee and discussions regarding a renewed authorization of the committee. The event is open to the public and there will be an opportunity for public questions and answers. More information is available on the registration page.

Deadline to Submit Comments to USCO in Opposition of New Exemptions in 1201 Triennial Rulemaking: On February 20 comments are due to the U.S. Copyright Office in opposition of the new exemptions in 1201 Triennial Rulemaking.  The U.S. Copyright Office’s notice outlines seven newly proposed classes of exemption and initiates three rounds of public comment. Reply comments from supporters of a proposed exemption and parties who neither support nor oppose an exemption are due March 19, 2024.

Deadline to Submit Comments to USCO on NPRM for New Group Registration Option for News Websites: On February 20, 2024, comments are due to the U.S. Copyright Office in response to the published notice of proposed rulemaking (NPRM) setting forth regulations to create a new group registration option to register updates to news websites. The proposed rule would permit news publishers to register groups of updates to news websites published within the same calendar month as a collective work and for a fee of $95.

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