How to Find the Right Law Firm to Bring Your Copyright Infringement Suit Against an AI Company
If “It’s a Wonderful Life” were remade today, they might have to change the iconic phrase from “every time a bell rings, an angel gets his wings” to “every time a bell rings, a copyright owner sues another AI developer.” That’s because there are now close to 50 copyright infringement suits that have been filed by copyright owners against AI companies for training on their works without payment or permission. If it seems like that’s a lot, well, that’s because it is.
Of the nearly 50 cases, there are over a dozen class actions brought by groups of authors of literary works against large language model (LLM) developers (and many of those cases have been consolidated). There are also cases brought by visual artists, movie studios, news publishers, computer programmers, and others. The types of works involved in most of the cases are literary works, but there are also cases involving music compositions and song lyrics, sound recordings, computer code, photographs, videos, and databases. Most of the cases have either been brought in the Northen District of California or the Southern District of New York, although there are also several cases that were filed in other district courts as well.
A few new AI infringement cases were filed recently, and we suspect that the number of cases being filed will continue to increase. Therefore, we thought it would be helpful if could provide some guidance to creators regarding one of the first steps in this process—hiring a law firm to take your case.
There are many different considerations that anyone contemplating bringing a copyright infringement suit against another party should take into account. For example, a potential plaintiff should always keep in mind the potential recovery amount, the likelihood of success, how complicated the case is, and the amount of their time and money that will be taken up with the suit. Of course, these are just a few of the factors that should be considered. This blog will not address those factors. Instead, the sole purpose of this blog is to help copyright owners find a law firm to represent them in their case.
The purpose this blog is also not to name, blame, or shame any specific law firm(s) or attorney(s). Nor is to promote one firm over another. Because one of our focuses at the Copyright Alliance is on providing copyright-related education to creators, the purpose of the blog is simply to educate the next group of creators who are considering suing an AI developer for training on their works without permission or payment.
Ask Your Attorney Whether It Makes Sense to Bring an AI Infringement Lawsuit
Before ever deciding on what firm or attorney to hire, you and your prospective attorney need to consider whether you should bring the lawsuit to begin with. That’s always a tricky question, but it is especially tricky in the context of bringing an AI infringement suit because (as noted above) there are already so many class action suits pending. Obviously, as with any potential lawsuit, you’ll want to get your prospective attorney’s opinion on whether you have a strong case or not. But, in addition to that, one of the very first questions you should be asking your prospective counsel is whether your rights are already being litigated in one of the many class actions that are already pending. Another potential follow-up question that you may also want to ask prospective counsel is whether it may be wiser to delay filing until there is a better sense of how these class action suits will play out once the courts start deciding them.
Make Sure Your Attorney Has Copyright Litigation Expertise
Easily the most important question is whether the attorney you hire has relevant and extensive copyright litigation experience, and by “copyright experience,” we don’t mean just “intellectual property” experience. There are lots of lawyers who have intellectual property experience, but many of them may be more experienced in trademark or patent law than copyright; so be sure to ask specifically about copyright experience.
You should also ask what type of copyright experience they have, and make sure it’s litigation experience and that it’s extensive. And, if they tell you they have copyright litigation experience, then ask them for a list of cases so you can get some idea of the number of cases they’ve brought, the type of cases they brought, who they were representing, and their success rate.
In recommending that your attorney have extensive experience in copyright law, we don’t necessarily mean that they should have filed an abundance of copyright cases. In fact, it may be quite the opposite. If you come across an attorney that boasts about the large number of cases they’ve filed over the course of a month or a year, that may be someone you want to avoid. An attorney who files a high volume of cases may mean your attorney won’t be able to give your case the attention it deserves or is cutting corners somewhere that can lead to less-than-ideal results.
You should also ask if the attorney has experience with the type of copyrighted work(s) (e.g., books) that were infringed in your case and the type of infringing acts engaged in by the AI company. And, of course, since we are discussing litigation against an AI company, you should ask them how much experience and knowledge they have regarding generative artificial intelligence. AI issues can be very complex, especially in the contact of copyright. You don’t want to hire an attorney who is learning about AI on the fly.
And when you ask all these questions about the lawyer, make sure you also ask the same questions about the attorney’s firm so you can be sure that the firm is also known for their copyright litigation prowess. This is important because at the end of the day you are not just relying on one attorney, you will also be relying on the assistance of other attorneys and paralegals at the firm to help with your case. You will want to make sure this is not their first rodeo too.
As noted above, many of the nearly 50 cases that have been filed are proposed class action suits. A class action suit is one in which one or more individuals (referred to as the “class representatives”) bring a lawsuit on behalf of a larger group of individuals (referred to as the “class”) who have all suffered similar harm(s) caused by the same defendant(s). Importantly, the fact that a suit is a class action does not change the calculus much—you still want to hire a firm and lead attorney who has extensive copyright litigation experience, as outlined above. The big difference is that if the copyright attorney/firm you’ve hired does not have class action lawsuit experience you may also have to bring in a firm with that experience. But do not make the mistake of solely hiring a class action law firm that does not have extensive copyright litigation experience.
Different Ways to Pay (or Not Pay) Your Attorney
There are various different ways that a client can pay the firm working on the case, these include:
- Pro Bono. This occurs when a law firm does not charge you for handling the case. This typically occurs when a client has a low income and cannot afford to pay the firm, but it can also occur when a case is particularly newsworthy that it will make headlines. Some law firms are also required to dedicate a certain number of hours to pro bono work every year.
- Flat Fee. Under this fee structure, the firm and the client agree to a pre-determined fee for a specific legal service, regardless of the time spent on the case. This type of fee is more typical with transaction work and less likely for something as volatile as litigation. There is one type of flat fee often referred to as “low bono” because it is one in which the attorney charges the client at a discounted pre-determined rate, usually because the client cannot afford to hire the law firm otherwise.
- Contingency Fee. This occurs when the law firm does not get paid unless they win the case for the client. If the client prevails in the case, the firm gets a set percentage (typically around 33% or more) of the monetary award instead of attorneys’ fees. If they lose the case, the firm typically gets nothing.
- Hourly Fee. Under this fee structure, clients are charged based on the number of hours a lawyer works on their case. Paying a law firm on an hourly basis is the typical way that law firms charge their clients. But many of the AI cases brought by individual creators who cannot afford law firm fees typically use one the other payment types described here instead.
- Hybrid Fee. It is possible that the client and firm agree to a hybrid structure that combines elements of two or more of these fee structures.
Other Considerations
In addition to the considerations above, you should also take into account the following:
- Whether the Firm Has Been Reprimanded, Chastised, or Sanctioned by a Judge: One way to determine if you’re hiring the right firm for your case is to find out whether the firm has ever been reprimanded, chastised, or sanctioned by a judge in a case similar to the one you’re considering bringing. For example, in one very highly publicized AI case, the judge criticized the firm at a hearing saying “[y]ou are not doing your job. This is an important case.” and “[y]ou and your team have taken on a case that you are either unwilling or unable to litigate properly.” The judge went on to suggest that “I think what you need, frankly, is to bring in somebody who can help you litigate the case, who has the resources and the wherewithal to move this case forward…I think you need to reconstitute your legal team.” The firm took the judge up on his recommendation and brought on another firm, but the damage was done because, according to the judge, the “plaintiffs made the wrong arguments and failed to develop a record in support of the right one.” The lesson here is that if you uncover this type of information, that may be a good reason to avoid that attorney or law firm.
- Whether Your Attorney Is a Good Fit for You: It’s not always easy to find the right attorney to meet your needs and interests because every person and every situation is different. People have different styles of working. Just because an attorney comes highly recommended doesn’t necessarily make him or her a good fit for you and your case. So be sure to seek out recommendations from friends, colleagues, and other copyright owners when possible. You can find a non-exclusive list of experienced copyright attorneys here on our website. We strongly recommend that you start with this list.
There are also legal clinics and voluntary lawyer organizations located throughout the country to help creators of all types protect themselves. If you are concerned about the cost of hiring an attorney or bringing a copyright dispute in federal court, you may want to confer with a copyright attorney who works with a clinic or voluntary legal organization in your area. You can find a non-exclusive list of clinics and organizations here on our website. While you may want to initially consult with a clinic for assistance, if you end up deciding to sue an AI company, a clinic is unlikely to bring such a big and costly case on your behalf and you’ll still need to hire a firm.
In a perfect world, creators wouldn’t need attorneys or clinics. In a perfect world, when an AI company wants to use someone’s copyrighted works to train its AI system, they would contact the copyright owner or that owner’s representative and work out a licensing deal. While we are seeing those deals in many cases,[1] most of those cases involve companies and not individuals. In many cases, AI tech behemoths simply steal the works of individual creators, instead of paying for them. Until the day comes when these AI companies choose to be respectful of copyright and creativity, it’s up to you and other creators, to make the right call when entrusting someone to represent your copyright interests.
[1] Copyright Clearance Center, Dotdash Meredith, Harper Collins, Fortune, Time, The Atlantic, News Corp, The New York Times, Universal Music Group.
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