February 2023 Roundup of Copyright News
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 12th Wave Copyright Infringement Survey: On February 3, the United Kingdom Intellectual Property Office (UKIPO) published the results from its 12th 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 11th 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.
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.
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.
2023 SXSW Annual Event: From March 10th 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.
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.
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.
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.
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.
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