May 2024 Roundup of Copyright News

Post publish date: June 4, 2024

In May, the U.S. Supreme Court was unusually busy with copyright cases, as were lower courts around the country. Here is a quick snapshot of some of copyright-related activities that occurred during the month of May as well as a few events to look forward to in June.

Copyright Alliance Activities

Copyright Alliance Submits Comments to IP Office of Singapore on Proposed Copyright Exception: On May 17, the Copyright Alliance, joined by the European Publishers Council, submitted comments to the IP Office of Singapore and the Ministry of Law of Singapore in response to a Public Consultation regarding the proposal for a new exception permitting circumvention of technological protection measures (TPMs) to use copyrighted works for “computational data analysis” (i.e., text and data mining). The comments argue that the exception violates provisions of the U.S.-Singapore Free Trade Agreement and exacerbates concerns over Berne Convention obligations and compliance.

Copyright Alliance Celebrates 17th Anniversary: May 17 marked the 17th anniversary of the Copyright Alliance’s inception. To commemorate this milestone, we shared accomplishments across our social media channels throughout this month, ones that our team is proud to have achieved, including offering a wealth of educational materials on our website, spreading awareness about the importance of copyright, keeping Congress and other policymakers apprised of key copyright issues, successfully supporting key legislation such as the CASE Act, the MMA, the PLSA, and much more.

Copyright Alliance Blog on Turning Books to Movies: We explored in this blog post, three copyright-related tips for authors to keep in mind as they look to turn their books into big and small screen adaptations.

CCB Status Update: At the end of May 2024, 858 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 360 are “smaller claims.” In at least 228 of all cases, the claimant is using legal counsel. At least 746 of the cases involve infringement claims, 152 involve Section 512(f) misrepresentation claims, and 28 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 (358 cases); Literary Works (131); Motion Picture and Audiovisual Works (183); Sound Recordings (83); Musical Works (59); and some cases include claims for multiple works. One-hundred and eight foreign residents have filed claims. Of all the cases filed, 712 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (84); Due to Failure to Amend Noncompliant Claim (350); Registration Issues (16); Due to Failure to Provide Proof of Service of Process (133); Claimant Withdrawal and Dismissal of Claims (67); Bad Faith Claimant (14); and Settlement (48). There are 61 active proceedings and 24 final determinations.

Register Perlmutter and Former USPTO Director Iancu Discuss AI and IP at AI Expo: On May 7, the Special Competitive Studies Project (SCSP) and the Council for Innovation Promotion (C4IP) co-hosted a Fireside Chat titled AI and IP: Can AI Generated Creations and Inventions be Protected? Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, alongside Andrei Iancu, Partner at Sullivan & Cromwell and former USPTO Director, spoke about the implications of AI on patents and copyrights and on U.S. innovation and competitiveness. Register Perlmutter spoke to the human authorship requirement for copyrightability, the Office’s ongoing AI study, and the Office’s recent decisions regarding registration applications for works with AI-generated elements.

USCO Publishes Report on Effects of Pandemic on Copyright-Reliant Industries: On May 23, the U.S. Copyright Office published a report titled The Resilience of Creativity: An Examination of the COVID-19 Impact on Copyright-Reliant Industries and Their Subsequent Recovery. The report showed that copyright-reliant industries experienced a substantial downturn and a decrease in revenue of $21.7 billion as a result of the pandemic, but compared to the broader U.S. economy, the effect was smaller.

HJC IP Subcommittee Holds Hearing on IP Enforcement by the Executive Branch: On May 7, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet (HJC IP) held a hearing titledIntellectual Property: Enforcement Activities by the Executive Branch. The hearing examined enforcement of intellectual property (IP) in the United States, with a focus on U.S. agencies and government entities charged with IP enforcement-related tasks. Witnesses included Josh Goldfoot, Acting Deputy Assistant Attorney General, U.S. Department of Justice (DOJ), Criminal Division; Michael Ball, Deputy Director, National Intellectual Property Rights Coordination Center and Deputy Assistant Director, Homeland Security Investigations Global Trade Division; and Brandon Lord, Deputy Director, National Intellectual Property Rights Coordination Center and Executive Director, U.S. Customs and Border Protection Trade Policy and Programs Directorate. Overall, the hearing focused on the enforcement of IP laws by the executive branch, with a particular focus on the Biden administration’s approach and the significant economic losses attributed to inadequate enforcement, especially due to counterfeit goods predominantly originating from China.

Senator Schumer Releases AI Roadmap: On May 15, Senate Majority Leader Chuck Schumer (D-NY), along with Senators Rounds (R-SD), Heinrich (D-NM), and Young (R-IN), released their bipartisan Senate AI Working Group’s AI roadmap titled Driving U.S. Innovation in Artificial Intelligence. The roadmap focuses on boosting American leadership in AI technology, proposing $32 billion in annual funding by 2026 for AI research and development. The roadmap does not call for specific legislation but directs relevant committees to review and consider certain issues. In terms of AI and copyright-related issues, the working group directs relevant Congressional committees to consider the impacts of AI on professional content creators and publishers; federal policy issues, including data sets that include sensitive personal data or are protected by copyright, legislation that protects against the unauthorized use of one’s name, image, likeness, and voice in the context of AI, which is consistent with First Amendment principles; appropriate actions to ensure U.S. leadership on intellectual property and copyright issues based on the results of existing and forthcoming reports from the U.S. Copyright Office and the U.S. Patent and Trademark Office on issues concerning AI and IP/copyright law; and legislation regarding participation in international AI research or partnerships, giving due consideration to the potential threats to research security and intellectual property.

Senate Committee on Appropriations Holds LOC FY2025 Budget Hearing: On May 15, the Senate Appropriations Committee’s Subcommittee on the Legislative Branch held a hearing titled A Review of the Fiscal Year 2025 Budget Requests for the Library of the Congress and the Architect of the Capitol. The hearing featured Dr. Carla Hayden, Librarian of Congress, and Joseph DiPietro, Acting Architect of the Capitol, as witnesses. Chairman of the Subcommittee, Senator Jack Reed (D-RI), asked Dr. Hayden what the impact would be if the Library of Congress had to operate at or below the FY24 request level. Dr. Hayden replied that this would impact, among other initiatives, the modernization of various products and services including the Enterprise Copyright System (ECS). Dr. Hayden noted that “great strides” have been made on the ECS and stated that efforts on this front had “a lot of public and stakeholder interest.”

Senator Warner Urges USCO to Expand Copyright Exemption to Circumvent TPMs to Address AI Security Risks and Biases: On May 24, Co-Chair of the Senate Cybersecurity Caucus, Senator Mark Warner (D-VA), sent a letter to the U.S. Copyright Office, urging it to address security, safety, and bias risks arising from the use of generative AI models. Senator Warner stated that the Office should expand the exemption to circumventing technological protection measures protecting copyrighted works for good-faith security research, by also permitting “‘good-faith testing, investigation, and/or correction of a security flaw or vulnerability’ in computer programs.” Further, the letter suggests the expansion as an alternative to a petition for new exemption for the security research pertaining to generative AI models, submitted by Jonathan Weiss of Chinnu, Inc., and opposed by many Copyright Alliance members, among others. The Senator noted that an expansion of the exception should not be permitted for research that would undermine authenticity and provenance of technological measures in an AI model and not otherwise facilitate copyright infringement.

NMPA Sends Letters to Congress On Section 115 Licensing System; Criticizes Spotify Over Cutting Royalties Payable to Songwriters: On May 21, the National Music Publishers’ Association (NMPA) sent letters to both the Senate and House Judiciary Committees requesting that the statutory license in section 115 of the Copyright Act be changed to allow rightsholders to choose whether to license through The Mechanical Licensing Collective (MLC) using the statutorily set royalty rates established through section 115 or to withdraw from The MLC and privately negotiate the rate if they meet certain conditions. This was following events where NMPA criticized Spotify and sent a demand letter to the platform over the unauthorized use of publishers’ musical works in lyrics, videos, and podcasts on the platform, noting that such uses should have been negotiated separately with rightsholders. NMPA also raised concerns over the platform’s rumored “remix” feature, which would allow users to “speed up, mash up, and otherwise edit” songs. NMPA President and CEO David Israelite stated that “Spotify once again has gone to war with songwriters. In addition to Spotify’s improper use of the ‘bundle’ definition to lower its payments to songwriters and publishers, the platform appears to be rife with unlicensed musical works. [W]e warned Spotify that they will be held accountable for infringement from using songs and lyrics in videos and podcasts which require licenses that it has not secured. Before Spotify’s ‘bundling’ betrayal, we may have been able to work together to fix this problem, but they have chosen the hard road by coming after songwriters once again.”

SCOTUS Holds There is No Time Limit for Recovering Damages in Cases Filed Before the Expiration of a Statute of Limitations: On May 9, the U.S. Supreme Court held, in a 6-3 decision written by Justice Kagan, that there is no time limit on monetary recovery when a copyright owner possessing a timely claim is entitled to damages, no matter when the infringement occurred. The case stems from claims brought by respondent Sherman Nealy, who invoked the discovery rule to sue Warner Chappell Music for copyright infringements going back ten years. Importantly, the Court did not directly address the discovery rule, explaining that the issue was “not properly presented” and stating that “we assume without deciding that a claim is timely under [§507(b) of the Copyright Act] if brought within three years of when the plaintiff discovered an infringement, no matter when the infringement happened.” Justice Gorsuch, joined by Alito and Thomas, dissented, arguing that the decision was premature given that the Court may soon take on the discovery rule directly and render the current decision “a dead letter.” Justice Gorsuch stated that “rather than devote our time to this case, I would have dismissed it as improvidently granted and awaited another squarely presenting the question whether the Copyright Act authorizes the discovery rule.”

SCOTUS Denies Cert in Copyright Statute of Limitations Case: On May 20, the U.S. Supreme Court denied the cert petition in the case Hearst Newspapers, L.L.C. v. Martinelli, which would have squarely addressed the issue of whether the Copyright Act’s three-year statute of limitations permits the discovery rule that allows copyright owners to bring legal claims within three years of discovering an infringement. The case was brought in 2021 by photographer Antonio Martinelli against Hearst for the unlicensed uses of his photos in newspapers and websites since 2017, though Martinelli did not discover the infringement until 2018. The Fifth Circuit Court of Appeals had ruled for Martinelli and upheld the discovery rule. Justices Gorsuch, Alito, and Thomas indicated their skepticism of the discovery rule earlier this month in their dissent in the case Warner Chappel Music v. Nealy, where the Court ruled that damages may be collected for infringements, no matter when they occurred.

Authors File Class Action AI Lawsuit Against NVIDIA: On May 2, two authors, Andres Dubus III and Susan Orlean, filed a class-action lawsuit against NVIDIA over the unauthorized use of the authors’ books in training NVIDIA’s series of large language models (LLM) called NeMo Megatron-GPT. Filed in the district court for the Northern District of California, the complaint alleges that the plaintiffs’ books were contained in the Books3 dataset, located within another dataset known as “The Pile,” and that this dataset was used to train NVIDIA’s LLMs. The plaintiffs allege a single count of direct copyright infringement.

Authors File Class Action AI Lawsuit Against Databricks and MosaicML: On May 2, two authors, Rebecca Makkai and Jason Reynolds, filed a class-action lawsuit against Databricks and MosaicML over the unauthorized use of the authors’ books in training MosaicML’s series of large language models (LLMs) called MosaicML Pretrained Transformer (MPT), which Databricks distributes. Filed in the district court for the Northern District of California, the complaint alleges that the plaintiffs’ books were contained in the Books3 dataset which was contained in the “RedPajama—Books” dataset that was allegedly copied and used to train MPT. The plaintiffs allege direct copyright infringement against MosaicML and vicarious copyright infringement against Databricks.

Hearing Held on Motions to Dismiss in Andersen v. Stability AI: On May 8, a hearing on motions to dismiss was held in a class action case brought in the Northern District of California by visual artists against multiple AI companies for the unauthorized use of plaintiffs’ works as training material for their AI models. During the hearing, attorneys for defendants Midjourney, Deviant Art, Runway, and Open AI took turns urging Judge Orrick to dismiss a variety of claims related to direct and secondary copyright infringement, inducement, 1202(b) DMCA violations, and trade dress violations. Counsel for Plaintiffs countered that they had sufficiently alleged infringement and DMCA claims, that they have shown evidence that all the defendants utilize AI models that were trained on the LAION database, and that their claims should proceed to the summary judgment stage. Prior to the hearing, Judge Orrick issued a proceedings and tentative rulings order, in which he indicated that he is inclined to allow plaintiffs to file a Second Amended Complaint, deny all motions to dismiss the direct and induced copyright infringement claims, and grant motions to dismiss the DMCA claims.

Court Holds That Claims Made By X Corp. Against Data Scraping Company Are Preempted by Copyright Law: On May 9, the district court for the Northern District of California granted motions to dismiss made by defendant, Bright Data Ltd., a data-scaping company, in the case brought against it by X Corp., over Bright Data’s circumventing X’s anti-scraping technology, scraping X’s data, and selling the data. The court noted that “the extent to which public data may be freely copied from social media platforms, even under the banner of scraping, should generally be governed by the Copyright Act …” The court provided X Corp. with leave to amend its complaint.

IA’s Motion to Dismiss Record Label Lawsuit Denied: On May 15, a judge in the Southern District of New York issued an order denying the Internet Archive’s (IA) attempt to dismiss a copyright infringement lawsuit brought against it by Universal Music Group (UMG) and other major record labels. The case stems from the Internet Archive’s “Great 78” project, which began in 2018 and involves the collection, digitization, and distribution of sound recordings captured on physical 78-rpm gramophone records. In 2023, the record labels sued the Internet Archive, claiming the organization made unauthorized reproductions of thousands of copyright protected sound recordings and “then willfully uploaded, distributed, and digitally transmitted those illegally copied sound recordings millions of times.” In its motion to dismiss, the Internet Archive claimed its activity qualified as fair use, but also claimed that the lawsuit should be dismissed because it was filed after the three-year statute of limitations had passed—an argument based on a cease and desist letter it received more than three years before the suit was filed. In denying the motion, Judge Maxine Chesney explained that it wasn’t clear whether the statute of limitations had expired on all works at issue in the case because the letter did not mention the infringement of specific works. However, Judge Chesney said that the defendants may use the letter to show one or more of the alleged acts of infringement at a later stage in the proceedings. In addition to the Internet Archive’s motion, co-defendant the Kahle-Austin Foundation’s motion to dismiss was also denied because the court found that plaintiffs sufficiently alleged that the Foundation was likely aware of the allegedly infringing activity and may have contributed to it.

The MLC Sues Spotify Over Bundled Music-Audiobooks Subscription Plan: On, May 16, The Mechanical Licensing Collective (MLC) sued Spotify over the platform’s decision to bundle music and audiobooks together in its paid Premium subscription plan, which the platform reasoned would re-categorize the kind of royalties payable to publishers and songwriters. The MLC argues that Spotify’s decision violates Section 115 of the Copyright Act, and results in severe underreporting and underpayment of mechanical royalties, stating that there was nothing new about the new bundle plan to warrant such measures. The MLC’s CEO Kris Ahrend stated, “The MLC was designated by the Register of Copyrights to administer the blanket license and is the only entity with the statutory mandate to collect and distribute blanket license royalties and take legal action to enforce royalty payment obligations. The MLC takes seriously its legal responsibility to take action on behalf of our Members when we believe usage reporting and royalty payments are materially incorrect.”

Jury Finds Cheat Software Infringes Video Game Developer’s Copyright: On May 24, a jury in the U.S. District Court of the Western District of Washington found that video game cheat code developer, Phoenix Digital (Phoenix), was liable for copyright infringement, awarding plaintiff video game company, Bungie, $63,210 in damages. In 2021, Bungie sued Phoenix, owner and operator of the AimJunkies website, for hacking into Bungie’s video game Destiny 2 and copying the game’s software code to make and sell cheat software on AimJunkies. Bungie’s allegations that Phoenix violated the Digital Millennium Copyright Act by circumventing copyright protection measures proceeded to arbitration, where Bungie was awarded $4 million in damages. Phoenix’s appeal of that arbitration ruling is still in progress.

Court Awards Video Game Company $14.5 Million in Damages in Default Judgment Against Cheat Code Distributors: On May 28, the district court for the Central District of California awarded video game publisher, Activision Publishing, more than $14 million in damages and attorneys fees in a default judgment against video game cheat code developers and distributors including a German company, EngineOwning UG, and several individuals.

Cox Appeals in Sony v. Cox Case Over Evidentiary Concerns: On May 22, Internet Service Provider (ISP), Cox Communications, Inc., filed its opening brief in its appeal in Sony Music Entertainment v. Cox Communications, Inc., where the Court of Appeals for the Fourth Circuit had overturned parts of a jury verdict under which Cox had been held liable for $1 billion for its subscribers’ infringement of 10,017 songs owned by the record label plaintiffs. In the appeal, Cox argues that the district court improperly denied Cox’s motion to reopen discovery in light of allegations that the plaintiffs’ evidence of infringement was recreated at a later date.

UK MPs Publish Report on Music and AI Appropriation: On May 1, UK’s All-Party Parliamentary Group (APGG) on Music, an informal group of members from the House of Commons and House of Lords, issued a report titled Artificial Intelligence and the Music Industry—Master or Servant?. The report details survey results of UK adults that revealed four out of five UK adults agreed that the law should prevent an artist’s music from being used without authorization to train AI models and that 77% of UK adults agreed that AI-generated music, which does not acknowledge the original music’s creators, amounts to theft. The report also lays out recommendations from the APGG on Music, including that the UK government should create a pro-creative industries AI bill to protect copyright, introduce new rights and recommendations on labelling and record keeping, and enhance “personality rights.”

UK Legislators Criticize Government’s Passive Approach to AI Copyright Infringement: On May 2, Baroness Stowell of Beeston, Chair of the Communications and Digital Committee, sent a letter to Rt Michelle Donelan MP, UK Secretary of State for Science, Innovation, and Technology, in response to the government’s report on generative AI and large language models (LLMs). The letter notes that the UK government’s actions and record on copyright as implicated by AI LLMs is “inadequate and deteriorating” and that “[t]his trajectory is concerning” as it could have negative consequences on smaller publishers.

UN Human Rights Office Publishes Report on AI Risks, Touching on IP Rights: The United Nations (UN) Human Rights Office of the High Commissioner published a paper titled Taxonomy of Human Rights Risks Connected to Generative AI, which outlines concerns and impacts of generative AI training on works protected by intellectual property law in a section on AI’s adverse impact on the right to own property. The document gives several examples of these risks, including where generative AI models are trained on large quantities of text scraped from the internet, where AI output is similar to original works, and where AI output results in direct reproductions of original works.

UN General Assembly Adopts AI Resolution That Includes IP Provision: On March 21, the United Nations (UN) General Assembly adopted a resolution titled Seizing the opportunities of safe, secure, and trustworthy artificial intelligence systems for sustainable development, which encourages Member States to implement “appropriate safeguards to respect intellectual property rights, including copyright-protected content, while promoting innovation.”

UK Parliament Issues Third Report on Governance of AI: On May 28, the UK House of Commons Science, Innovation, and Technology Committee published its third report on the governance of AI, which examines domestic and international developments in the governance and regulation of AI and provides conclusions and recommendations for future, incoming members of the Parliament. The report contains a section on copyright issues, where the government notes unsuccessful attempts for a working group comprised of representatives from the technology, creative, and research sectors to agree on a code of practice concerning the use of copyrighted works for AI use. The report urges the current government or successor administration to conclude discussions on the use of copyrighted works for AI training and to reach an implementable approach. According to the report, such an approach may include an agreement of financial settlement for past infringements, a negotiation of a licensing regime for future uses, and an establishment of a new entity to operationalize the agreement. The report also notes that if a voluntary approach cannot be achieved, the government should enforce these measures in cooperation with international partners.

Save the Date For…

WIPO U.S. Summer School on Intellectual Property: From June 3 to June 14, the Center for Intellectual Property x Innovation Policy (C-IP2) at George Mason University Antonin Scalia Law School is partnering with the World Intellectual Property Organization (WIPO) to host the seventh iteration of the 2024 WIPO U.S. Summer School on Intellectual Property. This two-week summer course will be held online-only to accommodate participants from all over the world, providing an opportunity for students “to acquire a deeper knowledge of each domain of IP and of the role and functions of WIPO.” The program consists of lectures, case studies, simulation exercises, and group discussions on selected IP topics. More information is available on the registration page.

VLANY Four-Part Film and TV Workshop: Starting June 4, the New York Volunteer Lawyers for the Arts (VLANY) is hosting a four-part Film and TV Workshop Series that will address the legal essentials of filmmaking. The four sessions will cover vital legal aspects for filmmakers, from contract negotiation strategies and rights clearances to music licensing and option agreements. The first session will focus on Contract Essentials for Filmmakers. On June 12, the second session on rights and clearance misconceptions will provide an overview of rights and clearance best practices in connection with television, film, and new media productions. On June 18, the third session on music licensing for film and television is tailored toward musicians who want to learn about the intricate world of music licensing for film and television. On June 25, the fourth session on film option agreements will focus on what creators should do (and not do) when working with a production company interested in “optioning” rights to develop a film, series, show, podcast, or other type of production.

RightsClick and Qti.ai Webinar on IP Strategies: On June 6 at 12 p.m. ET, RightsClick and Qti.ai will co-host a webinar titled Protecting Your Passion: Essential IP Strategies. The event will provide artists, designers, photographers, and other independent creators and brands with information on how they can protect their works; clarify the differences among trademarks, copyrights, and patents; identify actions to take against scammers; register their works for copyright; and much more. The session will also include a case study of a sculptor and share their experiences in safeguarding creative works. More information is available on the registration page.

Copyright Society Annual Meeting: From June 9 to June 11, the Copyright Society will host its 2024 Annual Meeting, which will take place in Cleveland, Ohio. The meeting provides members of the copyright and entertainment industries with two and a half days of copyright law panels, networking opportunities, and other events. More information is available on the registration page.

A2IM Indie Week: From June 10 to 13, the American Association of Independent Music (A2IM) will host Indie Week in New York City, NY. Held annually, Indie Week is the largest gathering of the independent music community. Running for more than 15 years, and with over 1200 attendees, it features 60 panels and workshops, 1800 curated business meetings, and countless opportunities for the independent music sector’s unique needs. The event draws labels, distributors, DSPs, agencies, and more; and participants can expect three days of discussions and networking. More information is available on the registration page.

CCC Course on Copyright 101 for Academia: On June 11 from 1:30-3:30 p.m. ET, Copyright Clearance Center (CCC) is hosting an instructor-led course titled Copyright 101 for Academia. The class will provide “a look at copyright law and its impact on college and university faculty, staff members, and students in colleges and universities.” The course will offer group discussions, an analysis of real-world scenarios to help provide a foundational understanding of U.S. copyright law and best practices in higher education, and a Q&A session. More information is available on the registration page.

USPTO LGBTQIA+ Proud Innovation Webinar: On June 12 from 3-4 p.m. ET, the U.S. Patent and Trademark Office will host its annual Proud Innovation 2024 webinar in honor of LGBTQIA+ creators and entrepreneurs. The event will feature founders from three companies in the LGBTQIA+ entrepreneur community who will share their stories of getting their products to consumers. The speakers will also share how they built and marketed their businesses through networking, including how they found those opportunities. More information is available on the registration page.

VLANY Legal Guide and Q&A for Visual Artists: On June 19 from 5-6 p.m. ET, the New York Volunteer Lawyers for the Arts (VLANY) is hosting a webinar on the basics of what visual artists need to know regarding their legal rights, creative assets, and how to protect them. The session will provide an overview of copyright rights, exceptions, such as fair use, and more. The speaker is Carol J. Steinberg, attorney and visual arts professor. More information is available on the registration page.

MdVLA Art Law Virtual Clinic: On June 22 from 1-4 p.m. ET, the Maryland Volunteer Lawyers for the Arts (MDVLA) is hosting a virtual Art Law Clinic, and is inviting all creative entrepreneurs to sign up for a 30 minute session with a volunteer attorney to discuss issues and questions regarding IP protections. Registration is $5 and is non-refundable. More information is available on the registration page.

Deadline for Currently Designated MLC and DLC to Submit Reply Comments to USCO on Whether to Continue Their Existing Designations: June 28 is the deadline to submit reply comments to the U.S. Copyright Office’s notification of inquiry required by the Music Modernization Act regarding whether the existing designations of the Mechanical Licensing Collective (MLC) and Digital Licensee Coordinator (DLC) should be continued. Reply comments by the currently designated MLC and DLC must be submitted by July 29.

Oral Arguments in Hachette v. Internet Archive Case: On June 28 at 10 a.m. ET, the Second Circuit Court of Appeals will hold oral arguments in Internet Archive’s (IA) appeal in Hachette v. Internet Archive, where the lower court held that IA’s practices of mass digitization and distribution of digital copies of plaintiff-publishers’ literary works (also known as Controlled Digital Lending or CDL) did not qualify as a fair use. Livestream audio of oral arguments can be found on the court’s webpage.


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April 2024 Roundup of Copyright News

Post publish date: May 2, 2024

In April, the creative community celebrated World IP Day amid a flurry of copyright related activities. Congress was busy with a variety of copyright issues with an AI and authorship hearing and a new AI class action lawsuit was filed by a group of visual artists. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of April as well as a few events to look forward to in May.

Copyright Alliance Blog on AI and Copyrightability: At the end of April, Copyright Alliance CEO, Keith Kupferschmid, wrote a blog post on the copyrightability of AI-generated works, highlighting that though there are a spectrum of AI-assisted works that vary on the scope of interactions between the AI tool and a human creator, copyright law can address authorship issues. 

Copyright Alliance and Community Partners Host World IP Day Panel: On April 23, the Copyright Alliance and 18 Community Partner organizations hosted a World IP Day (WIPD) panel via Zoom, titled Sustaining and Empowering the Creative Community Through Copyright. The event covered how creators can meet their goals today while helping to ensure that tomorrow’s creative community is sustained through job growth, a strong creative economy, and continued growth of the arts, all of which are perpetuated through copyright protections. In celebration of WIPD, Copyright Alliance CEO Keith Kupferschmid shared a video message in support, and numerous elected officials also shared supporting video messages which are posted on our World IP Day webpage.

Copyright Alliance Submits Statement for HJC IP Subcommittee Hearing on AI and Authorship Issues: On April 10, the Copyright Alliance submitted a statement for the record for the House Judiciary Committee IP Subcommittee’s hearing on AI and authorship issues, noting that current copyright standards are capable of addressing copyrightability of AI-generated materials, that works wholly generated by AI should not be protected by copyright, and that some clarification is desirable in the U.S. Copyright Office’s registration guidance on works containing AI generated elements.

CCB Status Update: At the end of April 2024, 826 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 343 are “smaller claims.” In at least 227 of all cases, the claimant is using legal counsel. At least 727 of the cases involve infringement claims, 141 involve Section 512(f) misrepresentation claims, and 27 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 (347 cases); Literary Works (131); Motion Picture and Audiovisual Works (169); Sound Recordings (78); Musical Works (57); and some cases include claims for multiple works. One-hundred and eight foreign residents have filed claims. Of all the cases filed, 675 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (78); Due to Failure to Amend Noncompliant Claim (332); Registration Issues (16); Due to Failure to Provide Proof of Service of Process (125); Claimant Withdrawal and Dismissal of Claims (64); Bad Faith Claimant (14); and Settlement (14) There are 58 active proceedings and 23 final determinations.

USCO Receives 14 Comments in Response to GR2D NPRM: On April 1, the Copyright Office received 14 comments in response to its notice of proposed rulemaking (NPRM) proposing the creation of a new group registration option for two-dimensional works. The Copyright Alliance submitted comments detailing several serious concerns with the NPRM, requesting if the USCO goes forward with this rule, the Office must first address these issues for the group registration option—including issues related to an examiner taking action without contacting applicants, the ten-work limit, and the thirty-day time period, among other issues. The comments also raise concerns about the status of the Office’s registration modernization process and resources.

Update from USCO Chief Economist on AI and Other Activities: On April 23, the U.S. Copyright Office’s (USCO) Chief Economist, Dr. Brent Lutes, authored a blog post on the work and activities of the Office of the Chief Economist (OCE). Lutes wrote that the Office, in conjunction with a group of ten economists, has been discussing empirical and theoretical evidence of the economic issues posed by AI technologies on creators and the creative industries, and that a report on these issues would be issued later in 2024. Lutes also wrote that the OCE is studying “name, image, likeness” and style issues, but noted that there is little empirical evidence of the effects of right of publicity issues on creative output. According to Lutes, the OCE is collaborating with colleagues at the World Intellectual Property Organization (WIPO) in examining how right of publicity issues might affect the creative ecosystem and the commercial implications of such issues. Lutes additionally wrote that OCE will soon be releasing several reports on the geographic distribution of copyright activity, the demographic characteristics of creators, and the impact of the COVID pandemic on the creative outputs of the creative industries. He also wrote that the OCE is involved in the Office’s ongoing fee study.

USTR Releases 2024 Special 301 Report: On April 25, the Office of the U.S. Trade Representative (USTR) released its 2024 Special 301 Report, which evaluates the adequacy and effectiveness of the U.S. trade partners’ protection and enforcement of intellectual property rights. This year’s report removes the Dominican Republic and Uzbekistan from the Watch List and lists seven countries in the Priority Watch List, including Argentina, Chile, China, India, Indonesia, Russia, and Venezuela. More information is available in the USTR’s press release.

IPEC Releases Annual Report: On April 23, the Office of the Intellectual Property Enforcement Coordinator (IPEC) issued its Annual Intellectual Property Report to Congress, which provides an overview of the intellectual property enforcement efforts of various U.S. federal and governmental agencies, including the U.S. Patent and Trademark Office, the U.S. Copyright Office, the State Department, the Office of the U.S. Trade Representative, and the Commerce Department’s Commercial Law Development Program. The report highlights various capacity-building and foreign assistance accomplishments in copyright education and enforcement, including work by the ICHIP and IP Attaché programs on digital sports piracy issues in Romania, Latin America, and the Caribbean. In recounting Copyright Office activities and accomplishments, the report noted that in all of the Office’s public engagements on AI and copyright issues in 2023 (including the webinars and listening sessions), it reached more than 8,000 people, breaking engagement records.

HJC IP Subcommittee Holds Markup of Pro Codes Act: On April 16 and 17, the House Judiciary Committee held a two-day markup of H.R. 1631, the Protecting and Enhancing Public Access to Codes Act (Pro Codes Act), favorably voting the bill out of the committee 19-4. The bill clarifies that model codes and standards do not lose copyright protection by virtue of having been adopted or incorporated by reference into law or regulation, provided that the codes/standards are accessible to the public. Five amendments were adopted during the hearing, including an amendment requiring the Government Accountability Office (GAO) and U.S. Copyright Office to study the cost and impact of the bill, and an amendment to accommodate accessibility for persons with disabilities. The Copyright Alliance issued a statement in support of the House Judiciary Committee’s (HJC) successful markup of the bill.

Rep. Frost Introduces CREATE Art Act: On April 10, Representative Maxwell Frost (D-FL) introduced H.R. 7918, the Cultivating Resources for Emerging Artists to Thrive and Excel (CREATE) Art Act, which would create four new federal grants for emerging artists, providing between $2,000 to $100,000 for artistic activities, projects, live performances, living expenses, and other arts-related activities. The bill is supported by the American Association of Independent Music (A2IM) and the Recording Academy, among others.

HJC IP Subcommittee Holds Hearing on AI and IP Authorship Issues: On April 10, the House Judiciary Committee’s (HJC) IP Subcommittee held a hearing titled Artificial Intelligence and Intellectual Property: Part III – IP Protection for AI-Assisted Inventions and Creative Works. The hearing was convened to examine the standards and policy considerations of whether intellectual property laws should protect inventions or creative works generated with the assistance of AI and whether current guidance and policies on inventorship and authorship should be reexamined. Witnesses included Claire Laporte of Ginkgo Bioworks, Inc.; Joshua Landau of the Computer and Communications Industry Association (CCIA); Sandra Aistars, Clinical Professor at George Mason University’s Antonin Scalia Law School; and Kristelia Garcia, Professor of Law at Georgetown University Law Center. Subcommittee members inquired about the desirability and necessity of copyright protections for works containing AI-generated elements, the effect of input on the copyrightability of the output, and the appropriate level of human involvement and contribution necessary for copyright protections in an AI-generated work.

Rep. Schiff Introduces AI and Copyright Transparency Bill: On April 9, Representative Adam Schiff (D-CA) introduced H.R. 7913, the Generative AI Copyright Disclosure Act of 2024, which establishes a process that obligates a person who creates or alters a training dataset used to build a generative artificial intelligence (GAI) model to submit a notice to the Register of Copyrights containing a sufficiently detailed summary of any copyrighted works used in the training dataset and its URL, if made public. Noncompliance with the process will result in a civil penalty amount of not less than $5,000. The Register is also directed to maintain a publicly available online database containing all notices filed under this provision.

House Appropriations Committee Holds LOC Budget Hearing: On April 16, the House Appropriations Committee’s Legislative Branch Subcommittee held a hearing titled Budget Hearing – Fiscal Year 2025 Request for the Library of Congress (LOC) and the Architect of the Capitol. Witnesses included Joseph DiPietro, Acting Architect of the Capitol; Dr. Carla Hayden, Librarian of Congress; Robert R. Newlen, Interim Director, Congressional Research Service, Library of Congress; and Shira Perlmutter, Register of Copyrights and Director, U.S. Copyright Office. Only Dr. Hayden and DiPietro testified in person at the hearing. Members of the committee asked Dr. Hayden about the Library’s IT infrastructure and priorities on modernization efforts. Dr. Hayden stated that the Library’s budget requests for 2025 focuses on prioritizing funds to increase its IT capabilities and personnel to sunset legacy IT systems and to position the Library to dramatically increase its ability to provide access to the public to its digital collections. In her written testimony, Register Perlmutter detailed the ongoing progress of various U.S. Copyright Office’s activities, including modernization of the registration system. Perlmutter noted that the Office is working to enhance the electronic deposit system and will conduct stakeholder testing of the improved upload capabilities by the end of 2024.

Two Hearings Held on Biden Administration Trade Priorities: On April 16, the House Ways and Means Committee held a hearing titled Hearing on the Biden Administration’s 2024 Trade Agenda with U.S. Trade Representative Katherine Tai, featuring Ambassador Katherine Tai as the sole witness. During the hearing, members of the committee asked Ambassador Tai questions related to combatting piracy, digital trade, and the Special 301 Report. Representative Judy Chu (D-CA) inquired about what tools the Office of the U.S. Trade Representative is using, besides the Special 301 report, to “promote the robust copyright protections and enforcement needed to address…threats,” mainly those posed by AI technologies. Ambassador Tai replied that Special 301 is an important tool to address piracy issues in their bilateral engagements and noted that the Office’s approach to AI issues would also focus on “the rights of our content creators who are struggling to be recognized and compensated in this incredible race and hunger and appetite for data. And that those types of issues, which are primarily domestic, nevertheless, are important to informing the way that we approach our trade negotiations.” On April 17, the Senate Committee on Finance held a hearing titled The President’s 2024 Trade Policy Agenda, also featuring Ambassador Tai as the sole witness. Senators Marsha Blackburn (R-TN) and Thom Tillis (R-NC) mentioned intellectual property theft as being an issue.

House Administration Committee Releases Report on AI Implementation: On April 17, the Committee on House Administration released a report titled Flash Report: Artificial Intelligence & Implementation, which details the AI strategy and implementation in the House of Representatives during 2024. The report sets five AI guardrails for the House and details notable accomplishments on AI policymaking and use in various legislative branch agencies, specifically mentioning the U.S. Copyright Office’s ongoing AI study.

SJC IP Subcommittee Holds Hearing on Discussion Draft of NO FAKES Act: On April 30, the Senate Committee on the Judiciary Subcommittee on Intellectual Property held a hearing titled The NO FAKES Act: Protecting Americans from Unauthorized Digital Replicas. The hearing focused on the increasing use of AI-generated replicas, such as deepfake videos and voice-cloning tools, and the legal and ethical issues they present. Chairman Chris Coons (D-DE) discussed the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, a discussion draft he introduced to protect individuals from unauthorized use of their images, voices, or likenesses. Ranking Member Thom Tillis (R-NC) emphasized the need for legislation to address the issue of deepfakes and digital replicas. Witnesses included Lisa P. Ramsey, Professor of Law, University of San Diego School of Law; Graham Davies, President and CEO, Digital Media Association; Ben Sheffner, Senior Vice President and Associate General Counsel, Law and Policy, Motion Picture Association; Duncan Crabtree-Ireland, National Executive Director and Chief Negotiator, SAG-AFTRA; Robert Kynel, CEO, Warner Music Group; and Tahliah Debrett Barnett (“FKA twigs”), Singer, Songwriter, Producer, Dancer, and Actor. The witnesses discussed issues associated with protecting artists’ identities and intellectual property and the potential misuse of AI technology.

DOJ Will Not Seek SCOTUS Review in Valancourt Case: On April 12, U.S. Solicitor General Elizabeth Prelogar sent a letter to House Speaker Mike Johnson (R-LA), stating that the Department of Justice (DOJ) decided not to seek U.S. Supreme Court review of the Valancourt Books, LLC v. Perlmutter case, where the DC Circuit Court of Appeals held that the U.S. Copyright Office’s demand for physical copies of Valancourt’s books under the mandatory deposit requirement in Section 407 of the Copyright Act constituted an unconstitutional taking of Valancourt’s property under the Fifth Amendment. The letter states that moving forward, when implementing Section 407, the Copyright Office intends to offer copyright owners the option to provide deposits in electronic form and compliance flexibilities to accommodate other hardship concerns. The letter also states that the Office will modify the language of its deposit demand letters to state that the deposit requirement “applies only to persons who choose to retain the benefits of copyright protection,” and that the Office will discuss “cost-free steps to abandon a copyright” with recipients who notify it of a desire to no longer retain copyright protection in a work that is the subject of a demand letter. The letter from the DOJ does not mean the case is over. Congress can now consider the DOJ’s position and require the Solicitor General to file a petition for cert with the Supreme Court by May 10. Even if a petition for cert is not requested by Congress, the case will go back to the district court to decide issues not addressed in the DC Circuit’s opinion—namely how the Takings Clause might apply to the demand for electronic copies and Valancourt’s First Amendment challenge.

IA Files Reply Brief in Its Appeal in HachetteCase: On April 19, Internet Archive (IA) filed its reply brief in its appeal of a lower court’s judgment against it in Hachette v. Internet Archive, where the court held that IA’s practices of mass digitization and distribution of those digital copies of plaintiff-publishers’ literary works (also known as Controlled Digital Lending or CDL) did not qualify as a fair use. IA argues that, particularly under the first fair use factor, CDL practices are transformative and could be distinguished from the facts of prior case law including Sony and TVEyes. IA also argues that, at the least, the Court of Appeals should limit the district court’s holding so that IA can continue its CDL practices with respect to the books that IA owns.

Parties Settle George Carlin AI Case: On April 2, in Main Sequence v. Dudesy, a lawsuit filed by the estate of George Carlin against Dudesy, a media company behind an AI-generated hour-long audio work that replicates Carlin’s voice and comedy style, the parties settled, filing a joint stipulation as to a consent judgment that includes the permanent removal of the AI-generated “George Carlin: I’m Glad I’m Dead” from the internet. The joint stipulation also included an injunction preventing the defendant from using Carlin’s image, voice, or likeness without the estate’s permission.

Court Rules in Favor of Paramount in Top Gun Infringement Case: On April 5, the district court for the Central District of California ruled in favor of Paramount in the case Yonay v. Paramount Pictures Corporation, holding that Paramount’s second Top Gun film did not infringe the copyright in plaintiff, Yonay’s, article about the Top Gun program. Applying the extrinsic test to determine substantial similarity, the court found that the allegedly similar plots, sequences of events, pacing, themes, moods, dialogue, characters, and settings were either dissimilar or unprotectable as facts, abstract ideas, familiar stock scenes, or scènes à faire.

GMR Settles Copyright Infringement Suit Against Vermont Radio Station Group: On April 15, Global Music Rights (GMR) filed a notice to dismiss the copyright infringement lawsuit it brought against Vermont Broadcast Associates earlier this year, alleging that seven Vermont-based radio stations played songs without a license. The agreement includes a long term GMR license as well as a settlement of past alleged infringements. GMR General Counsel Emio Zizza stated, “We are dedicated to protecting the rights of GMR songwriters and composers, and ensuring entities publicly performing their works are appropriately licensed. Through this lawsuit, we have accomplished those endeavors, and look forward to our go-forward licensing relationship with VBA.”

Pandora Files Reply Brief in Legal Dispute with The MLC: On April 16, Pandora filed an answer to a complaint brought against it by the Mechanical Licensing Collective (The MLC), which sued the internet radio company for outstanding royalties due to songwriters and publishers arising from compulsory mechanical licenses used in connection with songs streamed on Pandora’s “Pandora Free” ad-supported streaming service. Pandora argues that this service has never been classified as an interactive service and that The MLC should not be making such legal determinations.

Midjourney Files Motion to Dismiss in Visual Artists’ Class Action AI Lawsuit: On April 18, Midjourney filed a motion to dismiss the amended complaint in Anderson v. Stability AI, the class-action lawsuit brought by a group of visual artists over allegations that Stability AI, Midjourney, and DeviantArt used the plaintiffs’ copyright-protected images without authorization to train the companies’ AI models. Midjourney maintains that the plaintiffs lack support for their direct copyright infringement claims, arguing that there are deficiencies in the registrations of the works in question, and that plaintiffs merely speculate their images were used to train Midjourney and are not able to substantiate the Midjourney model itself is substantially similar to the allegedly infringed images. Midjourney also argues that the DMCA claim must also be dismissed because plaintiffs do not allege that the Midjourney model has ever generated an identical copy of any of the allegedly infringed works.

Visual Artists File AI Class Action Lawsuit Against Google: On April 26, a group of visual artists, Jingna Zhang, Sarah Andersen, Hope Larson, and Jessica Fink, filed a class-action lawsuit against Google and Alphabet Inc. in the district court for the Northern District of California, over the unauthorized use of plaintiffs’ images to train Google’s various AI products including, Imagen, Imagen2, and Google Gemini. Unlike in the initial complaint in prior cases, the plaintiffs only allege that Google is liable for direct copyright infringement for the copying of plaintiffs’ images in the AI training process and that Alphabet is liable for vicarious infringement as it benefitted financially from Google’s infringing activities. The plaintiffs do not allege any violations under the Digital Millennium Copyright Act for removal of copyright management information. As part of its demand for judgment, the plaintiffs request damages in addition to destruction of other reasonable disposition of copies of plaintiffs’ works that the defendant parties made to train their AI models.

Major Regional Newspaper Publishers File Lawsuit Against OpenAI: On April 30, eight major newspaper publishers, whose portfolios cover major regional daily newspapers including the new York Daily News, Chicago Tribune, Orlando Sentinel, South Florida Sun Sentinel, San Jose Mercury News, Denver Post, the Orange County Register, and the Pioneer Press, filed a lawsuit against OpenAI and Microsoft over the use of plaintiffs’ journalistic works to train the ChatGPT model. The complaint, which was filed in the district court for the Southern District of New York, details various ChatGPT output, that is verbatim or near-verbatim to the plaintiffs’ articles, and also alleges that the defendants provided material contributions to end-user infringement through various means, including customized options in the OpenAI store to circumvent paywalls. The legal claims include allegations of direct, vicarious, and contributory copyright infringement, removal of copyright management information, misappropriation, trademark dilution, and dilution and injury to business reputation.  

Thaler Files Reply Brief in Appeal of AI Authorship Copyright Case: On April 10, Dr. Stephen Thaler filed a reply brief in his appeal of the case Thaler v. Perlmutter, in which the lower court upheld the U.S. Copyright Office’s decision to refuse registration for an image that Thaler claimed was entirely authored by his AI machine. In the brief, Thaler makes similar arguments to those he made earlier in the litigation process—that the express language of the Copyright Act does not require “human” authorship and that this is reinforced in the Act’s recognition and mechanics of the work-made-for-hire doctrine.

German ISPs Ordered to Block Access to Sci-Hub: According to reports, a German organization responsible for issuing voluntary website blocking orders to German Internet Service Providers (ISPs), CUII, recently issued an order for the ISPs to block access to the pirate academic publication website, Sci-Hub. The CUII was created as part of a voluntary agreement between rightsholders and ISPs.

Japanese Court Awards Manga Publishers $11 Million in Online Piracy Lawsuit: On April 18, a Japanese court ordered Romi Hoshino, the operator of pirate manga site Mangamura to pay 1.7 billion yen ($11 million) in damages to various Japanese manga publishers. Hoshino was separately convicted of criminal copyright infringement, sentenced to three years of prison, and fined approximately $650,000. Mangamura reportedly caused roughly $2.91 billion in losses to the manga industry.

Vietnam Hands Down First-Ever Criminal Sentence for Copyright Piracy: On April 19, the People’s Court of Hanoi handed down Vietnam’s first-ever criminal sentence for online copyright piracy against Le Hai Nam, who operated the pirate IPTV subscription service called BestBuy IPTV, which provided illegal access to sporting events, TV shows, and movies. The court sentenced Nam to 30 months in jail. The service had previously been named on the U.S. Trade Representative’s Notorious Markets List for the past five years. “We applaud the Vietnamese government and local law enforcement for their action in the case, demonstrating the power of a joint global effort to confront and prosecute the operators of content piracy services,” said Karyn Temple, Senior Executive Vice President and Global General Counsel for the Motion Picture Association (MPA). “IPTV and illegal streaming services continue to have a detrimental effect upon the Vietnamese film and television industry and on those around the world who earn a living working behind and in front of the camera. We eagerly await similar action from Vietnamese law enforcement on other longstanding priority targets engaged in digital piracy on a global scale.” More information is available in the Alliance for Creativity and Entertainment’s press release.

UK House of Commons Publishes Report on Creator Remuneration: On April 10, the UK House of Commons Culture, Media, and Sport Committee published a report titled Creator Remuneration. The report examines the state of royalties and residuals received by creators, including the implications of lack of reciprocity in other jurisdictions, the impact of AI on the creative industries, the effects and issues around contracts and working conditions for freelancers in the creative industries, and the governments work on music streaming.

South Korea Issues AI and Copyright Guidance Document: On April 15, South Korea’s Ministry of Culture, Sports and Tourism released the English-language version of its guidance titled A Guide on Generative AI and Copyright. The guidance details the implications of AI technologies on both input/training issues and output/copyrightability issues for AI developers and copyright owners. The guidance also notes that in its interpretation of the country’s copyright laws, the Korea Copyright Commission has refused to register works wholly generated by AI.

Other Activities…

AAP, Authors Guild, and N/MA CEOs Pen Op-Ed on AI Harms to Authors and Publishers: On April 26, Maria Pallante, CEO of the Association of American Publishers, Mary Rasenberger, CEO of the Authors Guild, and Danielle Coffey, CEO of the News/Media Alliance, penned an opinion piece in The Hill championing the importance of authors and publishers and highlighting the unprecedented harms and risks to the creative industry from the unauthorized use of copyright-protected works to develop generative AI models. The op-ed highlights that although big AI companies continue to seek “a pass on the indiscriminate appropriations” from their unauthorized use of creative works, there “isn’t a single, rational reason to accommodate them, but there are ample, critical reasons to protect the vitality of authors and publishers in the world, on this World IP Day and every other day.”

Save the Date For…

Copyright Society Unions and Creators Event: On May 6, from 6:00-8;00 p.m. ET, the DC Chapter of the Copyright Society will host an evening program to discuss labor unions and creators. More information is available on the registration page.

C4IP to Host Fireside Chat on AI and IP Featuring Register Perlmutter and Andrei Iancu: On May 7 from 1:50-2:20 p.m. ET, the Special Competitive Studies Project (SCSP) and the Council for Innovation Promotion (C4IP) will host a fireside chat during the AI Expo on the implications of AI on patents and copyrights with Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter, and Andrei Iancu, Partner at Sullivan & Cromwell and former Director of the U.S. Patent and Trademark Office. The discussion will be moderated by Rama Elluru, Senior Director for Society & Intellectual Property at SCSP. The AI Expo is a free event, open to the public, and will be held at the Walter E. Washington Convention Center. More information is available on the registration page.

Webinar on The MLC’s Royalty Distribution Process: On May 21 at 12 p.m. ET, The MLC is hosting a webinar to share information on its royalty distributions to members, and to answer any questions that attendees may have. The webinar will cover the timing and cadence of royalty payments, explain the royalty rates used, and review each of the royalty statement documents that will accompany payments. More information is available on the registration page

GLIPA, USIPA, and GIPA Global IP Conference: On May 23, The Global Intellectual Property Alliance (GLIPA), in conjunction with the U.S. Intellectual Property Alliance (USIPA) and the Georgia Intellectual Property Alliance (GIPA), will host their 2024 Global IP Conference in Atlanta, GA. The event—which will feature discussions and agreed-upon activities—looks to highlight the need to “work collaboratively to strengthen innovation ecosystems around the world…by promoting increased awareness, regional dialogue, and networking on intellectual property key issues.” More information is available on the registration page.

Deadline to Submit Initial Public Comments to USCO on Whether to Continue Existing Designations of MLC and DLC: May 29 is the deadline to submit initial public comments in response to the U.S. Copyright Office’s notification of inquiry required by the Music Modernization Act regarding whether the existing designations of the Mechanical Licensing Collective (MLC) and Digital Licensee Coordinator (DLC) should be continued. This is the first of the review processes that the Copyright Office is statutorily required to conduct every five years. Reply comments must be submitted by June 28. Reply comments by the currently designated MLC and DLC must be submitted by July 29. More information is available on the Copyright Office’s webpage.

USCO Monthly Recordation System Webinar: On May 30 at 1 p.m. ET, the U.S. Copyright Office will hold its next webinar to keep the public updated on the Office’s optimized Recordation System. The new recordation module allows users to electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.


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!

March 2024 Roundup of Copyright News

Post publish date: April 3, 2024

In March, the courts remained extremely busy with a range of copyright cases including a final conclusion to a monumental fair use case. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of March as well as a few events to look forward to in April.

Copyright Office Activities

CCB Status Update: At the end of March 2024, 803 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 330 are “smaller claims.” In at least 220 of all cases, the claimant is using legal counsel. At least 709 of the cases involve infringement claims, 137 involve Section 512(f) misrepresentation claims, and 25 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 (343 cases); Literary Works (129); Motion Picture and Audiovisual Works (159); Sound Recordings (76); Musical Works (53); and some cases include claims for multiple works. One-hundred and six foreign residents have filed claims. Of all the cases filed, 624 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (71); Due to Failure to Amend Noncompliant Claim (305); Registration Issues (16); Due to Failure to Provide Proof of Service of Process (120); Claimant Withdrawal and Dismissal of Claims (71); Bad Faith Claimant (14); and Settlement (41) There are 43 active proceedings and 22 final determinations.

USCO Updates Congress on AI Initiatives: On March 26, the U.S. Copyright Office published a blog post highlighting its next steps in its AI initiative, as previously previewed by Register Shira Perlmutter’s letter to Congress back in late February. The Office stated its intent to release all findings and recommendations about any legislative or regulatory actions from its ongoing AI study by the end of the fiscal year. The first report is slated to be released in late spring, focusing on AI and digital replica issues. The second report, to be published in the summer, will address copyrightability of works containing AI generated material. Later reports will focus on AI training and liability issues. The Office will also publish updates to its Compendium, which will be followed by a public notice requesting comments, related to the Office’s AI registration guidance. Finally, the office noted that it had brought together a group of government and academic economists to discuss the economic implications arising from copyright and AI issues. The Office will publish the group’s proposed research agenda later in the year. 

USCO and USPTO Publish Joint NFT Study: On March 12, the Copyright Office and U.S. Patent and Trademark Office (USPTO) published their joint report to Congress on Non-Fungible Tokens and Intellectual Property. The report is in response to a June 2022 request from then-Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property Patrick Leahy and Ranking Member Thom Tillis, asking the Offices to undertake a study on the intersection of emerging NFT technologies and intellectual property. The main takeaway is that the Offices agree that “existing statutory enforcement mechanisms are currently sufficient to address infringement concerns related to NFT applications and that changes to IP laws, or to the Offices’ registration and recordation practices, are not necessary or advisable at this time.”

USPTO Holds Public Symposium on AI and IP: On March 27, the U.S. Patent and Trademark Office (USPTO) Artificial Intelligence (AI) and Emerging Technologies (ET) Partnership held a virtual and in-person Public Symposium on Artificial Intelligence (AI) and Intellectual Property (IP) at Loyola Marymount University’s Loyola Law School in Los Angeles, CA. The event consisted of three panel discussions, beginning with Generative AI as Author or Inventor? A comparison of Copyright and Patent Analyses, which was moderated by Aaron Watson, an Attorney Advisor at the U.S. Copyright Office. The panel explored the copyrightability and patentability issues surrounding innovation and creativity aided by AI, and it included panelists Sandra Aistars, Clinical Professor at Antonin Scalia Law School, George Mason University; John Villasenor, Professor of Electrical Engineering and Law, UCLA; and Xiyin Tang, Assistant Professor of Law, UCLA. The second session, Litigation Update: Copyright and Artificial Intelligence, was moderated by Loyola Law School’s Justin Hughes, who led a discussion of current AI-related copyright infringement lawsuits. The three panelists—David Nimmer of Irell & Manella, Angela Dunning of Clearly Gottlieb, and Audrey Adu-Appiah of Oppenheim + Zebrak—debated the merits of recently filed lawsuits by the New York Times and other copyright owners against generative AI companies. The final session, AI, NIL, and the Lanham Act, was moderated by Jeffrey Martin, an Attorney Advisor at the U.S. Patent and Trademark Office, and focused on the name, image, and likeness rights issues surrounding generative AI and deep fake technologies. The panelists included Maureen Weston, Professor of Law at Caruso School of Law Pepperdine University; Duncan Crabtree-Ireland, National Executive Director of SAG-AFTRA; Russell Hollander, National Executive Director of the Directors Guild of America; and Tearra Vaughn, Associate General Counsel at Meta.

USTR Releases 2024 Trade Policy Agenda and 2023 Annual Report: On March 1, the Office of the United States Trade Representative (USTR) released President Biden’s 2024 Trade Policy Agenda and 2023 Annual Report to Congress. In terms of copyright, the report mentions that copyright piracy is a continued challenge, particularly as it threatens U.S. exports in media and other creative content. The report highlights the USTR’s work on copyright issues with several foreign partners and through various activities including the creation of the Notorious Markets List report.

DOJ and FTC File Joint Comment in USCO’s Triennial Rulemaking Process: On March 14, the Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) submitted joint comments to the U.S. Copyright Office in response to the ongoing triennial 1201 rulemaking, supporting a renewal and expansion of an exemption for the right to repair “functional software that facilitates the repair and monitoring of consumer and industrial products.” The comment notes that the Copyright Office intends to recommend the renewal of two computer program exemptions, Class 5-Repair and Class 7-Vehicle Operational Data, and ​that the two agencies also support expanding the current exemption to commercial and industrial equipment. The comment goes on to explain that Public Knowledge and iFixit proposed the expansion, that NTIA is supportive, and that the Agencies believe that “no countervailing copyright interests exist.” More information can be found in the FTC’s press release.

BEA Issues Report on the Economy and the Arts: On March 25, the U.S. Bureau of Economic Analysis (BEA) released the results of its Arts and Cultural Production Satellite Account—a report designed to promote a better understanding of certain facets of the U.S. economy. According to the new report, BEA found that “arts and cultural economic activity, adjusted for inflation, increased 4.8 percent in 2022 after increasing 10.8 percent in 2021.” Further, the broader economy (as measured by gross domestic product or GDP), increased 1.9 percent in 2022 following an increase of 5.8 percent in 2021. And arts and cultural economic activity accounted for 4.3 percent of the GDP in 2023, the equivalent of $1.10 trillion.

Living Wage for Musicians Act Introduced: On March 6, Representatives Rashida Tlaib (D-MI) and Jamaal Bowman (D-NY) introduced the Living Wage for Musicians Act. According to the press release, the bill would create a new streaming royalty, with the goal of compensating artists and musicians more fairly at a penny per stream when their music plays on streaming services. Representative Tlaib noted that, “It’s only right that the people who create the music we love get their fair share so that they can thrive, not just survive.” This bill follows Representative Tlaib’s resolution from August 2022, calling on Congress to establish a new royalty program for performers whose music or audio content is listened to on streaming services.

House Small Business Committee Report Outlines Impact of AI on Small Creators: On March 19, the House Committee on Small Business’ Democratic staff released a report titled Bots Over Brushes: The Looming Competition Between Generative AI and Small Content Creators, exploring the impact of generative AI on America’s small businesses and independent creators. The report examines a number of policy recommendations to protect small creators such as (1) requiring generative AI firms to disclose unlicensed content of their training datasets; (2) creating licensing and opt-out schemes for the use of online content in AI training; (3) government-made training datasets; and (4) watermarking AI outputs. More information is available in a press release from the Committee.

Publishers File Response Brief in Lawsuit Against Internet Archive: On March 15, a group of publishers filed their response brief to Internet Archive’s (IA) appeal to the Second Circuit Court of Appeals in the Hachette v. Internet Archive case. IA is appealing a lower court’s judgment and permanent injunction against it for its widespread copyright infringement from scanning and digital lending of books owned by the publishers. The plaintiffs argue that the appeals court should affirm the lower court’s decision as IA’s activities constituted copyright infringement and did not at all qualify for the fair use exception. On March 22, the Copyright Alliance filed an amicus brief in support of the publishers, supporting the district court’s fair use and first sale analysis, while also warning of the harm to copyright owners and the creative industries that would occur if the decision is overturned, and if IA’s manufactured “Controlled Digital Lending” theory is legitimized. The brief also explains that the limitations on liability found in section 108 of the Copyright Act do not apply to IA’s wholesale copying and digital distribution, and that only Congress has the authority to expand copyright’s limitations. Many others also filed amicus briefs in support of the publishers, including Recording Industry Association of America, Motion Picture Association, News/Media Alliance, and National Music Publishers’ Association; Authors Guild, American Photographic Artists, American Society for Collective Rights Licensing, and American Society of Media Photographers; a group of IP professors and scholars, including members of the Copyright Alliance Academic Advisory Board; twenty-four former government officials, judges, and current IP scholars; and various international and foreign publisher associations.

Andy Warhol Foundation and Lynn Goldsmith Conclude Case: On March 16, the Andy Warhol Foundation and photographer Lynn Goldsmith submitted a joint motion for entry of final judgment, asking the court to conclude the copyright infringement case involving a photograph of renowned musician, Prince, that resulted in a monumental fair use Supreme Court decision last May. In the judgment, the parties agreed that: (1) Goldsmith is entitled to $10,250 in damages from the infringement; (2) AWF’s claim for declaratory relief regarding infringement claims of the original creation of the Prince series is withdrawn; and (3) Goldsmith is entitled to additional taxable costs, but that the parties will be responsible for all other costs on their own including attorneys’ fees.

Fourth Circuit Denies Petitions for En Banc Hearings in ‘Sony v. Cox’ Case: On March 20, the Fourth Circuit Court of Appeals denied requests for en banc hearings filed by Internet Service Provider (ISP) Cox and a group of plaintiff record labels in the Sony Music Entertainment v. Cox case. On February 20, the Court of Appeals for the Fourth Circuit overturned parts of a $1 billion jury verdict, in which the jury found Cox liable for its subscribers’ infringement of 10,017 songs owned by the plaintiffs. Importantly, the court affirmed the jury’s finding of willful contributory infringement. However, it reversed the vicarious liability verdict and remanded for a new trial on damages, finding that the continued payment by Cox subscribers of monthly fees for internet services was not a financial benefit flowing directly to Cox from the copyright infringement itself. The Copyright Alliance filed an amicus brief in support of Sony Music.

Publishers Move for Default Judgment Against Libgen: On March 1, a group of plaintiff book publishers filed a memorandum in support of a motion for entry of a default judgment, permanent injunction, and post-judgment relief order against pirate eBook repository, Library Genesis or Libgen for short. The plaintiffs filed a lawsuit against Libgen last year for providing users illegal copies of plaintiffs’ educational textbooks. In its request for a permanent injunction, the plaintiffs ask that the court order the transfer of Libgen website domain names to the plaintiff.

Microsoft Files Partial Motion to Dismiss NYT AI Lawsuit; NYT Responds to OpenAI’s Motion to Dismiss: On March 4, Microsoft filed a motion seeking to dismiss parts of the copyright infringement lawsuit brought by the New York Times (NYT) against OpenAI and Microsoft in the Southern District of New York. The motion argues that large language models, like OpenAI’s ChatGPT, don’t supplant the market for news articles or other materials they are trained on. On March 11, The New York Times (NYT) filed a memorandum in opposition to OpenAI’s partial motion to dismiss the publisher’s copyright infringement lawsuit. The opposition argues that OpenAI’s claim that NYT hacked its products “is as irrelevant as it is false,” as it merely “elicited examples of memorization by prompting GPT-4 with the first few words or sentences of Times articles.” In response to OpenAI’s statute-of-limitations argument for claims based on models developed before December 2020, NYT argues that OpenAI asks the court to make a factual finding that the makeup of the datasets used to train those models was “common knowledge” in 2020—even though the GPT-3.5 and 4 were not released until 2022 and 2023, respectively. Regardless, NYT argues that OpenAI’s statute-of-limitations fails because of the discovery rule. Addressing OpenAI’s attempt to dismiss the contributory infringement claim, NYT explains that OpenAI applies a heightened standard of knowledge and, further, the issue turns on disputed facts about user behavior. In response to OpenAI’s attempt to dismiss the DMCA claims related to the removal or alteration of copyright management information, NYT argues that the issue turns on disputed fact issues concerning the design of OpenAI’s model-training process, which cannot be resolved before discovery into that design. Finally, in addition to responding to OpenAI’s attempt to dismiss the unfair competition claim, NYT points out that “[d]espite seeking to justify this conduct however it can, OpenAI does not move to dismiss the lead claim that it infringed the Times’ copyrights to train and operate its latest models.”

Court Partially Grants and Denies X Corp.’s Motion to Dismiss Music Publishers’ Lawsuit: On March 5, the district court for the Middle District of Tennessee issued a memorandum granting in part and denying in part X Corp.’s motion to dismiss claims brought against it by a group of music publishers in Concord Music Group, Inc. v. X Corp., over the unauthorized use of musical works in X/Twitter users’ posts. The court dismissed the direct copyright infringement and vicarious infringement claims but did not dismiss the contributory infringement claims to the extent those claims regarded X Corp.’s practices on (1) providing more lenient copyright enforcement to “verified” users; (2) failing to act on takedown notices in a timely manner; and (3) failing to take reasonable steps in response to severe serial infringers.

ASCAP Sues Venues for Unlicensed Use of Music: On March 5, the American Society of Composers, Authors, and Publishers (ASCAP) announced that it had filed 13 separate copyright infringement lawsuits against venues nationwide over the unauthorized public performance of ASCAP members’ copyrighted musical works. “Businesses use music because it helps to create an ambiance that brings customers back and makes them stay longer,” commented ASCAP Executive Vice President and Head of Licensing Stephanie Ruyle. “Hundreds of thousands of well-run businesses across the nation recognize this and understand that compensating the songwriters who created [the music] is the lawful and right thing to do. However, each of the establishments sued today has decided to use music without paying its creators. By filing these actions, ASCAP is standing up for songwriters whose music is essential to those businesses and their customers.”

USCO Files Reply Brief in Appeal of AI Authorship Case: On March 6, the U.S. Copyright Office filed a reply brief in response to an appeal by Dr. Stephen Thaler to the U.S. Court of Appeals for the District of Columbia regarding a district court’s grant of summary judgment in favor of the Office’s denial of a registration application for lack of human authorship. The Office argues that the district court’s decision should be affirmed, given that over a century of case law, longstanding Copyright Office views, and the Copyright Act’s plain text and structure establish a human-authorship requirement.

Authors File Class Action AI Lawsuits Against Databricks and Nvidia: On March 8, a group of authors, including Abdi Nazemian, Stewart O’Nan, and Brian Keene, filed class action lawsuits against Nvidia and Databricks, Inc. for the unauthorized use of their literary works to train the companies’ AI large language models. The complaints allege that Nvidia’s NeMo Megatron–GPT and Databricks’ MosaicML model were both trained on curated datasets that include the Books3 dataset, which consists of copyrighted works scraped from illegal online “shadow libraries.” Both complaints include counts of direct infringement for unauthorized reproduction of the plaintiffs’ works, as well as violations of their rights to “make derivative works, publicly display copies (or derivative works), or distribute copies (or derivative works).” The complaint against Databricks (but not that against Nvidia) also includes a count of vicarious infringement related to Databricks’ right and ability to control the direct infringements allegedly committed by MosaicML.

DC District Court Affirms USCO Denial of 3D Work Registration: On March 18, the U.S. District Court for the District of Columbia issued an opinion affirming the U.S. Copyright Office’s denial of a registration application filed by artist Bruce Munro for a 3D sculptural work that consisted of a globe, tube, and lighted curved filament among other elements. The court found that the Office appropriately addressed the copyrightability of the entire sculpture and that the Office’s refusal was not an abuse of discretion when it deemed the more simplistic arrangement of Munro’s sculpture as insufficiently creative to meet the threshold of originality under current case law. The court also held that the Office did not abuse its discretion in refusing the registration by referencing other works as comparisons to Munro’s work to explain its conclusion that the sculpture was not copyrightable.

Bloomberg Moves to Dismiss Authors’ Claims in Class Action AI Lawsuit: On March 22, Bloomberg filed a motion to dismiss claims filed against it by a group of authors in the lawsuit Huckabee v. Meta over allegations that the plaintiffs’ books had been used to train Bloomberg’s AI model, BloombergGPT. Responding to the plaintiffs’ surviving claim of direct copyright infringement, Bloomberg argues that plaintiffs’ allegations do not specify how BloombergGPT infringes plaintiffs’ copyrights and which works were infringed. Additionally, Bloomberg argues that the fair use exception applies, noting that under a first fair use factor analysis, BloombergGPT was a product of internal research that had not been commercially or publicly released, and that the use was transformative and did not merely repackage or republish the plaintiffs’ works. On the fourth fair use factor, Bloomberg argued that the plaintiffs failed to show adequate market harm arising from the company’s use of plaintiffs’ works.

Appellate Court Cites Warhol in Remanding Tiger King Fair Use Case: On March 27, the U.S. Court of Appeals for the Tenth Circuit reversed and remanded a district court decision that the unauthorized use of a video clip in the Netflix Tiger King documentary qualified as fair use. The case was brought in 2020 and involves Netflix’s and Royal Goode Production’s use of eight video clips that were filmed by plaintiff Timothy Sepi, some when Sepi was employed as a videographer by Joe Exotic TV. In 2022, a district court in the Western District of Oklahoma granted defendants’ motion for summary judgment, finding that seven of the videos were works made for hire and the use of the remaining video qualified as fair use. The Tenth Circuit affirmed the district court’s judgment as to the first seven videos, but reversed and remanded the fair use determination, finding that the first factor “strongly weighs in Plaintiffs’ favor in light of the Supreme Court’s recent guidance in Warhol.” Specifically, the opinion explains that defendant’s use of the video was not transformative, and it did not comment on or “target” plaintiff’s work—instead, it commented on the subject of the documentary, Joe Exotic. Importantly, the court found that defendants had no “sufficiently compelling justification” for the use and, again citing Warhol, that the commercial nature of the use weighed heavily against fair use under the first factor. While the opinion finds that the second and third factors weigh in favor of fair use, the court notes that there was an inadequate factual record as to the fourth factor and remands to the district court “to fill the evidentiary hole and to then reweigh the results of all four factors.”

EU Commission Issues Toolbox and Report on IP Enforcement: On March 19, the European Commission adopted a Recommendation to Combat Counterfeiting, which provides a toolbox to combat counterfeiting. The toolbox includes suggested priority actions, a list of best practices, and the use of modern tools and technologies to combat counterfeiting and strengthen the enforcement of IP rights. More information is available in the Commission’s press release.

French Anti-Piracy Report Shows Shrinking Pirate Streaming Audience: French anti-piracy organization, the Association Against Audiovisual Piracy (ALPA), released a study that reported a decrease in average monthly visitors to France-focused pirate websites from 11.8 million visitors in 2019 to 6.3 million in December 2023.

EU Parliament Endorses AI Act: On March 13, the European Union Parliament endorsed the EU AI Act with 523 votes in favor, 46 against, and 49 abstentions. The AI Act is expected to officially become law in May or June of this year. In support of this new development, the European Publishers Council issued a statement highlighting the Act’s provisions, which require providers of general purpose AI models to make available a sufficiently detailed summary of works used to train their models.

Dutch Court Issues Website Blocking Orders Against Anna’s Archive and LibGen: In mid-March, the Rotterdam District Court issued a dynamic injunctive order to the country’s Internet Service Providers to block access to two piracy websites, Library Genesis (LibGen) and Anna’s Archive, and their mirror websites. The injunctive relief was requested by Dutch anti-piracy organization, BREIN, which issued a statement applauding and welcoming the order.

Ecuador’s La Liga Granted Website Blocking Order: Ecuador’s soccer league, La Liga, announced that it had been granted a dynamic website blocking order that orders online service providers to immediately block 22 websites used to illegally broadcast La Liga games.

Copyright Criminals Convicted in China: According to reports, Japan-based anti-piracy group, Content Overseas Distribution Association (CODA) announced that a Chinese court handed down sentences towards the end of 2023 to three individuals involved in a criminal copyright operation that pirated anime. The sentences resulted in a combined prison term of more than four years and fines totaling over $250,000.

Brazilian Court Sentences Illicit Website Operator to Five Years in Prison: On March 25, Brazilian anti-piracy organization, ALIANZA Against Digital Piracy, announced that a Brazilian court had sentenced the operator of the pirate website, Flash IPTV, to five years and four months of prison time for criminal copyright activities. ALIANZA welcomed the court’s ruling, which it claimed as a successful outcome of its larger anti-piracy campaign, Operation 404.

UN Issues Resolution on AI Safety: On March 21, the member countries of the United Nations (UN) adopted a U.S.-led resolution on ensuring safe, secure, and trustworthy AI systems for sustainable development. The resolution mentions copyright, encouraging member states to implement distinct national regulatory and governance approaches, as well as frameworks that “Encourag[e], where appropriate and relevant, the implementation of…safeguards to respect intellectual property rights, including copyright protected content, while promoting innovation.”

South Korea Announces Rules Related to Copyright and AI: According to reports, South Korea’s Ministry of Culture, Sports, and Tourism announced that it will soon release an AI copyright guidebook. In the guidebook, the Ministry announced that it will not grant copyright registrations for AI-generated outputs that do not contain creative human interventions. Additionally, the guidebook specifies that AI companies need to provide fair compensation to copyright owners to use works for AI use and advises copyright owners to implement technical measures or “express their intentions” to prevent use of their works for AI purposes.

Other Activities

National High School Policy Debate Picks Protection of IP Rights as Debate Topic: Earlier this year, the National Federation of State High School Associations (NFHS) announced its selection of “Intellectual Property Rights” as the National High School Policy Debate Topic for the 2024-25 academic year. With a focus on IP rights in the United States, the debate resolution is: “The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.”

Save the Date For…

WIPO Standing Committee Meeting on Copyright and Related Rights: From April 15 to 19, the World Intellectual Property Organization (WIPO) will host the 45th Standing Committee Meeting on Copyright and Related Rights. More information is available on the registration page.

USCO Public Hearings on Ninth Triennial Rulemaking: On April 15-19, the U.S. Copyright Office will hold its public hearings for the Ninth Triennial Rulemaking Proceeding under the Digital Millennium Copyright Act (DMCA) concerning proposed exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. Details about the hearings, including times, will be made available on the Office’s Rulemaking website.

World IP Day Event; Sustaining and Empowering the Creative Community Through Copyright: On April 23 at 2 p.m. ET/11 a.m. PT, the Copyright Alliance, along with our Community Partners and Organizations, will host a panel via Zoom, titled Sustaining and Empowering the Creative Community Through Copyright. Our panel is in keeping with the World Intellectual Property Organization’s (WIPO) 2024 theme, IP and the SDGs: Building Our Common Future with Innovation and Creativity. During the panel our speakers will discuss how creators can meet their goals today while helping to ensure that tomorrow’s creative community is sustained through job growth, a strong creative economy, and continued growth of the arts, all of which are perpetuated through copyright protections. The event will be free and open to the public. More information is on the registration page.

CCC Webinar on Global Copyright Challenges: On April 30, the Copyright Clearance Center (CCC) will host a free one-hour webinar to explore global copyright challenges in a business environment. The session will include an overview of global copyright fundamentals, a focus on the complexities of global copyright in today’s business world, tips on strategies for success, and a question-and-answer session. More information is available on the registration page.


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!

 

 

 

 

February 2024 Roundup of Copyright News

Post publish date: March 5, 2024

In February, the courts remained extremely busy with the multitude of ongoing AI copyright cases while the Copyright Office continued to ramp up its modernization efforts. Here is a quick snapshot of those and other copyright-related activities that occurred during the month of February as well as a few events to look forward to in March.

Copyright Alliance Releases ‘Music Royalties 101’ Webinar Video and Accompanying Guest Blog: The Copyright Alliance partnered with LAB member, Music Law Pro (MLP), to co-host a webinar titled Music Royalties 101. This webinar, led by MLP attorneys Jesse E. Morris and Alexandra Mayo, covered numerous key topics that music creators need to know about, including what royalties are, how the money flows from different sources such as Spotify, YouTube, Pandora, FM radio, TV, and theatrical movies, as well as the different approaches to monetizing music. Following the webinar, Music Law Pro also published a guest blog on our website, which answers several questions that were not addressed during the webinar.

Copyright Alliance Blogs: To commemorate Fair Use Week, we took an in-depth look at how the Supreme Court’s decision in the Andy Warhol Foundation v. Goldsmith case has been affecting fair use cases in the lower courts. In a two-part blog, we explore documentary film cases and cases most like the facts in Warhol in Part One, and examine software, misappropriation art cases, and other cases in Part Two.

CCB Status Update: At the end of February 2024, 767 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 316 are “smaller claims.” In at least 206 of all cases, the claimant is using legal counsel. At least 680 of the cases involve infringement claims, 130 involve Section 512(f) misrepresentation claims, and 24 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 (333 cases); Literary Works (125); Motion Picture and Audiovisual Works (144); Sound Recordings (75); Musical Works (52); and some cases include claims for multiple works. One-hundred and six foreign residents have filed claims. Of all the cases filed, 604 have been dismissed for the following reasons: Due to Respondent’s Opt-Out (71); Due to Failure to Amend Noncompliant Claim (291); Registration Issues (15); Due to Failure to Provide Proof of Service of Process (117); Claimant Withdrawal and Dismissal of Claims (59); Bad Faith Claimant (13); and Settlement (38). There are 62 active proceedings and 18 final determinations.

USCO Updates Congress on AI Initiatives: On February 23, Register Shira Perlmutter sent a letter to Senator Chris Coons (D-DE), Senator Thom Tillis (R-NC), Representative Darrell Issa (R-CA), and Representative Hank Johnson (D-GA) updating them on the Office’s recent activities addressing copyright issues raised by AI and planned next steps. The letter also says that the Office will issue an update to the Compendium of U.S. Copyright Office Practices to include further guidance and examples relating to the registration of works incorporating AI-generated material. Additionally, the Office notes that it has brought together a group of government and academic economists to discuss the economic aspects of the intersection of copyright and AI and that later this year it will publish a report containing the group’s proposed research agenda for assessing policy in this area.

USCO Receives Comments on NPRM on Group Registration of Updates to News Websites: On February 20, the Copyright Office received 20 comments in response to its notice of proposed rulemaking (NPRM) regarding the creation of a new group registration option for frequently updated news websites. The Copyright Alliance submitted comments applauding the Office for proposing the rule, suggesting changes to enable greater flexibility for news media publishers to register news content, and urging the Office to update its discussion on statutory damages to acknowledge the independent economic value test.

USCO Publishes NPRM on Group Registration of 2D Artwork: On February 15, the Copyright Office published a notice of proposed rulemaking (NPRM) proposing to create a new group registration option for two-dimensional artwork. The new option, which will be known as “GR2D,” would allow applicants to register up to 10 pictorial or graphic works that are created by the same author/copyright claimant published within a 30-day time period. The proposed filing fee for this new option is $85. Comments are due to the Copyright Office by April 1.

USCO and LOC Host CPMC Meeting: On February 15, the Copyright Office (USCO) and the Library of Congress (LOC) hosted the sixth bi-annual meeting of the Copyright Public Modernization Committee (CPMC). Register of Copyrights, Shira Perlmutter, gave opening remarks, noting that the Office was interested in the renewed authorization of the CPMC and that its technology team has been experimenting with various technologies and tools, including with AI, to transcribe metadata from digitized records and assist in the research of historical copyright records. During the meeting, the Library staff provided a demo of its Stacks system and explained the various technological and other measures in place for on-site access to rights-restricted content. Members of the CPMC asked various questions about the Stacks system and then shared their reflections of the Committee’s activities over the years. At the end of the meeting, the Library staff announced that the Committee will be renewed and that a notice would be shared on March 15, providing details on how interested stakeholders may apply to join. It was also announced that the activities of the new Committee would not start for another year.

HJC IP Subcommittee Holds AI Field Hearing: On February 2, the House Judiciary Committee’s (HJC) Subcommittee on Courts, Intellectual Property, and the Internet convened a field hearing in Los Angeles, CA, titled Artificial Intelligence and Intellectual Property: Part II – Identity in the Age of AI at the LA Convention Center. The hearing mostly focused on how Congress can support responsible innovation in applications of AI technology and examined the growing concerns about the misuse of AI, especially with respect to the likeness, voice, and other identifying characteristics of individuals. Witnesses included Lainey Wilson, 2024 Grammy Winner, 2023 CMA Entertainer of the Year, and 2023 ACM Female Artist of the Year; Harvey Mason Jr., President and CEO, Recording Academy; Christopher Mohr, President, Software and Information Industry Association (SIIA); and Jennifer Rothman, Nicholas F. Gallicchio Professor of Law, University of Pennsylvania Law School.

Bill to Protect Golf Course Designs Under Copyright Introduced: On February 5, Representative Brian Fitzpatrick (R-PA) introduced H.R. 7228, the “Bolstering Intellectual Rights against Digital Infringement Enhancement Act’’ (BIRDIE). The bill would amend the definition of “architectural work” in section 101 of the Copyright Act to include “the design of a course on which golf is played (except for any course on which mini golf, or other similar game, is played),” so that golf course designs would be protected under copyright law.

SCOTUS Hears Oral Arguments in Copyright Damages Case: On February 22, the U.S. Supreme Court heard oral arguments in Warner Chappell Music, Inc. v. Nealy. The issue in this case is whether the Copyright Act permits damages to be collected for infringing acts occurring more than three years before a lawsuit was filed. Most of the Justice’s questions focused on whether the case was improvidently granted because the question presented assumes the validity of the discovery rule, which is the question presented in a different case (Hearst Newspapers v. Antonio Martinelli) that is presently pending cert request before the Court. (The discovery rule provides that the timeline to file a lawsuit begins upon the plaintiff’s knowledge of the injury.)

Court Adopts Ruling Affirming that Repost of a Copyrighted Image on Social Media is Infringing: On February 1, the district court for the Southern District of New York affirmed a magistrate judge’s ruling in Prepared Food Photos, Inc. v. Chicken Joes, LLC, that embedding a copyrighted work, such as an image, constitutes a “display” that is actionable as copyright infringement of the image. In the case, plaintiff, which licenses to grocery stores from its image database, alleged that the defendant included plaintiff’s photograph in a Twitter post without licensing from the plaintiff.

MLC Sues Pandora Over Unpaid Royalties: On February 12, the Mechanical Licensing Collective (MLC) filed a complaint against Pandora Media, LLC for outstanding royalties due to songwriters and publishers arising from compulsory mechanical licenses used in connection with songs streamed on Pandora’s “Pandora Free” ad-supported streaming service. Additionally, the MLC alleges that Pandora filed to correct the underpayments as part of its payment of retroactive royalties from 2021-2022.

Google Asks Court to Dismiss Amended Complaint in AI Class Action Lawsuit: On February 9, Google filed a motion in the District Court for the Northern District of California to dismiss an amended complaint in a class action lawsuit, L. v. Alphabet, filed by a group of plaintiff-individuals for the use of personal information and various copyrighted works to train Google’s AI models. Google argues that while the copyright infringement claims made by one of the plaintiffs, Jill Leovy, alleging that Google infringed the copyright in plaintiffs’ book by using it to teach the AI model, Bard, is meritless, a record would nonetheless need to be better developed on the issue. Google then argues that the court should dismiss the plaintiff’s claim that every Bard output necessarily infringes the copyright of the works on which the AI model was trained. Google further argues that Leovy fails to provide evidence by neglecting to point out a single example of allegedly infringing output.

Court Dismisses Claims in Authors’ AI Lawsuits Against OpenAI: On February 12, the district court for the Northern District of California granted and denied in part OpenAI’s motion to dismiss claims in consolidated class-action lawsuits brought by authors including Paul Tremblay, Sarah Silverman, Christopher Golden, and Richard Kadrey against OpenAI for the unauthorized use of the plaintiffs’ books to train ChatGPT. OpenAI sought dismissal of all claims except for the claim alleging direct copyright infringement. The court dismissed the vicarious copyright infringement claim with leave to amend, stating that the plaintiffs did not adequately show that there was a substantial similarity between the AI outputs and the copyright protected works and that the plaintiffs’ non-specific, general allegation that all ChatGPT outputs were a derivative work was insufficient proof of substantial similarity. The court also dismissed claims of removal or alteration of copyright management information (CMI) under Section 1202(b)(1) of the Digital Millennium Copyright Act (DMCA), finding that the plaintiffs’ allegations that OpenAI’s failure to be transparent about ChatGPT training data was insufficient to prove that CMI was actually removed during the training process or that the alleged removal would induce, enable, facilitate, or conceal an infringement. Moreover, the court found that the Section 1202(b)(3) claims under the DMCA of distribution of the books without CMI also failed because plaintiffs did not allege that ChatGPT’s output reproduced the books without CMI. Both DMCA-related claims were dismissed with leave to amend.

Music Publishers Respond to Anthropic’s Preliminary Injunction Opposition in AI Lawsuit: On February 14, a group of plaintiff music publishers filed a reply brief in support of their motion for preliminary injunction in Concord Music Group, Inc. v. Anthropic PBC, a case in which the AI company Anthropic was sued over the unauthorized use of musical works to train the large language model, Claude. The plaintiffs had previously requested preliminary injunctive relief to prevent Anthropic from further training Claude on the plaintiffs’ works and to ensure that guardrails are employed to prevent infringement. The plaintiffs argue that guardrails installed after the lawsuit was filed do not make the preliminary injunction request moot, as the measures do not eradicate the effects of past violations and can be removed by Anthropic at any time. Responding to Anthropic’s claim that it does not engage in any “volitional conduct” that would lead to infringement liability, the publishers explain that the Sixth Circuit has not adopted a volitional conduct requirement, and even if it had, Anthropic’s AI model is nothing like the “empty vessel” recording devices at issue in other cases articulating volitional conduct standards. The reply also explains that Anthropic’s use weighs heavily against fair use under the first factor because Claude’s outputs compete with the ingested copyrighted works and, applying the Supreme Court’s decision in Warhol v. Goldsmith, Anthropic failed to show a compelling justification for the use. On the fourth fair use factor, the reply makes clear that the unauthorized use of the lyrics harms the plaintiffs’ burgeoning AI licensing market and undermines current licensing markets and business for providing song lyrics in search results.

OpenAI Moves to Dismiss Claims Made in NYT AI Lawsuit: On February 26, OpenAI filed a motion to dismiss certain claims in the lawsuit brought against it by The New York Times over the unauthorized use of its news works to train the AI model, ChatGPT. Specifically, OpenAI argues that the court should: (1) partially dismiss the direct copyright infringement claims to the extent those allegations are based on acts of reproductions that occurred more than three years before the lawsuit was filed; (2) fully dismiss the contributory infringement claim because plaintiff failed to show that OpenAI had actual knowledge of specific acts of the alleged direct infringement; (3) fully dismiss the claims of removal of copyright management information (CMI) for various reasons including that the plaintiff does not identify the CMI at issue, allege that OpenAI removed CMI in its training datasets or output, and plead sufficient facts to suggest that OpenAI acted with requisite knowledge; and (4) fully dismiss the unfair competition by misappropriation claims on grounds of Copyright Act preemption. Importantly, OpenAI does not move to dismiss direct infringement claims related to reproductions that occurred within three years of the lawsuit being filed, which it considers to be the “focus of the litigation.” 

News Organizations File AI Lawsuits Against OpenAI and Microsoft: On February 28, news organization The Intercept Media, Inc. filed a complaint against OpenAI and Microsoft over allegations that the defendants removed Copyright Management Information (CMI) from plaintiffs’ copyright-protected articles that were used without authorization to train ChatGPT. Intercept Media’s lawsuit claims that defendants should be held liable for violating sections 1202(b)(1) and (3) of the Digital Millennium Copyright Act (DMCA). Separately, news organizations Raw Story Media, Inc. and Alterenet Media, Inc. filed a complaint against only OpenAI, making similar allegations but only making the claim that OpenAI violated section 1202(b)(1). In both lawsuits, the plaintiffs point to how ChatGPT output reproduces verbatim or nearly verbatim copyright-protected works of journalism without relevant CMI.

Fourth Circuit Overturns Parts of Jury Verdict in Sony v. Cox and Remands $1 Billion Award: On February 20, the Court of Appeals for the Fourth Circuit overturned parts of a jury verdict in the case, Sony Music Entertainment v. Cox Communications, Inc., where the jury had found Internet Service Provider (ISP) Cox liable for $1 billion for its subscribers’ infringement of 10,017 songs owned by the plaintiffs, a group of music companies. Importantly, the court affirmed the jury’s finding of willful contributory infringement. However, it reversed the vicarious liability verdict and remanded for a new trial on damages, finding that the continued payment by Cox subscribers of monthly fees for internet services was not a financial benefit flowing directly to Cox from the copyright infringement itself. The court reasoned that the loss of profits from canceled internet subscriptions only demonstrated that Cox profits directly from the sale of internet access but failed to prove that Cox directly profits from the infringing acts. The court also found plaintiffs’ other arguments and evidence unpersuasive in proving Cox’s direct financial interest in its users’ infringing activities. On contributory infringement, the court affirmed the jury verdict, finding that because internet services were indispensable for the infringing activities, Cox had materially contributed to its subscribers’ direct infringement of plaintiffs’ copyrights. The Copyright Alliance filed an amicus brief in support of Sony Music.

Record Labels Respond to Internet Archive’s Motion to Dismiss Lawsuit Over Mass Digitization and Distribution of Sound Recordings: On February 16, a group of record label plaintiffs filed a memorandum in opposition to the motion to dismiss made by defendants Internet Archive (IA), Brewster Kahle, and George Blood in the lawsuit brought by the plaintiffs over the alleged copyright infringement of thousands of plaintiffs’ pre-1972 sound recordings for the mass digitization and distribution of those songs as part of IA’s “Great 78 Project.” The plaintiffs argue that the defendants do not point to any particular recordings to which the statute of limitations bars the infringement claims, and that additional discovery would be needed to determine additional information including when the defendants engaged in certain allegedly infringing activities. The plaintiffs also argue that granting the motion to dismiss would fail to narrow the case or remove any claims. The plaintiffs also point out that the defendants’ fabricated fair use theory to excuse their mass digitization and distribution of the sound recordings is even less tenable than its fair use theory for the mass digitization and distribution of books in the Hachette v. Internet Archive case. Lastly, the plaintiffs argue that the defendant’s motion should be denied as untimely as the motion was filed too late.

UK Parliament Publishes Report on AI Large Language Models: On February 2, the United Kingdom Parliament’s Communications and Digital Committee published a report titled Large Language Models and Generative AI examining trends surrounding AI large language models and ways to ensure the technologies would benefit UK society. Regarding copyright, the Committee expressed deep concerns for the UK “Government’s commitment of fair play around copyright,” noting that it is the point of copyright to reward creators for their efforts, prevent others from using works without permission, and incentivise innovation.”

India Reaffirms That Copyright Owner Authorization Is Needed for AI Use of Copyright Protected Works: On February 9, India’s Ministry of Commerce and Industry issued a press release, stating that its intellectual property laws grant adequate protection for works created by a legal person, including AI generated works and related inventions. Additionally, the government stated that “a user of Generative AI” should obtain permission to use copyright-protected works for commercial purposes, if such a use is not covered under the narrow fair dealing exceptions in India’s copyright law.

U.S. Chamber’s GIPC Launches International IP Index: On February 22, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) released the 12th Annual International IP Index “highlighting the extraordinary role intellectual property (IP) plays in supporting innovation and creativity and driving global economic growth.” It also demonstrates the socio-economic benefits that economies derive when governments “embrace more effective IP protection, including increased innovative and creative output, greater access to venture capital, and more foreign direct investment.”

Chinese Court Finds Generative AI Company Liable for Infringing Output: According to reports, the Guangzhou Internet Court in China ruled that an AI company was liable for copyright infringement for providing AI services that generated output substantially similar to the plaintiff’s exclusively licensed “Ultraman” images. The court found that based on the similarities between the plaintiff’s works and the generated output, the defendant had infringed the plaintiff’s reproduction and adaption rights. The court also stated that generative AI providers should raise copyright infringement risks to users through service agreements, establish a complaint reporting system for rights holders, and label AI generated output. The court ordered defendant pay the plaintiff $1,389 in damages.

WIPO Publishes Generative AI Guide: The World Intellectual Property Organization published a guide titled Generative AI: Navigating Intellectual Property, which summarizes the IP concerns and considerations arising from the development and use of generative AI tools. On the input and training side, the guide notes the existence of current litigation on the issue of using IP protected works as training materials for generative AI and that courts have yet to resolve IP liability issues, including whether a court would grant any injunctive style relief ordering the destruction of models or preventing use of an AI model. On copyrightability and authorship issues, WIPO notes that it is unclear who owns or authors an AI-generated work, noting the U.S. Copyright Office’s registration guidance on works with AI-generated elements and the Beijing Internet Court’s decision finding sufficient human authorship in an AI-generated work.

South African Legislature Passes Controversial Copyright Amendment Bill: On February 28, South Africa’s National Assembly adopted the Copyright Amendment Bill, which had triggered strong opposition from the creative industries. The bill introduced a 25-year limitation of the assignment of rights, and incorporates fair use-like principles, among other provisions. The bill will now be considered by President Cyril Ramaphosa, who had previously vetoed the bill over constitutional concerns.

Industry Activities

New Study Demonstrates Efficacy of Pirate Website-Blocking Measures: On February 12, a working paper was published by researchers at Chapman University and Carnegie Mellon University, which reported that measures to block access to websites pirating audiovisual works affected a shift in user behavior toward using legal media sites. The study examined the effects of website blocking measures implemented in India and Brazil and concluded that the “results suggest that piracy website blocking remains an effective strategy for increasing legal consumption of copyrighted content.”

Look Forward To And Save the Date For…

ACT Panel on Section 1201 and the Right to Repair: On March 6, from 12:30-1:30 p.m. ET, ACT | The App Association is hosting a panel on Section 1201 vs. The Right to Repair. The briefing will cover the importance of the current exemptions to Section 1201 and why broadening exemptions for repair purposes could threaten copyright protections and consumer privacy. Panelists include Priya Nair, IP Policy Counsel, ACT | The App Association (Moderator); Debbie Rose, IP Fellow, ACT | The App Association; Devlin Hartline, Legal Fellow, Hudson Institute; and Kevin Madigan, VP, Legal Policy and Copyright Counsel, Copyright Alliance. More information is available on the registration page.

USCO SXSW Panel on ‘The Creative Biz: What We Wish Was Taught in Art School’: On March 11, from 4-5 p.m. ET, the U.S. Copyright Office will host a panel at SXSW titled The Creative Biz: What We Wish Was Taught in Art School, which will focus on “how creatives can protect their work through copyright, common revenue streams for creators like licensing, best practices for running your business, and where solopreneurs, small businesses and underrepresented groups, can go for practical business training, support, and community.” The panel speakers are Linda Bloss-Baum, American University; Jayda Imanlihen, Black Girl Film School; Miriam Lord, U.S. Copyright Office; and Neeta Ragowansi, Music Managers Forum U.S.

WIPO’s Ninth Session of its Conversation Series on AI and Copyright: On March 13-14, from 5 a.m. to 1 p.m. ET the World Intellectual Property Organization (WIPO) will hold its ninth session in its series titled “Conversation on Intellectual Property and Frontier Technologies,” during which it will address copyright AI issues. The session, which is titled Training the Machines: Bytes, Rights and the Copyright Conundrum, “will provide a platform for deep exploration, aiming to understand the multifaceted relationship between training data and IP.”  More information is available on the registration page.

Deadline to Submit Reply Comments to USCO in Support of New Exemptions in 1201 Triennial Rulemaking: March 19 is the deadline to submit reply comments from parties who neither support nor oppose an exemption to newly proposed classes of exemption included in the U.S. Copyright Office’s notice of proposed rulemaking in the ninth triennial proceeding under section 1201 of Title 17. The notice outlines seven newly proposed classes of exemption and initiates three rounds of public comment. More information is available on the Office’s Triennial Rulemaking webpage.

Columbia Law School Manges Lecture: On March 25, from 6-7:30 p.m. ET, Dale Cendali, Partner at Kirkland & Ellis, LLP, will deliver the 36th Annual Manges Lecture on Litigating Fair Use. The lecture will touch upon “the litigators’ role in shaping legal doctrine by developing the facts of a given case and establishing its ties to existing law.” It will also cover the increased focus on the second fair use factor, and how artificial intelligence is affecting the legal landscape. More information is available on the registration page.

USPTO Public Symposium on AI and IP: On March 27, from 10 a.m. to 3 p.m. PT, the U.S. Patent and Trademark Office (USPTO) will hold its public symposium on intellectual property and AI issues at Loyola Law School, Loyola Marymount University, in Los Angeles, California. Featuring panel discussions by experts in the field of patent, trademark, and copyright and representatives from the U.S. Copyright Office, the event will focus on: (1) authorship and inventorship issues for AI generated works; (2) ongoing copyright litigation involving generative AI; and (3) discussion of legal and policy considerations surrounding name, image, likeness (NIL) issues. More information is available on the registration page.

USCO Monthly Recordation System Webinar: On March 28, at 1 p.m. ET, the U.S. Copyright Office will hold its next webinar to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation module allows users to electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.


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!

AI and Copyright in 2023: In the Courts

Post publish date: January 4, 2024

On January 3, we published part one of this blog series summarizing the biggest copyright-related AI activities that took place within the federal government. In today’s post, we pick back up with the AI-copyright theme, focusing on the multitude of lawsuits filed last year against AI developers by a range of creators and copyright owners, mostly over the unauthorized use of copyrighted works for AI training purposes. Here are some highlights from those court cases and what to expect in 2024.

AI and Copyrightability

There was one court case, Thaler v. Perlmutter, which took on the important issue of whether and if so, when something created using AI can be protected by copyright. Dr. Stephen Thaler sought to register a 2-D image generated by an AI machine called the “Creativity Machine,” as a work made for hire because he was the owner of the AI system. The Copyright Office denied the registration application, and, in early 2022, affirmed the denial on the basis that Thaler failed to show requisite human authorship in the work and that the work could not qualify as a work made for hire. Thaler sued and in the summer of 2023 Judge Beryl Howell of the U.S. District Court for the District of Columbia issued an opinion agreeing with the Office “that human authorship is an essential part of a valid copyright claim” and is “a bedrock requirement of copyright.” In October, Thaler filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit. So, this case will continue and we should expect a decision by the appellate court sometime in 2024. We might also see court challenges arise from other instances where the Copyright Office refused registration for works where AI generated-elements and human authorship were intertwined.

Last year, there were thirteen new copyright-related lawsuits alone filed against AI companies—the majority of which were filed as class-action lawsuits. At the heart of these complaints, visual artists, book authors, songwriters, and other creators and copyright owners are alleging infringement of their copyrights resulting from the ingestion of protected works to train AI models. The sheer number of these lawsuits and the pace at which they were filed are not surprising. This is in part because the capabilities of AI technologies have exploded, and AI companies have failed to meaningfully address or remedy the harms to creators and copyright owners related to the mass scraping and unauthorized use of expressive works to train commercial AI models. In the past year, a few of these cases moved forward with court decisions on various motions. In those cases, it has become evident that while courts may not be as convinced about some of the other legal claims being brought, AI companies’ attempts to dismiss the direct copyright infringement claims arising from ingestion issues have either  failed or not even been argued by the defendant AI company. Here are the AI and copyright law cases in which there were notable developments. 

Doe v. GitHub

The GitHub case was one of two cases mentioned in this blog post that was filed prior to 2023. In late 2022, a group of GitHub programmers filed a class action lawsuit against Microsoft and OpenAI for allegedly violating their open source licenses and scraping their code to train Microsoft’s Artificial Intelligence (AI) tool, GitHub Copilot. On May 11, the district court for the Northern District of California issued an order granting in part and denying in part the motions to dismiss made by Microsoft and OpenAI. Many claims were dismissed with leave to amend, and the order says that the plaintiffs must identify specific instances of their code reproduced by Copilot or Codex to strengthen their property rights claim. Plaintiffs filed a first amended complaint on July 21, followed by renewed motions to dismiss by OpenAI and Microsoft.

Thomson Reuters Enterprise Centre GmbH v. Ross Intelligence Inc.

The Ross case is the second of two cases mentioned in this blog post which was filed prior to 2023. We include it here because of the action taken in the case in 2023. In 2020, Thomson-Reuters sued Ross Intelligence, which is a competitor legal research service, for copyright infringement, alleging that Ross obtained copyrighted works from a Westlaw subscriber to develop its own competing product based on machine learning. The claims allege that an AI bot systematically mined, collected, and downloaded content from the Westlaw database. On September 25, a memorandum opinion was issued by the district court for the District of Delaware, largely denying the cross motions for summary judgment made by the parties. The court explained that there is still a genuine factual dispute over the copyrightability of Westlaw’s headnotes, and that although Ross actually copied portions of bulk memos, the question of substantial similarity must be decided by a jury.

Anderson v. Stability AI 

On January 13, artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed the first class-action lawsuit of the year against Stability AI, Midjourney, and DeviantArt in the Northern District of California, alleging copyright infringement and right of publicity violations for the use of the plaintiffs’ works in training data sets for the AI image-generating platforms Stable Diffusion, the Midjourney Product, DreamStudio, and DreamUp. In October, the court largely granted the motions to dismiss made by the defendants, but also granted plaintiffs leave to amend the claims. Though the headlines tended to frame the decision as a loss for the creative community, that was not an accurate summary of the dismissal because the most important claims in the case were not dismissed (and, to a lesser extent, because the plaintiffs were given leave to amend). Importantly, the court denied Stability AI’s motion to dismiss the plaintiffs’ direct copyright infringement claims with respect to the 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 per results from the “Have I Been Trained” website adequately supported her infringement claims at this stage of the lawsuit.

Getty Images v. Stability AI

On February 3, Getty Images filed a copyright and trademark infringement suit against Stability AI in the U.S. District Court for the District of Delaware alleging that Stability AI “copied more than 12 million photographs from Getty Images’ collection, along with the associated captions and metadata, without permission from or compensation to Getty Images, as part of its efforts to build a competing business.” In addition to willful and intentional copyright infringement claims, Getty also alleged that Stability AI removed or altered copyright management information (CMI), provided false copyright management information, and infringed Getty Images’ trademarks. The case is still in the discovery phase. A parallel lawsuit filed in the United Kingdom will go to trial in 2024.

Tremblay v. OpenAI

On June 28, two authors of literary works filed a class-action lawsuit in the U.S. District Court for the Northern District of California accusing OpenAI of copyright infringement related to the unauthorized use of plaintiffs’ works to train its proprietary LLM, ChatGPT. The complaint alleges that OpenAI harvested mass quantities of literary works through illegal online “shadow libraries” and made copies of plaintiffs’ works during the training process. In addition to claims for direct infringement, the complaint alleges that every output of ChatGPT is an infringing derivative of plaintiffs’ works for which OpenAI is vicariously liable. On August 28, OpenAI filed a motion to dismiss the “ancillary claims” of vicarious infringement, violation of the Digital Millennium Copyright Act (DMCA), unfair competition, negligence, and unjust enrichment, but importantly, like Meta in its ongoing lawsuit, did not respond to the direct infringement claim, which OpenAI says it “will seek to resolve as a matter of law at a later stage of the case.”

Kadrey v. Meta and Silverman v. OpenAI

On July 7, Sarah Silverman, Christopher Golden, and Richard Kadrey brought two separate class-action lawsuits in the district court for the Northern District of California against Meta and OpenAI.  In the first lawsuit against OpenAI, the plaintiffs accused OpenAI of copyright infringement related to the unauthorized use of plaintiffs’ books to train its proprietary LLM, ChatGPT. The complaint alleges that OpenAI harvested mass quantities of literary works through illegal online “shadow libraries” and made copies of plaintiffs’ works during the training process. In addition to claims for direct infringement, the complaint alleges that every output of ChatGPT is an infringing derivative of plaintiffs’ works for which OpenAI is vicariously liable. Also included in the lawsuit were claims under the DMCA for the removal of CMI under section 1202(b), as well as claims for unfair competition, negligence, and unjust enrichment. In the second lawsuit, the plaintiffs accused Meta of copyright infringement related to the unauthorized use of plaintiffs’ books to train its proprietary LLM, LLaMA, and made similar allegations and claims as in the lawsuit against OpenAI.

In November, the court granted Meta’s motion to dismiss (with leave to amend), rejecting plaintiffs’ claims that the LLaMa model itself is an infringing derivative work and that every output of the model qualifies as an infringing derivative of the input. It explained that “plaintiffs are wrong to say that, because their books were duplicated in full as part of the LLaMA training process, they do not need to allege any similarity between LLaMA outputs and their books to maintain a claim based on derivative infringement.” Rejecting the 1202(b) violation claims, the court found that “there are no facts to support the allegation that LLaMA ever distributed the plaintiffs’ books, much less did so ‘without their CMI.’” The order also dismissed the unjust enrichment and negligence claims. Meta’s motion to dismiss did not challenge the direct copyright infringement claims arising from unauthorized copying of the books for training the LLaMA model, which means those claims survive and will be taken up by the court.

J.L. v. Alphabet Inc.

On July 11, a group of anonymous plaintiffs filed a class-action lawsuit against Google for the use of personal information and various copyrighted works to train its AI models. Among other claims, the plaintiffs allege direct and vicarious copyright infringement and DMCA violations for removal of CMI. The complaint alleges that Google’s LLM, Bard, is able to generate summaries of copyrighted books or output that reproduces verbatim excerpts from copyrighted books. In addition to damages, the plaintiffs requested an injunction compelling the establishment of an independent AI council to monitor and oversee Google AI products and the destruction and purging of class members’ Personal Information, which includes copyrighted works and creative content. In October, Google filed a motion to dismiss, which the court has yet to rule on.

Chabon v. OpenAI & Chabon v. Meta

On September 8, a group of authors, including Michael Chabon, filed a class action lawsuit in the district court for the Northern District of California alleging direct and vicarious copyright infringement and removal of CMI, as well as state-related claims including unfair competition and negligence for copying and using 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 CMI, 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. No further significant actions were taken on the OpenAI case, but the case against Meta was consolidated in December with the previously mentioned lawsuit Kadrey v. Meta.

Authors Guild v. OpenAI Inc.

On September 19, the 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 to 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. No further significant actions were taken on the case in 2023.

Huckabee v. Meta

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 CMI, and various other state-law claims. The plaintiffs allege that the defendants infringed by using plaintiffs’ books to develop defendants’ LLMs using the “Books 3” training dataset. The lawsuit also asserts that AI research company, Eleuther AI, is liable for copyright infringement for hosting and distributing “The Pile” dataset, which includes Books3. According to court dockets, towards the end of the year, defendant-party Bloomberg filed a letter with the judge to dismiss claims, the plaintiffs voluntarily dismissed EleutherAI from the lawsuit, and the case was transferred to the district court for the Northern District of California for the claims made against Meta and Microsoft.

Concord Music Group, Inc. v. Anthropic PBC

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 CMI 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. On November 22, Anthropic, filed a motion to dismiss the lawsuit, arguing that the Middle District of Tennessee was not the proper district to hear the case. No decision has been rendered on the motion, but it’s not surprising that the technology company doesn’t want to go to trial in Tennessee, where a more sympathetic audience for the rights of songwriters and copyright owners might be found.

Sancton v. OpenAI

On November 21, a complaint was filed by a group of nonfiction writers against OpenAI and Microsoft in the Southern District of New York. The proposed class action lawsuit, led by Julian Sancton, accuses the companies of direct and contributory infringement related to the unauthorized use of plaintiffs’ literary works to train ChatGPT. Notably, the contributory infringement claims are directed at Microsoft for materially contributing to OpenAI’s direct infringement by providing investment money and supercomputing systems. No further significant actions were taken on the case in 2023, but it will be interesting to see how accused contributory infringers respond to the claims moving forward.

The New York Times Company v. Microsoft

To close out an already busy year of generative AI-related litigation, The New York Times Company (NYT) filed a lawsuit in late December against Microsoft and OpenAI in the Southern District of New York, alleging direct, vicarious, and contributory copyright infringement, removal of CMI under the DMCA, unfair competition, and trademark dilution claims over the copying and use of NYT’s copyright protected works to train the ChatGPT model. After discussing the prevalence of the NYT’s articles in training data sets used to develop ChatGPT, the complaint provides evidence of ChatGPT generating verbatim outputs of significant portions of various NYT articles. Unlike some earlier filed cases that included questionable claims that were subsequently rejected, the NYT case presents strong evidence of copying and clear claims that will be difficult for OpenAI to defend.

Conclusion

These cases will continue to unfold and progress in 2024. We also expect more lawsuits to be filed against AI companies in 2024, as we have seen complaints make stronger claims with clear evidence of the infringement occurring during the AI ingestion and training processes. To stay apprised on AI and copyright news, visit our AI and copyright webpage and sign up for our AI Alert.


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!

AI and Copyright Law in 2023: Federal Government Activities

Post publish date: January 3, 2024

2023 was an extremely busy year for artificial intelligence (AI). That was especially true for copyright issues related to AI, which sparked several Congressional hearings, a study by the U.S. Copyright Office, and other government engagements studying the intersection of AI and copyright. In part one of this blog series we highlight the most important AI copyright-related activities taking place in Congress, the federal government, and the U.S. Copyright Office which occupied our attention in 2023. In part two, we’ll explore the various court cases involving copyright and AI.

Throughout the year the Copyright Office was extremely busy with a host of AI and copyright related events and activities including issuing an official guidance on registering works with AI-generated elements, publishing opinion letters rejecting certain registration applications of works containing AI-generated elements, and hosting listening sessions on industry-specific AI and copyright law issues.  

Policy Statement on Registering AI-Generated Output and Application of the Guidance to Applications:In March, the Copyright Office kicked off its AI activities by issuing a statement of policy clarifying its practices for examining and registering works that contain material generated by AI technology, effective immediately. The Office explained that human authorship is required for copyright protection, that it will refuse to register works solely generated by AI, and that any material which is not the product of human authorship must be disclaimed on a registration application. For more information and discussion about the Office’s registration guidance, check out our blog post.

Throughout the year, the Copyright Office applied this guidance to reject various applications for works containing AI-generated elements. Several of these decisions were made public by the Copyright Office. These include:

Kashtanova: The Copyright Office began proceedings to investigate the copyright registration for a graphic novel, Zarya of the Dawn, after the agency became aware of news reports indicating that the applicant, Kristina Kashtanova, created the work using the AI tool, Midjourney. In February, the Office sent a letter in response to Kashtanova’s letter defending copyrightability of the work, explaining that the Office would be reissuing a certificate of registration that would not extend to any AI-generated material in the graphic novel. The Office stated that because the AI “generat[ed] the images in an unpredictable way” and the AI tool was “not controlled or guided” by Kashtanova, the images did not have sufficient human authorship.

Allen: In September, the Copyright Office rejected a second request for reconsideration made by an artist, Jason Allen, refusing to register a 2-D image titled Théâtre D’opéra Spatial because the work contained more than a de minimis amount of AI-generated work which Allen refused to disclaim on the registration application. 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.

Sahni: In December, the Copyright Office published its review board opinion, rejecting the registration application filed for a 2-D image titled Suryast. The application was filed by Ankit Sahni, who listed himself and his AI machine, RAGHAV Artificial Intelligence Painting App, as co-authors of the image. Sahni has filed registration applications for the same image in India listing the AI as a co-author. The application was initially accepted in India but is subject to a withdrawal and review process. The Office concluded that the image was not a product of human authorship because the expressive elements of the pictorial authorship were not provided by Sahni. The Office found that Sahni’s three inputs of providing the base input image, a style image, and the values to have the AI generate the style did not control how the expressive elements appeared in the output and did not amount to copyrightable contributions.

Listening Sessions: To begin the process of learning about the impact of AI on copyright, the Copyright Office hosted a series of AI listening sessions on generative AI and copyright in the spring so that they could hear from stakeholders and other interested parties on various issues related to the topic. The Office held four sessions, with each session focusing on the impact of AI on a different type of work. The first session covered literary works, the second session addressed works of visual arts, the third covered audiovisual works, and the final session covered music and sound recordings. Across the sessions, speakers addressed how AI tools are used by creators, the harms regarding AI ingestion of copyrighted works, AI licensing markets, the Office’s AI registration guidance, the effects of AI on creators, and many other issues. The information gathered during the sessions was intended to inform the Copyright Office’s approach to a formal study later in the year (see below). 

AI Webinars: Following the listening sessions, the Copyright Office continued its examination into AI issues by hosting two webinars. The first webinar, titled Guidance for Works Containing AI-Generated Content, consisted of the Office providing examples applying its AI registration guidelines to different types of works and explained whether, when, and how AI-generated elements should be disclaimed in the electronic copyright application system. In the second webinar, titled International Copyright Issues and Artificial Intelligence, presenters discussed how other countries are approaching copyright questions related to AI such as AI authorship, AI training, exceptions and limitations, and infringement. Panelists also provided an overview of legislative developments in other regions and highlighted possible areas of convergence and divergence involving generative AI.

AI and Copyright Study: All these activities culminated with the Office publishing a notice of inquiry and request for comments in the Federal Register for its Artificial Intelligence and Copyright study at the end of the summer. The Office solicited comments to help it collect factual information and policy views relevant to copyright law and policy and to inform the agency on issues involving 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. By the time the dust had settled at the October 30th comment deadline, the Office had received around 10,000 initial comments, and then over 600 additional reply comments at the December deadline. All these comments can all be found on the NOI docket webpage. The Copyright Alliance submitted comments and reply comments highlighting, among many other things, concerns surrounding infringement related to the unauthorized use of copyrighted works for training. Other commentors included thousands of individual creators, several Copyright Alliance members, and the Federal Trade Commission, which filed comments noting that the agency has an interest in copyright-related issues to the extent that AI can harm a creator’s ability to compete in markets, as well as other issues such as misleading information about the authorship of AI-generated works.

Biden Administration Activities

While the Copyright Office was swept up in a whirlwind of AI and copyright activities, the Biden Administration was also busily examining these issues as it began to be alerted to the ways generative AI technologies were harming creators and copyright owners. Here are a few highlights of AI and copyright-related activities from the Biden Administration over the past year as it looks at ways of addressing AI and copyright law issues under the AI Executive Order.

NTIA Solicits Comments on AI Accountability: In the beginning of the year, the National Telecommunications and Information Administration (NTIA) published a request for comments regarding self-regulatory, regulatory, and other measures and policies that are designed to provide assurance that AI systems are legal, effective, ethical, safe, and otherwise trustworthy. The Copyright Alliance filed comments discussing the need for increased accountability and transparency in the context of ingestion of copyrighted works by AI systems, and how respecting copyrighted works results in trustworthy AI systems.

NAIAC Hosts Briefing Session on AI and Copyright Issues: In September, the Biden Administration’s National Artificial Intelligence Advisory Committee (NAIAC) hosted a briefing session on IP and Copyright, featuring a presentation by Aaron Cooper, BSA | The Software Alliance; Keith Kupferschmid, CEO, Copyright Alliance; and Catherine Stihler, Creative Commons. Through this session, the NAIAC sought to better understand the changing landscape of AI and the challenges of adapting existing copyright regulations or possibly introducing new ones. The panelists addressed copyright concerns pertaining to music, film, and written works, and highlighted the potential pitfalls of using unlicensed data for training generative AI. Emphasis was also placed on the importance of reliable, diverse training data for AI and the fact that the U.S. Copyright Office was also studying the complex implications on copyright law by generative AI technologies.

FTC Hosts Roundtable on AI and Creative Economy Issues: A month later, the Federal Trade Commission (FTC) held an excellent roundtable titled Creative Economy and Generative AI during which a variety of professionals and representatives from a broad range of creative disciplines discussed how AI tools are reshaping their respective lines of work and how they’re responding to these changes. This roundtable by the FTC illuminated the specific copyright and other concerns of the creative community, and the ways generative AI was harming creators and copyright owners’ markets and ability to engage in further creative endeavors. In her opening statement, FTC Chair, Lina Khan, acknowledged the unique challenges that AI-generated content poses to creative industries and recognized the importance of shaping regulatory policies in this rapidly evolving landscape. FTC Commissioner, Alvaro Bedoya, provided closing remarks, expressing profound concerns about the impact of generative AI on creators and the importance of preserving the uniqueness of human creativity. He emphasized that while AI may have expansive capabilities, it should not be expected to replace the genius of human creativity. He argued that the foundation of genius lies in people and that AI cannot extinguish human creativity. He emphasized the need to consider new legal frameworks to address such developments, drawing parallels to the creation of the Federal Trade Commission in 1914 to address innovations in unfair competition. In the end of 2023, the FTC published a report titled Generative Artificial Intelligence and the Creative Economy Staff Report: Perspectives and Takeaways, summarizing the information provided to the agency during the roundtable. In its report the FTC noted that “. . . targeted enforcement under the FTC’s existing authority in AI-related markets can help to foster fair competition and protect people in creative industries and beyond from unfair or deceptive practices.” The report also highlighted potential areas of further inquiry, including the effects or lack thereof of opt-out regimes by AI companies, the status of “unlearning” research, and the long-term effects of practices of AI companies from the uncompensated and unauthorized use of creators’ works.

President Biden Issues AI Executive Order: In October, President Biden signed the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (EO), which spans a number of AI-related topics. Section 5.2 of the EO, titled Promoting Innovation, addresses copyright in paragraph (c)(iii). 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 order provides that 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, in consultation with the Attorney General, to develop a training, analysis, and evaluation program to mitigate AI-related IP risks and specifies the details of the program. A summary of the EO can be found in the White House’s Fact Sheet. It is encouraging to see that the Biden Administration is keyed into the fact that generative AI has affected the creative community, and it will be interesting to see the specific recommendations made once the U.S. Copyright Office issues its studies on AI and copyright law issues.

Congressional Activities

Members of Congress and their staff also spent a good portion of 2023 learning about and addressing the AI issues that affect and harm creative professionals. Although there were numerous Congressional hearings and bills introduced on AI issues as they affect the creative community, we highlight here a few hearings in which AI and copyright law issues were the specific focus of the hearing. Some of these hearings featured a representative mix of witnesses and speakers from the creative community who are affected by AI technologies. However, some hearings unfortunately did not provide the most affected members of the creative community with an opportunity to provide views. We hope this will change for future Congressional hearings and meetings in which AI and copyright concerns are up for discussion, and that a diverse set of creative voices can provide feedback on AI issues to our nation’s lawmakers.    

House Judiciary IP Subcommittee: In May, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled Artificial Intelligence and Intellectual Property: Part I—Interoperability of AI and Copyright Law. Witnesses included Sy Damle, Latham & Watkins LLP; Chris Callison-Burch, Associate Professor of Computer and Information Science, University of Pennsylvania; Ashley Irwin, President, Society of Composers and Lyricists; Dan Navarro, Grammy-nominated songwriter, singer, recording artist, and voice actor; and Jeffrey Sedlik, President & CEO, PLUS Coalition. Lawmakers and witnesses discussed a myriad of pressing topics at the intersection of AI and copyright law, including the use of copyright-protected works in the training of generative AI models, copyright protection of works that were produced with the assistance of generative AI, and the economic impact of generative AI on creators and creative industries. Speaking about ingestion, Damle and Callison-Burch both incorrectly insisted that training AI systems categorically qualifies as a fair use. In response, former General Counsel for the U.S. Copyright Office, Jon Baumgarten, penned a letter to Members of the Subcommittee, warning them against these false categorical statements. Meanwhile, the creatives and artists on the panel—including Irwin, Navarro, and Sedlik—raised concern that generative AI systems are being trained using troves of rights holders’ works without their consent, credit, or compensation. Another issue that witnesses and members grappled with was whether the output of AI systems could be eligible for copyright protection. Finally, there seemed to be a consensus among panelists and members on the Subcommittee that transparency will be a key component to the responsible implementation of AI into our society.

Senate Judiciary IP Subcommittee: In July, the Senate Judiciary Committee’s IP Subcommittee held a hearing titled Artificial Intelligence and Intellectual Property—Part II: Copyright. Witnesses included Jeffrey Harleston, General Counsel and EVP of Universal Music Group; Karla Ortiz, Concept Artist, Illustrator, and Fine Artist; Matthew Sag, Professor of Law, Emory University School of Law; Dana Rao, EVP, General Counsel and Chief Trust Officer, Adobe; and Ben Brooks, Head of Public Policy, Stability AI. The Senators and panelists discussed various topics including the ability of artists to opt-out of AI training and the feasibility and technical effects of respecting those requests on AI development; the role and desirability of licensing copyrighted works for AI ingestion; voluntary, standardized, or other international frameworks around transparency in all stages of AI development and use; and the application of fair use law in the context of AI training. During the hearing, Ortiz highlighted that whether copyrighted works are licensed for AI use should be the artist’s choice, as is the status quo under copyright law—but that this fundamental right and ability to make this choice had been stripped from artists as copyrighted works are being used for AI training without any credit, compensation, or consent. Rao, citing to the development process of Adobe’s Firefly platform, highlighted how AI systems trained on limited datasets that include licensed materials as opposed to indiscriminate scraping and ingestion of works without authorization or licensing.

Senator Schumer AI Insight Forum on Copyright: In November, Senator Chuck Schumer (D-NY) held the seventh closed-door AI meeting in the Insight Forum series. The meeting focused on transparency, explainability, and intellectual property and copyright issues. Speakers included Ali Farhadi, Allen Institute for AI; Ben Brooks, Stability AI; Curtis LeGyt, National Association of Broadcasters (NAB); Danielle Coffey, News/Media Alliance; Jon Schleuss, News Guild; Vanessa Holtgrewe, IATSE; Duncan Crabtree-Ireland, SAG-AFTRA; Ben Sheffner, Motion Picture Association (MPA); Dennis Kooker; Sony Music Entertainment; Rick Beato, musician; and Ziad Sultan, Spotify. The speakers generally agreed that no legislative changes were necessary at this time because the issues were being played out in the courts. Speaker statements are available on the Senator’s webpage. Though some members of the creative industries or their collective representatives were present for the hearing, it was disheartening to see that individual creators and authors—critically from the visual arts and literary fields—were affirmatively not invited to speak and share their views at the meeting. These creators are the most immediately affected and harmed by generative AI technologies, as evidenced by the slew of the AI-copyright related lawsuits brought in the past year. The absence of these creators in this meeting casts a pall on any impact that this meeting otherwise would have had.

Senate Judiciary Subcommittee on Privacy, Technology, and Law: On May 16, the Senate Judiciary Subcommittee on Privacy, Technology, and Law held a hearing titled Oversight of A.I.: Rules for Artificial Intelligence. Witnesses included Samuel Altman, CEO, OpenAI; Christina Montgomery, Chief Privacy & Trust Officer, IBM; and Gary Marcus, Professor Emeritus, New York University. The hearing encompassed a wide range of concerns related to AI, including privacy, job disruption, copyright, licensing of AI products, and the impact of Section 230. The focus was on identifying the regulatory measures needed to address these concerns and ensure the responsible development and deployment of AI technologies. Senators Marsha Blackburn (R-TN) and Amy Klobuchar (D-MN) emphasized the importance of compensating creators and copyright owners for the use of their works to train AI. Senator Blackburn specifically suggested SoundExchange’s model. Altman informed members that OpenAI is actively developing a copyright system designed to provide compensation to artists whose work has been utilized in the creation of new content. He also said that content creators should have a say in how their voices, likenesses, and copyrighted content are used to train AI models, stating that “creators should deserve control over how their creations are used” and that OpenAI is working with artists and creators on licensing. However, again, regrettably, there was no one from the creative community invited to this panel to provide even a small window into the views of those most affected by generative AI technologies.  

Looking Forward to 2024

The federal government, whether in Congress, the executive offices, or at the U.S. Copyright Office, was extremely engaged on AI and copyright law issues in 2023. In 2024, we can expect the Copyright Office’s reports from its AI and copyright law study in addition to recommendations the Biden Administration will set forth based on the Copyright Office’s findings. We can also expect Congress to remain engaged in copyright law and AI issues, with perhaps several more hearings, as other AI developments, particularly in the courts, continue to unfold.

Stay tuned for Part 2 of this blog series, which will highlight some of the major AI and copyright law cases from 2023. For more information on AI and copyright issues in the meantime, visit our AI and Copyright webpage and sign up for our AI Alert for the latest news on this subject.


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!

The 12 CCB Final Determinations

Post publish date: December 19, 2023

Though not a partridge in a pear tree or five golden rings for the 12 days of Christmas, the Copyright Claims Board (CCB) has gifted the copyright community with 12 final determinations so far and in time for the holiday season. At 18 months old, the CCB is beginning to mature and we are beginning to see the results. We have compiled brief summaries of each determination in one place.

Flores v. Mitrakos: On February 15, 2023, the CCB issued its first final determination in the case ofFlores v. Mitrakos. The claimant alleged that the respondent filed a knowingly false DMCA takedown notice that caused Google to remove materials from the Chrome Web Store. Through the CCB, the parties reached a settlement agreement that included a concession from the respondent that the information in the takedown notice was false and an agreement that the respondent will not file any future false takedown notices or counter-notices related to the claimant. The CCB approved the settlement agreement, dismissed the claim with prejudice (meaning that the claim cannot be brought again), and closed the case. 

Oppenheimer v. Prutton: On February 28, 2023, the CCB issued its first final determination on the merits in the case Oppenheimer v. Prutton. The case was referred to the CCB from the federal district court for the Northern District of California before the CCB opened operations in June 2022. Since the respondent admitted to copying and displaying the claimant’s photograph on the respondent’s website, the CCB analyzed the respondent’s defenses of fair use and unclean hands. Ultimately, it found for the claimant on copyright liability, holding that the respondent failed to meet its burden of proof on the fair use defense by failing to address three out of the four fair use factors, and that the respondent also failed to present sufficient evidence to support a finding of unclean hands. The CCB awarded the claimant $1,000 in statutory damages. We further explored the implications and CCB’s analysis in this case in this blog post.

Leo Robin Trust v. Warner Chappell Music: On June 27, 2023, the CCB issued a final determination in the case Leo Robin Trust v. Warner Chappell Music. The case involved the estate of a songwriter, who alleged that the respondent, Warner Chappell Music, did not pay royalties for using the songwriter’s musical works in the 2019 film, The Aftermath. To prove that it is the owner of the works, the respondent provided evidence that the works were made under the work made for hire doctrine. The CCB granted the parties’ request to mutually dismiss the claim with prejudice, meaning that the claim cannot be brought before the CCB again or to federal court.

Armatus Dealer Uplift, LLC v. Wooden Automotive Consultants LLC: On July 5, 2023, the CCB issued a final determination in the case Armatus Dealer Uplift, LLC v. Wooden Automotive Consultants LLC. The case involved a claimant, an automotive parts servicer, who discovered an allegedly infringing video created by the respondent. The claimant argued that the respondent copied and made a derivative of the claimant’s 90-second video. The CCB approved a settlement reached by the two parties, which includes the following terms: (1) respondent’s concession of copyright infringement; (2) respondent’s agreement to not violate the claimant’s copyrighted material in the future and to immediately remove infringing material from its websites and social media platforms; and (3) $9,000 in damages payable to the claimant.

Hursey v. Lavaca LLCOn August 24, the CCB issued a final determination in the case of Hursey v. Lavaca LLC, adopting a proposed default determination. The case involved a professional photographer, Dana Hursey. who alleged that the respondent, Lavaca LLC, used Hursey’s photograph to advertise a product on the respondent’s website without authorization or a license. Despite multiple notices to the respondent, Lavaca did not respond to the CCB claims brought against it, and the CCB initiated default proceedings. The Board found that Lavaca was liable for copyright infringement because it had reproduced and publicly displayed an exact copy of the photograph on its commercial website. In its $3,000 award in statutory damages to Hursey, the Board examined Hursey’s evidence of normal licensing fees and models for a use of the work and determined that such award was in line with Fifth Circuit precedent and appropriate to deter Lavaca and others from unauthorized uses of Hursey’s works. 

Subsequently, the CCB issued final determinations with similar analysis, awarding the same statutory damages awards in two other CCB cases involving Hursey’s works in Hursey v. Quinney and Hursey v. Hakimian Global, LLC. In both cases, the respondent parties failed to respond to the CCB claims brought against them, and the CCB initiated default proceedings. 

Joe Hand Promotions, Inc. v. Arif Skyline Cafe, LLC: On September 22, the CCB issued a final determination in the case of Joe Hand Promotions, Inc. v. Arif Skyline Café, LLC, adopting a proposed default determination. The case involved Joe Hand Promotions, a Pennsylvania corporation that commercially licenses premier sporting events, alleging that the respondents, Arif Skyline Café LLC and its manager Hellen A. Kassa, broadcasted a Joe Hands Promotions exclusively licensed boxing event at the respondents’ establishment without authorization or a license. Despite multiple notices to the respondents, they did not respond to the CCB claims brought against them, and the CCB initiated default proceedings. The CCB dismissed the claim against respondent, Kassa, without prejudice, noting that there was insufficient evidence tying Kassa to the infringing activities, but found Arif Skyline Café LLC liable for copyright infringement, awarding claimant $3,000 in statutory damages based on Joe Hand Promotions’ licensing rates and as a deterrence against similar infringing activities from Arif and others.

Subsequently, the CCB issued a final determination with similar analysis, awarding the same statutory damages award on October 4, 2023, in Joe Hand Promotions, Inc., v. The Village Restaurant et al.. In this case, the respondent party failed to respond to the CCB claims brought against them, and the CCB initiated default proceedings

Julie Dermansky v. Rule 62, Inc.: On November 1, 2023, the CCB issued a final determination in the case of Julie Dermansky v. Rule 62, Inc., adopting a proposed default determination. The case involved Julie Dermansky, a Louisiana-based photographer, alleging that respondent, Rule 62, Inc., a Florida limited liability company, copied her copyrighted photograph onto its website. Despite multiple notices to respondent, it did not respond to the CCB claims brought against it, and the CCB initiated default proceedings. The CCB found respondent liable for copyright infringement, awarding claimant $1,350 in statutory damages based on claimant’s past licenses and as a deterrence against similar infringing activities from Rule 62 and others.

Urbanlip.com, Ltd. v. Faviana International, Inc.: On November 1, 2023, the CCB issued a final determination in the case of Urbanlip.com, Ltd. v. Faviana International, Inc., adopting a proposed default determination. The case involved Urbanlip, a United Kingdom-based photo licensing agency, alleging that respondent, Faviana International, displayed one of its copyrighted photographs on Faviana’s commercial fashion website. Despite multiple notices to respondent, it did not respond to the CCB claims brought against it, and the CCB initiated default proceedings. The CCB found respondent liable for copyright infringement, awarding claimant $2,600 in statutory damages based on Urbanlip’s licensing regime and as a deterrence against similar infringing acts from Faviana International and others.

Benjamin Bronner v. EssayZoo: On November 20, 2023, the CCB issued a final determination in the case of Benjamin Bronner v. EssayZoo, adopting a proposed default determination. The case involved Benjamin Bronner, a professor at George Washington University School of Business, alleging that respondent EssayZoo published instructions and paper prompts for an essay that he assigned to his students. Despite multiple notices to respondent, it did not respond to the CCB claims brought against it, and the CCB initiated default proceedings. The CCB found respondent liable for copyright infringement, awarding claimant $1,200 in statutory damages based on EssayZoo deriving income from using Bronner’s prompts, even though Bronner does not license or sell them, and as a deterrence against similar infringing acts from EssayZoo and others.

We’re Still In the Early Stages of the CCB

As we recounted in our November roundup blog, there are close to 50 currently active proceedings at the CCB. As of the writing of this blog post, we also counted close to 90 active proceedings over the infant lifespan of the CCB. It is clear that the CCB staff continues to diligently work to properly administer and process these small copyright claims through its natural lifespan and timespan—which explains why most of the final determinations so far have been default determinations. We expect that will change over time, as cases brought before the CCB continue to mature.

We’ll continue to check back on future CCB final determinations to see if there are interesting new developments or analysis coming from the Board as cases continue to unfold and wrap up in 2024. In the meantime, you can learn more about the small copyright claims court on our CCB Explained webpage and stay up to date by signing up for our CCB Alert.


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!

Sandra Day O’Connor’s Copyright Legacy

Supreme Court in Background with a sign in front that says A tribute to former justice Sandra Day O'Connor Post publish date: December 7, 2023

On December 1, 2023, the world lost legal trailblazer and former Supreme Court Justice Sandra Day O’Connor, who was the first female Justice to serve on the nation’s highest court. Over her 25 years of service as a Supreme Court Justice, O’Connor presided over and penned several major SCOTUS decisions, including a few landmark copyright cases.

Harper & Row Publishers, Inc. v. Nation Enterprises

One of only a handful of SCOTUS cases dealing with fair use, Harper & Row is an oft-cited opinion that continues to influence fair use analyses. O’Connor penned the opinion, which established and reaffirmed important principles in fair use jurisprudence, including that the third fair use factor involves a qualitative inquiry of whether the “heart of the work” was taken from the underlying copyrighted work, and that infringement of an unpublished work weighs against fair use. The case involved a fair use defense after verbatim excerpts were “scooped” and copied by The Nation Magazine from an unpublished manuscript of former President Ford’s memoir, which the Court eventually held did not qualify for the fair use exception.

Leading up to its fair use analysis, the Court confirmed that the Framers of the Constitution “intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” O’Connor’s decision goes on to issue a prescient warning against overbroad fair use notions, explaining that “to propose that fair use be imposed whenever the ‘social value [of dissemination] … outweighs any detriment to the artist,’ would be to propose depriving copyright owners of their right in the property precisely when they encounter those users who could afford to pay for it.”

Also coloring the fair use analysis was the fact that the manuscript was unpublished. This was a huge no-no in the Court’s eyes because it conflicted with the foundational right of a copyright owner to first publication of the work. For example, it affected the first fair use factor analysis where the Court weighed the analysis in favor of the publishers, noting that there is no categorical fair use exemption for “news reporting” and that mere “scooping” of news to supplant and profit from the first publication rights of the publisher without “paying the customary price” could not weigh this factor in favor of fair use.

One of the most important takeaways from the decision comes from the Court’s analysis of the third fair use factor, which it also weighed in favor of the manuscript publisher. There, the Court focused on how The Nation Magazine copied the “heart” of a work, the most powerful passages which qualitatively embodied Ford’s distinctive expression. Importantly, the Court emphasized that the third factor analysis does not look at the impact of the copyrighted work on the infringing work but looks at the amount and substantiality taken of the infringed copyrighted work itself.

The opinion in Harper & Row underscores the value and importance of upholding the exclusive rights of a copyright owner under the Copyright Act, which O’Connor saw as the key to fueling the engine of free and creative expression as intended by the Constitution.

Feist Publications, Inc. v. Rural Telephone Service Co., Inc.

In 1991, O’Connor penned one of the most fundamental decisions in copyright law, in which the Court held that the telephone books in the case did not exhibit the minimal creativity needed to fulfill copyright’s originality requirement. Feistis constantly relied upon today to illustrate the minimum creativity standard for originality and that copyright law protects particular selection and arrangements of facts in compilations (i.e., the expressions), but not the facts themselves.

The Court first noted that while facts, like names, telephone numbers, etc., are not protected by copyright because they do not “owe their origin to an act of authorship,” factual compilations may be protected because these works may “entail a minimal degree of creativity” in the way a compilation author chooses which facts to include, in what order to place them, and how to arrange the data for the audience.

O’Connor’s opinion highlighted that while copyright’s originality requirement was not hard to meet, the expression must not be “so mechanical or routine as to require no creativity whatsoever.” In this case, the Court found that the alphabetical ordering of contact information in a telephone book fell short of the minimal creativity standard and instead was part of the extremely narrow category of works that failed to meet the low threshold of originality. Importantly, the opinion warned future readers not to misconstrue the opinion as “demeaning Rural’s efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort.”  Although the Court rejected “industrious collection” or “sweat of the brow” efforts as the basis for copyright protection, it did not fully reject the notion that all “sweat of the brow” efforts would never be protected by copyright— as long as the resulting work had the requisite minimal creativity under copyright’s originality standard.   

Stewart v. Abend

In 1990, O’Connor delivered the opinion in Stewart v. Abend, a case involving thorny issues of the right to renew a copyrighted work to extend the term of protection. Works created under the 1906 Copyright Act were protected for 28 years, after which the author was required to renew the copyright to extend the term of protection for another 28 years. The question before the court was whether the owner of a derivative work infringed the rights of a successor copyright owner of the underlying work by continuing to distribute and publish the derivative work during the renewal term of the pre-existing work without authorization from the successor copyright owner.

The Court held that if the author dies before being able to renew the copyright term, the statutory successors are entitled to the renewal rights in the preexisting work and an owner of a derivative work would need to secure rights from the new statutory successors. The Court agreed that any preexisting assignments made by the author regarding renewal rights were ineffective because the author died and thus could not exercise the renewal right, so that the renewal right would naturally flow to the author’s statutory successors. This meant that the owner of a derivative work would need rights from the statutory successors who renewed the copyright to continue exploiting the derivative work during the renewal period of the underlying work. Speaking for the Court, O’Connor’s opinion examined the statutory language and legislative history of the renewal right to stress how Congress intended to “give the author a second chance to obtain fair remuneration for his creative efforts and to provide his family, or his executors absent surviving family, with a “new estate” if he died before the renewal period arrived.”

Reviewing the copyright law opinions which former Justice O’Connor penned for the High Court, it is clear that she understood the Constitutional vision that copyright law serve as the engine to fuel creativity and expression of creators and copyright owners and that recognizing and upholding these property rights were vital. From these foundational cases, O’Connor’s impact and legacy is sure to continue to reverberate throughout many copyright cases to come. 


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!

August 2023 Roundup of Copyright News

Post publish date: September 5, 2023

In August, the courts were ablaze with issuing big decisions in several major copyright cases, including one on AI and copyright authorship. Here is a quick snapshot of the copyright-related activities that occurred during the month of August as well as a few events to look forward to in September.  

Copyright Alliance Activities

Copyright Alliance Blogs: We published several blogs in August:  

  • The Barbie movie made a splash this summer, and Copyright Alliance CEO, Keith Kupferschmid, wrote this blog post highlighting how copyright laws helped protect and propel this beloved doll into a cultural icon.
  • We published a three-part blog series on movie copyright cases that filmmakers should know, exploring Infringement Cases, Fair Use Cases, and Copyright Authorship.
  • In time for back-to-school, we published this blog post on four tips for educators to navigate copyright law.

CCB Status Update: At the end of August 2023, 557 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 217 are “smaller claims.” In at least 159 of all cases, the claimant is using legal counsel. At least 475 of the cases involve infringement claims, 91 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 (239 cases); Literary Works (86); Motion Picture and Audiovisual Works (108); Sound Recordings (64); Musical Works (36); and some cases include claims for multiple works. Sixty-one foreign residents have filed claims. Of all the cases filed, 379 have been dismissed for the following reasons: Due to Respondent’s Opt Out (48); Due to Failure to Amend Noncompliant Claim (206); Registration Issues (10); Due to Failure to Provide Proof of Service of Process (77); Claimant Withdrawal and Dismissal of Claims (31); and Settlement (5). There are 49 active proceedings and four final determinations.  

USCO Requests Comments on AI Study: On August 30, the Copyright Office published a notice of inquiry and request for comments in the Federal Register for its Artificial Intelligence and Copyright study. The notice seeks comments to help the Office assess whether legislative or regulatory steps are warranted and to inform the Office on issues involving 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. The deadline for submitting comments is October 18, 2023, and reply comments is November 15, 2023.  

CRB Issues Final Determination for Phonorecords Royalties: On August 10, the Copyright Royalty Board (CRB) announced a final determination after the district court for the District of Columbia had vacated and remanded part of a CRB’s determination of rates and terms for making and distributing phonorecords for the period beginning January 1, 2018 and ending on December 31, 2022 (Phonorecords III). The determination includes a rate increase from 10.5% to 15.1% for on-demand streaming. More information is available here.  

USCO Publishes Final Rule on Ex Parte Communications: On August 11, the Copyright Office published a final rule on the procedures governing the use of ex parte communications in informal rulemakings, including the instructions for requesting ex parte meetings and identifying impermissible ex parte communications. The final rule largely memorializes existing procedures for ex parte communications but incorporates a few changes/clarifications including clarifying that ex parte communications include those communications that occur after the commencement of a rulemaking, whether the rulemaking process begins with the publication of an NPRM or another Federal Register notice, such as an NOI.  

USCO and LOC Provides Updates on Copyright Office Modernization Efforts: On August 16, the Library of Congress and Copyright Office hosted a Copyright Public Modernization Committee meeting which featured the progress made in modernization efforts to the Copyright Office’s online services and systems. In her opening remarks, Register Shira Perlmutter provided updates on the Copyright Office’s activities including the initiation of the latest rulemaking proceeding of section 1201 exemptions, preparing for the next fee study, intensifying work on AI issues, and progressing on the Electronic Copyright System. The modernization team presented updates and features including a feature which directs registrants to choosing the correct application form by asking a series of questions, standardizing displays for forms in the limited licenses that the Copyright Office administers, and digitizing many more analog historical records for the public. A recording of the meeting will be uploaded to the Copyright Office’s Modernization Website.  

USCO Declines to Conduct a Study on Section 115 Compulsory Licenses: The Copyright Office responded to a June letter penned by musician, George Johnson, declining to engage in a new study of the section 115 compulsory mechanical license. The Office noted that such a study was premature given the recent enactment of the Music Modernization Act.  

Biden Administration Activities 

USPTO Receives Comments for Study on Anti-Piracy: The U.S. Patent and Trademark Office (USPTO) received 54 comments in response to its request for public comments on its study titled: Future Strategies in Anticounterfeiting and Antipiracy. The comments were originally due on August 23, but the USPTO informally announced two days after the deadline, that the comment period had been extended to September 25, and formalized this announcedment in a Federal Register notice on August 31. The USPTO received 54 comments in total and will hold a public roundtable on the issues on October 3. The Copyright Alliance submitted comments addressing a range of copyright piracy issues, including the need for better education for consumers, the ineffectiveness of certain provisions of the DMCA, and the need for the adoption of site-blocking mechanisms in the U.S. Many others also filed comments including the American Association of Independent Music, UFC, NBA, and NFL, the Motion Picture Association, Association of American Publishers, Entertainment Software Association, and the U.S. Copyright Office.  

Senate Majority Leader Schumer to Hold AI Insight Meeting: According to reports, Senator Chuck Schumer (D-NY) will hold the first scheduled “Insight Forum” on AI issues on September 13, which will be closed to the press. The forum will includes a list of speakers from the tech and creative industries including, Mark Zuckerberg, CEO of Meta, Sam Altman, CEO of OpenAI, Jensen Huang, CEO of NVIDIA, Satya Nadella, CEO of Microsoft, Elon Musk, Tesla CEO, Sundar Pichai, CEO of Alphabet, and Charles Rivkin, Motion Picture Associaiton Chairman & CEO.  

Parties Submit Proposed Consent Judgment in Publishers’ Lawsuit Against Internet Archive: On August 11, the district court for the Southern District of New York issued an order accepting a joint proposal submitted by Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley (the “Plaintiffs”), together with the Internet Archive (IA) regarding the judgment to be entered in Hachette Book Group, et al., v. Internet Archive. In March 2023, the court had found IA liable for copyright infringement for scanning and distributing digital copies of Plaintiffs’ books and rejected IA’s fair use defenses. The proposed consent judgment provided for a stipulated permanent injunction preventing IA from offering unauthorized copies of the Plaintiffs’ books to the global public under the manufactured theory of “controlled digital lending,” and included a confidential agreement on a monetary payment, all subject to Internet Archive’s right to appeal the case. However, the court clarified that the injunction would only apply to the publishers’ print books which were also were available for electronic licensing.  

Court of Appeals Rules USCO’s Enforcement of Section 407 Mandatory Deposits is Unconstitutional: On August 29, the Court of Appeals for the District of Columbia Circuit issued an opinion in Valancourt Books, LLC v. Garland, et al., finding that the way the U.S. Copyright Office enforced Section 407 for physical copies of Valancourt’s works, amounted to an unconstitutional taking of Valancourt’s property. Section 407 of the Copyright Act requires copyright owners to deposit two copies of the work with the Library of Congress within three months of its publication, and was a provision enforced by the Copyright Office via demand letters to have noncompliant owners comply with the provisions or pay a fine. The court found that “because the requirement to turn over copies of the works is not a condition of attaining (or retaining) copyright protection in them, the demand to forfeit property cannot be justified as the conferral of a benefit—i.e., copyright protection—in exchange for property.”  

Record Labels Sue Internet Archive: On August 11, Universal Music Group, Sony Music Entertainment, Capitol, and other record labels filed a lawsuit against the Internet Archive, alleging copyright infringement of 2,749 pre-1972 sound recordings for the mass digitization and distribution of those songs as part of the Internet Archive’s “Great 78 Project.” Through the project, the Internet Archive digitizes sound recordings fixed in physical 78 rpm records and uploads the files to a webpage that allows users to stream and download the recordings.  

DC District Court Rules that AI-generated Art Is Not Protectable by Copyright: On August 18, Judge Howell of the US District Court for the District of Columbia issued an opinion granting the U.S. Copyright Office’s motion for summary judgment in Thaler v. Perlmutter, a case challenging the Office’s denial of registration for a two-dimensional artwork generated by an AI algorithm called the “Creativity Machine.” Granting the Copyright Office’s motion and denying Thaler’s, the order explains that “defendants are correct that human authorship is an essential part of a valid copyright claim” and “a bedrock requirement of copyright.” The court also denied Thaler’s claim that the Copyright Office’s refusal to register the work was “arbitrary and capricious”—and therefore a violation of the Administrative Procedures Act (APA)—finding that “the Register did not err in denying the copyright registration application.” Thaler’s counsel said that they plan to appeal the decision.    

OpenAI Moves to Dismiss Class Action Lawsuit: On August 28, OpenAI filed motions to dismiss the two class action lawsuits brought by book authors, including Paul Tremblay and Sarah Silverman. In both briefs, OpenAI argues against the plaintiffs’ characterization that every ChatPGT output is an infringing “derivative work” of the plaintiffs’ books, stating that the plaintiffs did not sufficiently prove substantial similarity. The AI company also argued that the vicarious copyright claims should also be dismissed, stating that the plaintiffs did not show that OpenAI had the right and ability to supervise any infringing conduct nor did they show that OpenAI had a direct financial benefit resulting from the infringements.  

SoundExchange Sues SiriusXM Alleging Underpayment of Recording Artist Royalties: On August 16, SoundExchange filed a lawsuit against SiriusXM in the Eastern District of Virginia, alleging that the satellite radio company undercompensates recording artists because it overcounts its share of revenue that comes from webcasting, resulting in a lower gross revenue amount for the company’s satellite broadcasting to calculate royalties payable to recording artists. As a result of SiriusXM’s calculations, the complaint alleges that the company withheld more than $150 million in royalties.  

Court Denies Apple’s Petition for a Rehearing in Case Against Corellium: On August 23, the Court of Appeals for the Eleventh Circuit denied a petition made by Apple for a rehearing en banc of the court’s ruling that the reproduction of Apple’s iOS by the software company, Corellium, qualified for the fair use exception. Apple argued that the court’s decision conflicted with the Supreme Court’s opinion in the Andy Warhol Foundation v. Goldsmith, which was issued days after the Eleventh Circuit had ruled in favor of Corellium. However, the court stated that after carefully reviewing the High Court’s Warhol opinion, it did not alter the balance of the four factors that they weighed in favor of fair use.  

Triller and Sony Music Entertainment Settle Lawsuit: On July 21, Sony Music Entertainment and Triller entered into a confidential settlement, resolving the infringement lawsuit brought by Sony Music for Triller’s breach of an agreement covering the platform’s use of Sony musicians’ songs. In April 2023, Triller had settled a portion of the lawsuit, agreeing to pay Sony Music $4.57 million for contract breaches. Triller is in the midst of another active lawsuit filed by Universal Music Group in January 2023.  

The New York Times Considers Lawsuit Against ChatGPT Maker: According to reports, The New York Times is considering filing a lawsuit against OpenAI, the developers of ChatGPT. The parties were reportedly in contentious negotiations for a licensing deal in which OpenAI would use The Times’ news content for AI tools.  

Court Awards DISH Network and Sling Half Billion Dollars in DMCA Piracy Lawsuit: On August 14, the district court for the Southern District of Texas entered a default judgment for plaintiffs, DISH Network and Sling TV, and awarded almost $500 million in statutory damages for over 2 million violations of the Digital Millennium Copyright Act’s (DMCA) anti-circumvention provisions.  

Books3 AI Training Dataset Is Taken Down: According to reports, Danish anti-piracy group, Rights Alliance, successfully submitted a takedown notice on behalf of Danish publishers to remove the “Books3” dataset from the website, The Eye. First released in late 2020, the Books3 dataset is a plaintext collection of 196,640 books sourced from the pirate site, Bibliotik, and has been used to train various generative AI models developed by Meta and possibly other AI companies.

UK Culture, Media and Sports Committee Calls on UK Government to Abandon Proposed Overbroad TDM Exceptions: On August 30, the United Kingdom’s House of Commons Culture, Media and Sport Committee issued a report, calling on the UK Government to abandon its proposal from June 2022 to categorically exempt text and data mining of copyrighted works under the country’s copyright laws. The Committee further recommended that the UK government work to facilitate mutually beneficial licensing schemes to support small AI developers in particular, and that the government should continue to support the creative community and “work to regain the trust of the creative industries following its abortive attempt to introduce a broad text and data mining exemption.”

UK Courts Grant Site Blocking Orders: According to reports, the High Court in London granted broadcaster, Sky, and the Premier League injunctive orders that would allow the rights holders to block IPTV and other pirate services and sources that illegally stream and provide access to soccer games and other content.  

Industry Activities 

YouTube Music Launches MusicAI Incubator with Universal Music Group; Publishes AI Music Principles: On August 21, YouTube Music published a set of AI music principles and launched its YouTube Music AI Incubator in partnership with Universal Music Group. The principles include: (1) Responsible AI development in partnership with the music industry; (2) Protecting the creative work of artists on YouTube; and (3) Scaling trust and safety policies to protect the YouTube community. Universal Music Group chairman and CEO, Sir Lucian Grainge, stated: “Today, our partnership is building on that foundation with a shared commitment to lead responsibly, as outlined in YouTube’s AI principles, where Artificial Intelligence is built to empower human creativity, and not the other way around,” he added. “AI will never replace human creativity because it will always lack the essential spark that drives the most talented artists to do their best work, which is intention. From Mozart to The Beatles to Taylor Swift, genius is never random.” More information is available here.  

Rights Holders Pen Letter Calling on Global Leaders to Support IP Rights: On August 9, news media companies and rights holder groups around the globe, including Getty Images, National Press Photographs Association, News Media Alliance, and the Authors Guild published an open letter, urging lawmakers to consider regulations and industry action surrounding generative AI that increases transparency, promotes the pursuit of consent from rights holders for use of works for AI training purposes, facilitates collective negotiations regarding the terms of AI providers access and use of works protected by intellectual property, and requires AI providers to remove bias and misinformation from services. More information is available here.  

Look Forward To And Save the Date For…

IPO 2023 Annual Meeting: From September 10-11, the Intellectual Property Owners (IPO) Annual Meeting will offer “a mix of educational programs featuring leaders in the IP industry, committee meetings, networking opportunities, sponsors, exhibitors, and more.” The event brings together IP professionals from around the world to discuss strategies, trends, and best practices. More information is available on the registration page.  

Copyright Alliance AI and Copyright Webinar: On September 13 from 1:00-2:00 p.m. ET, the Copyright Alliance, along with numerous VLA and Community Partners, is hosting a webinar titled, Artificial Intelligence and Copyright: The Next Frontier. This event will explore the complex relationship between copyright and artificial intelligence (AI). Specifically, it will cover how AI has transformed creative processes and delve into the legal and ethical implications surrounding copyright ownership, licensing, fair use, and other opportunities and challenges brought on by the AI revolution. Legal experts from the Copyright Alliance, Kevin Madigan and Rachel Kim, will host the webinar. More information is available on the registration page.  

Copyright + Technology Conference 2023: On September 14 from 9:00 a.m.- 5:00 p.m. ET, the Copyright Society, GiantSteps Media, and Fordham University School of Law are hosting their annual Copyright and Technology Conference, which will “focus on the dramatic and fast-moving influences that technology has on copyright in the digital age.” Now in its fourteenth year, the conference is attended by technologists, attorneys, media industry practitioners, and public policy decision-makers to discuss topics related to copyright and technology. This year’s keynote speaker is Pina D’Agostino, a Professor at Osgoode Hall Law School. More information is available on the registration page.  

WIPO Conversation on Generative AI and IP: From September 20 from 4:00 a.m.- September 21 4:00 a.m., the eighth session of the World Intellectual Property Organization’s (WIPO) conversation series will explore the intersection of generative artificial intelligence (AI) and intellectual property (IP) rights. More information is available on the registration page.  

USCO Monthly Recordation System Webinar: On September 28 at 1:00 p.m. ET, the U.S. Copyright Office will hold its next monthly webinar to keep the public updated on the Office’s optimized Recordation System. Separate from the Office’s registration application, the new recordation module allows users to electronically transfer their copyrights to someone else. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” More information is available on the registration page.


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!

4 Tips to Navigating Copyright Law for Educators

Post publish date: August 22, 2023

It’s that time when teachers are busy preparing for the new school year. In developing curricula for students, teachers often wonder how copyright law applies to them when they incorporate copyrighted works into lesson plans by having students read certain articles, making copies of reading materials, playing videos or music for students, or reading aloud to students. Here are a few tips to keep in mind to understand how to navigate copyright law for educators.

Tip 1: Use Licensed or Lawfully Purchased Copies for Classroom Use; Otherwise Use Public Domain Works

The best way for teachers and other educators to ensure that they are complying with copyright laws is to use licensed works or to purchase lawfully made copies of a work. Many copyright owners and authorized retailers offer various licenses to accommodate classroom and pedagogical needs, for instance, including an article in a course pack or using works in testing materials. School and public libraries may also have secured licenses which allow students and their patrons to access, read, and learn from a plethora of digital copyrighted works or have loaning systems that allow for the lawful exchange of, access to, and use of such works.

Other kinds of licensed works, like works with Creative Commons licenses, may also be used by teachers for their classroom needs—just make sure to abide by the license terms, which can require attribution to the author or limit other uses. Teachers can also use works that are not protected by copyright law and therefore do not need a license, such as works that are in the public domain including works authored by the U.S. government. (To learn more about how to investigate the copyright status of a work, check out this U.S. Copyright Office Circular.)

Alternatively, teachers can also provide students with links to publicly accessible articles or other copyrighted materials, so long as they make sure that the links direct students to legal digital copies from credible and authorized sources. For example, a news publisher may publish one of its articles on its website that is publicly available, and a teacher can provide students with a link to that article.

Using legal copies of works in the classroom and for pedagogical purposes not only provides copyright assurances for teachers, but it also ensures that students are learning from credible, trustworthy, and verifiable sources and materials. It is also critical for teachers to know where they are sourcing classroom material, since some copyright exceptions, including exceptions for certain classroom uses, including the Technology, Education and Copyright Harmonization Act (TEACH) Act, do not apply when the copy of the work is an infringing copy or otherwise not lawfully made or acquired.

Tip: To be compliant with copyright laws, teachers can:

  • Use licensed or legally made/purchased copies of the works from the copyright owners or authorized retailers;
  • Use works that are in the public domain including works authored by the U.S. government (not contracted out or produced by another entity) or works where the copyright term has expired.

Tip 2: Performance and Display of Copyrighted Works in Digital Transmissions Require Further Care

Exceptions to copyright law, including the first sale doctrine, educational exemptions and the TEACH Act, are found in sections 107, 109, 110, and 112 of the Copyright Act, which outline certain exceptions for the use of copyrighted works for the classroom or for educational purposes.

Before the passage of the TEACH Act in 2002, the Copyright Act generally allowed for teachers and students in face-to-face teaching activities to publicly perform or display a copyrighted work, subject to certain limitations. The TEACH Act amended section 110(2) to expand both the exception and the categories of works that are covered in the digital age, allowing for limited performance and display of copyrighted works by or in the course of a digital transmission (i.e., via the internet) for pedagogical needs.

As noted, there are additional considerations when it comes to displaying and performing copyrighted works in a digital transmission (i.e., via the internet) and these rules apply to:

  • the performance of certain literary works, musical works, or reasonable and limited portions of any other works, or
  • the display of a work, as it would typically be displayed in the course of a live classroom session.

These digital uses also come with several additional considerations that teachers should keep in mind, including that:

  • the performance or display of the work must be supervised by the instructor as an integral part of the class session;
  • the performance or display of the work must be directly related and of material assistance to the teaching content of the transmission;
  • the work being used must not be typically produced or marketed primarily for performance or display as part of integral teaching activities transmitted via digital networks;
  • the work being used must not be a textbook, course pack, or other work that is typically used by students for their independent use/retention;
  • any transmission of a work must be limited to students officially enrolled in the course.

Additionally, the school transmitting the copyrighted work must:

  • be an accredited, nonprofit, educational institution or government body;
  • institute copyright policies that provide materials and accurate information on copyright law compliance;
  • provide students with notice that the materials may be subject to copyright protection;
  • in the case of digital transmission ensure that:
    • there are technological measures that reasonably prevent permanent downloads or any retention of the work for longer than the class session and prevent further sharing or distribution by recipient students to others; and
    • the school itself must not interfere with technological measures used by copyright owners of the work to prevent such retention or unauthorized further dissemination.

The University of Texas Libraries has a handy TEACH Act Checklist which provides information on copyright law for educators who want to ensure they are complying with copyright laws or are covered by the exceptions detailed above. Educators should also consult with the copyright policies and advisors in their institutions.

Tip: Classroom displays and performances of certain copyrighted works are usually permitted in live, face-to-face classroom settings. In the classroom context, such uses of copyrighted works via digital transmissions may also be permitted under the TEACH Act. However, when it comes to such uses, teachers should keep additional safeguards in mind, like restricting download and sharing capabilities of the materials and limiting these materials to students enrolled in the course.

Tip 3: Fair Use Guidelines for Teachers: It’s a Balancing Act

Most teachers have heard of copyright law’s fair use exception. The fair use exception excuses certain uses of copyrighted works that would otherwise be considered an infringement (i.e., the copyright owners’ rights are exercised without permission, and no other copyright exception, like the TEACH Act, would apply).

Unfortunately, the fair use exception is often misunderstood. The preamble contained in the fair use provision (found in section 107 of the Copyright Act) lists several typical uses that would qualify as a fair use and “teaching” is one such use. However, the mere listing of a type of use, like teaching, in the fair use preamble doesn’t mean that all uses of copyrighted works for teaching will automatically qualify for the exception.

There is no black-and-white rule for determining whether a use qualifies as a fair use. Instead a fair use analysis requires a balancing of four factors set forth in section 107:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use on the potential market for or value of the copyrighted work.

Within each of the four fair use factors, there are additional criteria that courts examine when determining whether a particular use qualifies for the fair use exception. You can learn more about the details of those considerations on our FAQ page.

The main tip is this: there are no black-and-white or definite rules for fair use, and determining whether the classroom use of a copyrighted work qualifies for the fair use exception requires a balancing of all four factors on a case-by-case basis— no one factor controls the outcome. However, here are a couple fair use guidelines for teachers:

  • Noncommercial, educational use of copyrighted works may weigh in favor of fair use, as educational uses are listed as an illustrative case of what typically qualifies as fair use— but it is not always the case. If educators typically purchase or license a work (e.g., a textbook) for use in their classrooms, this fact will likely weigh heavily against the fourth fair use factor favoring fair use.
  • There are no black-and-white rules in a fair use analysis, so any categorical rules like “Only using 30 seconds or less than 3 minutes of a work qualifies the use for the fair use exception” or “Using less than 20 lines of a work qualifies the use for the fair use exception” are simply not true. Only use what you need of the copyrighted work to carry out your pedagogical needs. Using too much or too many parts (or the “heart of the work”) of the copyrighted work, may weigh against fair use. For example, you may not need to show an entire two-hour movie for students to provide critique or commentary when a shorter clip could easily achieve the same purpose.
  • The U.S. Copyright Office has a helpful document, Circular 21, which outlines further fair use guidelines and illustrations that resulted from collaborations of ad hoc committees formed by copyright owners and educators. Those guidelines address classroom copying in not-for-profit educational institutions for books, periodicals, and music and provide further interpretations of the minimum standards of fair use, and includes guidelines like ensuring to limit the number of works copied that have the same author and that copying should not substitute for the purchase of books, publishers’ reprints or periodicals. But again, these guidelines should be used as such for educators in making fair use determinations, and not as definitive, black-and-white rules. Fair use analysis requires a balancing of all four factors.  

Tip: While teaching is exemplary of a use that may qualify for the fair use exception, it does not automatically qualify the use for the exception. Fair use requires a balancing of all four factors, but a few initial considerations may include whether the way the work will be used is typically licensed by educators and whether only the necessary amounts of the copyrighted work relative to the whole work are being used to achieve pedagogical goals.

At the beginning of the school year, it is also helpful to provide students with a primer on using copyrighted works for school assignments and projects. In the educational context, one of the most important concepts for students to understand is the difference between plagiarism and copyright infringement. Students who understand the differences and recognize the consequences of both will take more away from the learning process and will be able to employ this important knowledge and skill beyond the classroom.

While the two concepts may appear to be somewhat similar, there are significant differences between them. Plagiarism is an important ethical consideration that students should abide by in order to maintain academic integrity and responsibility over the assignments that they work on. Best practices to safeguard against plagiarism including properly citing to and crediting the sources of any material that is not the student’s own. Copyright infringement, on the other hand, is a legal consideration, which occurs when a copyright owner’s rights are being infringed—i.e., a work is reproduced, displayed, a derivative work is prepared, publicly performed, publicly performed without permission.

There may be copyright infringement without plagiarism, plagiarism without copyright infringement, and sometimes, even both. For example, if an entire news article is copied, but the student gives credit to the journalist, that qualifies as copyright infringement, but not plagiarism. On the other hand if a few sentences from that article are incorporated into a student’s report without credit, that may not be copyright infringement, but it is likely to be plagiarism. If the student copies the entire article must fails to give credit, that would be both copyright infringement and plagiarism.

Tip: By passing on knowledge to students of the differences and importance of both plagiarism and copyright infringement considerations, teachers can look forward to fewer unpleasant surprises when reviewing classroom assignments and instill lifelong ethics and skills for students.

Hats Off to the Teachers!

To all teachers gearing up for the new school year, we hope this blog post on copyright law for educators provided some insights and clarity into how copyright law applies in the classroom context and how various pedagogical goals to educate the next generations can be achieved. For more information about copyright law, fair use, and other topics discussed in this blog post, visit the Copyright Alliance’s FAQ pages.


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!

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