Author: Courtney Lang

Creator Spotlight with Industrial Designer Matthew Cunningham

Posted on by Courtney Lang
Post publish date: November 7, 2023

This week we’d like to introduce you to industrial designer Matthew Cunningham. He’s widely known for his “expertise in advanced vehicle design, brand futuring, and feature film concept design.” Matthew is also one of the primary contributors to the document Structured Approaches for Fair and Ethical (SAFE) AI. Other primary contributors include Nicholas Papillon and Andrew MacLean.

What was the inspiration behind becoming a creator?

I believe everyone is creative to a greater or lesser extent depending on the subject at hand, and whether or not they devote intense, sustained focus toward perfecting or achieving a goal of “creativity.”

In retrospect, the deciding moment for me pursuing a career in the visual arts was probably when my older brother won a bicycle from a drawing he had created through a contest at the local convenience store. He was too large for the kid-size bike frame, so he gave it to me. I thought that it was pretty amazing that you could produce a drawing and trade it in for a bicycle. I was four or five at the time and didn’t know what a raffle was, which is how he actually won the bicycle.

What do you enjoy most about the creative process?

The deep meditative state, moments of insight, and the emergent nature of the creative act.

Can you talk through your creative process?

It depends on the medium, but generally it starts with a process of discovery and accumulation of ideas, thoughts, writings, images, and soundscapes, that serve as a bedrock for the development of a “solution” on paper or on the computer, that addresses the prescribed constraints that the project calls for, usually dictated by the medium of expression and the client. It then turns into a Goldilocks trial and error endeavor of refinement.

How long does your creative process take?

It really depends on the project. Vehicle design for feature films can take weeks or months depending on the type of prototype needed, but the key sketch that leads to the final object may only take a few minutes. Much of my work is conceptual in nature initially, and only later resulting in a physical object. That liminal window of development can either consist of hours, days, months, or in some cases years.

Does everything you produce make money?

Not necessarily, although after a very busy period with design professionally, I’ll focus on other forms of creative output that aren’t as lucrative ‘yet’ like writing, music, and fashion.

What do you think is the biggest misconception about your line of work?

That it’s glamorous working in Hollywood. It’s definitely more glamorous than working in Detroit, but Concept Artists typically have limited interaction with the fanfare associated with actors and directors.

When did you first become aware of copyright, and why?

That’s a tough question. I’d say it became glaringly obvious with the Napster controversy and subsequent lawsuits.  

Have you experienced copyright infringement and, if so, how has it affected you personally and
financially?

Yes, I believe so. Some of the Advanced Automotive Design work I produced in post-graduate research has been “borrowed” extensively by a handful of car companies, rather glaringly. It’s reaffirming that your ideas have value, but disappointing to realize how unoriginal and deceptive some people in the “creative” industry can be at times, particularly when there’s money involved.

What do you do when you encounter someone stealing something you’ve invested your intellect, time, and money into?

First I look for my taser, but if I can’t find it, I’ll generally seek legal advice.

What is the best piece of advice that you would give other creators in your field about copyright and
how to protect themselves? 

Learn as much as you can about copyright and be sure to have provisions in your contracts that clearly delineate ownership and usage.

What is your biggest copyright challenge?

Addressing the rampant larceny presented by AI and machine learning art generators and educating others regarding the same, an effort which started publicly with an appearance on the Dr. Phil show of all places. This effort includes not only informing the general public, but also educational institutions, labor unions, and government offices. Over the past several months, my team and I have put together a conceptual framework that suggests a technological solution to the misapplication of Generative AI systems, and subsequent mass intellectual property theft.

Having spoken extensively with numerous Congressional offices, the U.S. Copyright Office, the U.S. Patent and Trademark Office, the Federal Trade Commission, Congressional witnesses called upon for their expertise in licensing and the nature of Generative AI, and Dr. Phil, I’m happy to have drafted a document that posits a technological approach to protecting intellectual property. The title acronym SAFE AI was coined by one of the contributors to the paper, Andrew MacLean, and the document highlights a sound method of using WEB 3.0 technology, including Distributed Ledgers and Smart Contracts, to protect copyrighted material against rampant abuses perpetuated by a technology which is fundamentally corrosive to both culture and sound enterprise in its current incarnation.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

October 2023 Roundup of Copyright News

Posted on by Courtney Lang
Post publish date: November 2, 2023

In October, Artificial Intelligence (AI) continues to dominate copyright law headlines as the U.S. Copyright Office received initial comments for its AI study, the White House issued an Executive Order that implicates copyright and AI, and a federal court finally took action in one of the dozen AI class-action lawsuits. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of October as well as a few events to look forward to in November.

Copyright Alliance Submits Comments to USCO for AI and Copyright Study: The Copyright Alliance submitted comments to the U.S. Copyright Office for its AI and copyright study. The comments address a range of issues at the intersection of copyright and generative artificial intelligence, especially highlighting concerns surrounding infringement related to the unauthorized use of copyrighted works for training.

Copyright Alliance Submits Comments to USCO on Access to Electronic Deposits NPRM: On October 2, the Copyright Alliance and five others submitted comments to the Copyright Office in response to the proposed rule to expand the categories of the types of electronic deposits the Library of Congress can provide access to. The Copyright Alliance submitted comments pointing out that the rulemaking is premature and that further examinations of, critical updates to, and consultations on the registration and deposit systems and the Library’s security systems, programs, and practices are necessary before a rule can become effective. On October 30, the Office received nine reply comments for this rulemaking.

CCB Status Update: At the end of October 2023, 631 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 249 are “smaller claims.” In at least 188 of all cases, the claimant is using legal counsel. At least 570 of the cases involve infringement claims, 107 involve Section 512(f) misrepresentation claims, and 20 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 (284 cases); Literary Works (97); Motion Picture and Audiovisual Works (119); Sound Recordings (70); Musical Works (39); and some cases include claims for multiple works. Ninety foreign residents have filed claims. Of all the cases filed, 460 have been dismissed for the following reasons: Due to Respondent’s Opt Out (58); Due to Failure to Amend Noncompliant Claim (231); Registration Issues (11); Due to Failure to Provide Proof of Service of Process (87); Claimant Withdrawal and Dismissal of Claims (42); Bad Faith Claimant (6); and Settlement (25). There are 47 active proceedings and nine final determinations.

USCO Receives Over 10,000 Comments for AI and Copyright NOI: The U.S. Copyright Office received over 10,000 comments in response to its notice of inquiry soliciting public comments on AI and copyright issues for the Office’s AI study. Comments were still being posted as this blog post was published. Groups submitting comments included the American Society of Media Photographers and North American Nature Photography Association; Authors Guild; A2IM and RIAA; Department for Professional Employees, AFL-CIO (including Directors Guild of America, International Alliance of Theatrical Stage Employees, SAG-AFTRA, and Writers Guild of America, East; News/Media Alliance; and Motion Picture Association. 

USCO to Renew Most Existing 1201 Exemptions; Solicits Comments on Proposed New or Expanded Exemptions: On October 19, the Copyright Office published a notice of proposed rulemaking, proposing to renew all but one of the existing exemptions to the Digital Millennium Copyright Act’s (DMCA) prohibition against anti-circumvention of technological measures protecting copyrighted works. The Office noted that since no renewal petition was received for the current exemption permitting circumvention of video games in the form of computer programs for the purpose of allowing an individual with a physical disability to use alternative software or hardware input methods, the Office will not recommend this exemption to the Librarian of Congress for approval. Proposed new or expanded exemptions include expansion to the TDM of literary and audiovisual works in the scholarly/research contexts and a new proposed exemption for computer programs for generative AI research. The Office will hold three rounds of public comments on new or expanded exemptions in addition to virtual public hearings, which will be held in spring 2024.

HJC IP Subcommittee Holds Hearing on China IP Issues: On October 19, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Intellectual Property and Strategic Competition with China: Part III – IP Theft, Cybersecurity, and AI. The hearing examined current capabilities and risks in the arms race between the U.S. and the People’s Republic of China in the development of artificial intelligence (AI). The hearing also focused on the cybersecurity implications of AI and its potential impacts on protecting US intellectual property and technical resources, including data. Witnesses addressed issues related to China’s use of AI, the protection of intellectual property rights, data collection and AI training, the potential risks of AI-generated content, and the balance between responsible regulation and innovation. The hearing highlighted the urgent need for comprehensive approaches to AI governance, cybersecurity measures, and the preservation of American values while addressing the growing challenges posed by China in a dynamic technological landscape.

SJC IP Subcommittee Holds Hearing on SHOP SAFE Act: On October 3, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled, Back to School with the SHOP SAFE Act: Protecting Our Families from Unsafe Online Counterfeits regarding the SHOP SAFE Act (S. 2934). Witnesses included Matthew Schruers, President, Computer & Communications Industry Association (CCIA); Stephen Lamar, President & CEO, American Apparel & Footwear Association (AAFA); Daniel Shapiro, Senior Vice President, Brand Relationship and Strategic Partnerships, Red Points; and Kari Kammel, Director and Senior Academic Specialist, Center for Anti-Counterfeiting and Product Protection. In his opening statement, Chairman Chris Coons (D-DE) highlighted the rapid expansion of online shopping and emphasized the critical importance of addressing the issue of counterfeit goods online while promoting responsible and innovative business practices and the concurrent increase in online counterfeiting. 

Court Grants Stability AI’s Motion to Dismiss Visual Artists’ Class-Action Lawsuit: On October 30, the district court for the Northern District of California largely granted the motions to dismiss the class-action lawsuit filed by a group of visual artists against Stability AI, DeviantArt, and Midjourney. Though the court largely dismissed the claims, plaintiffs were provided with leave to amend the claims. The court dismissed the claims made by McKernan and Ortiz, in light of the fact that their works were not timely registered with the U.S. Copyright Office. Though the headlines about this case may frame this decision as a loss for the creative community, that is not the case, because importantly, the court denied Stability’s motion to dismiss the plaintiffs’ direct copyright infringement claims with respect to their images scraped/ingested into the LAION training datasets used to train Stable Diffusion, and also held that plaintiffs’ assertions that their works had likely been used in the LAION datasets as per results from the “haveibeentrained” website adequately supported her infringement claims at this stage of the lawsuit.

Authors File Class Action AI-Related Lawsuit Against Meta and Bloomberg: On October 17, a group of authors including former Arkansas governor, Mike Huckabee, and best-selling Christian author, Lysa TerKeurst, filed a class-action lawsuit in the district court for the Southern District of New York against Meta, Microsoft, EleutherAI, and Bloomberg for direct and vicarious copyright infringement, removal of copyright management information, and various other state-law claims. The plaintiffs allege that the defendants infringed by using plaintiffs’ books to develop defendants’ large language AI models (LLMs) using the “Books 3” training dataset. The lawsuit also asserts that AI research company, EleutherAI, is liable for copyright infringement for hosting and distributing “The Pile” dataset, which includes Books3. 

Music Publishers Sue AI Company, Anthropic: On October 18, music publishers Universal Music Publishing Group, Concord Music Group, and ABKCO, filed a lawsuit in the district court for the Middle District of Tennessee against the AI company, Anthropic, alleging direct, contributory, and vicarious copyright infringement as well as copyright management information removal claims. The plaintiffs allege that Anthropic unlawfully copied and distributed plaintiffs’ musical works, including lyrics, to develop Anthropic’s generative AI chatbot, Claude. The plaintiffs state that when prompted, Claude generates output that copies the publishers’ lyrics. The plaintiffs’ complaint claims that 500 works have been infringed and requests statutory damages of $75 million for copyright infringement.

Biden Administration Activities

President Biden Issues AI Executive Order: On October 30, President Biden signed the long-awaited Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (EO). The EO covers a number of topics. A Fact Sheet that describes the EO is available. Section 5.2 of the EO titled “Promoting Innovation”, paragraph (c)(iii) addresses copyright. It says: “within 270 days of the date of this order or 180 days after the United States Copyright Office of the Library of Congress publishes its forthcoming AI study that will address copyright issues raised by AI, whichever comes later, consult with the Director of the United States Copyright Office and issue recommendations to the President on potential executive actions relating to copyright and AI. The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.”

The EO also directs the Secretary of Homeland Security, acting through the head of the National Intellectual Property Rights Coordination Center, and in consultation with the Attorney General to develop a training, analysis, and evaluation program to mitigate AI-related IP risks. Such a program shall: (i) include appropriate personnel dedicated to collecting and analyzing reports of AI-related IP theft, investigating such incidents with implications for national security, and, where appropriate and consistent with applicable law, pursuing related enforcement actions; (ii) implement a policy of sharing information and coordinating on such work, as appropriate and consistent with applicable law, with the Federal Bureau of Investigation; Customs and Border Protection; other Federal agencies; State, and local agencies; and appropriate international organizations, including through work-sharing agreements; (iii) develop guidance and other appropriate resources to assist private-sector actors with mitigating the risks of AI-related IP theft; (iv) share information and best practices with AI developers and law enforcement personnel to identify incidents, inform stakeholders of current legal requirements, and evaluate AI systems for IP law violations, as well as develop mitigation strategies and resources; and (v) assist the Intellectual Property Enforcement Coordinator in updating the Intellectual Property Enforcement Coordinator Joint Strategic Plan on Intellectual Property Enforcement to address AI-related issues.”

OMB Release New Draft AI Guidance for Federal Government: On November 1, the Office of Management and Budget (OMB) released a memorandum providing guidance on federal government uses of AI. The memorandum acknowledges that AI could impact intellectual property and among other things, directs federal departments and agencies to designate Chief AI Officers and to ensure that procured AI complies with applicable laws, including those addressing privacy confidentiality, copyright, and civil rights and liberties. A summary is available on the White House’s website.

USPTO Holds Roundtable on ‘Future Strategies in Anti-Counterfeiting and Anti-Piracy’: On October 3, the U.S. Patent and Trademark Office (USPTO) held a roundtable on Future Strategies in Anti-counterfeiting and Anti-piracy. The event discussion highlighted the challenges of addressing copyright claims in countries with less stringent legislation and enforcement and the limitations of relying solely on technology to manage piracy and copyright issues. Kevin Madigan, VP of Legal Policy at the Copyright Alliance, participated in the roundtable. Panelists discussed the potential of the Office to bring parties together to explore cooperative possibilities and the importance of trust in the customer-brand relationship. The panelists also discussed the challenges of obtaining injunctive relief in online piracy cases and the outdated nature of the DMCA, which lacks clear definitions and recognized standards for identifying and protecting copyrighted works online. Further, participants emphasized the importance of ensuring that copyright does not become a mere tool in industrial policy and the need to maintain a balanced viewpoint that doesn’t allow copyright to be undermined by industrial policy. 

G7 Issues Final AI Principles/Codes Acknowledging Copyright Protections: On October 30, the G7 released the Hiroshima AI Guiding Principles and AI Code of Conduct which include references in Principle 11 addressing the need for implementation of protections for intellectual property and transparency of training datasets.

UK Parliament Warns of Piracy Threat from NFTs: On October 11, the UK Parliament’s Culture, Media, and Sport Committee issued a report and statement warning that “the emergence of non-fungible tokens (NFTs) in the world of art has led to the risk of widespread copyright infringement” and that “the promotion of crypto assets in professional sport is putting supporters at risk of financial harm and potentially damaging the reputations of clubs.” In its recommendations, the Committee urges the UK government to protect creators from NFT-related copyright infringement by working with NFT marketplaces to develop a code of conduct that would protect creators, consumers, and sellers from infringing and potentially fraudulent material sold on NFT platforms.

French Court Awards €489 Million in Damages for Rightsholders; Sentences Pirate Website Operators Up to Three Years of Prison: A French criminal court in Rennes sentenced two operators of notorious illicit torrent site, T411, to 18-month and three-year prison sentences and is holding the operators responsible for approximately €300,000 in total. The court also awarded rightsholders €489 million in damages for the over 190,000 torrents and 270 million downloads of movies and music that authorities were able to trace.

Submissions to Notorious Markets List to USTR: The Entertainment Software Association (ESA), RIAA, Motion Picture Association (MPA), and the Association of American Publishers (AAP) each submitted a non-exhaustive list to the Office of U.S. Trade Representative (USTR) for inclusion in the USTR’s upcoming 2023 Notorious Market list.

Brazilian Authorities Shut Down Music Piracy Website: On October 25, the International Federation of the Phonographic Industry (IFPI) announced that in coordination with Brazilian authorities, they had shut down a prominent illegal file sharing website, FileWarez.tv. The website had more than 118,000 registered users with at least 24,000 monthly active users who mostly engaged in sharing illegal copies of music files.

Industry Activities

News/Media Alliance Publishes AI White Paper: On October 30, the News/Media Alliance (N/MA) published a white paper titled How the Pervasive Copying of Expressive Works to Train And Fuel Generative Artificial Intelligence Systems Is Copyright Infringement and Not a Fair Use, focusing on the impact and copyright law issues of generative AI on publishers’ works. The White Paper and Technical Analysis made several findings including how generative AI copying of protected works is not fair use, how developers have copied and used news media content to train large language models, and how vital news media content has been in the training and development of commercial AI products, including Google’s Bard. More information is available on N/MA’s website.

Look Forward to And Save the Date For…

2023 Christopher A. Meyer Memorial Lecture: On November 2 from 6:00 p.m. to 8 p.m. ET, The Law Office of Michael R. Klipper, the George Washington University Law School, and the Copyright Society will again sponsor the Christopher A. Meyer Memorial Lecture. Justin Hughes, who is the Honorable William Matthew Byrne Professor of Law at Loyola University Law School, and visiting Professor at Oxford University, will deliver a lecture titled Intellectual Property and the Creatures of Generative AI. 

Extended Deadline to Submit Comments to USCO on MMA Royalty Distribution Issues in New Supplemental NPRM: Comments are now due on November 8, and reply comments are due November 28, in response the U.S. Copyright Office’s supplemental notice of proposed rulemaking (SNPRM). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right (“Exception”) in the context of various royalties administered by the MLC. 

WALA, NAVA, and GMU Arts and Entertainment Advocacy Clinic Seminar on ‘AI and Copyright’: On November 14 from 2 p.m. to 3:30 p.m. ET, the National Association of Voice Actors (NAVA), Washington Area Lawyers for the Arts (WALA), and the George Mason University (GMU) Arts and Entertainment Advocacy Clinic will host a bi-annual seminar on trending legal issues, titled Artificial Intelligence and Copyright. In particular, the event hosts will discuss how AI is infringing on artists’ rights and the methods artists can use to protect themselves. Event speakers will also share examples from the voice artist field to illustrate how easily AI can mimic someone’s voice. If you have a specific question, please email it in advance to legalservices@waladc.org or use the questions section on the Eventbrite registration page.

Columbia University Symposium on Accountability and Liability in Generative AI: On November 17 from 10 a.m. to 5 p.m. ET, the Columbia University Science, Technology & Intellectual Property Law Program and Science and Technology Law Review are sponsoring a symposium titled Accountability and Liability in Generative AI: Challenges and Perspectives. The featured authors and commentators are Mark Lemley, Stanford University Law School; Paul Ohm, Georgetown University Law Center; Catherine Sharkey, New York University School of Law; Alicia Solow-Niederman, George Washington University Law School; Alice Xiang, Global Head of AI Ethics, Sony; Christopher Yoo, University of Pennsylvania Carey Law School; Shyamkrishna Balganesh, Talia Gillis, Thomas Merrill, and Eric Talley, Columbia University Law School; Matthew Sag, Emory University School of Law; and Tim Wu, Columbia University Law School. This event takes place at the Columbia Law School, located at 435 West 116th Street, New York, NY.

USCO Deadline for Submitting Reply Comments on AI Study: Written comments are due November 29 in response to the Copyright Office’s notice of inquiry of various questions related to artificial intelligence and copyright to inform the Office’s ongoing study of AI issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. 

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Halloween Makeup and Copyright

Posted on by Courtney Lang
Post publish date: October 31, 2023

As the days grow shorter and the warmth of summer wanes, store aisles give way to a mesmerizing array of candy, costumes, and Halloween décor. Halloween, that bewitching night when shadows come alive, offers a unique opportunity for us to become something otherworldly. But this transformation into creatures of the night is far from simple. Crafting show-stopping Halloween looks often necessitates the artistry of special effects makeup, including intricate face and body paint. The creative individuals behind these designs have risen to prominence in recent years, forging careers by showcasing their talents. Even the world of television has embraced this phenomenon, with shows like Face Off where skilled makeup artists compete to craft creatures akin to those found in science fiction and horror films. Halloween is a day overflowing with creative expression, so how do Halloween makeup and copyright law relate to one another?

History: Where Did the Halloween Costume Tradition Come From?

Halloween finds its origins in the ancient Celtic festival known as Samhain, a celebration that marked the end of summer and the beginning of the harvest season. In Celtic belief, this was a time when spirits roamed the earthly realm, and those who did not dress up in costumes to conceal their identity were at risk of becoming possessed by the visiting spirits.

When these traditions came to America, Halloween evolved into the festive occasion we recognize today. Early Halloween costumes often featured clowns, witches, devils, and ghosts. During the 1920s, homemade painted paper masks were common. However, the burgeoning film industry, with its iconic horror movies like Frankenstein and Dracula, played a pivotal role in shaping Halloween makeup designs. The increased availability of cinematic cosmetics, such as grease paint and scar wax, made it feasible for individuals to replicate beloved monster characters at home.

Thanks to advances in technology and in the beauty industry, illusionist makeup designs have only become more elaborate and realistic looking. Today, Halloween fosters creativity and encourages artistic expression—a principle that aligns with the very essence of copyright law. Thus, the question emerges: Are Halloween makeup designs protected by copyright laws? The answer is, yes! Halloween makeup designs can easily meet copyrightability requirements that make these artistic creations protectable by the Copyright Act.

The evolution of makeup from being used solely as a way to enhance one’s features to being used as an art form begs the question of what makes a certain makeup design protected by copyright law.

Under U.S. copyright law, a work qualifies for copyright protection if it meets two criteria: (1) it must be an “original work of authorship” and (2) it must be “fixed in a tangible medium.” As a threshold inquiry, the work must qualify as copyrightable subject matter under section 102 of the Copyright Act.

The Second Circuit has held that makeup designs can be categorized as a pictorial work under 102(a)(5), which broadly encompasses “two-dimensional and three-dimensional works of fine, graphic, and applied art.” So next, the analysis of the copyrightability of makeup designs would examine whether such a design would meet the main two requirements noted above.

Fixed in a Tangible Medium

According to section 102 of the Copyright Act, a work must be “fixed in any tangible medium of expression.” Although the Act states that works must be “sufficiently permanent,” or last more than a transitory duration, the Copyright Office has clarified that total permanence is not required for fixation and that transitory simply means “something shorter than temporary.” Thus, unless a work “manifests itself so fleetingly that it cannot be copied, perceived, or communicated” the work should be deemed to satisfy the fixation requirement.

As applied to makeup, this suggests that makeup designs would satisfy the fixation requirement because the designs last more than a fleeting moment on the skin. However, there is still debate over whether makeup designs qualify, and courts and the Copyright Office have not directly addressed the matter. Specifically, ongoing debates concern (1) whether the human body is a tangible medium, and (2) whether makeup designs are sufficiently permanent.

Some courts have held that tattoos can satisfy the fixation requirement because they are permanently embedded on the skin. A district court in Ohio concluded that the tattoo designs on NBA players Lebron James, Danny Green, and Tristan Thompson were “fixed once the process of inking the players’ bodies was completed.” Based on these tattoo cases, makeup designs solely fixed on a person’s skin would seem to be sufficient as a tangible medium, though some copyright scholars have expressed doubt that Congress intended to include body parts of live human beings as a tangible medium of expression.

Unlike tattoos, parties have argued that makeup designs don’t last for more than a brief, transitory period because they can easily be smudged or wiped away. How long makeup lasts on the skin depends on a number of factors, including skin type, how the skin is prepped, the chemical properties of the makeup product, and the conditions that the skin is exposed to. Average makeup products should last for 12 hours on your face, but Halloween makeup may involve application methods that extend the lifetime of the makeup, such as using adhesive and layering special powders and creams.

Additionally, even if a Halloween makeup design is removed from a model or actor but is consistently reapplied in the same way for the same purpose, that could still satisfy the fixation requirement. A notable example is the district court case Carrell v. Shubert, where the special effects makeup designs created for the actors in the Broadway production of Cats were deemed “fixed in tangible form on the faces of the Cats actors” even though the makeup was removed each night after the show and different actors would cycle in and out of the roles.

The Second Circuit also had the chance to weigh in on the makeup fixation issue in 2020 in a case where the lower court held that a makeup design was sufficiently fixed on human skin for copyrightability purposes. While the Second Circuit upheld the copyrightability of the makeup design, it interestingly did so on the alternative ground that the design was sufficiently fixed in the form of a physical photograph. The Court noted that such designs are a form of intangible property that can be fixed in any number of tangible mediums of expression, and thus, for copyrightability purposes, the same makeup design can be fixed in multiple mediums at once.

Since makeup designs fulfill the fixation requirement, the next step in the copyrightability inquiry examines whether each makeup design qualifies as an “original work of authorship.”

Original Work of Authorship

The bar for originality is very low, requiring only that the work be independently created and possess a “modicum of creativity.” The U.S. Copyright Office notes in its Compendium that when analyzing the originality of a work, it does not consider the aesthetic value of a work. Consequently, everyday, standard makeup designs, as visually appealing as they may be, typically do not meet the originality standard because they often reflect common artistic styles or are too abstract of an idea of accentuating or hiding certain facial features. However, the originality question becomes more complex when it comes to the intersection of Halloween makeup and copyright, and we can look to various copyright doctrines for guidance.  

Merger Doctrine

Indeed, when it comes to depicting Halloween characters like skeletons, there may be inherent copyright limitations because there are only so many ways to depict such characters. Their well-established traits serve as immediate identifiers for each character archetype, and it would be impossible to depict such characters without these traits.

Under the concept in copyright law called the merger doctrine, when there are too few ways to express a particular idea, copyright would not protect that particular expression. For example, any painting of a skeleton will have certain similarities to other paintings of skeletons. All skeletons will have hollowed-out eye sockets, bony teeth, and a lack of a nose because that is what a skeleton consists of. Without these defining characteristics, it is impossible to accurately depict a skeleton, so the idea and expression have thus become merged. 

However, this does not mean that every aspect of makeup designs for these characters lacks originality. Copyright law would protect a particular expression of a Halloween character or a monster if it contains tailored, creative additions besides simply the character or monster’s generic characteristics. For example, in Carrell v. Shubert, the cat makeup designs created for the actors in Cats were deemed to possess the “requisite degree of originality.” According to the makeup artist, each design contained specific elements that helped turn human faces catlike, including the placement of various colors and lines sweeping across the actors’ faces. The designer also introduced lines curving out of smudged eyeliner, and messy shading in the character Grizabella to show how she was “full of aging beauty and despair.” So, even when working with characters that may have seemingly limited variations, such as cats, artists can add their own creative elements that could merit copyright protection.

In the Halloween context, painting a plain white skeleton is not original enough on its own, but introducing pink shading and strategically placing pearls in this skeleton makeup design can establish the “modicum of creativity” that meets the originality requirement.

Scènes à Faire Doctrine

The line between creative and commonplace in the context of makeup design can be difficult to draw, particularly when it comes to trope Halloween characters or monsters. Under the scènes à faire doctrine, certain elements of an expression that are common to a particular genre or subject do not receive copyright protection.

Scènes à faire slightly differs from the merger doctrine in that it is still possible to express these characters and meet the originality requirement, even with common characteristics. This is usually because the concept of the characters themselves were made up and don’t exist in nature, so there can be numerous different and minimally creative ways to express a zombie or monster. It often comes down to the degree of originality and the presence of unique, expressive elements that set a creation apart from elements that are expected in relation to a particular character. 

Consider Pennywise, for example. At the outset, his features seem generic to all clowns: white face, colorful hair, and a red nose and lips. But the creators made one significant change by extending Pennywise’s lip makeup all the way up through his eyes. This addition, although seemingly slight, demonstrates a creative choice that goes beyond what is normally expected and thus meets the modicum of creativity required for copyright protection.

Moreover, zombies are recognizable by their pale, rotting skin, so these characteristics in a zombie character may not meet the minimally creative threshold. But additional creative elements, like in Tim Burton’s Corpse Bride can result in a very specific expression of a zombie that is sufficiently original. While the Corpse Bride still has a somewhat pale skin tone and rotting skin, the creator’s added elements tailored specifically to her character, such as a wedding dress and veil, blue skin and hair, a singular skeleton arm, dark blue eyelids that mimic eyeshadow, and the placement of scratches on her face where contour would normally be.

Determining what is considered commonplace in a genre or fictional setting is relative to the context of your design, but how do you distinguish creative and common when an artist combines generic elements of multiple characters at once? Consider this artist who created a mermaid-themed skeleton makeup design. While blues, purples, sparkles, and scales are not common to skeletons, they certainly are to mermaids. Is this look creative enough to satisfy the originality requirement? The answer is yes! Although you would be hard-pressed to find a mermaid without scales or oceanic hues, the placement of the colors, scales, and sparkles represents specific creative, artistic choices that would certainly cross the minimally creative threshold for the originality requirement.

Given that Halloween makeup covers the gamut of generic, tropey Halloween monsters to infamous, specific characters, artists creating looks that transform faces into otherworldly characters must be aware of the potential for copyright infringement. In copyright law, direct infringement occurs when a person “reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work” without authorization. Infringing individuals must have had access to the original work, and the infringing works must be substantially similar to the original work.

Companies or individual creators hold copyrights in their popular Halloween characters, such as the Corpse Bride, Freddy Krueger, Jason Voorhees, and Pennywise. Any re-creations of these characters using makeup may infringe upon these copyright owners’ exclusive rights to make reproductions of or prepare derivative works based on these characters. This is particularly true in cases where a makeup design which infringes copyright-protected characters are created and used in Halloween commercial activities, like in a haunted house. Notably, however, there are many classic and trope Halloween monsters in the public domain, including Frankenstein’s Monster and Dracula, that makeup artists can recreate without infringing on a copyright owner’s particular expression of such monsters.

Influencer Works and Implied Licenses of Recreating Copyrightable Halloween Makeup Designs

Is it copyright infringement if you follow a makeup tutorial posted online? Many influencer makeup artists post tutorial videos explaining exactly how to mimic their makeup designs at home, profiting from advertisements and endorsement deals featured throughout the videos. While it may seem like following one of these tutorials would be considered copyright infringement, the tutorial could serve as evidence that the artist gave an implied license to copy their work. Even without an implied license, it is highly unlikely an infringement suit would result from online makeup tutorial videos since these artists make their money off views and interactions with their content.

However, not every makeup artist who posts a makeup video online is portraying their own original work. An artist may partner with a copyright owner to re-create a specific character, or they may themselves be infringing on another’s copyrighted design. Thus, it is important to keep in mind the context of the video and do your own research if you plan on recreating makeup designs you find online.

The Copyright Implications of Snapchat, Instagram, and Other Makeup Design Filters

Snapchat filters, allowing users to add transformative overlays to their photographs, have gained popularity throughout the past decade. Since the release of this feature, Snapchat has faced  backlash concerning copyright infringement, especially from makeup artists who discovered their unique designs being used as filters without permission.

One makeup artist posted a picture of his own spin on the famous Joker look and an identical design subsequently appeared as a Snapchat filter. Notwithstanding the potential underlying issues surrounding whether the artist had a license to create a derivative work of the iconic Joker character in the first place, these types of Snapchat filters could be direct infringements of the makeup designs that they were based upon. The filters are not just substantially similar to the makeup designs, they are identical reproductions of the design in a digital format. As long as the original makeup design satisfies the copyrightability requirements—sufficiently original and fixed in a tangible medium—filters that re-create the makeup design without authorization are infringing on the makeup artist’s copyright in that design.

Conclusion

What is the takeaway of how Halloween makeup and copyright relate? If you’re a makeup or special effects artist looking to safeguard your imaginative makeup designs, it’s advisable to ensure that your work is preserved in multiple different tangible mediums. This could entail capturing a photograph of the finalized makeup look, recording a video, or transferring the design onto paper. Additionally, ensure you have added enough creative elements that go beyond the features that are generic to a certain character or genre.

Although copyright protection is automatic, creators gain additional benefits from registering their works with the U.S. Copyright Office, including the opportunity to obtain statutory damages and attorneys’ fees when a successful infringement suit  is brought in court. By taking these steps, you can establish a stronger foundation for asserting copyright protection over your creations. So, as you delve into the realm of Halloween makeup artistry, remember to document your work creatively and securely, and register with the Copyright Office. Happy haunting!

Check out these creators on Instagram who take Halloween makeup to a whole new level!

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Creator Spotlight with Musician Hawc Griffin

Posted on by Courtney Lang
Post publish date: October 26, 2023

This week we’d like to introduce you to musician Hawc Griffin. With over 30 years of experience within the music and entertainment industry, Hawc has been a music director, songwriter, and producer. Along with his solo career, he’s also part of the band Fewxion (pronounced Fusion). Be sure to follow Hawc on Instagram and also visit his official website to stay up-to-date with his music.

What was the inspiration behind becoming a creator? What do you enjoy most about the creative process?

I believe being sensitive to “the vibe” of my surroundings and wanting to find the tools to express, beyond words, what I experience is what launched me onto the path of being a creator. That means my arts & crafts efforts as well with sketches, paintings, creating articles of clothing and evolving into a graphic artist which then connected me to creating video clips and so on. The biggest enjoyment for me is witnessing the final product actually take shape in a tangible or shareable way for others to enjoy it with me and it triggers growth or exposure to something not yet considered or experienced on a larger scale. Sometimes it just reinforces something that maybe we have already experienced, but not from another interpretation.

Can you talk through your creative process? How long does it take? Does everything you produce make money?

Unfortunately, not everything I make turns into income, I still have CD’s sitting around that I genuinely believed could be my BIG BREAK and, well, CD Baby recently emailed me to say “Hey we have CD’s of yours sitting in our warehouse and we’d like to clean house, so please reply to claim them.” That was a project I put out about 20 years ago, which started roughly around 1994 and I finally finished it in 2006, and got it pressed into a marketable CD in 2007. It doesn’t typically take me that long, but personal matters really took a lot of my time back then (being a then new father of four and a husband). Now that my time is more open, I can move more quickly to churn out material.

When did you first become aware of copyright, and why?

I learned about the importance of copyright when I was about 13yrs old being molded by my uncle who was also a musician at our church. He saw something in me after several tunes I had made up and recorded on cassette tape and he suggested I mail them sealed in an envelope to myself to keep locked away for my own protection, Calling it the Poor-Man’s Copyright. He then explained how to properly do it with paying fees and registering it properly as well as patent ideas.

What do you do when you encounter someone stealing something you’ve invested your intellect, time and money into?

I certainly address the matter to receive proper compensation and or acknowledgment, because no one should steal someone else’s work.

What is the best piece of advice that you would give other creators in your field about copyright and how to protect themselves?

If receiving compensation and acknowledgement are a priority for you, then definitely make copyright a top tier part of your creative process. Also, remain fair especially if someone else participated in the process and respect others’ works the same as you expect your own to be respected.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Legal Advisory Board Member Spotlight: Music Law Pro

Posted on by Courtney Lang
Post publish date: October 19, 2023

This week we’d like to introduce you to Copyright Alliance’s Legal Advisory Board (LAB) Member Music Law Pro.

What motivated your firm to become a member of the Copyright Alliance Legal Advisory Board (LAB)?

Many musicians aren’t comfortable talking to music lawyers due to the uncertainty of high hourly rates. To combat this, Music Law Pro provides membership-based and upfront fixed-fee services to ensure that we are available to help clients when they need it for a budget they can plan in advance. We were motivated to join the Copyright Alliance Legal Advisory Board to further that purpose. Our music attorneys have an ear on the pulse of the industry to help best protect our client’s rights and maximize revenue for their music careers. We look forward to working with the Copyright Alliance and supporting its music-related members as they seek to better protect their rights.

What are some of the most significant copyright concerns that you’ve witnessed the creator community face today?

There are a wide range of copyright concerns that cross our desks. Many people simply wish to protect their rights, but don’t know how or where to start. With the recent chain of copyright infringement cases (e.g., cases involving songs like “Blurred Lines,” “Stairway to Heaven,” “Dark Horse,” and “Thinking Out Loud”), some are afraid of inadvertently copying someone else’s music and want to learn more about the consequences of potential infringement and how to double check themselves. Others want to sample music in their projects and need assistance with licensing. With all these differing concerns, it generally boils down to protecting their own rights and navigating the industry while respecting the rights of others.

Why is strong and effective copyright protection so important to your firm’s creator clients and constituents?

Copyright protection exists automatically in original works of authorship fixed in a tangible medium of expression. However, there are many benefits to registering works with the U.S. Copyright Office, so we strongly encourage registering to take advantage of such benefits. Benefits include:

  • Public Record of Copyright Ownership. Registration of a work with the Copyright Office establishes a public record of a copyright claim. Such record includes key facts about authorship and ownership, the name and address of the copyright owner, the year of creation, and whether the work has been published.
  • Ability to Enforce Your Rights. Federal copyright registration allows copyright owners to enforce their rights in court because an official copyright registration (or refusal) is required to file a claim for copyright infringement in the U.S.
  • Eligibility for Statutory Damages and Attorney’s Fees. A copyright owner is eligible for statutory damages of up to $150,000 per infringement and attorney’s fees associated with a copyright infringement action if the work at issue was timely registered with the Copyright Office.  In general, timely registration means prior to infringement or within three (3) months after publication.

There are many important legal implications to consider when preparing a copyright application. Our music attorneys can guide music creators through the application to ensure their music is best protected.

What pending copyright-related legislation and/or court cases are you monitoring most closely now, and why?

Our music lawyers are closely following all matters related to music generated using artificial intelligence (“AI”). There are a number of rights involved when creating music using AI. In addition to concerns in connection with the content used to create AI-generated music (e.g., underlying musical compositions, sound recordings, and artists’ likenesses and/or voices), there are also concerns in connection with the so-called “source material” (i.e., the content and data used to train AI software).  Failure to obtain the proper licenses for each area of concern could potentially open creators up to liability for copyright infringement, violation of an individual’s right of publicity, trademark infringement, and more. Despite the potential legal hurdles, AI can be a useful tool in creating music!  Whether it’s being used to assist in production or to create new music inspired by your favorite artist, the benefits of AI have the potential to outweigh the concerns, provided that all involved parties’ rights are properly cleared.  Rather than stifling this new form of technology, Music Law Pro aims to provide a license structure that allows creators to utilize the technology to their benefit. AI developers and music creators who want help with licensing, or simply have questions about AI-generated music should have knowledgeable and experienced music lawyers on their team to guide them through the process. Interested creators can learn more about how we can help by reading our blog or contacting us for more information.

If there was one thing that you wished the public understood more clearly about copyright, what would that be?

A fundamental concept regarding copyrights in the music industry is understanding that there are two copyrights involved in every music track: (1) The composition (also known as the musical composition, song, or publishing); and (2) The sound recording (also known as the master recording or master). The musical composition is the nuts and bolts that make up the song. It’s the lyrics, music, harmony, melody, arrangement, sheet music, etc. The sound recording is the recorded embodiment of that composition. It’s the performance that you hear by the artist, producers, session musicians, etc. There are different revenue streams connected with each copyright. As a result, understanding the different copyrights is the first step to helping creators set themselves up for success.

Think of the song “I Will Always Love You.” The most popular version that likely comes to mind is the version performed by Whitney Houston. However, the song was actually written and originally performed by Dolly Parton. As the songwriter, Dolly Parton (and/or her publisher) owns the copyright in the musical composition; and, as the performer of her version of “I Will Always Love You”, she (and/or her record label) owns the copyright in her sound recording. Whitney Houston’s performance of “I Will Always Love You” is a so-called “cover song.” Whitney Houston (and/or her record label) owns the sound recording copyright in her rendition of “I Will Always Love You.” However, Whitney Houston does not own the copyright in the composition because she did not write the song. The copyright in the composition remains with Dolly Parton as the songwriter.

The above example doesn’t take into account any specifics of potential third parties, such as labels and publishers. An indie musician working alone may own 100% of the copyrights in both the musical composition and the sound recording. However, if an individual is working with a publisher or label, it’s likely that the publisher has rights in the musical composition and the label has rights in the master recording. As a result, it’s also important to understand who owns and/or controls which copyrights so you know what rights are involved in different deals, as well as who you need permission from when you’re licensing music.

Understanding that there are different copyrights in a piece of music is a foundational issue that can really help musicians learn to better protect their rights and collect all of their music royalties. Music Law Pro offers a music industry background/foundation meeting to guide creators through these rights and set them up for success.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Creator Spotlight with Surface Pattern Designer Ewa Brzozowska

Posted on by Courtney Lang
Post publish date: October 10, 2023

This week we’d like to introduce you to surface pattern designer and illustrator Ewa Brzozowska. You can follow Ewa on Instagram and also browse her Etsy shop.

What was the inspiration behind becoming a creator? What do you enjoy most about the creative process?

You know, becoming a creator was kind of a natural path for me. As a kid, I was always doodling and doing all sorts of crafty stuff. It was just in my bones. But when I finished school, I wasn’t sure if I could make a living out of it, so I decided to study Information Technology with a focus on Computer Graphics. That turned out to be surprisingly helpful because I learned a ton about programming and different aspects of graphic design and animation. I even started a creative agency at one point, but something was missing. Designing websites and logos had its restrictions, and I craved more artistic freedom. Then, the real inspiration hit when my oldest son was born. He reignited my love for drawing, and that’s when I knew I wanted to be a children’s pattern designer.

What do I enjoy most about the creative process? I love the uncertainty! It’s like this exciting journey where you start with an idea in your head, but you never know where it’ll take you. The best part is surprising yourself along the way, like when a random brushstroke ends up being a game-changer. It’s all about trying new things and growing artistically and personally. The freedom to express myself through my designs is just priceless. Gosh, I love it so much!

Can you talk through your creative process? How long does it take? Does everything you produce make money?

According to the Gallup Test, my top talents are Achiever and Activator, and that’s spot-on for me. When I get an idea, I’m like, “Let’s do this now!” I’m super curious to see how it turns out, and I’ll even pull an all-nighter to bring it to life.

My creative process kind of depends on whether I’m working on my own vision or for a client. Both have their charms—working with clients brings in fresh perspectives and challenges. Working for myself gives the beauty of freedom. But either way, the core of the process remains the same. It all starts with a brief, either from myself or the client. From there, I make some sketches to present the general idea. Once that gets the green light, I dive into creating the pattern design. Usually, it goes pretty smoothly and takes around 1-2 weeks. My clients often tell me I’m like a mind-reader because they rarely have any suggestions, and man, that trust is priceless!

I am very enterprising, it’s so satisfying to make money doing what you love, but not everything I produce makes money. At least that’s not always my goal. Sometimes the projects I do just for fun end up being the real gems, and they get sold later on. It’s all about finding that creative balance, you know? I’ve had a few burnouts in the past when I focused too much on clients and forgot to take time for myself. But creating just for me from time to time reignites that creative spark! It’s a vital rule to live by. One of my favorite things to do is to take part in those “Draw This in Your Style” challenges on Instagram. They’re so inspiring and refreshing, and it keeps the fire burning.

What do you think is the biggest misconception about your line of work?

Being a freelance Surface Pattern Designer is still a pretty fresh career path, and there are some misconceptions floating around that can be a bit frustrating. One of the biggest ones is that people don’t really understand how it’s possible to draw and actually make a living out of it. I remember an incident from when I was just starting out. I was exhibiting at an International Textile Fair in 2016, and this guy, about 50-years old, a fabric wholesaler or something, came up to my stand. He glanced at my designs and said, “Nice drawings, but they won’t sell. People only buy stripes and chevrons, trust me.” Well, I thought, “Challenge accepted!” And that fair ended up being a catalyst for my success, proving that there’s a market for unique patterns.

But even today, I come across various misconceptions about this line of work. Some people think it’s a cakewalk. You know, “If you can draw, you’re good to go!” But it’s not that simple because you have to create designs that sell, follow trends while staying true to your originality. It’s a delicate balance, but that’s what makes it intriguing.

On the flip side, there are people who believe it’s too hard. They think everything has already been drawn, and there’s no room for fresh ideas. But hey, everything changes, and inspiration is all around us. Even a common theme like a fox can be drawn in a million different ways. It’s all about your unique touch that sets you apart.

And then there are those who underestimate this business, thinking, “What’s so hard about drawing?” But the truth is, drawing is just one part of it. As a freelance designer, you wear multiple hats—marketing, copywriting, social media management, research, finances, brainstorming—you name it! But you know what? I kinda dig it. As an introvert, I enjoy taking charge of everything myself.

Have you experienced copyright infringement and, if so, how has it affected you personally and financially?

Yes, I’ve had some copyright infringement experiences, and I must admit, it was tough to handle at first. But over time, I’ve grown a thicker skin.

The part that really gets to me is when someone swipes my art and prints it in the most horrendous quality, just to sell it on platforms like Aliexpress. Ugh, that’s a real bummer.

When it comes to fellow artists who get a little too inspired by my work (let’s remember the difference between inspiration and copying, right?), I usually try to address it in a friendly way. I’ll write to them via DMs and have a chat, and see if they recognize the issue. Surprisingly, some of these conversations turn out quite nice, and they promise not to do it again. However, there are others who go radio silent and just delete the copied designs from their feed.

Things get a bit more serious when fabric stores steal my patterns, especially when my clients have purchased them. In those cases, I don’t shy away from writing to them, and if they’re based in Poland, I prepare some legal documents to put an end to the copyright infringement. Thankfully, this approach often works. Honestly, I’m not a fan of taking legal action and going to court over these matters—I’d rather spend my time creating new designs and evolving my style. But I’ve had to go down that road a couple of times when necessary, and let me tell you, I can handle it if needed! But here’s the thing—I didn’t dive into the creative world to fight battles with everyone who acts unfairly. I’d much rather focus on crafting fresh designs and staying ahead of the copycats. My priority is to keep pushing my creative boundaries and leaving the copiers behind.

What is the best piece of advice you would give other creators in your field about copyright and how to protect themselves?

First and foremost, remember that this is not just a playground of creativity; it’s also a business. Sure, we get to enjoy friendly clients and the joy of making something new, but we all need to sell our products and make some money too. Sometimes it can be a bit competitive and not entirely fair. However, here’s the key: don’t let the fear of art theft stifle your creative spirit! True creativity flourishes when you feel free, joyful, and excited about crafting something new. It’s not born out of fear and hiding. So, let’s be courageous.

Sure, there are steps you can take to protect yourself. Don’t share your designs in high resolution online, sign agreements, issue certificates of authenticity, and register your works through the U.S. Copyright office. These measures can go a long way. But you won’t thrive if you’re hidden behind a wall of fear. Embrace the magic of creativity, protect yourself wisely, and let your art shine!

What is your biggest copyright-related challenge?

My biggest copyright-related challenge has been the rapid growth of my business. I started as a young mom, creating patterns for local Polish fabric stores. But as my talent and designs gained popularity, I soon found myself working with companies from all over the world. It’s been quite a journey!

Now, with international exposure comes a whole lot of complexity when it comes to copyright and tracking down every copied design. So, instead of being consumed by worry and endlessly chasing copycats, I’ve chosen to focus on building a strong brand. I believe in setting an example for my clients and partners, showing them the importance of respecting copyright and valuing the licensing of my designs. It’s all about fostering a culture of appreciation and pride in the work I do.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

September 2023 Roundup of Copyright News

Posted on by Courtney Lang
Post publish date: October 3, 2023

In September, Artificial Intelligence (AI) continued to be a hot topic in the courts and at the U.S. Copyright Office. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of September as well as a few events to look forward to in October.

Copyright Alliance Activities

Copyright Alliance Relaunches CAB with the Appointment of New Members: On September 12, the Copyright Alliance announced the relaunch of its Creators Advisory Board (CAB) with the appointment of the following board members: Yanique DaCosta; Jayda Imanlihen; Lana Love; Blake Morgan; Jeff Sedlik; T.J. Stiles; Taura Stinson; and Maimouna Youssef. CAB is a key Copyright Alliance board consisting of creators who are leaders in the creative community with a demonstrated track record of advocating for strong copyright protections.

Copyright Alliance and Community Partners Co-Host ‘AI and Copyright’ Webinar: On September 13, the Copyright Alliance co-hosted a virtual webinar with numerous Community Partners titled Artificial Intelligence and Copyright: The Next Frontier. The event, which garnered more than 460 attendees, explored the complex relationship between copyright and artificial intelligence (AI) and the legal and ethical implications surrounding copyright ownership, licensing, fair use, and other opportunities and challenges. Policy team members Kevin Madigan and Rachel Kim were the event speakers. The webinar was designed for all creators, copyright holders, and others who are interested in AI, as it provided insights into the ever-evolving landscape of AI and copyright. The event video is now available to the public on our AI and Copyright webpage.

Copyright Alliance Blogs: We published several new blogs during the month of September:

  • Copyright Alliance CEO, Keith Kupferschmid, wrote a blog post in support of independent musicians in light of the re-introduction of the Protecting Working Musicians Act.
  • We highlighted in this blog post NBA players’ creative careers on top of their already impressive athletic backgrounds.

CCB Status Update: At the end of September 2023, 600 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 235 are “smaller claims.” In at least 186 of all cases, the claimant is using legal counsel. At least 545 of the cases involve infringement claims, 100 involve Section 512(f) misrepresentation claims, and 18 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 (270 cases); Literary Works (90); Motion Picture and Audiovisual Works (113); Sound Recordings (68); Musical Works (37); and some cases include claims for multiple works. Eighty-four foreign residents have filed claims. Of all the cases filed, 434 have been dismissed for the following reasons: Due to Respondent’s Opt Out (55); Due to Failure to Amend Noncompliant Claim (217); Registration Issues (10); Due to Failure to Provide Proof of Service of Process (83); Claimant Withdrawal and Dismissal of Claims (41); Bad Faith Claimant (5); and Settlement (23). There are 43 active proceedings and eight final determinations.

USCO Rejects Registration of AI-Assisted Work: On September 5, the U.S. Copyright Office rejected a second request made by artist, Jason M. Allen for reconsideration for refusal to register a two-dimensional artwork titled Théâtre D’opéra Spatia, because the work contained more than a de minimis amount of AI-generated work which Allen refused to disclaim on the registration application. Specifically, the Office rejected Allen’s three claims to human authorship, stating: (1) the image, as generated by Midjourney, lacked human authorship because Allen’s sole contribution was to input text prompts into Midjourney; (2) the Office could not decide whether Allen contributed any human authorship to the image via adjustments made to the image via Adobe products because there was a lack of information; and (3) the use of Gigapixel AI to scale the image did not introduce new, original elements into the image and that these acts did not amount to authorship.

USCO Issues Rule on Fees for Late Royalty Payments Under the MMA: On September 5, the U.S. Copyright Office adopted the interpretive rule regarding fees for late royalty payments under the Music Modernization Act’s (MMA) statutory mechanical blanket license. In its interpretive rule, the Office declined to issue any regulations, instead finding that the statute is unambiguous as to “(i) due date provisions, (ii) direction to the Office to adopt regulations governing adjustments, and (iii) delegation of authority to the CRJs to promulgate late fee provisions.” Specifically, the Office concluded that “the plain and natural meaning of the statute is that ‘all royalties’ for a given monthly reporting period are ‘due’ no later than 45 days after the end of the monthly reporting period. Thus, any royalties received by the MLC for such reporting period after this ‘due date for payment’ are late.” The Copyright Alliance submitted comments on this issue back in May 2023.

USCO Issues NPRM Regarding Access to Electronic Deposits: On September 1, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) that would update its regulations governing access to electronic deposits of published works submitted to the Office that have been selected for addition to the collection of the Library of Congress by expanding the categories of eligible electronic deposits to all published copyrighted works.

USCO Extends Deadline for Submitting Comments for AI Study: On September 21, the U.S. Copyright Office published a notice in the Federal Register that extends the deadlines for the submission of comments for its ongoing Artificial Intelligence study. Written comments are now due October 30 and reply comments are due November 29. 

USCO Solicits Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: On September 26, the U.S. Copyright Office published a supplemental notice of proposed rulemaking (SNPRM) to further clarify policies and procedures surrounding royalty distribution and dispute resolution practices for royalties administered by the Mechanical Licensing Collective (MLC). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC. Comments are due October 26 and reply comments are due November 13. 

Biden Administration Activities

NAIAC Holds Briefing on AI and Copyright Law Issues: On September 29, the National Artificial Intelligence Advisory Committee (NAIAC) held a two-part briefing on various AI issues, including on AI and copyright law issues featuring a presentation by Aaron Cooper (BSA | The Software Alliance), Keith Kupferschmid (CEO, Copyright Alliance), and Catherine Stihler (Creative Commons). The presenters discussed infringement and fair use issues related to the ingestion of copyrighted works for AI training and the applicability of various cases, including the U.S. Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith on those issues. A recording will be made available on the NAIAC website.

HJC IP Subcommittee Holds USCO Oversight Hearing: On September 27, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Oversight of the U.S. Copyright Office, examining the U.S. Copyright Office’s operations and the status of programs and reforms enacted in previous Congresses. Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter, was the sole witness. During the hearing, Register Perlmutter stated that the Office hopes to have a report on its current notice of inquiry (NOI) on artificial intelligence (AI) published in the first half of 2024 and that registration processing times are at a historic low of 2.1 months on average and just over one month for fully electronic claims.

House Administration Committee Holds USCO Modernization Roundtable: On September 26, the House Administration Committee held a public roundtable to discuss the U.S. Copyright Office’s processes and policies, the current advancements in copyright modernization, and avenues for further improvement. The roundtable was hosted by Chairman Representative Bryan Steil (R-WI) and Ranking Member Representative Joe Morelle (D-NY) who posed questions to members of the Copyright Public Modernization Committee (CPMC), which included Copyright Alliance CEO, Keith Kupferschmid. Topics discussed during the roundtable included the positives of the CPMC, transformations in the digital landscape, copyright accessibility, the need for industry-specific measures, the need for increased funding for the U.S. Copyright Office and the Library of Congress, the low percentage of creators who register their works, and the recent Valancourt v. Garland decision.

SJC Moves Forward on Deborah Robinson IPEC Nomination: On September 28, the Senate Judiciary Committee (SJC) moved forward on Deborah Robinson becoming the next Intellectual Property Enforcement Coordinator (IPEC) with a vote of 13-8. The Copyright Alliance initiated a statement by CEO Keith Kupferschmid noting full support of Deborah Robinson as the next IPEC and thanking the SJC for its support.

SJC Holds Hearing on AI Oversight: On September 12, the Senate Judiciary Committee (SJC) Subcommittee on Privacy, Technology, and the Law held a hearing titled, Oversight of A.I.: Legislating on Artificial Intelligence. Witnesses included Woodrow Hartzog, Professor of Law, Boston University School of Law; William Dally, Chief Scientist and Senior Vice President of Research, NVIDIA Corporation; and Brad Smith, Vice Chair and President of Microsoft Corporation. Overall, the hearing was bipartisan and led to deep discussions on how AI regulation should be looked at going forward. During her second round of questions Senator Klobuchar asked about NVIDIA’s partnership with Getty Images. Mr. Dally replied by saying, “We believe in respecting people’s intellectual property rights. We did not want to infringe on the rights of the photographers that took the images that our models had been trained on. We did not just scrap a bunch of images off the web to train our model, we partnered with Getty. When people use our model, Picasso, to generate images, [those] who provided the original content get renumerated. We see this as a way of going forward in general where people who are providing the IP for the training of these models should benefit from the use of them and that IP.” A recording of the hearing is now available to the public.

Senate Commerce Holds Hearing on AI: On September 12, the Senate Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety & Data Security held a hearing titled The Need for Transparency in Artificial Intelligence. Witnesses included Victoria Espinel, CEO, BSA, The Software Alliance; Dr. Ramayya Krishnan, Dean of the Heinz College of Information Systems and Public Policy, Carnegie Mellon University; Sam Gregory, Executive Director of WITNESS; and Rob Strayer, Executive Vice President for Policy, Information Technology Industry Council. Senator Hickenlooper (D-CO) asked about existing rights for consumers to maintain ownership of their creations and any additional rights they might have. In response, Dr. Krishnan highlighted concerns regarding the use of data and content by AI models, particularly when it comes to compensating creators. He emphasized the importance of copyright protection and suggested that creators should have the right to seek advertising opportunities related to their content used by AI models. A recording of the hearing is now available to the public. 

Senator Schumer Holds Inaugural AI Roundtable: On September 13, Senator Chuck Schumer (D-NY) held an AI roundtable during which lawmakers, technology company CEOs—including Elon Musk, Bill Gates, Sundar Pichai, and Mark Zuckerberg—and leaders of entertainment, labor and civil rights groups— including Charlie Rivkin of the Motion Picture Association (MPA)—discussed issues surrounding AI technologies. Participants agreed that government regulation of AI was necessary. When discussing the potential threat of AI for job displacement, Meredith Stiehm of the Writers Guild of America West described the views of its members on strike seeking a new contract with Hollywood studios in part to address those fears.

PWMA Re-Introduced in House: On September 19, Representative Deborah Ross (R-NC) re-introduced the Protecting Working Musicians Act (PWMA) (H.R. 5576), which would allow independent performers and labels to negotiate collectively with music streaming services. The bill was originally introduced in October 2021 by former Representative Ted Deutch (D-FL). A new addition to the bill would extend the antitrust exemption for the purpose of negotiating generative AI licenses.

Internet Archive Files Appeal of Its Loss in Lawsuit With Publishers: On September 11, the Internet Archive filed an appeal to the Court of Appeals for the Second Circuit from the August 11, 2023 judgment and permanent injunction against it for its widespread copyright infringement from scanning and digital lending of books owned by a group of publishers. According to reports, the Association of American Publishers responded, stating that it plans to “vigorously litigate the appeal of this case.” 

Authors File Class Action AI Lawsuits Against Meta and OpenAI: On September 8, a group of authors, including Michael Chabon, filed a class action lawsuit against OpenAI in the district court for the Northern District of California, alleging that the company used the authors’ books in training ChatGPT. The complaint alleges that when prompted, ChatGPT provides extremely detailed summaries, examples, and descriptions of the authors’ works, and that the authors’ writing styles can be accurately imitated. The plaintiffs are suing for copyright infringement and removal of copyright management information, as well as state-related claims including unfair competition and negligence. On September 12, the same group of plaintiffs filed a similar lawsuit against Meta.

Court Holds that Noncommercial Dissemination of Standards Incorporated into Law is Fair Use: On September 12, the U.S. Court of Appeals for the District of Columbia issued an opinion in American Society for Testing and Materials (ASTM) v. Public.Resource.Org (PRO), finding the defendant’s noncommercial dissemination of safety standards, as incorporated by reference into law, constitutes fair use and thus cannot support liability for copyright infringement. The court held that the first three factors “strongly support” a holding that PRO’s posting of the standards qualifies as fair use, and that the posting of “what the law is, not what industry groups may regard as current best practices,” is a transformative purpose. The court did not find that the standards are not copyrightable (or that they lose copyright protection when they are incorporated by reference), but that the standards fall “at best, at the outer edge of copyright’s protective purposes.” On the fourth factor, the court found that “plaintiffs have been unable to produce any economic analysis showing that Public Resource’s activity has harmed any relevant market for their standards” and that PRO’s dissemination serves a public benefit. Notwithstanding this analysis, the court found that the fourth factor “does not significantly tip the balance one way or the other.” Ultimately, the decision says that the district court reasonably exercised its discretion in declining to award injunctive relief. The Copyright Alliance had submitted an amicus brief in support of ASTM.

Authors Guild and Group of Authors Sue OpenAI: On September 19, Authors Guild and a group of authors—including David Baldacci, Mary Bly, John Grisham, George R.R. Martin, Jodi Picoult, and Roxana Robinson—filed a class action lawsuit against OpenAI in the district court for the Southern District of New York, alleging copyright infringement claims over the mass ingestion of literary works to train ChatGPT and for infringing outputs generated by the AI machine. The complaint cites examples of ChatGPT being prompted to generate detailed outlines of possible sequels to the plaintiffs’ works and accurate and detailed summaries of such works, including specific chapters of books.

Book Publishers Sue Libgen: On September 14, a group of publishers including Cengage, Macmillan, and Pearson filed a lawsuit against the operators of the shadow library, known as Library Genesis (“Libgen”), in the district court for the Southern District of New York. The plaintiffs allege the Libgen operators are liable for pirating and illegally distributing 200 of the plaintiffs’ textbooks in about 20,000 files to Libgen users for free. 

EU IPO Releases Report on Online Copyright Piracy: The European Union’s Intellectual Property Office (EU IPO) released a report titled Online Copyright Infringement in the European Union: Films, Music, Publications, Software, and TV (2007-2022). The EU IPO reported that the downward trends in piracy of film, music, and TV content were increasing again due to the rise in piracy of TV content and publications. The report noted that 58% of piracy occurs via streaming and 32% via downloads.

Indian Court Grants Dynamic Site Blocking Order for Future Content: On September 9, the High Court of Delhi in New Delhi granted a dynamic website blocking order for a group of movie and television studios against notorious illicit pirate websites and their mirror websites to protect the plaintiff-studios’ copyrighted works “as soon as they are created.”

UK Council of Music Makers Call for Streaming Royalties Reform: The Council of Music Makers, comprised of the Ivors Academy, the Featured Artists Coalition, the Musicians’ Union, the Music Producers Guild and the Music Managers Forum, unveiled a five-point plan for music streaming royalties reform for musicians and songwriters and called on record labels, music publishers, and digital platforms to work with the UK government, including the UK Intellectual Property Office, to deliver such changes.

Look Forward To And Save the Date For…

USPTO Webinar on IP Basics and Helpful Resources: On October 5 from 12:00 p.m. to 1:30 p.m. ET, the United States Patent and Trademark Office (USPTO) is hosting a free informational webinar on intellectual property (IP) for aspiring entrepreneurs, innovators, and students. The webinar will cover different types of IP, why protecting IP is important, and available local resources and assistance. Pending availability, participants may meet with members of the Office staff following the session.

First Sale: The Role of IP Rights in Markets: On October 12 and October 13, the Center for the Intellectual Property x Intellectual Property (C-IP2) at George Mason University Antonin Scalia Law School is hosting its Annual Fall Conference, titled First Sale: The Role of IP Rights in Markets. The event is designed to bring together academics, policymakers, innovators, and creators to discuss key issues in the IP system, namely those surrounding tech, IP, and the arts.

Deadline to Submit Reply Comments to USCO on NPRM on Expanded Access to Electronic Deposits of Copyrighted Works: Reply comments are due October 16 in response to the U.S. Copyright Office’s notice of proposed rulemaking (NPRM). The proposed rule expands the categories of eligible electronic deposits covered by the Office’s current regulation with the same limitations on access as are currently in place. The proposed changes are part of ongoing steps by the Library of Congress and the Copyright Office to encourage submission of works in electronic form and therefore reduce the need for copyright owners to deposit physical copies. 

AIPLA Annual Meeting: October 19 through October 21, the 2023 American Intellectual Property Law Association (AIPLA) Annual Meeting will take place at the Gaylord National Resort and Convention Center. The meeting will encompass more than 1,000 intellectual property practitioners who will attend networking events, committee meetings, receptions, and more. A wide range of IP-related topics will be covered, including the ethical implications of artificial intelligence (AI) in research and development, trademarks and the First Amendment, patent licensing, transformative fair use following the recent Warhol v. Goldsmith decision, and numerous copyright-related discussions.

Deadline to Submit Comments on MMA Royalty Distribution Issues in New Supplemental NPRM: Comments are due on October 26 in response to the U.S. Copyright Office’s supplemental notice of proposed rulemaking (SNPRM). The SNPRM includes additional analysis on the application of the derivative works exception to the statutory termination right in the context of various royalties administered by the MLC.

Deadline for Submitting Comments to USCO for AI Study: Written comments are due October 30 in response to the U.S. Copyright Office’s notice of inquiry of various questions related to artificial intelligence and copyright to inform the Office’s ongoing study of AI issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs. 

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Creator Spotlight with Singer/Songwriter Moody Bank$

Posted on by Courtney Lang
Post publish date: September 21, 2023

This week we’d like to introduce you to singer/songwriter Moody Bank$. You can follow her on Instagram and Twitter. You can also listen to her music on Spotify, Apple Music, and YouTube.

What was the inspiration behind becoming a creator?

The reason I decided to pursue a creative path stems from my desire to express myself both emotionally and physically through music and art. There were certain thoughts and feelings that I found difficult to articulate verbally, but art provided a safe and empowering outlet for me. Additionally, I draw inspiration from the idea of evoking similar emotions in others through my music. Hearing people share how my songs have inspired or deeply connected with them personally is truly the ultimate reward I could hope for.

What do you enjoy most about the creative process?

One of the most exhilarating aspects of the creative process for me is the ability to conjure something extraordinary out of thin air. It’s a captivating feeling, almost like practicing alchemy. To bring forth something into existence that didn’t exist before, it’s truly amazing. It deepens my connection to the essence of creation and reminds me of the purpose we all share in this life. Each day, we have the opportunity to shape ourselves, define our identities, and build the lives we desire. Having the artistic means to do so is like a dream come true. It allows me to embark on a remarkable journey of self-expression, self-discovery, and the fulfillment of artistic aspirations.

Can you talk through your creative process? How long does it take? Does everything you produce make money?

I have a deeply personal and organic approach to my creative process. When I hear a beat, the raw freestyles and melodies that flow out of me become the foundation of my songs. But it’s not just about me—I absolutely love collaborating with my producers from beginning to end. Seeing the song come alive and having the freedom to add my own touch and co-produce the beats and sound selections brings me so much joy.

The lyrics I create are a true reflection of my emotions in that precise moment. Whether it takes an hour or a couple of days, it all depends on the creative energy that fills the air that day. And sure, not every song may bring in big bucks, but I have unwavering faith that my time will come. It’s all about staying consistent and true to myself.

What do you think is the biggest misconception about your line of work?

The biggest misconception about my work is that I don’t handle all aspects of it. In reality, I’m a multi-talented individual who takes charge of every step. I write my own lyrics, often co-produce the beats, record my own vocals, and even create my own Chanel strips. I’m a one-woman show, and that’s what sets me apart from the rest. I relish the ability to have complete control over the entire process—both the sonic elements and the aesthetics—because that’s what adds a touch of beauty to my art.

When did you first become aware of copyright, and why?

My understanding of copyright came to light when I discovered that the first producer I collaborated with for my debut EP had copyrighted my music without my knowledge. It was a devastating realization because I never anticipated something like that happening to me. However, with the benefit of hindsight, I now appreciate that this experience served as a valuable lesson. It highlighted the significance of being well-informed about the industry in which I work and being transparent about such situations. It also reinforced the importance of taking ownership of my responsibilities as an independent artist.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Creator Spotlight with Voiceover Actor Liisa Lee

Posted on by Courtney Lang
Post publish date: September 12, 2023

This week we’d like to introduce you to voiceover producer, coach, and actor Liisa Lee. You can follow Liisa Lee on Instagram and Twitter.

What was the inspiration behind becoming a creator?

I think I’ve always been a creator and performer. It’s part of my heartbeat, from my mother’s performing career, to watching my sisters who are a dancer and an artist, and following in their footsteps to my love of so many creative things, like cooking, writing and photography. But it all started with singing and dancing at around four years old. A favorite early memory has always been sneaking into an unused dance studio next door to where my sister was in class at the National Academy of Dance (then called the National Academy of arts when I went there for high school). I was around seven, and running and dancing and jumping around the huge studio to the music of the pianist next door. The sound of the dancers and the yells of encouragement from the teacher, along with the smells of the rosin on the wood floors. It was glorious and it felt like flying. 

I started performing professionally at a very young age and I’ve always felt at home on a stage and in a theatre, and now in a recording booth. There’s just something magical about the joy of creating art that moves people. It’s deeply fulfilling, especially working with others, and finding that collective effervescence that uplifts an audience. I’m a creator through and through, whether that’s a Broadway show, voiceover, or a delicious plate of fresh warm cookies.

Can you talk through your creative process? How long does it take? Does everything you produce make money?

Although every creative endeavor can be different, it all begins with a spark of an idea that moves me. Whether that’s cooking, shooting a plate of food for a client, performing on stage, doing voice over work on projects, or acting, I find a small bell of truth ringing that connects me to the work, an understanding of it, and then the rest is all about creating the reality I see or feel in it. That’s true for every medium I work in, including how I coach my voice over clients. It all takes its own time, unless you’re under time constraints, and then the adage comes to mind: “Great art is made with a good idea and not quite enough time.”

Everything I do has or creates value, but not everything makes money. I understand the value of paying it forward, helping friends, or giving to others because it’s the right thing to do. That’s the life of an artist and creator, and good integrity brings opportunity back around.

What do you think is the biggest misconception of your work?

That’s easy – That anyone can do it. Voice acting especially. Even seasoned pros in TV or film, with years of dedicated acting and genre training, wrongly assume that they can just pivot into voice acting, but voice over work has its own sets of tools, rules and skills that aren’t part of those other avenues. It IS all acting, but there are different tools for each vocation, and ya gotta know when and where to use ‘em to be working.

When did you first become aware of copyright, and why?

I learned about copyright through the music industry and several infamous lawsuits and, now, as a food photographer, I’m learning about rights and licensing.

Have you experienced copyright infringement and, if so, how has it affected you personally and financially?

I’ve had some incidents with my photographs being used without permission or payment. 


What do you do when you encounter someone stealing something you’ve invested your intellect, time and money into?

Usually, a professional email solves that. That’s where I start from. Some folks genuinely don’t know they are infringing, and others may not care. For me, it’s healthiest to speak up and come armed with documentation. If I’ve done all I can do with integrity, sometimes, It’s a lesson I can learn from and let go. Litigation is an ordeal.

What is the best advice that you would give other creators in your field about copyright and how to protect themselves?

Arm yourself with the right information. Document everything, keep receipts, and protect your works through copyright. It sounds simple, right? But it can be an easy thing to lose track of. Also, have a good lawyer and peers to answer your questions honestly. Retaining a lawyer to look over proposals and contracts, etc., and learning as these instances arise, has been a saving grace several times for my business. Business collaborations can start off positively, then take a turn, so always stay aware, and ask questions when things feel like they’ve changed. Trust your instincts if things feel “off.”

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

Movie Copyright Cases Filmmakers Should Know: Part 3, Copyright Authorship

Posted on by Courtney Lang
Post publish date: August 31, 2023

This is the third and final edition of our blog on insightful movie copyright cases for film and TV industry professionals. Part 1 of the blog addressed copyright infringement and copyrightability while Part 2 discussed the fair use defense to copyright infringement. This ultimate installment discusses a joint authorship copyright case in the context of TV and movie making.

Who Is the “Author” of an Audiovisual “Work” (and the Importance of Contracts): Aalmuhammed v. Lee

Throughout the years, the question of what constitutes an “author” has arisen in the context of different forms of media. In 1884, the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony stated that the author of a photograph is the “master mind,” the one “who has superintended the arrangement, who has actually formed the picture by putting the persons in position.” More than a century later, the Ninth Circuit Court of Appeals in Aalmuhammed v. Lee determined who authors a copyrighted film.

Jefri Aalmuhammed, a filmmaker and expert on civil rights figure Malcolm X, was approached by actor Denzel Washington to help in the making of Spike Lee’s 1992 film “Malcolm X.” Aalmuhammed’s contributions to the film were extensive (e.g., several script revisions, conception of two scenes with new characters, direction of Washington and other actors on set, and selection of prayers and religious practices for characters). However, his request for credit as a co-writer of the film was denied and he was ultimately credited as an “Islamic Technical Consultant.” Afterwards, he independently applied for copyright registration with the U.S. Copyright Office as co-creator, co-writer, and co-director of the film, then promptly sued Lee and others on the ground that the film was a “joint work” of which he was an author.

The Copyright Act defines “joint work” as “a [copyrightable] work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The Court of Appeals ultimately found that “Malcolm X” was not a joint work because Aalmuhammed lacked sufficient creative control to be considered the “master mind” of the work. The court held that, “in the absence of a contract to the contrary,” the author of a movie is someone with artistic control—potentially a producer, screenwriter, director, or star actor—and in the case of “Malcolm X” the mastermind was director Spike Lee.

Use of the phrase “in the absence of a contract to the contrary” is important here as courts look to the intent of the parties when there is a claim of joint authorship, and in many circumstances that intent is recorded in a signed contract. But in cases such as Aalmuhammed where the parties’ intent is disputed or unclear, courts must look at other aspects of the relationship and creative process to infer intent. As it turned out, several of Aalmuhammed’s contributions made their way into the final film, but Lee always had the final word on what made the cut. That decisionmaking autonomy was strong evidence of the lack of joint authorship.

The court in this joint authorship copyright case also considered the policy considerations of the Copyright Clause of the U.S. Constitution. The court stated that it would not “promote … Progress” of artistic works to vest authorship rights in anyone who made a copyrightable contribution to a film. If that were the case, everyone from the director down to a makeup artist would have equal ownership in a film. In the court’s view, if that were the case, filmmakers like Spike Lee, “could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.”

Aalmuhammed also illustrates how useful contracts are for filmmakers to nip potential disputes in the bud. Did Aalmuhammed and Lee have to go through a drawn-out legal battle? Perhaps not, if they had simply signed a contract. Not all filmmaking projects have the financial and legal resources to obtain licenses from every contributor. Given that reality, courts will often find that contributors to a film or TV show have granted implied licenses. Nevertheless, proactively agreeing to legally enforceable terms can usually spare all involved parties several headaches.

Conclusion

Copyright considerations are important for TV and filmmakers and the cases presented throughout the entirety of this blog series illustrate the different decisions that such artists should consider and think about during the creative process. In exploring copyrightability, copyright infringement, fair use, and joint copyright authorship issues, we hope these movie copyright cases have shed ample light for film and television professionals to navigate the intricacies of the discipline.

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

>