Copyright issues raised by artificial intelligence, especially generative-AI – summaries of legal issues and topics; roundups of lawsuits, cases and litigation; and overviews and notes about statutory and other legislative developments
Many AI-related copyright lawsuits continued to proceed through the courts
Warner Chappell Music Inc. v. Nealy
The Copyright Act imposes a three-year period of limitations for copyright infringement claims. There has been a split in the circuits about whether this means that damages could be claimed only for infringement occurring during the three-year period or whether damages could be recovered for earlier acts of infringement so long as the claim is timely filed. The Supreme Court has now resolved the split.
The issue arises in cases where a claimant invokes the discovery rule. The general rule is that a limitations period runs from the date of the act giving rise to the cause of action. The discovery rule, by contrast, measures the limitations period from the date the infringing act is discovered. Thus, for example, if an infringing act occurred in 2012 but the copyright owner did not learn about it until 2022, then under the traditional rule, the claim would be time-barred. Under the discovery rule, it would not be.
The U.S. Supreme Court’s holding in this case is to the effect that if the discovery rule applies in the jurisdiction where suit is filed, and a claimant properly invokes it, then damages are not limited to the three years preceding suit. Rather, any damages incurred since the date of the infringing act are recoverable.
The Court did not rule on the validity of the discovery rule.
I wrote about Hachette Book Group v. Internet Archive back in 2022, when it was at the summary judgment stage in the district court for the Southern District of New York. Astute readers with much better memory than I possess will recall that I included in my list of the top copyright cases os 2022. The complaint, filed by book publishers, alleged that the Internet Archive made digital copies of over a million print books and then freely distributed the copies to members of the public, all without the permission of the copyright owners. In 2023, the district judge ruled in favor of the publishers, holding that the enterprise was not “fair use.” It subsequently issued an injunction against further scanning and distribution of books. (See A Copyright Win in the Internet Archive Lawsuit.) This year, the Second Circuit Court of Appeals affirmed the decision.
To some, the decision might seem like a no-brainer. Copying other people’s books and giving them away for free, without the copyright owners’ permission, sounds like core copyright infringement, right? Yet, before the Warholv. Goldsmith decision in 2023, courts had been applying such an expansive view of the “transformative use” branch of fair use that some people thought that making digital copies of a print book was categorically “transformative” and therefore fair use. This decision makes it clear that no, it isn’t.
The Internet Archive has said it will not appeal the decision to the United States Supreme Court.
U.S. Representative Steve King’s campaign committee used a copyright-protected photograph in his campaign without permission. King’s committee had argued fair use and that it had an “implied license” to use the image because it had been widely circulated as a meme on the Internet. The Eighth Circuit Court of Appeals upheld an Iowa jury’s verdict for the copyright owner.
This isn’t really a momentous decision, in terms of precedential value, but it is the first major victory for Big AI in the plethora of AI-related lawsuits they are facing.
The Intercept Media, Inc. sued OpenAI and Microsoft Corporation for alleged Digital Millennium Copyright Act (DMCA) violations in connection with training the AI tool, ChatGPT. The defendants filed a motion to dismiss. On November 21, 2024 the New York court dismissed claims against Microsoft with prejudice. The court dismissed the 17 U.S.C. § 1202(b)(3) claim against OpenAI but allowed the claim under 17 U.S.C. §1202(b)(1) to proceed.
Section 1202(b)(1) prohibits unauthorized removal or alteration of copyright management information, including author information and the copyright notice.
A status update on 24 pending lawsuits against AI companies – what they’re about and what is happening in court – prepared by Minnesota copyright attorney Thomas James.
Advancements in artificial intelligence technology, including generative-AI, have introduced a wide range of new or exacerbated legal problems. Collectively, I call these AI legal issues. Although not all of them are unique to scenarios involving AI, they are certainly testing and stretching the capacity of legal institutions. Here is a very brief summary of how these issues are playing out in the courts, as of February 28, 2024.
Copyright
Thaler v. Perlmutter (D.D.C. 2022).
Complaint filed June 2, 2022. Thaler created an AI system called the Creativity Machine. He applied to register copyrights in the output he generated with it. The Copyright Office refused registration on the ground that AI output does not meet the “human authorship” requirement. (I explained that requirement in a previous blog post that explored the difference between human and AI creation of a work. He then sought judicial review. The district court granted summary judgment for the Copyright Office. (SeeA Recent Exit from Paradise.) In October, 2023, Thaler filed an appeal to the District of Columbia Circuit Court of Appeals (Case no. 23-5233).
Doe v. GitHub, Microsoft, and OpenAI (N.D. Cal. 2022)
I wrote about this case in Generative AI: The Top 12 Lawsuits. The complaint was filed November 3, 2022. Software developers claim the defendants trained Codex and Copilot on code derived from theirs, which they published on GitHub. Some claims have been dismissed, but claims that GitHub and OpenAI violated the DMCA and breached open source licenses remain. Discovery is ongoing.
Andersen v. Stability AI (N.D. Cal. 2023)
The Andersen v. Stability AI complaint was filed January 13, 1023. Visual artists sued Midjourney, Stability AI and DeviantArt for copyright infringement for allegedly training their generative-AI models on images scraped from the Internet without copyright holders’ permission. Other claims included DMCA violations, publicity rights violations, unfair competition, breach of contract, and a claim that output images are infringing derivative works. On October 30, 2023, the court largely granted motions to dismiss, but granted leave to amend the complaint. Plaintiffs filed an amended complaint on November 29, 2023. Defendants have filed motions to dismiss the amended complaint. Hearing on the motion is set for May 8, 2024.
Getty Images v. StabilityAI (U.K. 2023)
Complaint filed January, 2023. Getty Images claims StabilityAI scraped images without its consent. The Getty Images lawsuit has survived a motion to dismiss. The case appears to be heading to trial.
In re OpenAI ChatGPT Litigation (N.D. Cal. 2023)
Complaint filed June 28, 3023. Originally captioned Tremblay v. OpenAI. Book authors sued OpenAI for direct and vicarious copyright infringement, DMCA violations, unfair competition and negligence. Both input (training) and output (derivative works) claims are alleged, as well as state law claims of unfair competition, etc. Most state law and DMCA claims have been dismissed, but claims based on unauthorized copying during the AI training process remain. An amended complaint is likely to come in March. The court has directed the amended complaint to consolidate Tremblay v. OpenAI, Chabon v. OpenAI, and Silverman v. OpenAI.
Kadrey v. Meta (N.D. Cal. 2023)
Complaint filed July 7, 2023. Sarah Silverman and other authors allege Meta infringed copyrights in their works by making copies of them while training Meta’s AI model; that the AI model is itself an infringing derivative work; and that outputs are infringing copies of their works. Plaintiffs also allege DMCA violations, unfair competition, unjust enrichment, and negligence. The court granted Meta’s motion to dismiss all claims except the claim that unauthorized copies were made during the AI training process. An amended complaint and answer have been filed.
In 2025, Judge Chhabria ruled in Meta’s favor on fair use with respect to AI training; reserved the motion for summary judgment on the DMCA claims for decision in a separate order, and held that the claim of infringing distribution via leeching or seeding “will remain a live issue in the case.” Kadrey v. Meta Platforms.
J.L. v. Google (N.D. Cal. 2023)
Complaint filed July 11, 2023. In another case I mentioned in Generative AI: The Top 12 Lawsuits, an author filed a complaint against Google alleging misuse of content posted on social media and Google platforms to train Google’s AI Bard. (Gemini is the successor to Google’s Bard.) Claims include copyright infringement, DMCA violations, and others. J.L. filed an amended complaint and Google has filed a motion to dismiss it. A hearing is scheduled for May 16, 2024.
Chabon v. OpenAI (N.D. Cal. 2023)
Complaint filed September 9, 2023. Authors allege that OpenAI infringed copyrights while training ChatGPT, and that ChatGPT is itself an unauthorized derivative work. They also assert claims of DMCA violations, unfair competition, negligence and unjust enrichment. Chabon v. OpenAI has been consolidated with Tremblay v. OpenAI, and the cases are now captioned In re OpenAI ChatGPT Litigation.
Chabon v. Meta Platforms (N.D. Cal. 2023)
Complaint filed September 12, 2023. Authors assert copyright infringement claims against Meta, alleging that Meta trained its AI using their works and that the AI model itself is an unauthorized derivative work. The authors also assert claims for DMCA violations, unfair competition, negligence, and unjust enrichment. In November, 2023, the court issued an Order dismissing all claims except the claim of unauthorized copying in the course of training the AI. The court described the claim that an AI model trained on a work is a derivative of that work as “nonsensical.” Chabon v. Mea Platforms.
Authors Guild v. OpenAI, Microsoft, et al. (S.D.N.Y. 2023)
Complaint filed September 19, 1023. Book and fiction writers filed a complaint for copyright infringement in connection with defendants’ training AI on copies of their works without permission. A motion to dismiss has been filed. Authors Guild v. Open AI et al.
Huckabee v. Bloomberg, Meta Platforms, Microsoft, and EleutherAI Institute (S.D.N.Y. 2023)
Complaint filed October 17, 2023. Political figure Mike Huckabee and others allege that the defendants trained AI tools on their works without permission when they used Books3, a text dataset compiled by developers; that their tools are themselves unauthorized derivative works; and that every output of their tools is an infringing derivative work. Claims against EleutherAI have been voluntarily dismissed. Claims against Meta and Microsoft have been transferred to the Northern District of California. Bloomberg is expected to file a motion to dismiss soon. Huckabee v. Bloomberg et al.
Huckabee v. Meta Platforms and Microsoft (N.D. Cal. 2023)
Complaint filed October 17, 2023. Political figure Mike Huckabee and others allege that the defendants trained AI tools on their works without permission when they used Books3, a text dataset compiled by developers; that their tools are themselves unauthorized derivative works; and that every output of their tools is an infringing derivative work. Plaintiffs have filed an amended complaint. Plaintiffs have stipulated to dismissal of claims against Microsoft without prejudice. Huckabee v. Meta Platforms and Microsoft.
Concord Music Group v. Anthropic (M.D. Tenn. 2023)
Complaint filed October 18, 2023. Music publishers claim that Anthropic infringed publisher-owned copyrights in song lyrics when they allegedly were copied as part of an AI training process (Claude) and when lyrics were reproduced and distributed in response to prompts. They have also made claims of contributory and vicarious infringement. Motions to dismiss and for a preliminary injunction are pending. Concord Music Group v. Anthropic.
Alter v. OpenAI and Microsoft (S.D.N.Y. 2023)
Complaint filed November 21, 2023. Nonfiction author alleges claims of copyright infringement and contributory copyright infringement against OpenAI and Microsoft, alleging that reproducing copies of their works in datasets used to train AI infringed copyrights. The court has ordered consolidation of Author’s Guild (23-cv-8292) and Alter (23-cv-10211). On February 12,2024, plaintiffs in other cases filed a motion to intervene and dismiss. Alter v. OpenAI and Microsoft.
New York Times v. Microsoft and OpenAI (S.D.N.Y. 2023)
Complaint filed December 27, 2023. The New York Times alleges that their news stories were used to train AI without a license or permission, in violation of their exclusive rights of reproduction and public display, as copyright owners. The complaint also alleges vicarious and contributory copyright infringement, DMCA violations, unfair competition, and trademark dilution. The Times seeks damages, an injunction against further infringing conduct, and a Section 503(b) order for the destruction of “all GPT or other LLM models and training sets that incorporate Times Works.” On February 23, 2024, plaintiffs in other cases filed a motion to intervene and dismiss this case. New York Times v. Microsoft and OpenAI.
Basbanes and Ngagoyeanes v. Microsoft and OpenAI (S.D.N.Y. 2024)
Getty Images v. Stability AI Complaint filed on February 3, 2023. Getty Images alleges claims of copyright infringement, DMCA violation and trademark violations against Stability AI. The judge has dismissed without prejudice a motion to dismiss or transfer on jurisdictional grounds. The motion may be re-filed after the conclusion of jurisdictional discovery, which is ongoing.
Privacy and Publicity Rights
Flora v. Prisma Labs (N.D. Cal.)
Complaint filed February 15, 2023. Plaintiffs allege violations of the Illinois Biometric Privacy Act in connection with Prisma Labs’ collection and retention of users’ selfies in AI training. The court has granted Prisma’s motion to compel arbitration. Flora v. Prisma Labs.
Kyland Young v. NeoCortext (C.D. Cal. 2023)
Complaint filed April 3, 2023. This complaint alleges that AI tool Reface used a person’s image without consent, in violation of the person’s publicity rights under California law. The court has denied a motion to dismiss, ruling that publicity rights claims are not preempted by federal copyright law. The case has been stayed pending appeal. Kyland Young v. NeoCortext.
Complaint filed June 28, 2023. Users claim OpenAI violated the federal Electronic Communications Privacy Act and California wiretapping laws by collecting their data when they input content into ChatGPT. They also claim violations of the Computer Fraud and Abuse Act. Plaintiffs voluntarily dismissed the case on September 15, 2023. See now A.T. v. OpenAI (N.D. Cal. 2023) (below). P.M. v. OpenAI.
A.T. v. OpenAI (N.D. Cal. 2023)
Complaint filed September 5, 2023. ChatGPT users claim the company violated the federal Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and California Penal Code section 631 (wiretapping). The gravamen of the complaint is that ChatGPT allegedly accessed users’ platform access and intercepted their private information without their knowledge or consent. Motions to dismiss and to compel arbitration are pending. A.T. v. OpenAI.
Defamation
Walters v. OpenAI (Gwinnett County Super. Ct. 2023), and Walters v. OpenAI (N.D. Ga. 2023)
Gwinnett County complaint filed June 5, 2023.
Federal district court complaint filed July 14, 2023.
Radio Radio talk show host sued OpenAI for defamation. A reporter had used ChatGPT to get information about him. ChatGPT wrongly described him as a person who had been accused of fraud. In October, 2023, the federal court remanded the case to the Superior Court of Gwinnett County, Georgia. On January 11, 2024, the Gwinnett County Superior Court denied OpenAI’s motion to dismiss. Walters v. OpenAI.
Battle v. Microsoft (D. Md. 2023)
Complaint filed July 7, 2023. Pro se defamation complaint against Microsoft alleging that Bing falsely described him as a member of the “Portland Seven,” a group of Americans who tried to join the Taliban after 9/11. Battle v. Microsoft.
Caveat
This list is not exhaustive. There may be other cases involving AI that are not included here. For a discussion of bias issues in Google’s Gemini, have a look at Scraping Bias.
What are your favorite generative-AI copyright issues? In this capsule summary, Cokato attorney Tom James shares what his three favorites are.
Black hole consuming a star. Photo credit: NASA.
Having outlined the top AI legal issues, the time has come now to pick favorites. In this capsule summary, Cokato attorney Tom James shares what his three favorite generative-AI copyright issues are.
Generative artificial intelligence refers collectively to technology that is capable of generating new text, images, audio/visual and possibly other content in response to a user’s prompts. They are trained by feeding them mass quantities of ABC (already-been-created) works. Some of America’s biggest mega-corporations have invested billions of dollars into this technology. They are now facing a barrage of lawsuits, most of them asserting claims of copyright infringement.
Issue #1: Does AI Output Infringe Copyrights?
Copyrights give their owners an exclusive right to reproduce their copyright-protected works and to create derivative works based on them. If a generative-AI user prompts the service to reproduce the text of a pre-existing work, and it proceeds to do so, this could implicate the exclusive right of reproduction. If a generative-AI user prompts it to create a work in the style of another work and/or author, this could implicate the exclusive right to create derivative works.
To establish infringement, it will be necessary to prove copying. Two identical but independently created works may each be protected by copyright. Put another way, a person is not guilty of infringement merely by creating a work that is identical or similar to another if he/she/it came up with it completely on his/her/its own.
Despite “training” their proteges on existing works, generative-AI outfits deny that their tools actually copy any of them. They say that any similarity to any existing works, living or dead, is purely coincidental. Thus, OpenAI has stated that copyright infringement is an “unlikely accidental outcome.”
The “accidental outcome” defense seems to me like a hard one to swallow in those cases where a prompt involves creating a story involving a specified fictional character that enjoys copyright protection. If the character is distinctive enough — and a piece of work in and of itself, so to speak — to enjoy copyright protection (such as, say, Mr. Spock from the Star Trek series), then any generated output would seem to be an unauthorized derivative work, at least if the AI tool is any good.
If AI output infringes a copyright in an existing work, who would be liable for it? Potentially, the person who entered the prompt might be held liable for direct infringement. The AI tool provider might arguably be liable for contributory infringement.
Issue #2: Does AI Training Infringe Copyrights?
AI systems are “trained” to create works by exposing a computer program system to large numbers of existing works downloaded from the Internet.
When content is downloaded from the Internet, a copy of it is made. This process will “involve the reproduction of entire works or substantial portions thereof.” In Comment of OpenAI to the USPTO for example, OpenAI acknowledges that its programs are trained on “large, publicly available datasets that include copyrighted works” and that this process “involves first making copies of the data to be analyzed….” Making these copies without permission may infringe the copyright holders’ exclusive right to make reproductions of their works.
Generative-AI outfits tend to argue that the training process is fair use.
the amount and substantiality of the portion copied; and
the effect on the market for the work.
OpenAI relies on the precedent set in Authors Guild v. Google for its invocation of “fair use.” That case involved Google’s copying of the entire text of books to construct its popular searchable database.
A number of lawsuits currently pending in the courts are raising the question whether and how, the AI training process is “fair use.” For more information, have a look at Does AI Infringe Copyright?
Issue #3: Are AI-Generated Works Protected by Copyright?
The Copyright Act affords copyright protection to “original works of authorship.” The U.S. Copyright Office recognizes copyright only in works “created by a human being.” Courts, too, have declined to extend copyright protection to nonhuman authors. (Remember the monkey selfie case?) A recent copyright registration applicant has filed a lawsuit (Thaler v. Perlmutter) against the U.S. Copyright Office alleging that the Office wrongfully denied registration of an AI-generated work. A federal court has now rejected his argument that human authorship is not required for copyright ownership. Thaler v. Perlmutter, 1:22-cv-01564, (D.D.C. Aug 18, 2023) ECF No. 24.
In March 2023, Copyright Office Guidance was published. It states that when AI “determines the expressive elements of its output, the generated material is not the product of human authorship.” Moreover, an argument might be made that a general prompt, such as “create a story about a dog in the style of Jack London,” is an idea, not expression. It is well settled that only expression gets copyright protection; ideas do not.
In September 2023, the Copyright Office Review Board affirmed the Office’s refusal to register a copyright in a work that was generated by Midjourney and then modified by the applicant, on the basis that the applicant did not disclaim the AI-generated material.
The Office also has the power to cancel improvidently granted registrations. (Words to the wise: Disclose and disclaim.)
These are my favorite generative-AI legal issues. What are yours?
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