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 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 Court’s holding means 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 infringint act are recoverable.
The Court did not rule on the validity of the discovery rule.
I wrote about this case back in 2022, when it was at the summary judgment stage in the district court for the Southern District of New York. 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.” 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.
A very brief summary of where pending AI lawsuits stand as of February 28, 2024. Compiled by Minnesota attorney Thomas James.
Copyright
Thomson Reuters v. Ross, (D. Del. 2020)
Filed May 6, 2020. Thomson Reuters, owner of Westlaw, claims that Ross Intelligence infringed copyrights in Westlaw headnotes by training AI on copies of them. The judge has granted, in part, and denied, in part, motions for summary judgment. The questions of fair use and whether the headnotes are sufficiently original to merit copyright protection will go to a jury to decide.
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. In October, 2023, he 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)
Complaint 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)
Complaint 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. Getty’s complaint has survived a motion to dismiss and 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.
J.L. v. Google (N.D. Cal. 2023)
Complaint filed July 11, 2023. 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. The case 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.”
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.
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. 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.
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.
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.
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.
Basbanes and Ngagoyeanes v. Microsoft and OpenAI (S.D.N.Y. 2024)
Complaint filed January 5, 2024. Nonfiction authors assert copyright claims against Microsoft and OpenAI. On February 6, 2024, the court consolidated this case with Authors Guild (23-cv-08292) and Alter v. Open AI (23-cv-10211), for pretrial purposes.
Trademark
Getty Images v. Stability AI (D. Del.)
Complaint filed 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.
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.
P.M. v. OpenAI (N.D. Cal. 2023).
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).
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.
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 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.
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.
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 on Medium.com.
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.
What are your favorite generative-AI copyright issues? In this capsule summary, Cokato attorney Tom James shares what his three favorites 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.” OpenAI, for example, 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.”
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 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.
In March 2023, the Copyright Office released guidance stating 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?
People are generating books “in the style of” books by well-known authors and marketing them to the public
Copyright issues raised by generative-AI (artificial intelligence) have been receiving extensive coverage and discussion lately. Generative-AI has given rise to another kind of problem, too, though. People are generating books “in the style of” books by well-known authors and marketing them to the public as if they were written by those authors when in fact they were not.
Fake books
Jane Friedman was one of the first to report the problem of AI-generated fake books.
The way it works is this: A person asks a generative-AI tool to write a book in the style of a particular named author. Usually it is a well-known author and/or one whose books sell well. The person then creates a listing on Amazon or another online marketplace for the book, misrepresenting it to be the work of the named author rather than AI-generated. Proceeds from sales of these unauthorized knock-offs are then shared between the marketplace provider (Amazon, eBay, etc.) and the fraudster.
Removal difficulties
It can be difficult for an author to get these knock-offs removed. Of course, if you are able to prove that one of these sham books infringes the copyright in one of your works, that should provide a basis for removal. In many cases, however, it can be difficult to prove that an AI-generated book actually copied from any particular book. A book “in the style of” so-and-so might have a completely different setting, plot, characters and so on. Generative-AI tools can generate a book on a theme that a named author commonly writes about, but copyright cannot be claimed in themes.
Trademark law is not necessarily of much help, either. Publishing under a name under which someone else is already publishing is not illegal. In fact, it is quite common. For example, five different people named Scott Adams publish under that name.
The sham books not being pirated or counterfeit copies of any existing work, and an author not having secured a trademark registration in his or her name (not always possible), can be obstacles to getting a title removed on the basis of copyright or trademark infringement.
The Lanham Act
The Lanham Act, sometimes called the Trademark Act, is a federal law that prohibits a wider range of activity than merely trademark infringement. It prohibits false and misleading designations of origin (false advertising), as well, including attempts to pass off a product as somebody else’s. No trademark registration is necessary for these kinds of Lanham Act claims.
These provisions offer a small glimmer of hope. Unfortunately, these kinds of claims are not as easy for marketplace providers like Amazon to sort out, as compared with a claim that someone is using a trademark that is confusingly similar to one that has been registered.
Other legal remedies
The Copyright Act and Lanham Act are not the only possible sources of legal recourse. Book authorship fraud is likely unlawful under state unfair competition and deceptive trade practices laws. In many jurisdictions, a claim for damages for misappropriation of name or likeness, or of exclusive publicity rights, may be viable.
As a practical matter, though, these rights may be difficult to enforce. Marketplace providers are equipped to handle claims where someone is able to produce a trademark or copyright registration certificate to support their claims, but they are not courts. They are not equipped to decide the kinds of fact issues that typically need to be decided in order to resolve competing claims to rights in a work, or likelihood of confusion and so on.
This seems to me to be yet another aspect of generative-AI that is ripe for legislation.
Photograph by Martin Vorel, https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons. The image has not been modified. No suggestion is made that the licensor endorses this author or this use.
The Copyright Office is providing guidance to copyright applicants who wish to register works with AI-generated content in them.
On Thursday, March 16, 2023, the United States Copyright Office published new guidance regarding the registration of copyrights in AI-generated material. in the Federal Register. Here is the tl;dr version.
The Problem
Artificial intelligence (AI) technologies are now capable of producing content that would be considered expressive works if created by a human being. These technologies “train” on mass quantities of existing human-authored works and use patterns detected in them to generate like content. This creates a thorny question about authorship: To what extent can a person who uses AI technology to generate content be considered the “author” of such content?
It isn’t a hypothetical problem. The Copyright Office has already started receiving applications for registration of copyrights in works that are either wholly or partially AI-generated.
The U.S. Copyright Act gives the Copyright Office power to determine whether and what kinds of additional information it may need from a copyright registration applicant in order to evaluate the existence, ownership and duration of a purported copyright. On March 16, 2023, the Office exercised that power by publishing Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence in the Federal Register. [Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (March 16, 2023)]
Consistent with judicial rulings, the U.S. Copyright Office takes the position that only material that is created by a human being is protected by copyright. In other words, copyrights only protect human authorship. If a monkey can’t own a copyright in a photograph and an elephant can’t own a copyright in a portrait it paints, a computer-driven technology cannot own a copyright in the output it generates. Sorry, robots; it’s a human’s world.
As stated in the Compendium of Copyright Office Practices:
The Copyright Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
U.S. Copyright Office, Compendium of U.S. Copyright Office Practicessec. 313.2 (3d ed. 2021)
Partially AI-Generated Works
A work that is the product of a human being’s own original conception, to which s/he gave visible form clearly has a human author. A work that is entirely the result of mechanical reproduction clearly does not. Things get murkier when AI technology is used to generate content to which a human being applies some creativity.
According to the new guidance, merely prompting an AI technology to generate a poem, drawing or the like, without more, is not enough to establish human authorship if the AI technology determines the expressive elements of its output. This kind of content is not protected by copyright and a registration applicant therefore will need to disclaim it in the application.
On the other hand, if a human being selects and arranges AI-generated content, the selection and arrangement may be protected by copyright even if the content itself is not. Similarly, if a human being makes significant modifications to AI-generated content, then those modifications may receive copyright protection. In all cases, of course, the selection, arrangement or modification must be sufficiently creative in order to qualify for copyright protection.
Disclosure required
The new guidance imposes a duty on copyright registration applicants to disclose the inclusion of AI-generated content in any work submitted for registration.
Standard application
If you use AI technology to any extent in creating the work, you will need to use the Standard application, not the Single application, to register the copyright in it.
Claims and disclaimers
The applicant will need to describe the human author’s contributions to the work in the “Author Created” field of the application. A claim should only be made in this.
Any significant AI-generated content must be explicitly excluded (disclaimed), in the “Limitations of the Claim” section of the application, in the “Other” field, under the “Material Excluded” heading.
Previously filed applications
If you have already filed an application for a work that includes AI-generated material, you will need to make sure that it makes an adequate disclosure about that. The newly-issued guidance says you should contact the Copyright Office’s Public Information Office and report that you omitted AI information from the application. This will cause a notation to the record to be made. When an examiner sees the notation, s/he may contact you to obtain additional information if necessary.
If a registration has already been issued, you should submit a supplemntary registration form to correct it. Failing to do that could result in your registration being cancelled, if the Office becomes aware that information essential to its evaluation of registrability has been omitted. In addition, a court may ignore a registration in an infringement action if it concludes that you knowingly provided the Copyright Office with false information.
Need help with a copyright application or registration?
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