Rachel Kim, Author at Copyright Alliance

Significant Observations as the CCB Turns One

Posted on June 15, 2023February 21, 2024 by Rachel Kim

Post publish date: June 15, 2023

A year has flown by since the launch of operations of the small-claims copyright tribunal, the Copyright Claims Board (CCB), by the U.S. Copyright Office on June 16, 2022. The CCB and Copyright Office staff have worked tirelessly to create and set up the CCB, and to ensure that the tribunal is serving as an effective, voluntary, and streamlined alternative to federal court. Since the launch of the CCB, we have been regularly monitoring the CCB’s docket of cases, compiling statistics on just about every aspect of the cases and claims that are moving through the CCB system.

Six months in, we took a look at the cases filed with the CCB and noted several observations that we detailed in our six-month snapshot blog, including how a surprising proportion of claimants were using attorneys, the unexpected participation of foreign claimants, and issues with claimants filing claims and serving respondents. To help address some of the issues we observed, we posted numerous educational materials on our CCB Explained web page including a guide to service of process that should aid claimants who are confused by the process. Now, as the CCB celebrates its first anniversary, seems like a good time to take another look at the CCB and how it’s operating.

CCB First Anniversary: Case Information

One year into the CCB, and we have a better picture of who is using the CCB and more information about the cases themselves—including two decisions issued by the CCB (technically referred to as “final determinations”).

Case number 22-CCB-0035, Flores v. Mitrakos: The claimant argued that the respondent had filed a knowingly false DMCA takedown notice that caused Google to remove materials from the Chrome Web Store. After the case became active, the parties reached a settlement agreement which included concessions 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.

Case number 22-CCB-0045, Oppenheimer v. Prutton: The case was referred to the CCB from the federal district court for the Northern District of California. 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 discuss the lessons and takeaways from that decision in an earlier blog post.

It’s not surprising that the CCB has only issued two final determinations at this point since the period of time from the claimant’s filing of claims to when the proceeding becomes an “active proceeding” could take five months or longer due to procedural timelines, like service of process and the opt out period as well as the time it may take a claimant to properly amend claims in the claims compliance process.

We have seen some interesting CCB cases filed that have not (as of yet) resulted in determinations, including a claimant that keeps returning to the CCB—and it may be working out for them. That claimant is Joe Hand Promotions which describes itself as “a Pennsylvania corporation that specializes in commercially licensing premier sporting events to commercial locations such as bars, restaurants, lounges, clubhouses, and similar establishments.” Joe Hand Promotions is an exclusive licensee of sporting events, including UFC fights and has almost hit its 12-month limit for filing cases—having filed 29 cases since July 2022 (a claimant is limited to filing 30 cases in a 12-month period). Their claims may be a way to read the tea leaves on how parties interact with the CCB.

Of Joe Hand Promotions’ 29 cases, 11 of them are active proceedings. Four of those proceedings are still in the early stages, while the other seven are in the default stage. But it seems that the CCB is still providing respondents ample time and opportunity to participate in the proceeding, even in the default stages, as it is taking roughly more than three months to get from the point when the case becomes “active” to a point where the CCB will issue an order for the claimant to make a default statement and submit evidence to begin default proceedings.

Joe Hand Promotions has seen some successes—seven of their cases have closed, and six of them resulted in a settlement. The case that did not result in a settlement was dismissed due to the respondents opting out of the proceeding. But two days after the CCB dismissed that case, Joe Hand Promotions (JHP) brought the case as a federal lawsuit against those same respondents who opted out—this time adding claims and remedies that could not be brought in the CCB—satellite and cable piracy claims brought under the Communications Act and additional damages of $110K per violation for violations thereof and maximum statutory damages under the Copyright Act ($150k). As we mentioned in our six-month snapshot blog, another claimant used the CCB as a “first step” before bringing the respondents to federal court, and it will be interesting to see if other claimants will do the same against respondents who opt out of the CCB proceeding and whether, like JHP, they bring additional claims and request additional and higher damages.

CCB First Anniversary: Settlements

Settlements also play a role in there being fewer CCB decisions. Settlement rates are more difficult to calculate and trace in the CCB docket since the public documents only reflect a settlement when the parties disclose it to the CCB (which they are not required to do).

The CCB docket definitely shows about 5% of the cases are settling. We know the actual number of settlements is larger than 5% because we have often heard from CCB parties that they have settled their case, but when we check the docket for the case it simply states that there was a voluntary dismissal by the claimant without reference to the settlement (because the parties did not report it as a settlement). Consequently, there could be many voluntary dismissals, opt outs, or other actions (or inactions) reflected in the docket that could actually be settlements between parties and we just do not know one way or the other.

Although settlements result in fewer determinations by the CCB, we think these settlements are a net positive. Prior to the launch of the CCB, these cases did not even see the light of day because claimants who could not afford to bring their cases to federal court had no other alternative to bring copyright claims. But now, with the advent of the CCB, these claims are being resolved—with or without an official determination by the CCB—and that is a good thing.

CCB One-Year Anniversary: Case Statistics

As of the end of May 2023, there were 471 cases filed with the CCB. Somewhat surprisingly, throughout the year, cases continue to be filed at a consistent rate—with close to two cases filed per day (since it launched). We initially thought that there might be a burst of cases filed at the start then the numbers would dwindle before reaching a consistent level. But instead, the cases seem to be being filed at a fairly consistent rate.

The top three kinds of works at issue in the cases are Pictorial, Graphic, and Sculptural Works at roughly 44%; followed by Motion Picture/Audiovisual Works at 20%, and then Literary Works (including software) at 15%. Of the cases filed, “smaller claims”—cases that are even more streamlined and where damages in the proceeding are no more than $5,000—represent about 36% of claims.

About a third of the claimants have legal representation. We explained in this blog post some reasons why that may be. It will be interesting to see if this number drops as parties become more acquainted with the CCB or increase due to claimants realizing certain aspects of the CCB may be more difficult than they first thought or that they need to hire an attorney because the respondent(s) in their case have hired one. It would also be interesting to know the number of respondent parties who have legal representation, especially in cases where a claimant is using an attorney, but unfortunately, the CCB does not make those numbers available for analysis.

We noted in our six-month snapshot that claimants were having trouble filing compliant claims. Unfortunately, that has not changed. The top reasons for why the CCB dismisses a case are still because of a failure to amend claims to comply with CCB regulations at 53% and a failure to provide proof of service at 21%.

Of course, claims are also dismissed because the respondent(s) opt out. The opt-out rate currently hovers a little below 50%. This rate has fluctuated quite a bit over the year as cases continue to progress in the CCB system and clear the initial claims compliance and service of process issues. But as mentioned earlier, an opt out does not necessarily mean that the dispute will go unresolved. Some of these opt outs may be leading to undisclosed settlements or lawsuits in federal court.

CCB Officers Are Taking Steps to Ensure the “Voluntary Nature” of the CCB is Preserved

Now that the CCB has been operational for a year, we have enough information to begin examining the opt-out process. One of the key features of the CCB is its opt-out mechanism for the respondent, which underscores the voluntary nature of the CCB.

After the claims are served, respondents have 60 days to opt out of the proceeding, but there have been multiple situations over the past year in which the CCB has extended the 60-day opt-out period due to “exceptional circumstances.” The reasons for extensions include:

the opt-out form arriving late in the mail;
the respondent mistakenly believing that it had successfully opted out of the proceeding at hand because it had opted out of another CCB proceeding that was served on the respondent the same day;
CCB administrative hurdles, including:
- defects in the claimant’s Proof of Service, which meant that the CCB could not send a second notice of the opt-out period to the respondent and
- the CCB noting an incorrect opt-out window for the respondent party; and
the CCB excusing respondent mistakes on the opt-out form, including when:
- respondent party’s attorney mistakenly omitted the respondent party’s name in the opt-out form and
- when respondent didn’t check a box certifying the veracity of the statements in the opt-out form.

Claimants probably find it frustrating to have the timelines extended, particularly when the respondent or the respondent’s attorney has made mistakes on the opt-out forms and processes. But in these extension orders, the CCB consistently stresses the “exceptional circumstances” of the situations and that “due to the intent of the voluntary nature of proceedings before the Board” the Board finds that “the interests of justice” an extension is warranted.

The CCB officers’ broad view of what constitutes exceptional circumstances is warranted so long as it is consistently applied to all parties under similar circumstances. But one thing to keep in mind is that the CCB is still relatively new and what the CCB deems to be exceptional circumstances now—as everyone is educating themselves about the CCB and how it operates (including the CCB itself)—may not be considered to be “exceptional” down the road.

Of the cases where the opt-out period was extended, 36% of those cases are now in the default stage of the CCB proceeding. It is important that the Board has been exceedingly willing to extend opt-out periods “in the interests of justice” and in the spirit of the voluntary nature of the CCB. In fact, the CCB seems to be taking this approach across all the stages of the CCB process, as also seen in the default stage as previously mentioned. We commend the CCB officers for taking this approach as it ensures that respondents have ample opportunity to decide whether to participate in the proceeding (compared to federal court which operates under much stricter default rules).

Copyright Registration Practices Should Change to Ensure Smooth Operations of CCB

Though rare, there are a smattering of CCB dismissals resulting from the fact that the Copyright Office refused registration for the work(s) at issue in the case. Under the CASE Act and CCB regulations, the CCB must dismiss a case without prejudice when the Office refuses registration in a pending registration application. For example, in Haxton v. Newman (22-CCB-0042) the Office refused registration for the work in question because the incorrect application form had been used for the registration. Using the Single Application registration form, Haxton had attempted to register an audiovisual work that may have had multiple authors. The problem was that the Single Application form can only be used to register a work with one author.

Unfortunately, when the CCB issued the order dismissing the claim, it had already notified Haxton that the claims were compliant and that Haxton could proceed with service of process. The saving grace though, is that the case was dismissed without prejudice, meaning that Haxton could bring the case again—hopefully with the registration process being more successful the next time.

This is less a CCB problem and more of an area of improvement that the Copyright Office should consider implementing to make registration easier and to accommodate the CCB process (and more generally for the overall registration system as a whole). Admittedly, a claimant or counterclaimant risks having their claims or counterclaims dismissed where the registration application is pending for the works in question. However, when registration applicants make these seemingly fixable and easy mistakes, like using the wrong registration forms, the Office ought to consider a mechanism whereby the application isn’t refused but instead the applicant is allowed to simply refile using the correct form. Otherwise, these simple but very easily fixable registration mistakes could entirely jeopardize and upend a CCB case—which is even more costly when the case is further along in the CCB process. The same concerns apply also in the context where respondents have not opted-out of the proceeding and are filing counterclaims for works which they may need to provide registration information.

Though most registrations done through the Office’s electronic systems are processed at an average of 1.2 months, a good chunk of electronic claims (approximately 23%) require correspondence with the Office, which results in average pendency times of 3.3 months. In the timeline of the CCB, this means that a case may have already moved past the claim(s) compliance process, or is in the service of process stage, or may even be an active proceeding. It would be a sensible solution to ensure that the Office’s registration practices align well with CCB processes to ensure smoother interactions between these different facets of the Copyright Office.

Conclusion

A year in, and it is clear that demand for the CCB is not waning, and many copyright owners were eagerly waiting for a chance to have claims heard before this expert tribunal. With the launch of any new operations, there are always growing pains and learning curves for all parties involved. There are still areas of improvement for CCB operations to be smoother, but we applaud the CCB and Copyright Office staff for their tireless efforts in implementing regulations and educating and working with parties in the spirit of the CASE Act to make this small-claims tribunal a voluntary and streamlined process.

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!

May 2023 Roundup of Copyright News

Posted on June 1, 2023February 21, 2024 by Rachel Kim

Post publish date: June 1, 2023

In May, the U.S. Supreme Court finally issued its long-awaited decision in the Andy Warhol Foundation v. Goldsmith case, reining in the transformative use test under the first fair use factor. Meanwhile, Congress held hearings on Artificial Intelligence (AI), exploring the implications of AI on copyright law.

Here is a quick snapshot of the copyright-related activities that occurred during the month of May 2023 as well as a few events to look forward to in June.

Copyright Alliance Activities

Copyright Alliance Releases Guide on Service of Process in CCB Cases: To assist claimants using the Copyright Claims Board (CCB) in better understanding serving process in CCB cases, we published a one-page document that provides important information about service, such as who can serve a respondent, how they must be served, the correct forms to use, and much more. For additional information on the CCB beyond serving process details, please visit our CCB Explained webpage.

Copyright Alliance Files Amicus Brief in Stream-Ripping Case: On May 11, the Copyright Alliance filed an amicus brief in support of the Recording Industry Association of America (RIAA) in Yout LLC v. RIAA. The Copyright Alliance brief describes how section 1201 was enacted in the early days of the internet to ensure that copyright owners can distribute their works while being protected against online piracy, and it goes on to detail how 1201 has been successful in encouraging the creation and dissemination of expressive works. Explaining that the district court was right to dismiss Yout’s claims, the brief makes clear that similar fair use and First Amendment-based arguments were recently rejected in another high-profile section 1201 case, Green v. United States Department of Justice. The brief was drafted by Copyright Alliance Legal Advisory Board member Mitchell, Silberberg, and Knupp LLP.

Copyright Alliance Blogs: We published several blogs in May:

We published a two-part blog series by our CEO, Keith Kupferschmid, on the Warhol case, which articulates why the outcome will have a significant impact on copyright and AI moving forward. Titled 10 Takeaways from the SCOTUS Decision in AWF v. Goldsmith, we published part 1 and part 2. We also published a blog by our VP of Legal Policy and Copyright Counsel, Kevin Madigan, that summarized the case, titled Landmark Warhol Decision Reins in Transformative Fair Use, as well as a statement that applauded the Court’s decision.
We published in this blog post, a letter to the House Judiciary Committee’s Intellectual Property Subcommittee written by former General Counsel of the U.S. Copyright Office, Jon Baumgarten, in response to comments made by another former General Counsel of the USCO, Sy Damle. Baumgarten pushes back against and warns of the pitfalls of Damle’s comments that the ingestion of copyrighted works for AI training is excepted under the fair use doctrine.
For writers and publishers wanting to further understand how copyright law their rights are protected, we published this blog post going over several literary copyright cases.
To commemorate Mental Health Awareness Month, we published a blog post highlighting some mental health and financial resources that are available to musicians. We also celebrated the Asian American and Pacific Islander Heritage Month, recognizing in this blog post several creators who are at the forefront of the #StopAAPIHate Movement.

Copyright Office Activities

CCB Status Update: At the end of May 2023, 471 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 171 are “smaller claims.” In at least 148 of all cases, the claimant is using legal counsel. At least 406 of the cases involve infringement claims, 70 involve Section 512(f) misrepresentation claims, and 12 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 (209 cases); Literary Works (70); Motion Picture and Audiovisual Works (97); Sound Recordings (53); Musical Works (33); and some cases include claims for multiple works. Forty-five foreign residents have filed claims. Of all the cases filed, 292 have been dismissed for the following reasons: Due to Respondent’s Opt Out (37); Due to Failure to Amend Noncompliant Claim or for Registration Issues (159); Due to Failure to Provide Proof of Service of Process (61); Claimant Withdrawal and Dismissal of Claims (20); and Settlement (15). There are 45 active proceedings.

USCO Hosts Remaining AI Listening Sessions on Visual Works, Audiovisual Works, and Sound Recordings and Music: On May 2, the U.S. Copyright Office hosted the second session in a series of AI listening sessions pertaining to generative AI and copyright issues, focused on visual works. Speakers addressed transparency issues and tools, the harms of unauthorized AI use of copyrighted works for training purposes, the impact and use of AI for visual artists, and regulatory and Copyright Office involvement in promoting transparency and resolution for training data issues. On May 17, the Office hosted its AI listening session on audiovisual works. During the session, participants expressed a collective need for clear guidelines, attribution standards, and the mitigation of biases in AI-generated content. Concerns about copyright infringement, loss of artistic control, and fair compensation resonated strongly among the speakers. Participants also stressed the need for education, standardization, policy clarity, and a holistic approach that promotes innovation while respecting the interests of artists. On May 31, the Office hosted its last AI listening session on sound recording and music. Register Shira Perlmutter gave opening remarks for the last session, noting that the Office will hold a webinar on the Office’s AI-generated works registration guidance on June 28 and a webinar on international AI perspectives and copyright law on July 26.Recordings and transcripts are available on the Office’s AI Listening Session webpage.

USCO Issues NPRM on Agreement-Based Counterclaims: On May 3, the U.S. Copyright Office issued a notice of proposed rulemaking (NPRM) regarding an amendment to the regulations to address the filing of agreement-based counterclaims and related discovery requirements in cases before the Copyright Claims Board (CCB). The NPRM proposes amendments related to asserting and responding to agreement-based counterclaims as well as standard interrogatories and standard requests for the production of documents for such counterclaims. Written comments are due by June 20.

CRB Announces Increased Phonorecords III Royalty Rates for Musical Works: On May 23, the Copyright Royalty Board (CRB) issued a determination over Phonorecords III, which increased royalties for songwriters’ and music publishers’ royalty rates for 2018-2022 from 11.4 to 15.1 percent of service revenue. However, the determination also removed a publishing rate ceiling mechanism where publishers would receive higher payments when their label counterparts negotiated higher rates for master recordings.

Biden Administration Activities

Biden Administration Nominates Deborah Robinson as Next IPEC: On May 8, the Biden Administration announced the nomination of Deborah Robinson for the position of the Intellectual Property Enforcement Coordinator (IPEC). Robinson was formerly the head of IP enforcement at Paramount Global implementing various anti-piracy protocols. She has also held positions at the Recording Industry Association of America and the City of Philadelphia as an Assistant District Attorney. Copyright Alliance CEO Keith Kupferschmid joined numerous other industry organizations in releasing a statement in support of Robinson’s nomination, noting, “Deborah Robinson is an accomplished attorney, experienced IP content and protection specialist, and former prosecutor who has real world experience. We are confident that, upon Senate confirmation of her nomination, she will do a tremendous job in this very important role as she works to further IP protections across the country.”

Congressional Copyright Related Activities

HJC IP Subcommittee Members Send Letter to USCO Expressing Concerns About AI: On May 1, members of the House Judiciary Committee (HJC) IP Subcommittee—including Chairman Darrell Issa (R-CA), Representatives Scott Fitzgerald (R-WI), Ben Cline (R-VA), and Nathaniel Moran (R-TX)—sent a letter to Register Shira Perlmutter of the U.S. Copyright Office, expressing their concerns over AI use of copyrighted works and requesting that the Office provide further information on their thoughts, views, and activities on copyright and AI issues. On May 12, the USCO sent a response letter, noting that while the Office is not engaged in copyright enforcement activities beyond providing support for courts and the Department of Justice in enforcement cases, it has nonetheless engaged and will continue to engage with creators, copyright owners, and AI developers in studying AI and copyright law issues, including hosting its listening sessions and webinars on AI issues and issuing a notice of inquiry later this year.

HJC IP Subcommittee Holds Hearing on AI and Copyright: On May 17, the House Judiciary IP Subcommittee 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, past President of American Photographic Artists (APA) and advocacy lead for APA in copyright matters, photographer, and forensic analyst. 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 took the questionable (at best) view that copying of copyrighted works by AI systems for ingestion purposes is categorically allowed by the fair use exception. Meanwhile, the creators on the panel raised significant and justifiable concerns 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. Chairman Darrell Issa (R-CA) suggested that Congress could mandate AI developers to make their database of inputs searchable so rights holders could easily determine whether their works were used to train AI systems. The Copyright Alliance initiated a statement regarding the hearing. A recording of the hearing is available as is a transcript of the hearing.

Former USCO GC Jon Baumgarten Sends Letter to Congress on AI and Fair Use: On May 22, Jon Baumgarten, former General Counsel (GC) of the U.S. Copyright Office, sent a letter to the House Judiciary IP Subcommittee Members in response to comments about Artificial Intelligence (AI) and fair use made by Sy Damle, also a former GC of the Copyright Office, during the Subcommittee’s May 17 hearing on AI and copyright law. In the letter, Baumgarten pushes back on categorical fair use arguments made by Damle, noting that similar arguments had been made for cases involving photocopying and reprography.

Senate Privacy, Technology, and Law Subcommittee Holds Hearing on AI Technology and Privacy: 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. There was bipartisan agreement among Senators and witnesses about the significant risks posed by AI and the need for government regulation. However, there were differing opinions on the specific form and nature of such regulation. Senator Chris Coons (D-DE) confirmed there will be hearings in the Senate IP subcommittee on AI and copyright this summer. 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.

Senate Rules Committee Holds LOC Oversight Hearing: On May 10, the Senate Rules and Administration Committee held a hearing titled, Oversight of the Library of Congress. The sole witness for the hearing was Librarian of Congress Dr. Carla Hayden. Overall, the hearing focused on the modernization efforts of the Library of Congress (LOC) as well as the U.S. Copyright Office’s approach to artificial intelligence (AI) generated works. Senators who participated in the hearing included Chairwoman Amy Klobuchar (D-MN), Ranking Member Deb Fischer (R-NE), Senator Peter Welch (D-VT), and Senator Bill Hagerty (R-TN).

Copyright in the Courts

U.S. Supreme Court Rules for Goldsmith, 7-2, in Warhol v. Goldsmith Fair Use Case: On May 18, the U.S. Supreme Court issued its opinion in the case Andy Warhol Foundation (AWF) v. Goldsmith, ruling in favor of Goldsmith in a 7-2 decision, and holding that AWF’s use of Goldsmith’s photograph of the famous musician, Prince, for a silk-screen artwork that was commercially licensed was not a transformative use and did not weigh the first fair use factor in favor of AWF. Justice Sotomayor penned the majority opinion with Justices Gorsuch and Jackson concurring and Justice Kagan and Chief Justice Roberts dissenting. The Court noted that Warhol’s silk screen artwork of Prince did not have a “fundamentally different and new” artistic purpose from Goldsmith’s photo as a work of visual art. The Court also made clear that all four fair use factors must be analyzed and considered and that transformative use determinations do not control the fair use analysis. The Court further stated that, even under the first fair use factor, such elements must be balanced with the commercial nature of the use. The majority also noted the importance of an objective versus a subjective standard when determining the difference in purpose and character of the use and explained that its decision is consistent with longstanding principles of fair use and [that it] will not “snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers” as some have claimed.” On the other hand, Kagan—in the dissenting opinion—engaged in a subjective analysis, giving more credence to Warhol’s impact and influence in the art world. The Copyright Alliance initiated a statement of support for the U.S. Supreme Court’s decision in the Andy Warhol Foundation v. Goldsmith case. In the statement, Copyright Alliance CEO Keith Kupferschmid noted, “The Court’s decision reins in renegade lower courts that over the years have expanded the transformative use doctrine to make it the most influential element of the fair use test. By determining that Warhol’s prints were non-transformative as a matter of law because they did not have a ‘fundamentally different and new’ artistic purpose from Goldsmith’s photo as a work of visual art, the Court made it clear that all four fair use factors must be analyzed and considered, and that transformative use determinations do not control the fair use analysis.”

Stability AI Files Motion to Dismiss in Getty Images Case: On May 2, Stability AI filed a motion to dismiss in Getty Images v. Stability AI—the case brought by Getty in the Northern District of Delaware alleging that Stability willfully infringed Getty’s copyrights, removed or altered copyright management information (CMI), provided false CMI, and infringed Getty’s trademarks. Stability AI is the creator of the AI system Stable Diffusion, and the lawsuit alleges that Stability AI “copied at least 12 million copyrighted images from Getty Images’ websites, along with associated text and metadata, in order to train its Stable Diffusion model.” In its motion, Stability argued that the court lacks personal jurisdiction over Stability UK; Stability UK is a necessary and indispensable party; and by “lumping [together] allegations” against Stability U.S. and Stability UK under the collective designation “Stability AI,” the complaint fails to identify which defendant is responsible for the alleged infringing acts and therefore fails to state a claim. In the alternative, Stability moves to transfer the case to the Northern District of California under 28 U.S.C. § 1631 or § 1404(a).”

Court Denies Class Certification in Schneider’s Lawsuit Against YouTube: On May 22, the district court for the Northern District of California denied the class certification in composer and musician Maria Schneider’s lawsuit against YouTube. The class action case was brought against YouTube in 2020, with Schneider and others alleging that YouTube facilitates infringement by not enforcing a repeat infringer policy and not offering smaller or individual copyright owners the same opportunity to remove infringing works through its anti-piracy tools as it does for larger content creators. In denying the class certification, the court reasoned that an individual creator’s claim would need to be individually assessed to identify if the content was actually covered by any YouTube licenses, stating, “Every copyright claim turns upon facts which are particular to that single claim of infringement [and] every copyright claim is also subject to defenses that require their own individualized inquiries.”

Ed Sheeran Prevails in Copyright Infringement Case: On May 4, a jury in the Southern District of New York found that British singer-songwriter, Ed Sheeran, is not liable for copyright infringement for his song “Thinking Out Loud.” The heirs of Ed Townsend, the co-writer for Marvin Gaye’s hit song, “Let’s Get It On,” filed the lawsuit against Sheeran in 2017, alleging that there were “striking similarities” and “overt common elements” between Gaye’s record and Sheeran’s song.

Spinrilla to Pay RIAA $50 Million In Settlement: On May 3, the district court for the Northern District of Georgia approved a settlement between a hip-hop mixtape site, Spinrilla, and the Recording Industry Association of America (RIAA), which includes Spinrilla paying RIAA $50 million, a prohibition against Spinrilla and its founder from offering the service, and a shut-down of the Spinrilla site and apps within five days. The court ruled in December 2020 that Spinrilla was liable for copyright infringement of more than four thousand sound recordings.

Fair Use Defense Rejected in Long-Running Richard Prince Case: On May 11, a Judge in the Southern District of New York issued an opinion and order denying appropriation artist Richard Prince’s and co-defendant art galleries’ motions for summary judgment in a case brought in 2015 by photographer Donald Graham for unauthorized use of his photograph as a part of a Prince exhibition. Analyzing the first fair use factor, the opinion finds that Prince’s use of the photograph was not transformative as a matter of law and was indisputably commercial in nature. Importantly, the court explained that “neither the Supreme Court’s decision in Google nor the Second Circuit’s decision in Warhol alter the [transformative] analysis here.” While the opinion goes on to find the second and third fair use factors weigh against a finding of fair use, it then says that the fourth factor weighs “slightly” in favor of the defendants because “the primary markets for the original and secondary works do not overlap.” The opinion concludes by explaining that Prince tests the boundaries between appropriation art and copyright infringement, and that the opinion “is this Court’s attempt to elucidate that boundary.” Graham was represented by Copyright Alliance’s Legal Advisory Board member Cravath, Swaine and Moore LLP.

Copyright in Other Countries

EU Releases Recommendations for Piracy of Live Events: The European Commission published recommendations for service providers with regard to piracy of live content. The non-binding document highlights the importance of swift action by service providers to address illegal live streaming upon receipt of such activities, the existence of dynamic website blocking injunctions and the legal validity of such measures in the EU, and the importance of broadcasters and organizers of events increasing the attractiveness and affordability of their live offerings.

EU Releases Report on IP Rights in Third Countries: On May 17, the European Commission published its biennial report titled Report on the Protection and Enforcement of Intellectual Property Rights (IPR) in third countries, which includes China as a top priority country while India and Turkey remain priority two countries. Executive Vice President and Commissioner for Trade Valdis Dombrovskis said, “A robust intellectual property system supports innovation and is a key driver of the EU’s competitiveness and the protection of our strategic interests. When intellectual property systems across the world fall short, it harms European businesses. Counterfeiting and piracy hurt our economy and can expose our citizens to unsafe products.”

G7 Commits to ‘Human-Centric and Trustworthy’ AI: On April 30, the Group of Seven (G7) nations—which includes Japan, United States, France, Germany, Italy, Canada, the EU, and the United Kingdom—published a Ministerial Declaration of its Tech Ministers’ Meeting, in which the G7 commits to promoting “human-centric and trustworthy AI” and states its opposition to the misuse and abuse of AI, including uses that threaten the enjoyment of human rights. The Declaration also states that the G7 will continue to examine and discuss generative AI topics that could include the topic of “how to safeguard intellectual property rights including copyright…”On May 20, the White House published the G7 Hiroshima Leaders’ Communiqué, detailing various issues and points that the group committed to further cooperation and study on, including “advanc[ing] international discussions on inclusive artificial intelligence (AI) governance and interoperability to achieve our common vision and goal of trustworthy AI, in line with our shared democratic values.” Specifically for intellectual property, the group called for the creation of a forum or a working group called the “Hiroshima AI process” that would cooperate with the OECD and GPAI to discuss generative AI topics including the “safeguard[ing] of intellectual property rights including copyrights…” According to a summarization of a working lunch, the group is expected to report on these discussions by the end of the year.

Industry Activities

ALI Approves Latest Copyright Restatement Draft: On May 22, the American Law Institute (ALI) held its Annual Meeting in Washington, DC, during which all sections of the most recent draft of the Copyright Restatement were approved pending a few minor revisions. Tentative Draft No. 4 of the Restatement includes sections on copyright formalities, duration, infringement, and the Visual Artists Rights Act (VARA). The sections of the draft are now considered final, will be made available on Westlaw, and can be used by the courts and others immediately.

OpenAI CEO Shares Plans for ‘Respecting Copyright’: On Friday, May 5, OpenAI CEO, Sam Altman, announced that the company is working on new ChatGPT models that respect copyright and ensure creators are paid for the value they create. According to Altman, “We’re trying to work on new models where if an AI system is using [a creator’s] content, or if it’s using [someone’s] style, [they will] get paid for that.” His comments came after an announcement that Altman will be hosting an “OpenAI Tour” in 2023 to meet and hear from users, developers, and those interested in AI generally. During the tour, Altman will visit Washington, DC, and several other cities. To apply to attend the DC meeting, please email oai23tour@openai.com.

ACE Creates Global Task Force to Combat Illegal Sports Streaming: The Alliance for Creativity and Entertainment (ACE) announced that it will run a global task force to combat illegal sports streaming, teaming up with broadcasters and law enforcement including DASN, beIN SPORTS, Interpol, and Europol. Jan van Voorn, Executive Vice President and Head of ACE stated, “The addition of DAZN and the creation of ACE Sports Piracy Task Force marks a turning point for ACE and confirms yet again that we are the essential partner to anyone who recognizes the threat of piracy to their business.”

Look Forward To And Save the Date For…

WIPO U.S. Summer School on Intellectual Property: From June 5 to 16, 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 sixth iteration of the 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. A certificate of participation is awarded to participants who successfully complete program requirements. More information is available on the registration page.

Deadline for USCO and USPTO to Complete Joint NFT Study: June 8 is the deadline for the U.S. Copyright Office and the U.S. Patent and Trademark Office to issue their study on non-fungible tokens (NFTs) and the impact and application to intellectual property rights. On June 9, 2022, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) had sent a letter to Kathi Vidal, Director of the U.S. Patent and Trademark Office, and Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, requesting the study. More information is available on the Copyright Office’s NFT Study webpage.

ARS Webinar on the DMCA, Infringement and Fair Use: On June 6 at 12 p.m., The Center for Art Law and the Artists Rights Society (ARS) are hosting a webinar titled Digital Millennium Copyright Act: Infringement, Fair Use, and Takedowns, which will feature a discussion on copyright considerations such as infringement and issuing DMCA takedown notices. Specific topics that will be addressed during the event include how to differentiate between infringement and fair use, what permissions or licenses are needed to reproduce an artist’s image or artwork, and the definition of a DMCA takedown. More information is available on the registration page.

Deadline to Submit Comments to NTIA on AI Accountability: June 12 is the deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comments regarding artificial intelligence (AI) system accountability measures and policies to ensure that AI systems are legal, effective, ethical, safe, and trustworthy. NTIA will use these comments and other public engagements on the topic to draft and issue a report on AI accountability policy development, focusing on the AI assurance ecosystem.

A2IM Indie Week 2023: From June 13 to 15, the American Association of Independent Music (A2IM) will host Indie Week 2023, a three-day international conference and networking event aimed at maximizing the global impact of independent music. For the past 15 years, the event has drawn more than 1,200 attendees annually. Attendees will hear experts discuss the industry’s most timely topics, network with colleagues, and much more. More information is available on the registration page.

AIMP Global Music Publishing Summit 2023: On June 13, the Association of Independent Music Publishers (AIMP) is hosting its Global Music Publishing Summit. The summit began in 2017, and its agenda spans creators, the business of publishing music, and the international marketplace “to deliver a well-rounded and informative experience to attendees across all facets of the industry.” More information is available on the registration page.

She Podcasts LIVE 2023: From June 19 to June 22, She Podcasts is hosting its annual She Podcasts LIVE conference to provide women podcasters with the opportunity to “explore innovative ways to grow an audience” and to “discover the secrets of creating powerful connections with sponsors, listeners, and other peers.” On Wednesday, June 21 at 10 a.m. ET, Rachel Kim and Terrica Carrington of the Copyright Alliance will give a presentation on copyright law fundamentals that podcasters should know. More information is available on the registration page.

Deadline for USCO CCB Agreement-Based Counterclaims Comments: June 20 is the deadline to submit comments to the U.S. Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding an amendment to the regulations to address the filing of agreement-based counterclaims and related discovery requirements in cases before the Copyright Claims Board (CCB). The NPRM proposes amendments related to asserting and responding to agreement-based counterclaims as well as standard interrogatories and standard requests for the production of documents for such counterclaims.

WIPO Standing Committee on Copyright and Related Rights (41st Session): From June 28 to July 1, the World Intellectual Property Organization (WIPO) will hold the next meeting of the Standing Committee on Copyright and Related Rights (SCCR). More information is available on the meeting webpage.

MLC Q&A for Self-Administered Songwriters: On June 29 at 12 p.m., independent songwriters with questions about the Mechanical Licensing Collective (MLC) and digital audio mechanical royalties are invited to attend this interactive webinar to get answers to questions regarding MLC membership, the MLC Portal, and all the tools and resources available to help self-administered songwriters register their musical works data. More information is available on the registration page.

USCO Monthly Recordation System Webinar: On June 29 at 1 p.m., 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.

USCO Webinar on Registration of AI-Assisted Works: On June 28, the U.S. Copyright Office will hold a webinar where the Office’s registration specialists will walk participants through the registration process for works containing AI-generated elements in accordance with the Office’s registration guidance on the topic. The Office will also field questions from webinar participants. More information will likely become available on the Office’s AI webpage.

The Impactful Leadership of Women Registers of Copyrights (World IP Day 2023)

Posted on April 25, 2023February 21, 2024 by Rachel Kim

Post publish date: April 25, 2023

The World Intellectual Property Organization is celebrating World IP Day 2023 with the theme Women and IP: Accelerating Innovation and Creativity honoring the pioneering and innovative spirit of women inventors, creators, and entrepreneurs around the world. It is a day of recognizing the women who have paved the way in the scientific and creative fields, but also gauging what other progress can be made to encourage and raise the next generations of Rachel Carsons, Zora Neale Hurston, and Georgia O’Keefes.

Behind a robust creative environment are women leaders who shape and guide the intellectual property right policies that protect and promote these innovative and ground-breaking creativities of women creators. Here are a few of those notable leaders, particularly the former and current Register of Copyrights of the U.S. Copyright Office, who have pioneered and paved the way for a copyright system that encourages the participation of women creators.

Barbara Ringer

When Barbara Ringer was appointed as Register of Copyrights of the U.S. Copyright Office, she was the first woman to hold this position, and her tenure coincided with some of the most critical developments in U.S. copyright law. During her time as Register, she was responsible for overseeing the overhaul of U.S. copyright law that resulted in the 1976 Copyright Act that we know and use today. But Ringer’s legacy is also noteworthy because of the way she set an example and precedent for women to participate and engage meaningfully within the copyright system.

This legacy was evidenced in lesser-known but impactful victories, like when she insisted that the new Copyright Act be more inclusive of women by incorporating both female and male pronouns. She also advocated for part-time work schedules, women’s programs, and a childcare center. But a key moment in Ringer’s legacy was when she campaigned and won her federal lawsuit against the Librarian of Congress, arguing that she had been denied the Register position because she was a woman and because she had advocated for African-American employees who were being discriminated against in the Library of Congress. A federal hearing officer found that Ringer had indeed been discriminated against on the bases of sex and race, and in 1973, the District Court of D.C. affirmed the decision. Ringer’s determination and persistence paved the way for women to become part of the copyright system, and she served as a role model for future Registers, including mentoring the next female Register of Copyrights, Marybeth Peters.

Marybeth Peters

Marybeth Peters became the next woman Register of Copyrights of the U.S. Copyright Office in 1994, serving until 2010 and holding the distinction as the longest serving Register in modern times. As Register, her copyright legacy focused on modernizing and adapting the 1976 Act in the digital age. This included overseeing the enactment of the Digital Millennium Copyright Act (DMCA) and the Copyright Office’s new rule-making authority via the triennial rulemaking proceedings relating to exceptions to Section 1201’s prohibition of circumvention of technological measures.

Peters acknowledged that the path to becoming Register hadn’t always been easy for her, noting that early on in her career there weren’t many women lawyers in the field. But Peters credited the mentorship of Barbara Ringer and the encouragement of many others as the biggest contributions and motivations leading to her success, securing her legacy as a Register intent on empowering and encouraging others, especially women, in the copyright law space. She stated:

“I recognized that I had been very lucky in the jobs that I’ve had. I’ve been very lucky in having people who believed in me and who helped me along the way…I thought that if I was lucky enough to be in a position that I could help anybody, I needed to do that…I’ve done it more with young women lawyers, but I don’t limit it to women. I will do it to anybody who wants to get ahead, but especially women because I did struggle…But I remember when I first became Register. I was a lot younger…[People] were really expecting a man…I really do believe that the federal government and other agencies are recognizing the value that women bring to jobs…”

Maria Pallante

Maria Pallante became Register of Copyrights in 2011 and served for five years. During her tenure as Register, Pallante urged Congress to begin a comprehensive revision of the Copyright Act. Under her leadership, Pallante oversaw modernization efforts and the first comprehensive revision of the Copyright Office’s Compendium in more than twenty years.

Recounting the influences in her life that led her to the top U.S. copyright position, Pallante credited her undergraduate education at a women-founded college for encouraging her to pursue politics and leadership, which lead her to attend law school where she discovered a passion for copyright law. As current President and CEO of the American Association of Publishers, Pallante continues to champion the importance of women in copyright and the publishing industries, specifically working to identify more female candidates for AAP’s board. When asked what advice she would give to women, Pallante stated:

“Learn to listen to yourself, seek out women and men you think you can learn from, don’t be afraid to ask for advice, and don’t wait for a perfect time to seek, accept, or create a promotional opportunity or project. There is no perfect time. If you are a manager, I would say be especially sensitive to how women contribute to meetings and objectives, recognizing that female styles are sometimes understated.”

Karyn A. Temple

Karyn Temple was named Register of Copyrights in 2019, after serving as Acting Register since 2016, and was the first African-American woman to lead the U.S. Copyright Office. She helped modernize, update and educate the public about the Copyright Office and its registration practices. Under Temple’s tenure, the Office completed another revision of the Compendium and released its policy study on software-enabled consumer products and a study on Section 1201 technological protection measures.

The Office’s work on modernization and studies on certain copyright issues during Temple’s tenure as Register of Copyrights supports her belief that governments must work with creators to improve the copyright structures, remove formal barriers, and provide resources for creators to focus on their art. Temple has said that fostering a conducive environment that encourages creativities empowers women to join the creative industries and take control of their own intellectual property. Highlighting the importance of the participation of women in the creative industries, Temple stated:

“[It is important to] creat[e] a space where women—their voice can be uniquely heard. Because they might tell stories in a way that might be different than men might tell stories, or different stories that may not have been told but for women telling them.”

In her current position as Senior Executive Vice President and Global General Counsel for the Motion Picture Association, Temple continues to speak out and support ways the creative community can encourage diverse participation. In fact, she will be moderating the Copyright Alliance’s panel titled Women Trailblazers Creating Success Through Copyright, discussing how copyright has helped women to advance their careers and protect and distribute their and others’ creative works.

Shira Perlmutter

Shira Perlmutter is the current Register of Copyrights and Director of the U.S. Copyright Office. She was appointed to the position in late 2020 and has overseen the Office’s numerous studies and engagements on a wide variety of copyright issues including studies and engagements on standard technical measures, press publishers’ ancillary rights, and artificial intelligence.

Under Register Perlmutter’s leadership and in line with the Office’s vision for “copyright for all” under its four-year strategic plan, the Office published a report in June 2022 titled Women in the Copyright System: An Analysis of Women Authors in Copyright Registrations from 1978 to 2020, which examined copyright registration data to evaluate the role and scope of participation in the creative and copyright industry of women authors. The report revealed that although women have been participating more in registering their works over time, they still make up a smaller share of copyright registrants. Register Perlmutter stated that while the data is encouraging,

”[a]t the same time, there is work to be done in reaching gender parity in most areas. As part of the Office’s commitment to ‘copyright for all,’ we look forward to continuing to collaborate with colleagues and stakeholders to develop programs responsive to this research, and further empower women to benefit from their creativity.”

Conclusion

Copyright law has come a long way under the incredible leadership and guidance of these women Register of Copyrights who have studied, explored, implemented, challenged, and enacted policies, regulations, structures, and systems while they led the U.S. Copyright Office. Though each Register has approached increasing the participation of women in the copyright law system in different ways, their conduct and initiatives during their respective tenure as Register have cohesively built on each other to ensure the copyright law system continues to encourage and lift up the voices of women storytellers.

March 2023 Roundup of Copyright News

Posted on April 4, 2023February 21, 2024 by Rachel Kim

Post publish date: April 4, 2023

In March, while the copyright community continues to wait for the Supreme Court decision in AWF v. Goldsmith, it took a respite to celebrate a major legal victory by book publishers in their court case against the Internet Archive’s mass reproduction and pirating of eBooks. Meanwhile, there were several copyright related hearings in Congress and a revised version of the Pro Codes Act introduced in both the Senate and House. Here is a quick snapshot of the copyright-related activities that occurred during the month of March as well as a few events to look forward to in April.

Copyright Alliance Activities

Copyright Alliance Launches AI Alert: We launched our new Artificial Intelligence (AI) Copyright Alert to keep everyone apprised of important copyright-related AI news and events. As AI technology continues to evolve and questions arise about how copyright laws apply to the creation of AI-generated works, it’s critical that the underlying goals and purposes of our copyright system are upheld and that the rights of creators and copyright owners are respected. To receive the AI Alert visit our sign-up page.

Copyright Alliance Launches the Community Partnership Initiative, Debuts with BIPOC Podcast Creators as Inaugural Partner: On March 29, we launched our Community Partnership initiative, which is designed to bring together like-minded, creator-based organizations as partners to advance the interests of creators and their works, while also promoting the importance of copyright protection and enforcement. The first Community Partner to join this program is BIPOC Podcast Creators. BIPOC Podcast Creators is a networking and consulting organization that works to create a vibrant and supportive community for BIPOC podcasters.

Copyright Alliance Publishes CCB Remedies Video: We released the newest educational video in the Copyright Alliance’s Copyright Claims Board (CCB) Webinar series which explains the different remedies that the CCB can grant to parties—including the differences between actual and statutory damages, the monetary limits on damages that can be awarded by the CCB, and more.

Copyright Alliance Blogs: We published several blogs in March:

To celebrate Women’s History Month 2023, we published a blog post highlighting several women creators who use their platform and their successes in the creative industries to uplift other women and other underrepresented communities.
Following the U.S. Copyright Office’s release of registration guidelines for applicants seeking to register AI-assisted works, we published this blog post highlighting some takeaways to consider.
We also published a blog post, summarizing current AI copyright cases related to the unauthorized use of copyrighted material as training data.

Copyright Office Activities

CCB Status Update: At the end of March 2023, 401 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 147 are “smaller claims.” In at least 135 of all cases, the claimant is using legal counsel. At least 350 of the cases involve infringement claims, 57 involve Section 512(f) misrepresentation claims, and nine 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 (186 cases); Literary Works (53); Motion Picture and Audiovisual Works (88); Sound Recordings (40); Musical Works (24); and some cases include claims for multiple works. Thirty-seven foreign residents have filed claims. Of all the cases filed, 222 have been dismissed for the following reasons: Due to Respondent’s Opt Out (28); Due to Failure to Amend Noncompliant Claim (112); Due to Failure to Provide Proof of Service of Process (52); and Claimant Withdrawal and Dismissal of Claims (31). There are 33 active proceedings.

USCO Releases Guide to Registration Policies for Works Containing AI Generated Materials: On March 16, the U.S. Copyright Office published a guide, clarifying its policies for examining and registering works that contain material generated by the use of artificial intelligence (AI) technology. In the case of works containing AI-generated works, the Office noted that “applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” The Office noted that it will refuse to register works that lack human authorship, and that when determining which parts of a work registration will be extended to, “what matters is the extent to which the human had creative control over the work’s expression and “actually formed” the traditional elements of authorship.”

USCO Announces AI Initiative; Solicits Participants for Public Listening Sessions: On March 16, the Office announced its new Artificial Intelligence (AI) Initiative, which includes hosting four virtual public listening sessions on copyright and artificial intelligence (AI) with stakeholders from various creative industries. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. The sessions will focus on literary works, including print journalism and software; visual arts; audiovisual works; and music and sound recordings.

USCO Hosts CPMC Meeting: On March 2, the U.S. Copyright Office held its biannual meeting of the Copyright Public Modernization Committee (CPMC), which was launched in 2021 to enhance communication and provide a public forum for the technology-related aspects of the Copyright Office’s modernization initiative. During opening remarks, Register Perlmutter gave an overview of the Office’s current priorities, including identifying and reaching out to underrepresented communities, the Office’s upcoming fee study, continuing progress on development of the Enterprise Copyright System (ECS), and issues related to copyright and artificial intelligence (AI). It was also mentioned that the Public Information Office is working to train staff to enhance the ways they assist the public. The bulk of the meeting was comprised of copyright registration staff giving a demonstration of the ECS Registration module, which CPMC members agreed reflected significant progress. The demonstration included both the user side and the examiner side of ECS. This was the first time anyone other than Office and Library personnel was able to see a demonstration of ECS. Office staff indicated that there will be an opportunity for user testing. Office staff also indicated that they may hold an additional meeting to continue the discussion and answer more questions in advance of the next regularly scheduled meeting.

Emily Chapuis Appointed USCO Deputy General Counsel: On March 6, Register of Copyrights Shira Perlmutter announced the appointment of Emily Chapuis as Deputy General Counsel for the U.S. Copyright Office. Chapuis begins her new role on March 13 and will assist the Office’s General Counsel and Associate Register of Copyrights “in providing legal guidance to the Office’s divisions, implementing regulations governing the administration of the copyright system, advising congressional offices and other federal agencies, and developing legal positions in copyright litigation and other matters.” Chapuis spent twelve years at Jenner & Block LLP before joining the Office, working as a commercial litigator and a partner in the firm’s Content, Media, and Entertainment group. During her time at Jenner & Block, she “developed extensive expertise in copyright law, including music licensing, rate-setting, and copyright infringement matters.”

USCO Appoints Iyauta Green as Deputy Director of Operations: On March 15, Register of Copyrights Shira Perlmutter announced the appointment of Iyauta Green as Deputy Director of Operations for the U.S. Copyright Office. Green will assist the Assistant Register and Director of Operations with strategic planning, financial activities, and business processes for the Copyright Office. Prior to joining the Office, Green served as the associate deputy assistant secretary for risk management and regulatory affairs in the Office of Housing at the U.S. Department of Housing and Urban Development (HUD) and spent seventeen years at the U.S. Department of Education in the Office of the Secretary, the Office of the Deputy Secretary, and the Office of Finance and Operations.

Kashtanova Sends USCO a Letter Arguing AI-Generated Work Contains Sufficient Human Authorship: On March 21, Kristina Kashtanova posted a letter on LinkedIn that they sent to the Office, explaining that the image in the registration application, Rose Enigma, though generated using Stable Diffusion, resulted from Kashtanova’s highly specific and controlled creative inputs, including a hand-drawn image. This registration application is for a different work, and is separate from the registration the Office granted for the creative coordination, selection, and arrangement contained in Kashtanova’s graphic novel, Zarya of the Dawn. Kashtanova further states that if someone with access to the same tools used the exact same prompts and other input materials, they would be able to generate the same image, arguing that this proves sufficient human authorship.

Biden Administration Activities

USPTO Releases Third Report on IP and the U.S. Economy: The U.S. Patent and Trademark Office (USPTO) released the latest edition of its report highlighting the economic contributions of industries that make greater use of intellectual property (IP) protection, including patents, trademarks, and copyrights, titled Intellectual property and the U.S. economy: Third edition. In terms of copyright, the report showed that copyright-intensive industries outpaced other IP-intensive industries with respect to GDP growth since 2014—rising by 4.2%. Employment in the copyright-intensive industries also reportedly grew rapidly, accounting for 6.6 million jobs.

USTR Releases President Biden’s 2023 Trade Policy Agenda and 2022 Annual Report: On March 1, the Office of the United States Trade Representative (USTR) released President Biden’s 2023 Trade Policy Agenda and 2022 Annual Report to Congress. The report details USTR’s work to advance President Biden’s trade agenda over the last two years, as well as the priorities for 2023 and beyond. “USTR’s worker-centered trade agenda is realizing President Biden’s vision to grow the American economy from the bottom up and the middle out,” Ambassador Katherine Tai said. The report’s section on intellectual property noted the USTR’s involvement in negotiations at the World Trade Organization over IP waivers for the COVID vaccine and noted that the Office identified challenges abroad related to copyright piracy. T

Congressional Copyright Related Activities

Pro Codes Act Introduced in Congress: On March 16, Senators Chris Coons (D-DE), John Cornyn (R-TX), Thom Tillis (R-NC), and Sheldon Whitehouse (D-RI) introduced S. 835, the Pro Codes Act, which 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. On March 17, Representatives Darrell Issa (R-CA) and Deborah Ross (D-NC) introduced the House version of the bill, H.R. 1631. The Copyright Alliance issued a statement in support of the bills, noting that “Codes and standards have always been protected by copyright. If implemented, what the Pro Codes Act would do is simple—it would ensure that the codes and standards created by standards development organizations continue to be protected against infringers while guaranteeing that the public has access to them when they are incorporated by reference into law…The Pro Codes Act is a clear win for standards development organizations, lawmakers, scholars, and the public.”

House Judiciary IP Subcommittee Holds Hearing on China: On March 8, the House Judiciary Committee (HJC) Subcommittee on Courts, Intellectual Property and the Internet held a hearing titled Intellectual Property and Strategic Competition with China: Part I. The following witnesses testified before the Subcommittee: William Evanina, Founder and CEO of Evanina Group; Jamieson Greer, an International Trade Partner at King & Spalding; Mark Cohen, Distinguished Senior Fellow and Director of the Asia IP Project at the Berkeley Center for Law and Technology; and Charles Duan, Policy Fellow and Adjunct Professor at American University Washington College of Law’s Program on Information Justice and IP, as well as a member of the PPAC. Several members raised concerns surrounding copyrights and our domestic creative industries. For instance, Ranking Member Jerrold Nadler (D-NY) said that piracy in China continues to harm the creative community. Meanwhile, during the Q&A portion of the hearing, Representative Deborah Ross (R-NC) cited that royalties for music used on TikTok are hundreds of times lower than what other streaming services offer.

Senate Finance and House Ways and Means Committees Hold Hearings on President’s 2023 Trade Agenda: On March 23, the Senate Finance Committee held a hearing titled The President’s 2023 Trade Policy Agenda, featuring the testimony of Katherine Tai, the U.S. Trade Representative. Most questions from the Senators revolved around the specifics of future trade negotiations and the enforcement of already existing rules that have not been fully met. Senators Tillis (R-NC) and Blackburn (R-TN) spoke about the Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) waiver, and Senator Daines (R-MT) talked about Chinese abuse of IP. On March 24, the House Committee on Ways and Means held a hearing on the Biden Administration’s 2023 Trade Policy Agenda with U.S. Trade Representative Ambassador Katherine Tai as a witness. Members of the committee discussed various issues with Ambassador Tai, including IP theft from China, IP issues in relation to the waiver of certain patent rights under TRIPS Agreement, and the importance of the copyright industry, which had 1.6 million workers in 2021, and the need for trade policy to address the stolen or unlicensed use of copyrighted content on digital platforms.

Senate Appropriations Subcommittee Holds Hearing on Library of Congress’ Budget Requests: On March 22, the Senate Appropriations Legislative Branch Subcommittee held a hearing on the FY2024 Budget Requests for the Library of the Congress and the Architect of the Capitol, which featured testimonies from the Librarian of Congress, Dr. Carla Hayden, and the Architect of the Capitol, Ms. Chere Rexroat. During the hearing, copyright only came up in two instances. The first was regarding the Enterprise Copyright System (ECS) and the U.S. Copyright Office’s request for a permanent base for continuous innovations and updates to the system as technology advances. Secondly, Dr. Hayden stated that the FY24 budget funding request would go toward ensuring that the registration system stays functional while transferring from the paper-based Copyright Recordation system to the new online system.

Copyright in the Courts

Publishers Prevail In Case Against Internet Archive: On March 20, the district court for the Southern District of New York heard oral arguments on cross motions for summary judgment in Hachette v. Internet Archive (IA), a case brought in 2020 by a group of publishers challenging IA’s mass scanning and distribution of books under its controlled digital lending theory. On March 24, the court ruled in favor of a group of plaintiff book publishers in their case against the Internet Archive (IA) for scanning print copies of the publishers’ works and lending those digital copies under IA’s untried theory of “Controlled Digital Lending.” The court rejected IA’s fair use arguments on all four factors, holding: (1) that IA gained commercial benefit from offering the eBooks, that “[t]here was nothing transformative” about IA’s unauthorized mass copying and lending of the books; (2) the books were creative works “close to the core of copyright protection” and their published status did not weigh against a fair use finding; (3) the entirety of the works were copied, with no additional transformative purpose, and IA’s copies competed directly with the licensed eBooks; and (4) that IA’s use supplants the publishers’ thriving eBook market.

Maria A. Pallante, President and CEO of the Association of American Publishers, said in a statement, “The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent. In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

The Copyright Alliance also released a statement in support of AAP and its publisher members. Per the statement, Keith Kupferschmid, CEO of the Copyright Alliance, noted that, “For too long, Internet Archive has scanned and distributed published works while refusing to abide by the traditional contours of copyright law…So, we were unsurprised that…the Court rejected arguments by IA that would have pushed fair use boundaries well past their limits under the Copyright Act, while also underscoring the importance of the rights of authors, publishers, and all members of the creative industries who rely on copyright to create works and earn a living.” The Copyright Alliance filed an amicus brief in support of the publishers back in August 2022.

Ringleader of Copyright Piracy Scheme Sentenced to 5.5 Years of Imprisonment: On March 8, the district court for the Eastern District of Pennsylvania announced that Bill Omar Carrasquillo was sentenced to 66 months of imprisonment, more than $30 million in forfeiture, and more than $151 million in restitution, for operating a large-scale IPTV piracy business that reaped Carrasquillo and his associates more than $30 million.

BMI Wins 138% Increase in Songwriter Royalty Rates in Dispute with Concert Promoters: On March 29, it was reported that the district court for the Southern District of New York awarded Broadcast Music, Inc. (BMI) a 138% increase in songwriters’ rates to 0.5% of every event revenue collected by Live Nation, AEG, and the North American Concert Promoters (NACPA), which includes tickets sold on the secondary market and servicing fees, and revenues from box suites and VIP packages. BMI had originally filed a petition in 2018, requesting “reasonable final license fees” for BMI performing songwriters’ compositions in events hosted by the concert promoters. In a statement about the dispute outcome, BMI CEO and President, Mike O’Neill, noted, “This is a massive victory for BMI songwriters, composers, and publishers…It will have a significant and positive impact on the royalties they receive for the live concert category.”

Court Upholds Medical Devices Exemption Resulting from Triennial Rulemaking: On March 7, the district court for the District of Columbia, in an opinion authored by Chief Judge Beryl A. Howell, held that the Library of Congress’ promulgation of an exemption for medical devices arising from its triennial rulemaking on exemptions from the Digital Millennium Copyright Act’s (DMCA) section 1201 prohibition against circumvention of Technological Protection Measures was not barred by the Administrative Procedure Act (APA) or considered unconstitutional. Plaintiffs, the Medical Imaging & Technology Alliance and the Advanced Medical Technology Association, trade organizations for medical imaging equipment manufacturers, had challenged the Library for promulgating the exception. The court held that the plaintiffs’ Administrative Procedure Act (APA) claims are barred because the Librarian’s decisions are not subject to APA review, the Librarian’s promulgation of the exception did not amount to an extreme statutory error required to state a plausible claim, and the DMCA rulemaking process does not violate constitutional separation of powers because the Librarian of Congress and the Register of Copyrights are subject to the control of the President in carrying out these responsibilities.

Court Awards Studios $30 Million Against Pirate IPTV Operators: On March 24, the district court for the Central District of California awarded $30 million for a group of studios, including Universal City Studios, Disney, Netflix, Paramount, and Warner in addition to Amazon and Apple, in their case against the operators behind the pirate IPTV services, AllAccessTV (AATV) and Quality Restreams. The defendants also agreed to a permanent injunction preventing further unauthorized copying, storing, and dissemination of copyrighted works to internet users.

Copyright in Other Countries

German Court Orders DNS Resolver Quad9 to Block Pirate Site: The Regional Court of Leipzig granted Sony Music an injunction, ordering DNS resolver, Quad9, to globally block a music pirate site. The court found that Quad9 made its services available to the pirate service site and did not take action even after notice of infringing activities. Quad9 plans to appeal the ruling.

Argentinean Court Authorizes Dynamic Blocking of Pirate Websites: The National Court of First Instance in Federal Civil and Commercial Matters in Buenos Aires granted a dynamic injunctive order for a group of broadcasters and sports leagues through which Argentina’s national telecommunications agency, ENACOM, has instructed local Internet Service Providers to block 30 domain names and any future mirror sites of pirate TV streaming websites.

Popular Illicit Video Hosting Website in Germany Shut Down: On March 15, the Alliance for Creativity and Entertainment (ACE) announced that the popular illicit video hosting service, Streamzz, was shut down. The service, operating out of Germany, had launched in 2019 and hosted and streamed more than 75,000 movies and 15,000 television shows created and owned by ACE members. “The shutdown of Streamzz is fresh proof that no one in the content piracy ecosystem – whether they’re a streaming service, video streaming host or anything in between – is above the law,” said Jan van Voorn, Executive Vice President and Global Content Protection Chief of the Motion Picture Association and Head of ACE. “We will target piracy services of various kinds in order to protect the global creative economy.”

Industry Activities

Copyright Organizations Launch ‘Protect the Creative Economy Coalition’ in Response to State eBook Legislation: On March 15, a group of authors, publishers, and other copyright organizations from across the United States came together to launch the Protect the Creative Economy Coalition in response to efforts designed to weaken intellectual property protections and damage digital markets through the introduction of eBook legislation in numerous states across the country. The Coalition represents small and independent business owners and other organizations—including the National Music Publishers Association, the News Media Alliance, the Copyright Alliance, Association of American Publishers, the Motion Picture Association, and the Authors Guild—which are “looking to combat a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses” through the introduction of state eBook bills.

Authors Guild Drafts Model Clause to Prohibit Unauthorized AI Training Using Authors’ Works: on March 1, the Authors Guild announced it has drafted a new model clause to help authors prohibit the use of their works for the purpose of training artificial intelligence (AI) technologies without express permission from the copyright owner. Authors and agents can now request this clause be added to their contracts. In a statement, the Authors Guild noted that, “If you do not want your work used to train generative AI—AI machines that generate new text works—you should ask to have any such provision struck and the prohibition clause added instead.” The Guild’s Model Trade Book Contract and Literary Translation Model Contract have both been updated to include the new clause.

UMG’s EVP and Chief Digital Officer Pens Op-Ed on Importance of AI Benefitting the Creative Community: On February 14, Universal Music Group’s Executive Vice President and Chief Digital Officer, Michael Nash, penned an op-ed in Music Business Worldwide, emphasizing that amidst the powerful promises and positive benefits that artificial intelligence (AI) technologies bring to the creative community, “leading counterparts across the arts and creative industries, as well as legal scholars, public officials and representatives of the AI industry itself,” must work together to “explore ways to ensure that generative AI properly rewards the people whose intellectual property constitutes the critical contributing material fueling AI’s output, and not solely AI’s financial interests.”

Look Forward To And Save the Date For…

Artist Rights: The Future of the Copyright Royalty Board for Songwriters: On April 7 at 1:45 p.m., the University of Texas School of Law’s Continuing Legal Education program will host a panel titled Artist Rights: The Future of the Copyright Royalty Board for Songwriters. The panel will cover the history and future of the U.S. Copyright Royalty Board, the federal agency that sets the royalty rate for the government’s compulsory licenses for songs and webcasting, among other related topics. Panelists include Mitch Glazier, RIAA; Clark Miller, Clark Miller Consulting; Abby North, North Music Group; and Chris Castle, Chris L. Castle Law.

U.S. Copyright Office Hosts AI Listening Sessions: The Office is hosting four virtual listening sessions in the coming months on the use of AI to generate works in the creative fields. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. April 19 from 1:00-4:00 p.m. ET, the Office will host its listening session on literary works. More information on this session is available on the registration page. April 11 is the deadline to register to participate in the virtual public listening session on copyright and AI issues in the visual arts context This listening session is scheduled for May 2. More information on how to register for the event as a listener or as a speaker, is available on the Office’s website. April 26 is the deadline to register to participate in the U.S. Copyright Office’s virtual public listening session on copyright and AI issues in the audiovisual works context. The Office is inviting artists, members of creative industries, AI developers and researchers, and attorneys involved with the issues to participate as speakers. This listening session is scheduled for May 17. More information on how to register for the event as a listener or as a speaker, is available on the registration page

2023 ABA-IPL Section Annual Meeting: On April 12-14, the American Bar Association IP Law Section (ABA-IPL) will host its 2023 Annual Meeting (IPLSPRING), featuring more than 20 CLE sessions, networking events, business meetings, and more at the Omni Shoreham Hotel in Washington, DC. Sessions will “address the most cutting-edge topics in the intellectual property arena” to assist attendees in “stay[ing] current, whether their practice is focused on patents, trademarks, or copyrights.” The program includes sessions on Legislative Updates, Managing IP Malpractice Risks, Steering Your Patent Prosecution Portfolio, Updates from the U.S. Copyright Office, Tools for Combatting Counterfeit Goods, Counseling Clients on Mandatory Disclosures, and more. During the event, on April 13 at 9:45 a.m. ET, Copyright Alliance CEO Keith Kupferschmid will moderate a panel titled Copyright Claims Board—One Year In. Speakers for the panel are Copyright Claims Board Officers David Carson, Monica P. McCabe, and Brad Newberg. More information is available on the registration page.

Fordham Law School’s 30th Annual IP Conference: On April 13-14, the Fordham Law School will hold its 30th Annual IP Conference. The conference features copyright law related panels on E.U. copyright developments, the Copyright Claims Board, and Copyright exceptions and limitations. More information is available on the conference website.

Copyright Alliance and Copyright Society Panel on ‘Whether Use of Copyrighted Works to Train AI Is Fair Use’: On April 19 from 12-1:30 p.m. the New York Chapter of the Copyright Society, in association with the Copyright Alliance, will host an event titled Using Copyrighted Works to Train AI: Fair Use or Just Plain Unfair? During this panel discussion, speakers will address the applicability of the Fair Use Doctrine in relation to the use of copyrighted materials to train machine learning (ML) models that are then used to train artificial intelligence tools and services. Speakers include Sekou Campbell, Partner, Culhane Meadows; Joshua Simmons, Partner, Kirkland & Ellis; Katherine Forrest, Partner, Paul Weiss; and Nancy Wolff, Partner, Cowan, DeBaets, Abrahams & Sheppard, LLP.

Women Trailblazers Creating Success Through Copyright: April 26^th is World Intellectual Property Day. The World Intellectual Property Organization officially announced that the 2023 World IP Day theme is Women and IP: Accelerating Innovation and Creativity. On April 26 from 2:00-3:30 p.m. ET, the Copyright Alliance, in collaboration with the U.S. Copyright Office, the Copyright Society, the Global Innovation Policy Center (GIPC), the U.S. Intellectual Property Alliance, and 12 Volunteer Lawyers for the Arts (VLA) organizations across the country, will host a World Intellectual Property Day (WIPD) 2023 event titled Women Trailblazers Creating Success Through Copyright on Wednesday, April 26. This virtual panel is in keeping with the World Intellectual Property Organization’s (WIPO) 2023 theme, Women and IP: Accelerating Innovation and Creativity. Join us to hear from inspiring women who will discuss how copyright has helped them to advance their careers and protect and distribute their and others’ creative works. Attendees will also learn the steps they can take to forge their own career path by protecting their creativities as well as their livelihoods. Our panel moderator is Karyn A. Temple, Former Register of Copyrights and SEVP & Global General Counsel at the Motion Picture Association; and our panelists are Jayda Imanlihen, Founder of the Black Girl Film School; Alicia Calzada, Deputy General Counsel for the National Press Photographers Association; Tristen Norman, Director, Creative Insights, Getty Images; and Miriam Lord, Associate Register of Copyrights and Director of Public Information and Education at the U.S. Copyright Office. Don’t miss this unique opportunity to gain insights and advice from leading women in the creative and copyright industries. The event will conclude with a Q&A session, time-permitting.

USCO Monthly Recordation System Webinar: On April 27 at 1:00 p.m., the U.S. Copyright Office will host its 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 transfer their copyrights to someone else electronically. 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.

Three Takeaways When Registering Your Copyright in an AI-Assisted Work

Posted on March 28, 2023February 21, 2024 by Rachel Kim

Post publish date: March 28, 2023

It seems that all over the news, Artificial Intelligence (AI) dominates the headlines. Copyright is no exception. Given its recent focus on the scope of copyright in an AI-assisted work and in an AI generated work from two-high profile registration cases, the U.S. Copyright Office recently published a Copyright Registration Guidance (Guide) to further explain its examination practices and policies when reviewing registration applications for works containing AI generated material.

The Office cautions that while it is tasked with reviewing the applications, it is ultimately up to the applicants “to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.”

While creators and copyright owners should complete the registration application as truthfully and as accurately as they can, they can do so with the comfort of knowing that a mistake on the registration application will not ultimately invalidate the registration. Also, applicants must remember, that while registration provides many benefits, it is not a necessary requirement for copyright protection because copyright protections are automatic from the moment a copyrighted work is created (regardless of whether or when it is registered with the Office). So if a work is not registered or a registration is deemed to be invalid, it does not mean copyright laws suddenly don’t apply to the work.

Nevertheless, registration is crucial for creators and copyright owners to fully enjoy their rights under the Copyright Act, since registration enables the copyright owner to do things like bring a federal lawsuit and to recover statutory damages in federal court. Since the Office recently granted a copyright registration for portions of an AI-assisted work, it shows that creators can register works created in part using AI. But determining levels of human authorship versus AI generations can be tricky. Based on the Office’s Guide, here are the three takeaways to keep in mind when registering the copyright for an AI-assisted work.

1. Descriptions of Human Authorship on an Application Must Go Beyond Asserting That Creative Prompts Were Entered into an AI Machine

In the Guide, the Office stresses that an applicant must describe the human authorship in the creative elements of the work being registered in the “Author Created” section of the application, and disclaim AI-generated content in the work that is more than de minimis (more on that in takeaway number two).

This is important because a Copyright Office examiner will be analyzing this information and will follow the Office’s policy to refuse registration for a work generated by AI, or for the parts of a work generated by AI, on the basis that AI generated content do not have human authorship.

The Office doubled down on that policy, explaining in the Guide that when it considers the copyright in AI-assisted works it will mainly observe “whether the AI contributions [in the work] are the result of “mechanical reproduction” by the AI or is instead “an author’s ‘own original mental conception, to which [the author] gave visible form.”

The Office illustrates the difference between such “mechanical reproduction” by AI and human authorship in an example where a poem is generated by AI based on a prompt from a human, “write a poem about copyright law in the style of William Shakespeare.” In the example, the Office takes the position that the AI determines the results in the expressive elements of the generated poem like the rhyming pattern, the words in each line, and the structure of the text — not the human who entered the prompt. Later on in the Guide, the Office more explicitly states that entering a prompt (even if the prompt itself may be a creative, copyrightable expression) into an AI machine alone “does not mean that the material generated from a copyrightable prompt is itself copyrightable.” In other words, a registration applicant won’t be able to claim human authorship in AI generated materials or elements in the work by merely stating that they entered prompts into an AI machine.

Some applicants may have difficulty with the Office’s position, as there are arguments that entering certain types of prompts (either one, or many) into an AI machine may result in sufficient creative ideation and control which amounts to human authorship in the AI generated content. But based on the Guide and at least for now, it may be quite difficult for applicants to convince the Office otherwise for registration purposes.

The Office subsequently states that applicants must detail their creative choices made to the AI generated content, such as the creative selection, coordination, and arrangement of that content in the work being registered. For example, if an applicant incorporates AI-generated text into a larger textual work, the Office states that the applicant should “claim the portions of the textual work that is human-authored” (i.e., the creative elements not generated by an AI machine).

2. Applicants Must Disclaim AI-Generated Content in the Work that is More Than De Minimis

As noted previously, the Office also asks applicants to explain what parts of the work should be excluded from the registration application. In its normal registration practices, the Office does ask registration applicants to disclose such information, since the scope of copyright protection for a registered work does not extend to certain parts of a work, like previously published and public domain materials.

Because the Office takes the position that a registration does not cover materials resulting from non-human authorship (i.e., there is no copyright in AI generated content) the Office directs applicants to detail “AI-generated content that is more than de minimis to be excluded from the application.” The Office points applicants to its examination practices on the registration of unclaimable materials and definition of de minimis in its Compendium, which states:

“Creative authorship is deemed “de minimis” when a work does not contain the minimal degree of original, creative expression required to satisfy the originality test in copyright.”

In providing examples, the Office notes that materials like brief quotes and short phrases may fall into that de minimis category. So, for any AI generated materials in a work that falls above that threshold, the Office will look to applicants to describe those disclaimed materials so that the registration can reflect the scope of copyright in the AI-assisted work.

3. Works Containing AI Generated Materials Must Be Registered Using the Standard Application

One of the biggest takeaways from the Guide is that the Office is requiring applicants seeking to register the copyright in their AI-assisted works to only use the Standard Application form. In a footnote, the Office reasons that its other types of application forms currently don’t contain fields where applicants can disclaim unprotectable material, like AI-generated content. As an example, the Office notes that its Single Application “may only be used if ‘[a]ll of the content appearing in the work’ was ‘created by the same individual.’” Presumably, this also means that applicants cannot use the group registration options to register their works that have AI-generated elements. But as more creative communities utilize and develop AI into their works, the hope is that the Office will increase the flexibility of the registration system to accommodate for the registration needs of creative industries and creators who want to register the copyright in their AI-assisted works, beyond the Standard Application, such as those who frequently use the current group registration options.

Just Do Your Best!

If applicants are still unsure of how to fill out the application according to the guidelines the Office set forth, the Office also notes that applicants can simply provide a general statement that the work contains AI-generated material so that the registration examiner can follow up with the applicant. However, this can result in a prolonged examination time because correspondence between the applicant and the Office would lengthen the amount of time it takes for the Office to ultimately issue a copyright registration for the AI assisted work. Taking time to think through the human authorship expressions and AI generated materials will inevitably help an applicant to streamline the registration process. Applicants can also sigh in relief that even if they made a mistake on their application form, their registration won’t be invalidated in court. There are also opportunities to directly reach out the Office to correct pending applications and to file supplementary registration to correct granted registrations.

The Office continues to study the implications of AI in copyright law and will be holding a series of public listening sessions this spring. But with this Guide, they have set a few guideposts to how applicants could register the copyright in AI assisted works. Though authorship issues, especially in AI, can be confusing for applicants to think through, we hope some of the pointers above will help registration applicants along in the process.

Lessons Creators Can Learn from the First CCB Decision

Posted on March 14, 2023February 21, 2024 by Rachel Kim

Post publish date: March 14, 2023

At the end of February—about eight months after the Copyright Claims Board (CCB) opened its doors—the Board issued its very first final determination based on the merits, in the case of Oppenheimer v. Prutton. Though CCB decisions do not have precedential value (meaning that a case decided by the CCB cannot be relied on as legal authority in other CCB cases or legal proceedings), there are some interesting lessons and takeaways from the final determination that CCB parties can keep in mind when considering whether or how to file a CCB claim or defense.

Case Background

The case involved a photographer-claimant, David Oppenheimer, who alleged that the respondent, Douglas Prutton, incorporated Oppenheimer’s photograph of a government building on Prutton’s website which advertised his law firm. The parties initially tried negotiating, with Oppenheimer sending a demand letter for $30,000 and Prutton countering with a $500 counteroffer. The parties did not reach an agreement and Oppenheimer subsequently filed a lawsuit in federal court.

Some Considerations When Using the CCB as an Alternative to Federal Court Lawsuits

This case is unique in that it was first filed in federal district court for the Northern District of California. But the parties agreed to have the case referred from federal district court to the CCB using a little-known provision in the Copyright Alternative in Small Claims Enforcement (CASE) Act that allows district courts to transfer copyright cases to the CCB. Based on the determination in this case, there are several lessons about using this referral mechanism that claimants and respondents who may be thinking about having a federal case referred to the CCB can learn from and consider.

Some Claims May Have to Be Dismissed for the CCB to Hear the Case: In order to have the CCB hear the case, the claimant had to agree to dismiss one of the claims originally brought in the federal court case. The claimant brought two claims in the federal lawsuit: (1) copyright infringement and (2) violations under the Digital Millennium Copyright Act (DMCA) for removal of Copyright Management Information. But the CCB can only hear three kinds of claims—and removal of Copyright Management Information under the DMCA is not one of them. If the claimant didn’t agree to dismiss that claim, the CCB would not have been able to hear the case because it would have been ineligible for the CCB’s review. It’s something CCB parties should consider if they have a claim or counterclaim that is crucial to them but is one that the CCB would not be able to hear.

The Parties Fast Tracked Their Case Because They Completed Discovery:A significant consideration here was that the parties had already gone through a fair bit of discovery when the matter was going through the federal court process—at least enough where parties agreed that in the CCB proceeding no additional discovery was needed. Because no additional discovery was necessary, the proceeding advanced directly to the written testimony stage, which was completed by the CCB at the end of January. In terms of the impact of skipping the discovery process on the case’s timeline, the CCB was able to issue its final determination one month after the written testimony stage. For parties who have already gone through that lengthy federal process, this means that they can find a quicker resolution to their dispute and have the CCB decide the case, since parties are likely satisfied with the extensive amount of discovery done at the federal level—enough to skip over the discovery process in the CCB. By way of comparison, a federal case could take many months to years to reach a final determination even after discovery is complete because there are additional timelines and motions parties can file before a court issues a final decision. Moreover, judges in federal court cases are often generalists who may not be well-versed in copyright matters and therefore may need additional time to understand and examine the copyright issues in a particular case. In contrast, CCB Officers are well-versed in copyright law and thus are more equipped to come to a final determination more quickly.

Parties Should Thoroughly Address All Elements of a Claim or Defense in Their Arguments

Another takeaway from the determination in this case is the importance for the CCB parties to fully address all aspects of the legal arguments made in a claim or defense. In this case, the respondent admitted to the copying and displaying the claimant’s photograph but argued that such use was allowed under the fair use exception.

The Board rejected respondent’s fair use argument, explaining that it was “fatal” that the respondent failed to address the first three of the four fair use factors. As a reminder, the party arguing that the use qualifies for the exception needs to address all four factors because the Board needs to balance all the factors in its fair use analysis. Even though the respondent failed to provide evidence or arguments relating to the first three fair use factors, the Board did its best to consider the available evidence to evaluate all three factors. After considering the available evidence, the Board concluded that all the evidence pointed to the use not being a fair use (which may have been why the respondent decided not to address the factors in the first place).

More specifically, the Board found that, under the first fair use factor, respondent’s use of the photograph on his website to promote his law firm was commercial and not transformative because the photograph was used to merely illustrate what the photograph depicted (a government building). In considering the second and third fair use factors, the Board found that the photograph was a creative work and that the entire photograph was used on the respondent’s website. With regard to the fourth fair use factor—which was the only factor respondent actually addressed—the Board found that respondent’s use harmed the potential licensing market for the photograph. As a result, the Board found that all four far use factors weighed against a finding of fair use.

CCB parties need to keep in mind, that even if a case is a “slam dunk” (or not) in their own minds, they should still fully address their arguments and defenses before the Board—especially when it comes to very case and fact-specific inquiries like fair use arguments. In this case, maybe the outcome would have been the same had respondent addressed the first three fair use factors. But maybe there was other evidence that the CCB Officers were never able to consider because the respondent failed to provide such evidence. We’ll never know because the respondent did not address each of the fair use factors.

Bringing Many Copyright Claims Doesn’t Make a Claimant a Copyright Troll

The respondent’s other defense was that the claimant had “unclean hands”, i.e., that the claimant acted so unfairly or fraudulently related to the matter in controversy. The Board also rejected this defense, noting that the respondent provided very little evidence on a defense that courts traditionally “rarely recognized.” The only argument the respondent made to support this defense was that the claimant brought a lot of copyright infringement lawsuits in the past. The Board rejected this argument, stating:

“To find that an infringement lawsuit brought by a copyright owner amounts to unclean hands simply due to the volume of other lawsuits by the same owner would take away the rights of copyright owners to sue for actual infringements like the one that clearly occurred here.”

As the Board rightly points out, the Copyright Act allows copyright owners to enforce their copyright whenever their works are infringed. The fact that a copyright owner may be infringed frequently and therefore is forced to bring numerous actions to enforce their exclusive rights under the Copyright Act does not in any way negate or dilute those rights. Moreover, as we’ll see in a moment, the Board’s analysis on damages shows why the possibility of unscrupulous or predatory behavior by a copyright owner is even less of a concern for cases filed with the CCB.

Proof of Actual Damages is Helpful Even When Statutory Damages Are Requested

The Board’s analysis of damages in the case demonstrates that the Board will consider all evidence and arguments on the record to determine an appropriate damage award. The claimant requested the maximum amount of statutory damages (mistakenly at $30,000, which the Board could not grant here because the CCB maximum for statutory damages is $15,000 per infringed work, and there was only one work at issue in the case), which would have been $15,000 here, while the respondent argued the “innocent infringer” defense, asking the Board to only award $200.

The Board first established that the typical minimum statutory damage award is $750. From there, the Board considered whether that minimum should be decreased to $200 under the respondent’s “innocent infringer” defense. It did not decrease the statutory damages because it found that respondent did not provide evidence as to why he or his website developer was unaware and had no reason to believe that taking the photograph and putting it on the website would be copyright infringement. Though the Board noted that the claimant had put a copyright notice on the photograph, which might have defeated the “innocent infringer” defense, it put that fact aside because the respondent had simply not met its burden of proving the “innocent infringer” defense.

Also, after noting that it cannot consider “willfulness” of the respondent to increase the statutory damages amount above the CCB maximum of $15,000 per infringed work (which is timely registered), the Board then applied Ninth Circuit law and noted that proof of actual damages can still have some relationship to how much a court awards in statutory damages. Some factors considered by the Board included:

The expenses saved and the profits reaped;
The revenues lost by the copyright owner;
The value of the copyright;
Deterrent effect on others beside the infringer;
Whether the infringer has cooperated in providing records to determine the value of the infringing material produced;
The potential for discouraging the infringer.

Using applicable factors, the Board looked at the “slim record” of evidence to justify why it eventually awarded statutory damages of $1,000—closer to the typical minimum for statutory damages of $750 per infringed work:

Respondent offered no evidence as to why he or his website developer was unaware and had no reason to believe that taking the photograph and putting it on the website would be copyright infringement;
The respondent’s use of the photograph was for the commercial purposes of promoting his law firm;
The infringing activity lasted for about a year;
Claimant did not provide any evidence of damages or that the respondent reaped gains from the infringing activity;
The photograph was a valuable aerial photograph;
The photograph wasn’t used as a prominent image on the website, but the size of the photograph on the website wasn’t insignificant either.

So, while statutory damages are generally prescribed by the Copyright Act, CCB parties can keep in mind that some proof of actual damages may still help in making a case to the Board that it ought to award statutory damages on either the lower or higher end of the range.

The Board’s application of the relationship of actual damages and statutory damages demonstrates that statutory damages will not be completely untethered, where copyright owners are awarded the maximum amount in every case—addressing a concern that CCB naysayers had when the CASE Act was being considered.

The CASE Act squarely makes so-called “trolling” behavior a non-issue through several features in the CCB, primarily the respondent’s ability to opt out (you can read more in this blog post about why the fear of “trolling” in the CCB is unfounded). And the Board’s award and careful damages analysis further proves that the CASE Act adequately addresses the (non) issue and demonstrates the paucity of this overplayed point coming from the tired anti-copyright playbooks. The combination of features established by the CASE Act— the respondent’s ability to opt-out, damages cap— combined with the Board’s expert and balanced award analyses and faithful execution of the statute—significantly diminish the potential for systematic abuse the CCB.

Final Takeaways

At least in this first final determination, the CCB Officers showed a careful and thoughtful analysis which resulted in a fairly decided case and outcome. The respondent may have lost the case on the merits but will not have to pay more than what a reasonable licensing fee may have cost if he had properly licensed the photograph from the outset. The claimant won the case, but did not reap an exorbitant windfall, and instead was awarded enough to cover some or all costs associated with bringing the CCB case in addition to a presumably reasonable licensing fee for the photograph. For creators who dealt with mountains of infringing uses in the past with little to no tools for recourse, recovering a lost licensing fee is a huge win at the end of the day.

If anything, this final determination shows that this new small copyright claims court isn’t a wild west that those who opposed the CASE Act claimed it would be. Instead, in this first case the Board sent a clear message that the CCB is a forum where both claimants and respondents get a chance to have their day in court— and a fair and balanced day in court, at that.

It will also be interesting in the coming months to see what other takeaways CCB parties can glean from future final determinations. It only took the Board about a month to make this decision from the written testimony stage, and so CCB parties ought to take full advantage of this streamlined proceeding and the expertise of the tribunal by learning how to present an effective case for themselves as possible. This means gaining an understanding and learning about rights, remedies, and defenses under the Copyright Act and about the CCB process. The Copyright Alliance provides lots of educational resources where creators can do just that, through our Educational Resource Page and our CCB Explained page and videos.

February 2023 Roundup of Copyright News

Posted on March 2, 2023February 21, 2024 by Rachel Kim

Post publish date: March 2, 2023

The U.S. Copyright Office was busy during the month of February with a range of activities, including hosting a roundtable on non-fungible tokens (NFTs) and publishing its much-awaited response to a registration application for a graphic novel which was created in part using artificial intelligence (AI). Meanwhile, a major AI-related lawsuit was brought by Getty in the U.S. Here is a quick snapshot of the copyright-related activities that occurred during the month of February as well as a few events to look forward to in March.

Copyright Alliance Activities

CCB Panel Video Released: On February 1, the Copyright Alliance—in partnership with 15 Volunteer Lawyers for the Arts (VLA) organizations—hosted a webinar on the Copyright Claims Board (CCB), titled The Copyright Claims Board—What We Know About the CCB So Far. Panelists included Terrica Carrington, VP of Legal Policy and Copyright Counsel at the Copyright Alliance; Maya Burchette, Attorney-Advisor for the CCB; and Thomas Maddrey, Chief Legal Officer & Head of National Content and Education for the American Society of Media Photographers (ASMP). During the event, which drew more than 400 attendees, panelists took an in-depth look at how things are working with the CCB seven months after its launch by the U.S. Copyright Office. On February 3, we released the recording of the event.

Copyright Alliance Blogs: In celebration of Black History Month, we explored in this blog post this year’s theme of Beauty and Resistance in the context of Black poetry throughout history, examining the lives and works of talented Black poets including Dr. Maya Angelou, Langston Hughes, Audre Lorde, Amanda Gorman, and Jericho Brown.

Copyright Office Activities

CCB Status Update: At the end of February 2023, 377 total cases had been filed with the Copyright Claims Board (CCB). Of these claims, 138 are “smaller claims.” In at least 128 of all cases, the claimant is using legal counsel. At least 329 of the cases involve infringement claims, 54 involve Section 512(f) misrepresentation claims, and eight 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 (177 cases); Literary Works (51); Motion Picture and Audiovisual Works (80); Sound Recordings (38); Musical Works (22); and some cases include claims for multiple works. Thirty-seven foreign residents have filed claims. Of all the cases filed, 193 have been dismissed for the following reasons: Due to Respondent’s Opt Out (26); Due to Failure to Amend Noncompliant Claim (97); Due to Failure to Provide Proof of Service of Process (46); and Claimant Withdrawal and Dismissal of Claims (24). There are 27 active proceedings.

CCB Issues First Final Determination: On February 15, the Copyright Claims Board (CCB) issued its first final determination of a CCB case. The determination was issued in case number 22-CCB-0035, Flores v. Mitrakos, in which 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.

USCO Denies Copyright Registration for AI-Generated Material Included in Graphic Novel: On February 21, the U.S. Copyright Office sent a letter to the attorney of Kristina Kashtanova, a visual artist who previously registered a work that contained artificial intelligence or AI-generated images, explaining that it would be reissuing a certificate of registration that would not extend to any AI-generated material. The Office took the position that while Kashtanova authored the work’s “text as well as the selection, coordination, and arrangement of the work’s written and visual elements,” the images that were generated using AI are “not the product of human authorship” and therefore do not constitute expressive material that can be registered. The Office initially granted the registration of Kashtanova’s work in September 2022 but initiated a review to consider canceling the registration after the AI-generated elements of the graphic novel came to light—mainly images generated using the AI tool Midjourney. In its letter, 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. Further, the Office concluded that for other Midjourney-generated images that were subsequently edited by Kashtanova, the edits were not substantively original enough to be protectable under copyright law.

USCO Holds NFT Roundtable: On January 31, the Copyright Office held a day-long roundtable on the copyright implications of non-fungible tokens (NFTs). The roundtable—which consisted of four separate sessions on topics such as technological processes, creative sector uses of NFTs, and enforcement—was held to help the U.S. Copyright Office and U.S. Patent and Trademark Office (PTO) gather further input on their joint initiative, titled Study on Non-Fungible Tokens and Related Intellectual Property Law Issues. Kevin Madigan, VP of Legal Policy and Copyright Counsel, participated in the first panel, which focused on NFT technological processes. On February 3, the Copyright Alliance filed comments in response to the study which discuss the many opportunities and challenges copyright owners and creators have encountered in the NFT space. The comments also explain that, at this time, NFTs do not pose any particularly unique issues that would require a change in copyright law.

USCO Issues Interim Rule on MMA Reporting and Payment Requirements: On February 1, the Copyright Office issued an interim rule amending the expiration date of the transition period for the Mechanical Licensing Collective (MLC) to implement new reporting and payment procedures that were set forth by the Copyright Office in May 2022. The transition period will now end 30 days after the MLC receives written notice from the Office.

USCO Receives CCB Interim Rules Comment: On February 2, the Copyright Office received a public comment from the Copyright Alliance in response to a request for comments related to the interim rule amending the Copyright Claims Board (CCB) regulations governing the appearance of law student representatives, district court referrals, proof of service forms, and default proceedings. The comments support the Office’s interim rule that clarifies that a claimant need not pay a filing fee when a federal proceeding is referred to the CCB but recommends a possible fee structure if more cases are referred to the CCB by federal district courts.

Biden Administration Activities

NTIA Releases Report on Mobile Application Competitiveness: On February 1, the National Telecommunications and Information Administration (NTIA) released its report on Competition in the Mobile Application Ecosystem, examining the competitive conditions of the mobile application ecosystem. The agency reviewed 150 comments filed in response to the agency’s study, including the Copyright Alliance’s comments. The agency concluded that while the mobile app store model has provided benefits for developers and users, there are suboptimal market conditions resulting from Apple’s and Google’s policies and practices including the companies’ imposition of technical limits.

Congressional Copyright Related Activities

American Music Fairness Act Reintroduced in House and Senate: On February 2, the Senate and House reintroduced the American Music Fairness Act which provides for terrestrial public performance royalties for sound recording artists and performers. The Senate bill, S.253, was introduced by Senator Alex Padilla (D-CA) and cosponsored by Senators Blackburn (R-TN), Tillis (R-NC), and Feinstein (D-CA). The House bill, H.R.791, was introduced by Representative Darrell Issa (D-CA) and cosponsored by Representatives Nadler (D-NY), Lieu (D-CA), and McClintock (R-CA). On February 2, the Copyright Alliance sent letters to those Representatives and Senators, applauding them for their support and reintroduction of the bill.

Senators Named to Senate IP Subcommittee: On February 16, the Senate Judiciary Committee formally adopted its subcommittee lineups. The following Senators from the Democrat Party were named to the Subcommittee on Intellectual Property: Senators Coons (D-DE) (Chairman of the Subcommittee), Hirono (D-HI), Padilla (D-CA), Ossoff (D-GA), Welch (D-VT). The following Senators from the Republican Party were named to the Subcommittee: Senators Tillis (R-NC) (Ranking Member), Cornyn (R-TX), Cotton (R-AR), and Blackburn (R-TN).

Copyright in the Courts

Getty Images Sues Stable Diffusion in the U.S.: On February 3, Getty Images filed a lawsuit against Stability AI, Inc. in the district court for the District of Delaware, alleging that Stability AI infringed Getty’s images and accompanying text and metadata, and removed or altered copyright management information when it used the images scraped from Getty’s websites to train the AI machine, Stable Diffusion. Getty stated that Stability AI’s use of Getty’s works were a “brazen infringement of Getty Images’ intellectual property on a staggering scale” and claimed that Stability AI copied more than 12 million images from its database “without permission…or compensation…as part of its efforts to build a competing business.” The complaint also details the technical procedures of how an image is reproduced and altered by Stable Diffusion during the training process.

USCO Seeks Summary Judgment in AI Authorship Case: On February 7, the U.S. Copyright Office filed a response to a motion for summary judgment in Thaler v. Perlmutter, a case challenging the Office’s denial of copyright registration for a work claimed to be authored by artificial intelligence (AI). The response asks the District Court for the District of Washington DC to deny Thaler’s motion for summary judgment and grant its cross motion, arguing that the Office acted “reasonably and consistently” with the law when it refused to extend copyright protection to the work Thaler represented as created without any human involvement. The motion cites to the many sections of the Copyright Office Compendium that address the “longstanding requirement” of human authorship, explaining that registration decisions that rely on the Compendium cannot be deemed to be “arbitrary and capricious”—and therefore cannot, as Thaler claims, run afoul of the Administrative Procedures Act (APA). The Office also explains that the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship all support its position. Finally, the motion argues that it correctly rejected Thaler’s arguments that he is the owner of the work based on common law or the work made for hire doctrine.

Court Sets Hearing Date in Publishers’ Case Against Internet Archive: Oral arguments in Hachette v. Internet Archive—a case involving Internet Archive’s mass scanning and distribution of literary works without authorization—are set for March 20 at 1 p.m. ET before the U.S. District Court for the Southern District of New York. The parties filed their initial cross motions for summary judgment in July of 2022 and their reply briefs in October of 2022. More information on the case can be found in this report. The Copyright Alliance filed an amicus brief in support of the publishers back in August 2022.

Eleventh Circuit Adopts “Discovery Rule” for Copyright Infringement Remedies: On February 27, in Nealy v. Warner Chappell Music, Inc., the Court of Appeals for the Eleventh Circuit held that when a copyright owner-plaintiff makes a timely claim for an infringement that occurred more than three years before a lawsuit was filed, they may still recover damages of that infringement. The Eleventh Circuit’s decision adopts the “discovery rule” approach, also taken by the Ninth Circuit. This is a split from the Second Circuit which has held that remedies for infringement are limited to the three-year statute of limitations preceding the filing of a lawsuit.

Copyright in Other Countries

UK Government to Retract Its Broad TDM Exception Proposal: On February 1, Minister for Science, Research, and Innovation, George Freeman, announced that the United Kingdom government will take a step back from its original proposal put forth in the summer of 2022 for a broad exception for the text-and-data mining of copyrighted works for any purpose in UK’s copyright laws. The Minister noted that the government will further consult stakeholders in the coming months to “ensure that we do not rush precipitately into a knee-jerk move that is wrong.”

EU Refers 11 Member Countries to Court of Justice for Failing to Transpose Copyright Laws: On February 15, the European Commission referred 11 Member States to the Court of Justice of the European Union for failing to notify the Commission of the transposition of various copyright measures under the Digital Single Market Directive (Bulgaria, Denmark, Finland, Latvia, Poland and Portugal) and the EU directive on online transmissions (Bulgaria, Finland, Latvia, Poland, and Portugal).

UKIPO Issues Report on Termination Rights and Contract Adjustment: On February 6, the United Kingdom Intellectual Property Office (UKIPO) published a report on the potential implications of introducing a termination and contract adjustment right into British copyright law and examining the landscape of termination rights in other countries and other industry-led initiatives.

UKIPO Publishes Results from 12^th Wave Copyright Infringement Survey: On February 3, the United Kingdom Intellectual Property Office (UKIPO) published the results from its 12^th Wave online copyright infringement tracker survey, which showed that overall levels of copyright infringement across all content categories (excluding visual images) increased from 25% to 32%.

Industry Activities

U.S. Chamber Releases 2023 International IP Index: On February 22, the U.S. Chamber of Commerce released the 2023 International IP Index. Now in the 11^th edition, the Index benchmarks the IP framework in 55 global economies across 50 indicators. Further, the 2023 report data “highlights a crucial turning point in the global IP landscape. As multilateral organizations continue to debate the future of IP and some of the world’s major economies—including the United States—propose unsettling policy changes, the decisions to be made by policy makers will carry unprecedented weight.”

Look Forward To And Save the Date For…

Copyright Public Modernization Committee Public Meeting: On March 2 at 1 p.m. ET, the Library of Congress will host a virtual meeting of the Copyright Public Modernization Committee (CPMC). In addition to updates from the Library of Congress and U.S. Copyright Office staff on the development of the Enterprise Copyright System, meeting attendees will be shown a live demonstration of the Office’s registration application currently in development, followed by a discussion with committee members and a Q&A. The event is free and open to the public. Participants must register in advance to attend. More information is available on the registration page.

Copyright and AI in Film and Video Production: On March 4 from 1-3 p.m. ET, the DC Independent Film Festival, Washington Area Lawyers for the Arts (WALA), and the Copyright Alliance will host a panel discussion regarding the rapid advancement of Artificial Intelligence (AI) technologies that are continuing to alter and impact creators’ lives everywhere—including the film and video community. The use of AI technologies is resulting in copyright and ethical issues surrounding the training and use of AI systems, their impact on copyrighted works, and how creators and filmmakers use AI in their own creations. Our expert panelists will discuss copyright issues in AI and the implications for the film and video industry. More information is available on the registration page.

WALA Copyright/Trademark Protection & Use Webinar: On March 7 from 11 a.m.-12:00 p.m. ET, the Washington Area Lawyers for the Arts (WALA) is hosting the next session of its Creative Entrepreneurs Series. During the event, attendees will explore the basics of forming a creative business, focused on understanding copyrights and trademarks, contract and negotiation skills, and taxes and grants. More information is available on the registration page.

2023 SXSW Annual Event: From March 10^th at 8 a.m. to March 19 at 5 p.m. ET, the SXSW annual March event will take place. The event “features conference sessions, film & TV festival screenings, music festival showcases, world-class exhibitions, competitions, awards ceremonies, and much more.” Attendees will experience panel discussions, speakers, professional development, and networking with fellow creatives from around the globe. More information is available on the registration page.

Copyright Society Fireside Chat/Reception to Honor Justice Stephen Breyer’s Copyright Legacy: On March 20 at 4:00 p.m. ET, the DC Chapter of the Copyright Society, in partnership with the George Washington University Law School, will host a two-part event in honor of Justice Breyer’s Copyright Legacy. Part one will feature a Fireside Chat with Justice Breyer and Professor Robert Brauneis; and part two will feature a panel discussion with academics and practitioners. More information is available on the registration page.

Register Perlmutter to Speak at LA Copyright Society Event: On March 23 at 11:30 a.m. – 2:00 p.m. PT, the LA Chapter of the Copyright Society will host its annual event titled Copyright and the California Coast, which will be presented by Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. During the event, Register Perlmutter will provide an update on the state of copyright as well as share information on the Office’s priorities. More information is available on the registration page.

Tin Pan South Songwriting Seminar (TPSSS): From March 27-28, the Tin Pan South Songwriting Seminar (also known as TPSSS and formerly known as Spring Training) will be presented by NSAI and Belmont University. The seminar is described as the “perfect event for songwriters of any genre and any skill level to further develop their songwriting toolkit, build a stronger network, and learn [by attending] enriching segments from experts across the music industry.” Past attendees include hit songwriters such as Jon Vezner, Tia Sillers, Barry Dean, and Lance Carpenter. Once attendees register, they will have the opportunity to submit a song for consideration to be played on Night One of the Tin Pan South Songwriters Festival. More information is available on the registration page.

USCO Monthly Recordation Webinar: On March 30 at 1 p.m., the U.S. Copyright Office will hold its next webinar in a series 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 transfer their copyrights to someone else electronically. The webinars will “cover announcements about the module, important reminders, frequently asked questions, and a live Q&A session.” Anyone interested in attending (including members of the public) may join the session. More information is available on the registration page.

Posted on February 2, 2023February 21, 2024 by Rachel Kim

Post publish date: February 2, 2023

If this past month is any indication, then 2023 promises to be another busy year in copyright law. Here is a quick snapshot of the copyright-related activities that occurred during the month of January as well as a few events to look forward to for the month of February.

Copyright Alliance Activities

Copyright Alliance Blogs: The Copyright Alliance posted some new blogs during the month of January.

We started off 2023 with our year in review blogs focusing on last year’s newsworthy and impactful copyright cases, U.S. Copyright Office activities, and copyright legislation. Following that, our CEO, Keith Kupferschmid, highlighted some of the most significant copyright issues likely to arise in 2023.

The International Intellectual Property Alliance (IIPA) released its much anticipated Copyright Industries in the U.S. Economy: The 2022 Report (2022 Report). IIPA’s Executive Director, Kevin Rosenbaum, highlights in this blog post some key findings and takeaways from the report in this blog and how these findings affirm importance and impact of the creative sector on the U.S. economy.

Copyright Office Activities

CCB Status Update: At the end of January 2023, 324 total cases had been filed with the Copyright Claims Board (CCB). Of the 324 cases, 124 are “smaller claims.” In at least 102 of all cases, the claimant is using legal counsel. At least 279 of the cases involve infringement claims, 48 involve Section 512(f) misrepresentation claims, and six involve non-infringement claims. The eCCB docket currently shows that the works at issue in these cases are as follows: Pictorial Graphic & Sculpture (155 cases); Literary Works (46); Motion Picture and Audiovisual Works (64); Sound Recordings (30); Musical Works (19); and some cases include claims for multiple works. Thirty-seven foreign resident(s) have filed claims. Of all the cases filed, 173 have been dismissed for the following reasons: Due to Respondent’s Opt Out (25); Due to Failure to Amend Noncompliant Claim (93); Due to Failure to Provide Proof of Service of Process (93); and Claimant Withdrawal and Dismissal of Claims (16). There are 27 active proceedings.

USCO Appoints Andrew Foglia as Deputy Director of Policy and International Affairs: On January 17, Register of Copyrights Shira Perlmutter announced the appointment of Andrew Foglia as Deputy Director of Policy and International Affairs for the U.S. Copyright Office. In his new role, “Foglia will assist the Associate Register of Copyrights and Director of Policy and International Affairs with the critical policy functions of the Office, including domestic and international policy analyses, legislative support, and trade negotiations.” Foglia joined the Office in November 2020 as Senior Counsel for Policy and International Affairs. Prior to joining the Office, Foglia worked in Winston & Strawn’s Copyright, Media, and Technology group for five years, where he focused on the Digital Millennium Copyright Act (DMCA) and mass-infringement cases. Foglia earned a J.D. from Duke University School of Law and a B.A. from Davidson College.

USCO Holds NFT Roundtable: On January 31, the U.S. Copyright Office held a day-long roundtable on the copyright implications of non-fungible tokens (NFTs). The roundtable—which consisted of four separate sessions on topics such as technological processes, creative sector uses of NFTs, and enforcement—was held to help the Copyright Office and U.S. Patent and Trademark Office (PTO) gather further input on their joint Study on Non-Fungible Tokens and Related Intellectual Property Law Issues. Similar roundtables were recently held on the implications of NFTs for patents and trademarks. The roundtable sessions were open to the public and recorded, and they will soon be posted to the Copyright Office’s NFT study webpage. In addition to participating in the roundtable, the Copyright Alliance will be submitting written comments before the February 3 deadline.

Copyright in the Courts

Class Action Lawsuit Filed Against Stability AI, Midjourney, and DeviantArt: On January 13, artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed a class-action lawsuit 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.

Getty Images Sues Stability AI in the UK: On January 17, Getty Images announced that it has filed a lawsuit against Stability AI in the High Court of Justice in London for unlawful copying and processing of millions of copyrighted images and the metadata thereof, which are owned or administered by Getty. Getty stated that, “Stability AI did not seek any [AI] license from Getty Images and instead, we believe, chose to ignore viable licensing options and long‑standing legal protections in pursuit of their stand‑alone commercial interests.”

YouTube Granted Partial Summary Judgment in Schneider Infringement Class Action: On January 5, the U.S. District Court in the Northern District of California granted in part and denied in part YouTube’s motion for summary judgment seeking to dismiss infringement claims brought by composer and musician Maria Schneider. The class action case was brought against YouTube in 2020, with Schneider and others alleging that YouTube facilitates infringement by not enforcing a repeat infringer policy and not offering smaller or individual copyright owners the same opportunity to remove infringing works through its anti-piracy tools as it does for larger content creators. After its motion to dismiss was denied, YouTube moved for summary judgment, arguing that (1) Schneider licensed her works to YouTube; (2) Schneider did not present evidence of a DMCA violation; and (3) the claims were untimely. In the order granting in part and denying in part YouTube’s motion, the court dismissed all claims related to 27 works, which it said discovery failed to produce any evidence of infringement. As to the licensing defense, the court denied summary judgment, finding that there is a quintessential factual dispute. Addressing the argument that Schneider’s claims are untimely, the court found that YouTube established that Schneider had knowledge of 121 infringements more than one year before she filed suit, and thus they are barred by the one-year limitations clause in YouTube’s terms of service, which Schneider agreed to when she created a YouTube account and uploaded several videos containing her music.

Court Finds That Facebook Does Not Qualify for DMCA Safe Harbor: On January 4, the district court for the Northern District of California partially granted and denied a motion to dismiss brought by Meta in the lawsuit filed against it by fine artist, Jennifer Cook. Cook sued Meta in April 2022, alleging that Meta did not expeditiously remove infringing content in response to her Facebook DMCA notifications about advertisements and accounts using stolen images of Cooks’ snake sculptures. The court held that Meta did not qualify for the DMCA safe harbor and rejected Meta’s argument that the platform had acted expeditiously when the infringing material was removed within 24 hours of notifying the platform’s IP counsel since the notification and removal process happened outside of the platform’s official DMCA process.

Thaler Files Summary Judgment Motion in AI Authorship Copyright Case: On January 10, Dr. Stephen Thaler, who filed a lawsuit against the U.S. Copyright Office for its rejection of Thaler’s registration application for an AI-authored work, A Recent Entrance to Paradise, filed a motion for summary judgment. Thaler argues that the plain language of the Copyright Act establishes that AI-generated works are eligible for copyright protection and that is the copyright owner of the AI-generated work by either common law property principles or through the work-made-for-hire doctrine.

Copyright in Other Countries

USTR Releases Notorious Markets Report: On January 31, the Office of the U.S. Trade Representative released its 2022 Review of Notorious Markets for Counterfeiting and Piracy. The report highlights examples and markets that reportedly engage in, facilitate, or turn a blind eye to, or benefit from substantial piracy or counterfeiting. The topic of this year’s report focuses on The Impact of Online Piracy on U.S. Workers.

Belarus Legalizes Piracy of Copyrighted Works from ‘Unfriendly Countries’: On January 3, Belarus’ president, Alexander Lukashenko, signed a bill into law that effectively legalizes the piracy of copyrighted works including audiovisual works and software owned by rightsholders of “unfriendly countries” and allows for the unauthorized importation of IP goods from such countries. The law additionally requires users of these works to pay for such use and send funds to a state-owned account administered by the National Patent Authority. Rightsholders can claim funds that are legally theirs within three years from the date of the credit. The law will remain in effect until December 31, 2024.

One of Sci-Hub’s Main Domain Names Is Deactivated by Domain Registry: According to reports, one of Sci-Hub’s main domain names, ending in .se, has been deactivated by the domain name registry. The .se domain is managed by the Swedish Internet Foundation, which commented that the domain name owner received relevant information that led to the deactivation of the domain name for the academic publishing pirate website.

Indian Court Issues First Interim Website Blocking Order Against Stream-Ripping Websites: On January 12, the High Court of Delhi granted an interim order in favor of a group of record label companies, requiring Indian Internet Service Providers to block access to 18 defendants operating stream ripping websites that collectively drew approximately 20 to 22 million visits per month. According to the International Federation of the Phonographic Industry (IFPI), this is the first successful site blocking order issued in India targeted against stream ripping sites in the country.

French ISPs and Sports Programming Association Partner in an Anti-Piracy Pact: On January 18, France’s national anti-piracy agency, the Audiovisual and Digital Communication Regulatory Authority (ARCOM), announced that the Association for the Protection of Sports Programs (APPS) and four major French Internet Service Providers signed an agreement to partner on implementing anti-piracy measures against illicit websites and an agreement on how site blocking costs should be covered.

New Report Indicates Live TV Piracy Cost €1.8 Billion in Economic Losses in Germany: Consulting and research group, Goldmedia, released a new report, showing that live television piracy cost €1.8 billion annually in economic losses in Germany. According to the report, 72% of those streaming live TV did so illegally at least once a week.

Industry Activities

Whitepaper Reports a Disproportionate Number of Pirate and Counterfeit Websites Utilize Cloudflare’s Services: Corsearch, a brand protection company, released a whitepaper that showed a disproportionate number of websites are engaging in online piracy using Cloudflare’s services. Corsearch reported that 71% of websites that it notified to Google for search engine demotion used Cloudflare’s Content Delivery Network (CDN) services and that nearly half of all websites flagged for pirated copyrighted works, including film, TV, music, and photography, used Cloudflare.

Look Forward To And Save the Date For…

Deadline for Comments to USCO on CCB Interim Rules: February 2 is the submission deadline for comments responding to the U.S. Copyright Office’s interim rule amending its regulations governing the appearance of law student representatives before the Copyright Claims Board (CCB), district court referrals, proof of service forms, and default proceedings. The interim rules allow the CCB to modify or suspend certain rules when a claim is referred by a district court and, in cases that are first filed before the CCB, accept alternative proof of service forms. The new rules also clarify the rules governing default proceedings and law student representations.

Deadline for Comments to USCO and USPTO on NFT Study: February 3 is the submission deadline for written comments responding to the U.S. Copyright Office and U.S. Patent and Trademark Office’s notice for comments on their joint study on issues regarding intellectual property issues that arise from the use of non-fungible tokens (NFTs).

California Copyright Conference and SONA Host “Writers in the Round”: On February 7 from 6:15 – 9:15 p.m. PST, the California Copyright Conference, in partnership with SONA, is hosting a night of music, stories, and networking. In addition, there will be live performances “as songwriters perform their hits and [share] the dirty little secrets behind each song.” Business representatives will join music artists on stage to talk about the business side of songwriting. Attendees are invited to bring their questions. More information is available on the registration page.

Copyright Society 2023 Midwinter Meeting: On February 9-11, the Copyright Society will host its Midwinter Meeting for members of the copyright and entertainment communities to convene from across the globe. Speakers include Clark Asay, Hugh W. Colton Professor of Law at BYU Law School; Naomi Jane Gray, principal at Shades of Gray Law Group, P.C., and immediate Past President of the Copyright Society; Elaine K. Kim, partner in Entertainment, IP, and Litigation practice groups at Mitchell Silberberg & Knupp LLP (MSK); and many others. More information is available on the registration page.

NAIAC Open Meeting on AI: On February 10, the National Artificial (AI) Intelligence Advisory Committee (NAIAC) will hold an open meeting in-person and online to discuss how to direct their input into actionable recommendations to present to the President and National Artificial Intelligence Initiative Office. The final agenda and registration information can be found on the NAIAC website once it becomes available. Comments may be submitted on agenda items before and during the meeting.

USPTO Hosts 2023 Black Innovation and Entrepreneurship Program: On February 10 from 2:00-4:30 p.m. EST, the U.S. Patent and Trademark Office is hosting the 2023 Black Innovation and Entrepreneurship Program to assist aspiring entrepreneurs, inventors, and small business owners who want to “transform their innovation into an enterprise.” The event will feature Black entrepreneurs, small business owners, and inventors as panelists, “who will discuss resources and services that can help you access capital, protect your intellectual property (IP), find mentors, and network with fellow innovators and entrepreneurs.” More information is available on the registration page.

USCO Monthly Recordation System Webinar: On February 23, the U.S. Copyright Office will hold its 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 webinar 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.

The CCB at Six Months: What We Have Learned About the CCB So Far

Posted on December 15, 2022February 21, 2024 by Rachel Kim

Post publish date: December 15, 2022

Today marks six months since the U.S. Copyright Office launched the Copyright Claims Board (CCB)—the small copyright claims court established by the Copyright Alternative in Small-Claims Enforcement (CASE) Act. Although virtually all the cases filed with the CCB in the first six months are still in the early phases, it’s not too early to take a look at the CCB and analyze how it is working so far. There are some interesting trends to note that may guide potential CCB claimants who are considering whether to file claims, prospective respondents who are trying to determine whether to participate or opt out, and all parties as they learn how to best navigate this new small copyright claims tribunal.

Domestic and Foreign Creators are Filing Claims–Most Without Using Attorneys

As of the writing of this blog post, more than 260 cases were filed with the CCB at a rate of about 1.5 cases a day. We thought there might be a rush of cases filed when the CCB first launched, followed by a decrease and plateau as the months progressed. Interestingly, that is proving not to be the case so far as the number of cases filed each month has remained steady over the past six months, which may signal the CCB’s longevity and desirability as a forum for resolving certain copyright disputes.

Of the 260 or so cases filed, a little over 80% of the claims filed have been infringement claims. This is a testament to the need and desire for the CCB, evidenced by the support of thousands of creators who called for the creation of a small copyright claims system so they could enforce their rights. As individual creators and small businesses have been enforcing their copyrights in the new small claims court, we are heartened that they have the opportunity do so.

It is particularly interesting to see that foreign claimants have filed a little over 10% of the CCB cases. Remember, the CASE Act allows foreign claimants to file CCB claims, but neither a foreign nor a U.S. resident CCB claimant may file claims against a foreign respondent (although a U.S. resident who is a respondent in a CCB proceeding may file counterclaims against a foreign claimant). While the CASE Act was pending we heard from many creators and small businesses, but virtually all of them were U.S. residents so we had no idea that the CCB would also be so fervently welcomed by creators and copyright owners throughout the globe who, like their U.S. counterparts, had little to no recourse to enforce their rights in the United States.

Not surprisingly, in roughly two-thirds of the CCB cases, the claimant is not using an attorney. Since the CCB was designed to be an affordable and accessible alternative to federal court where CCB parties could represent themselves, it’s encouraging to see that goal be realized and verified by the numbers showing that the majority of these claimants are bringing CCB claims on their own.

However, it is not a surprise that some difficulties arise when claimants represent themselves. Unfortunately, many CCB claimants do not fully understand how to use the CCB or understand some of the intricacies of copyright law. That has led to many claims needing to be amended—resulting in increased review time by CCB attorneys, longer timelines caused by multiple back-and-forths between claimants the CCB attorneys, and many claims being dismissed. While these struggles are not ideal and results in a more cumbersome experience, they are not insurmountable obstacles for CCB claimants. The amendment and dismissal processes for noncompliant CCB claims can help educate individual creators and businesses about the scope of their rights so that they better understand copyright law and their rights going forward. And as the U.S. Copyright Office and we at the Copyright Alliance make more educational materials available to help CCB parties, we are confident the number of amendments and dismissals will decrease over time.

The CCB Begins Hearing its First Cases

As of the writing of this blog post, there are seven active proceedings and no determinations rendered by the CCB. This low number is not surprising for several reasons including that the CCB regulations give ample opportunities and time for claims to be corrected through amendments and to move through the process before the case comes before the CCB Officers as an active case. For example, once the claimant files a CCB case, if the claim is found not to be in compliance, the claimant will be given 30 days to amend the claim, followed by a second 30-day opportunity to amend the claim if the initial amendment still fails to comply with the requirements. Once the CCB attorney approves the claims for service of process, the claimant has 90 days to complete service on the respondent and then, once the respondent is served, they have 60 days to decide whether to participate or opt out of the proceeding. These timelines don’t include review time by the CCB attorneys, possible extensions granted by the CCB attorneys, or other situations that could prolong the initial stages of a CCB proceeding. So, it could take roughly five months or longer before a case becomes an active proceeding.

But not all active cases have to go through those stages or take that long to become an active case. In fact, the origins of the first active CCB case may be surprising. There is a little-known provision in the CASE Act that allows a federal judge to refer a copyright case that is pending in federal court to the CCB, upon the mutual consent of the parties to the case. So when the first active CCB case turned out to be a case that was referred to the CCB from the Central District of California, it was a bit of a surprise to just about everyone and a good sign that judges and litigants view the CCB as a viable and appropriate alternative to federal court.

Claimants Are Using the CCB to Try to Settle Their Copyright Disputes or Resolve Their Copyright Disputes as a Precursor to Filing in Federal Court

In a little over 10% of the cases that have been dismissed by the CCB, the claimant voluntarily dismissed the case. We are aware of several cases in which a voluntary dismissal occurred as the result of a settlement between the parties. When the CASE Act was being considered, we thought that the CCB would lead to increased respect for the rights of copyright owners and lead to more settlements, and, at this early stage, that seems to be the case.

There is also evidence that the CCB is being used by claimants who otherwise would file their claims in federal court, but instead decided to first file at the CCB in an attempt to resolve their copyright dispute quickly and inexpensively without needing to file in federal court. For example, after the CCB claim in Dermansky v. Hayride Media was dismissed due to the respondent opting out of the CCB proceeding, the CCB claimant then brought those claims to a federal court in the Eastern District of Louisiana. The CCB claimant, now plaintiff, noted to the court in paragraphs 33 and 34 of the complaint that the copyright claims were first filed in the CCB as an attempt at a “cost-efficient and streamlined conclusion to this matter . . .” In paragraph 36, she points out that the defendant’s decision to opt out of the CCB proceeding opens them up to potentially increased damages as well as additional remedies for claims that were not available before the CCB. This demonstrates that respondents should carefully consider whether claimant might file in federal court when determining whether to opt out or participate in a CCB proceeding, in addition to a slew of other factors to consider. A list of the factors to consider were outlined in this blog post about what a respondent might consider when presented with the option to opt out.

What We Know About Opt-Out So Far

The most frequently asked question we get about the CCB is why respondents can opt out of a CCB proceeding. As we explain on our FAQ page, CCB participation is voluntary in order to comply with the requirements of the U.S. Constitution. Understandably, the opt-out provision is concerning for claimants who want to enforce their copyrights in a meaningful way without taking on the expenses and headaches of a federal lawsuit.

At this stage, there is not yet a sufficient sample size to draw conclusions about respondents’ behaviors, including decisions on whether to opt-out, and we caution readers not to place too much emphasis on any opt-out figures at this early stage. What we can say, however, is that so far only about 10% of the cases dismissed by the CCB have been dismissed due to a respondent’s opt out, showing that opt-outs are not proving to be the primary driver of dismissals at the CCB.

Claimants Are Still Learning How to File Permissible Claims and Serve Process

The biggest reason why the CCB dismisses cases is not because the respondents are opting out or settling—instead, it is because claimants are not meeting CCB requirements and deadlines. About 80% of the cases dismissed by the CCB are dismissed because of claimant’s failure to meet CCB requirements and deadlines. The issues could stem from a host of reasons. But one of the biggest reasons seems to be that many claimants do not understand how to file permissible claims with the CCB. As we note in our CCB videos and FAQ page about permissible claims, there are certain requirements to properly file a claim with the CCB such as understanding that:

the CCB can only hear three types of copyright claims (no patent, other intellectual property, or non-copyright claims allowed);
claimants cannot bring claims against certain respondents (for example, a claimant cannot bring a claim against foreign residents); and
the CCB cannot grant injunctions.

From claims filed so far at the CCB, we also found that claimants might need to better understand the elements of proving copyright infringement. Over the coming months we’ll be providing more detailed information about the elements of infringement. In the meantime, you can check out our general page on How to Prove Copyright infringement.

The Copyright Claims Attorneys (CCAs) assist claimants by notifying claimants about the noncompliance of certain claims. CCB claimants, if they want their case to proceed, must amend their claims to be compliant with CCB regulations by the deadlines given by the CCAs. If not, the CCB will simply dismiss the case. To avoid having their cases be dismissed CCB claimants should also keep in mind these ten things when filing a CCB claim.

CCB claimants also seem to struggle with completing service of process—the method through which the claimant notifies the respondent(s) of the CCB claims. About 10% or so of CCB cases that are dismissed because of a failure to comply with CCB orders are dismissed due to the claimant failing to provide proof of service by the CCB’s deadline. Admittedly, service of process is a part of the CCB proceeding that can be difficult to figure out because rules vary from state to state, but it is nonetheless crucial. The Copyright Alliance has a video and FAQ page on CCB service of process which explains, among other things, what documents must be served on the respondent, how much time the claimants have to serve the respondents, and who can serve the respondents. There are also other resources that provide information about state-specific service of process rules.

Conclusion

It is too early to make any definitive statements about which aspects of the CCB are working well and which are not, and how the CCB is actually working in practice. As the creative community familiarizes itself with CCB requirements, copyright law requirements, and the procedures and processes of the CCB—especially service of process—we expect the number of cases dismissed by the CCB begins to decrease.

The Copyright Alliance has many educational videos and FAQs on our website and we will continue to create new educational materials and putting on educational events. So if you are a claimant or respondent looking for more information about the CCB, please remember to check our website for information regularly. And we’ll check back in in June 2023 to take another look at the CCB.

AI and Copyright: AI Policies Must Respect Creators and their Creativities

Posted on December 8, 2022February 21, 2024 by Rachel Kim

Post publish date: December 8, 2022

The exponential development of Artificial Intelligence (AI) systems represents a profound achievement of the digital age that brings with it tremendous opportunities. In fact, many in the creative community are already using or plan to use AI for the creation of a wide range of works and are developing and pushing AI capabilities to explore new creative horizons. But as with many advances in technology, these new opportunities come with challenges and often raise difficult legal questions.

Artists, authors, and many other types of creators are increasingly concerned (and rightly so) about the tendency of some to ignore or discount issues relating to copyright in the AI context. Though the application of copyright law to AI may be tricky at times, it is essential that these issues not be ignored or given short shrift in the AI discussion just because AI is the shiny new toy. Rather than sweep important copyright issues under the rug for fear of slowing AI’s progress, policymakers, lawmakers, stakeholders, and the public must respect the rights of creators and copyright owners and recognize and appreciate the underlying goals and purposes of our copyright system.

The Relationship Between AI and Copyright Law

Well before the recent explosion in AI development, the creative community has been using AI technologies and innovating in the space. On the output side of AI, creators and copyright holders use or actively develop AI technologies as part of their larger creative process. For example, video game developers utilize AI systems and technologies to provide new and improved gaming experiences, such as when players interact with in-game, non-player characters. Television and filmmakers also often incorporate computer generated images (CGI) into their works that are created with the help of AI programs. In the music industry, artists and producers are employing AI tools for everything from beat creation to voice modulation.

On the input side of AI, the primary way the creative community drives AI innovation and development is by creating and disseminating copyrighted works that are used to train AI systems. At best, the creative community collaborates with and innovates as a part of the AI community by developing and improving AI technologies, licensing works for use as training material, or using AI as a tool to generate or make new works. At worst, copyrighted works are used by AI technologies without authorization or licenses—sometimes for the purpose of creating works that serve as direct market substitutes for the ingested works—undermining the rights of artists, creators, and copyright owners and their abilities to protect, license, and enforce their copyrights.

Sadly, it is the latter situation that is becoming more widespread in the AI world where the works of countless creators and copyright owners are being used without permission or compensation. This especially true and especially harmful with commercial AI uses.

Using Copyrighted Works as AI Inputs

An AI’s creative output is only good as the corpus of creativities it ingests. For example, if a human prompts an AI machine to generate an image to accurately imitate the work of a famous visual artist, like Jean-Michel Basquiat, the AI machine must analyze and copy the expressions that are unique to Basquiat’s works. But what is sometimes lost on AI system developers and users is that the underlying works, which the AI draws from, are more often than not created by a human creator. That human creator depends on the rights and protections granted to them by copyright law to commercialize and control their works, including the ability to license their works for use as AI input (or to stop others from using their works without authorization).

Creators and copyright owners also make contributions to the development of AI technologies by priming copyrighted works for optimal AI application and development through activities like semantic enrichment, metadata tagging, content normalization and data cleanup. Copyright owner-curated and prepared AI training data sets, databases, or collections of works also feature additional benefits like secured licensing and permissions from third parties, which reduce privacy and infringement risks for AI developers and users. It is copyright laws which incentivize and protect the investments creators and copyright owners make when creating and preparing these kinds of works for AI.

Text-and-data mining (TDM) is the process through which AI machines develop their unique algorithms and capabilities by analyzing, reproducing, and otherwise using valuable data and expressions often contained in copyrighted materials. TDM uses input materials to develop trends, algorithms, and methods that can generate output works. During TDM, an AI machine might very well be analyzing numbers, statistics, and other non-copyrightable pieces of information. But AI machines that generate output like images, videos, or songs, risk displacing or substituting for the very underlying copyrighted works that are used to train the AI. During TDM of copyrighted works, the AI machines are often culling the expressive, copyrightable value contained in the ingested works, as mentioned previously with the Basquiat example.

Many creators and copyright owners currently offer TDM licenses so their works can be used to train AI systems. Copyright law enables creators and copyright owners to create works that are fuel for AI development, and there must be respect and recognition of the laws and rights that protect their ability to license (or not license) their works. Particularly where AI machine outputs serve as replacements or substitutes in the markets for the ingested works, any artificial disturbance or heavy-handed approaches to manipulate the existing market for TDM licenses for copyrighted works, without being supported by evidence, results in creators and copyright owners subsidizing AI development. When works are used without authorization, licensing markets—the fundamental ability of a copyright owner to control and commercialize their works—are effectively destroyed.

No Broad Exceptions or Justifications Exist for AI Use of Copyrighted Works

The disturbing reality is that many AI companies do not license copyrighted works to train AI machines. Nor are they transparent about the sourcing of their training data sets. Some companies simply scrape existing copyrighted content from the internet including images, text, and software code to use as training data sets. Other companies engage in a practice called “data laundering” where they fund or use data sets created by academic or research institutions for initially noncommercial purposes to train commercial AI machines.

In the discussion surrounding the use of copyrighted works to train AI systems, some stakeholders wrongly justify these practices with the argument that the fair use exception would wholesale permit such methods or could justify broad copyright exceptions for AI use. That view is inaccurate— especially in a case where a TDM license is available, the use is commercial, or the resulting AI generated work harms the actual or potential market for the ingested work. Fair use is such a fact-specific exception that it is an unreliable basis to build any broad AI exceptions on or to make general claims that these AI practices are excused from blatant copyright infringement.

AI and Copyright Laws Around the World

For many years now, lawmakers and policymakers in a number of countries, including the United States, have been carefully examining the intersection of copyright law and AI and the implications of this rapidly evolving technology. Even as a global leader in AI technologies, the United States has not deemed it necessary to enact or recommend any new exceptions to copyright law for AI purposes. And for good reason: licensing to support AI application is robust and without contrary evidence there is potential for significant harm by prematurely upending creators and copyright owners’ copyrights.

The United States is not alone in its treatment of the AI licensing market and its relation to copyright law. Very few countries have considered AI regulations and policies with respect to copyright laws including, Hong Kong, South Korea, Australia, and Canada. Significantly, each country has declined to take action, postponed decision making as premature, or otherwise not taken action. In varying degrees, only the European Union, Japan, Singapore, and the United Kingdom have AI policies and regulations within their copyright laws.

One example of a country with problematic AI-copyright regulations is Singapore, which overbroadly permits unauthorized TDM of copyrighted works, including for pirated works, for any purpose with no ability for rightsholders to opt out or contract around the exception. Policies such as Singapore’s severely undermine the fundamental ability of creators and rightsholders to be compensated for the use of their copyrighted works, discouraging them from creating the works and depriving them of the fruits of their labor. Unfortunately, the United Kingdom is also considering following this troubling precedent, with a proposed exception for TDM of copyrighted works for noncommercial and commercial uses, with no ability for creators and copyright owners to contract around the exception. Needless to say, many in the U.K. creative community have decried the proposal, and we can only hope that the U.K. will reverse course to avoid undermining a critical part of their economy.

Key Principles and Takeaways for Examining AI and Copyright

As AI technologies continue to progress at a rapid pace and make incredible advancements, AI stakeholders, courts, policymakers, and the public should keep in mind several key principles when analyzing the intersection between AI and copyright.

When formulating new AI laws and policies, it is essential that the rights of creators and copyright owners be respected.

Long standing copyright laws and policies must not be cast aside in favor of new laws or policies obligating creators to essentially subsidize AI technologies.

Education is paramount in the AI space. Those leading AI projects are aware of the legal implications of using copyrighted works input material, and those that arise from AI-generated output

Along these lines, we the Copyright Alliance recently published our position paper on AI and copyright law issues that outline the above key principles and also points out some other detailed positions of the copyright community on AI. It is critical to AI innovation that the creative contributions and impact of the creative community to AI are acknowledged and that the foundations of copyright law that made AI possible in the first place are preserved and respected.