Category: Copyright

Copyright law news and commentary from Cokato Minnesota attorney Thomas James (Thomas B James) of the Law Office of Tom James

Voice Cloning

Painting of Nipper by Francis Barraud (1898-99); subsequently used as a trademark with “HIs Master’s Voice.”

Lehrman v. Lovo, Inc.

On July 10, 2025, the federal district court for the Southern District of New York issued an Order granting in part and denying in part a motion to dismiss a putative class action lawsuit that Paul Lehrman and Linnea Sage commenced against Lovo, Inc. The lawsuit, Lehrman v. Lovo, Inc., alleges that Lovo used artificial intelligence to make and sell unauthorized “clones” of their voices.

Specifically, the complaint alleges that the plaintiffs are voice-over actors. For a fee, they read and record scripts for their clients. Lovo allegedly sells a text-to-speech subscription service that allows clients to generate voice-over narrations. The service is described as one that uses “AI-driven software known as ‘Generator’ or ‘Genny,'” which was “created using ‘1000s of voices.'” Genny allegedly creates voice clones, i.e., copies of real people’s voices. Lovo allegedly granted its customers “commercial rights for all content generated,” including “any monetized, business-related uses such as videos, audio books, advertising promotion, web page vlogging, or product integration.” (Lovo terms of service.) The complaint alleges that Lovo hired the plaintiffs to provide voice recordings for “research purposes only,” but that Lovo proceeded to exploit them commercially by licensing their use to Lovo subscribers.

This lawsuit ensued.

The complaint sets out claims for:

  • Copyright infringement
  • Trademark infringement
  • Breach of contract
  • Fraud
  • Conversion
  • Unjust enrichment
  • Unfair competition
  • New York civil rights laws
  • New York consumer protection laws.

The defendant moved to dismiss the complaint for failure to state a claim.

The copyright claims

Sage alleged that Lovo infringed the copyright in one of her voice recordings by reproducing it in presentations and YouTube videos. The court allowed this claim to proceed.

Plaintiffs also claimed that Lovo’s unauthorized use of their voice recordings in training its generative-AI product infringed their copyrights in the sound recordings. The court ruled that the complaint did not contain enough factual detail about how the training process infringed one of the exclusive rights of copyright ownership. Therefore, it dismissed this claim with leave to amend.

The court dismissed the plaintiffs’ claims of output infringement, i.e., claims that the “cloned” voices the AI tool generated infringed copyrights in the original sound recordings.

Copyright protection in a sound recording extends only to the actual recording itself. Fixation of sounds that imitate or simulate the ones captured in the original recording does not infringe the copyright in the sound recording.

This issue often comes up in connection with copyrights in music recordings. If Chuck Berry writes a song called “Johnny B. Goode” and records himself performing it, he will own two copyrights – one in the musical composition and one in the sound recording. If a second person then records himself performing the same song, and he doesn’t have a license (compulsory or otherwise) to do so, that person would be infringing the copyright in the music but not the copyright in the sound recording. This is true even if he is very good at imitating Berry’s voice and guitar work. For a claim of sound recording infringement to succeed, it must be shown that the actual recording itself was copied.

Plaintiffs did not allege that Lovo used Genny to output AI-generated reproductions of their original recordings. Rather, they alleged that Genny is able to create new recordings that mimic attributes of their voices.

The court added that the sound of a voice is not copyrightable expression, and even if it were, the plaintiffs had registered claims of copyright in their recordings, not in their voices.

The trademark claims

In addition to infringement, the Lanham Act creates two other potential bases of trademark liability: (1) false association; and (2) false advertising. 15 U.S.C. sec. 1125(a)(1)(A) and (B). Plaintiffs asserted both kinds of claims. The judge dismissed these claims.

False association

The Second Circuit court of appeals recently held, in Electra v. 59 Murray Enter., Inc. and Souza v. Exotic Island Enters., Inc., that using a person’s likeness to create an endorsement without the person’s permission can constitute a “false association” violation. In other words, a federally-protected, trademark-like interest in one’s image, likeness, personality and identity exists. (See, e.g., Jackson v. Odenat.)

Although acknowledging that this right extends to one’s voice, the judge ruled that the voices in this case did not function as trademarks. They did not identify the source of a product or service. Rather, they were themselves the product or service. For this reason, the judge ruled that the plaintiffs had failed to show that their voices, as such, are protectable trademarks under Section 43(a)(1)(A) of the Lanham Act.

False Advertising

Section 43(a)(1)(B) of the Lanham Act (codified at 15 U.S.C. sec. 1125(a)(1)(B)) prohibits misrepresentations about “the nature, characteristics, qualities, or geographic origin of . . . goods, services, or commercial activities.” The plaintiffs claimed that Lovo marketed their voices under different names (“Kyle Snow” and “Sally Coleman.”) The court determined that this was not fraudulent, however, because Lovo marketed them as what they were, namely, synthetic clones of the actors’ voices, not as their actual voices.

Plaintiffs also claimed that Lovo’s marketing materials falsely stated that the cloned voices “came with all commercial rights.” They asserted that they had not granted those rights to Lovo. The court ruled, however, that even if Lovo was guilty of misrepresentation, it was not the kind of misrepresentation that comes within Section 43(a)(1)(B), as it did not concern the nature, characteristics, qualities, or geographic origin of the voices.

State law claims

Although the court dismissed the copyright and trademark claims, it allowed some state law claims to proceed. Specifically, the court denied the motion to dismiss claims for breach of contract, violations of sections 50 and 51 of the New York Civil Rights Law, and violations of New York consumer protection law.

Both the common law and the New York Civil Rights Law prohibit the commercial use of a living person’s name, likeness or voice without consent. Known as “misappropriation of personality” or violation of publicity or privacy rights, this is emerging as one of the leading issues in AI law.

The court also allowed state law claims of false advertising and deceptive trade practices to proceed. The New York laws are not subject to the “nature, characteristics, qualities, or geographic origin” limitation set out in Section 43(a) of the Lanham Act.

Conclusion

I expect this case will come to be cited for the rule that copyright cannot be claimed in a voice. Copyright law protects only expression, not a person’s corporeal attributes. The lack of copyright protection for a person’s voice, however, does not mean that voice cloning is “legal.” Depending on the particular facts and circumstances, it may violate one or more other laws.

It also should be noted that after the Joe Biden voice-cloning incident of 2024, states have been enacting statutes regulating the creation and distribution of voice clones. Even where a specific statute is not applicable, though, a broader statute (such as the FTC Act or a similar state law) might cover the situation.

Images and references in this blog post are for illustrative purposes only. No endorsement, sponsorship or affiliation with any person, organization, company, brand, product or service is intended, implied, or exists.

Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann)

Court Rules AI Training is Fair Use

Just days after the first major fair use ruling in a generative-AI case, a second court has determined that using copyrighted works to train AI is fair use. Kadrey et al. v. Meta Platforms, No. 3:23-cv-03417-VC (N.D. Cal. June 25, 2025).

The Kadrey v. Meta Platforms Lawsuit

I previously wrote about this lawsuit here and here.

Meta Platforms owns and operates social media services including Facebook, Instagram, and WhatsApp. It is also the developer of a large language model (LLM) called “Llama.” One of its releases, Meta AI, is an AI chatbot that utilizes Llama.

To train its AI, Meta obtained data from a wide variety of sources. The company initially pursued licensing deals with book publishers. It turned out, though, that in many cases, individual authors owned the copyrights. Unlike music, no organization handles collective licensing of rights in book content. Meta then downloaded shadow library databases. Instead of licensing works in the databases, Meta decided to just go ahead and use them without securing licenses. To download them more quickly, Meta torrented them using BitTorrent.

Meta trained its AI models to prevent them from “memorizing” and outputting text from the training data, with the result that no more than 50 words and punctuation marks from any given work were reproduced in any given output.

The plaintiffs named in the Complaint are thirteen book authors who have published novels, plays, short stories, memoirs, essays, and nonfiction books. Sarah Silverman, author of The Bedwetter; Junot Diaz, author of The Brief Wondrous Life of Oscar Wao; and Andrew Sean Greer, author of Less, are among the authors named as plaintiffs in the lawsuit. The complaint alleges that Meta downloaded 666 copies of their books without permission and states claims for direct copyright infringement, vicarious copyright infringement, removal of copyright management information in violation of the Digital Millennium Copyright Act (DMCA), and various state law claims. All claims except the ones for direct copyright infringement and violation of the DMCA were dismissed in prior proceedings.

Both sides moved for summary judgment on fair use with respect to the claim that Meta’s use of the copyrighted works to train its AI infringed copyrights. Meta moved for summary judgment on the DMCA claims. Neither side moved for summary judgment on a claim that Meta infringed copyrights by distributing their works (via leeching or seeding).

On June 25, 2025 Judge Chhabria granted Meta’s motion for summary judgment 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.”

Judge Chhabria’s Fair Use Analysis

Judge Chhabria analyzed each of the four fair use factors. As is the custom, he treated the first (Character or purpose of the use) and fourth (Effect on the market for the work) factors as the most important of the four.

He disposed of the first factor fairly easily, as Judge Alsup did in Bartz v. Anthropic, finding that the use of copyrighted works to train AI is a transformative use. This finding weighs heavily in favor of fair use. The purpose of Meta’s AI tools is not to generate books for people to read. Indeed, in this case, Meta had installed guardrails to prevent the tools from generating duplicates or near-duplicates of the books on which the AI was trained. Moreover, even if it could allow a user to prompt the creation of a book “in the style of” a specified author, there was no evidence that it could produce an identical work or a work that was substantially similar to one on which it had been trained. And writing styles are not copyrightable.

Significantly, the judge held that the use of shadow libraries to obtain unauthorized copies of books does not necessarily destroy a fair use defense. When the ultimate use to be made of a work is transformative, the downloading of books to further that use is also transformative, the judge wrote. This ruling contrasts with other judges who have intimated that using pirated copies of works weighs against, or may even prevent, a finding of fair use.

Unlike some judges, who tend to consider the fair use analysis over and done if transformative use is found, Judge Chhabria recognized that even if the purpose of the use is transformative, its effect on the market for the infringed work still has to be considered.

3 Ways of Proving Adverse Market Effect

The Order lays out three potential kinds of arguments that may be advanced to establish the adverse effect of an infringing use on the market for the work:

  1. The infringing work creates a market substitute for the work;
  2. Use of the work to train AI without permission deprives copyright owners of a market for licenses to use their works in AI training;
  3. Dilution of the market with competing works.

Market Substitution

In this case, direct market substitution could not be established because Meta had installed guardrails that prevented users from generating copies of works that had been used in the training. Its AI tools were incapable of generating copies of the work that could serve as substitutes for the authors’ works.

The Market for AI Licenses

The court refused to recognize the loss of potential profits from licensing the use of a work for AI training purposes as a cognizable harm.

Market Dilution

The argument here would be that the generation of many works that compete in the same market as the original work on which the AI was trained dilutes the market for the original work. Judge Chhabria described this as indirect market substitution.

The copyright owners in this case, however, focused on the first two arguments. They did not present evidence that Meta’a AI tools were capable of generating books; that they do, in fact, generate books; or that the books they generate or are capable of generating compete with books these authors wrote. There was no evidence of diminished sales of their books.

Market harm cannot be assumed when generated copies are not copies that can serve as substitutes for the specific books claimed to have been infringed. When the output is transformative, as it was in this case, market substitution is not self-evident.

Judge Chhabria chided the plaintiffs for making only a “half-hearted argument” of a significant threat of market harm. He wrote that they presented “no meaningful evidence on market dilution at all.”

Consequently, he ruled that the fourth fair use factor favored Meta.

Conclusion

The decision in this case is as significant for what the court didn’t do as it is for what it did. It handed a fair use victory to Meta. At the same time, though, it did not rule out a finding that training AI tools on copyrighted works is not fair use in an appropriate case. The court left open the possibility that a copyright owner might prevail on a claim that training AI on copyrighted works is not fair use in a different case. And it pointed the way, albeit in dictum, namely, by making a strong showing of market dilution.

That claim is not far-fetched. https://www.wired.com/story/scammy-ai-generated-books-flooding-amazon/

AI OK; Piracy Not: Bartz v. Anthropic

A federal judge has issued a landmark fair use decision in a generative-AI copyright infringement lawsuit.

In a previous blog post, I wrote about the fair use decision in Thomson Reuters v. ROSS. As I explained there, that case involved a search-and-retrieval AI system, so the holding was not determinative of fair use in the context of generative AI. Now we finally have a decision that addresses fair use in the generative-AI context.

Bartz et al. v. Anthropic PBC

Anthropic is an AI software firm founded by former OpenAI employees. It offers a generative-AI tool called Claude. Like other generative-AI tools, Claude mimics human conversational skills. When a user enters a text prompt, Claude will generate a response that is very much like one a human being might make (except it is sometimes more knowledgeable.) It is able to do this by using large language models (LLMs) that have been trained on millions of books and texts.

Adrea Bartz, Charles Graeber, and Kirk Wallace Johnson are book authors. In August 2024, they sued Anthropic, claiming the company infringed the copyrights in their works. Specifically, they alleged that Anthropic copied their works from pirated and purchased sources, digitized print versions, assembled them into a central library, and used the library to train LLMs, all without permission. Anthropic asserted, among other things, a fair use defense.

Earlier this year, Anthropic filed a motion for summary judgment on the question of fair use.

On June 23, 2025, Judge Alsup issued an Order granting summary judgment in part and denying it in part. It is the first major ruling on fair use in the dozens of generative-AI copyright infringement lawsuits that are currently pending in federal courts.

The Order includes several key rulings.

Digitization

Anthropic acquired both pirated and lawfully purchased printed copies of copyright-protected works and digitized them to create a central e-library. Authors claimed that making digital copies of their works infringed the exclusive right of copyright owners to reproduce their works. (See 17 U.S.C. 106.)

In the process of scanning print books to create digital versions of them, the print copies were destroyed. Book bindings were stripped so that each individual page could be scanned. The print copies were then discarded. The digital copies were not distributed to others. Under these circumstances, the court ruled that making digital versions of print books is fair use.

The court likened format to a frame around a work, as distinguished from the work itself. As such, a digital version is not a new derivative work. Rather, it is a transformative use of an existing work. So long as the digital version is merely a substitute for a print version a person has lawfully acquired, and so long as the print version is destroyed and the digital version is not further copied or distributed to others, then digitizing a printed work is fair use. This is consistent with the first sale doctrine (17 U.S.C. 109(a)), which gives the purchaser of a copy of a work a right to dispose of that particular copy as the purchaser sees fit.

In short, the mere conversion of a lawfully acquired print book to a digital file to save space and enable searchability is transformative, and so long as the print version is destroyed and the digital version is not further copied or distributed, it is fair use.

AI Training Is Transformative Fair Use

The authors did not contend that Claude generated infringing output. Instead, they argued that copies of their works were used as inputs to train the AI. The Copyright Act, however, does not prohibit or restrict the reading or analysis of copyrighted works. So long as a copy is lawfully purchased, the owner of the purchased copy can read it and think about it as often as he or she wishes.

[I]f someone were to read all the modern-day classics because of their exceptional expression, memorize them, and then emulate a blend of their best writing, would that violate the Copyright Act? Of course not.

Order.

Judge Alsup described AI training as “spectacularly” transformative.” Id. After considering all four fair use factors, he concluded that training AI on lawfully acquired copyright-protected works (as distinguished from the initial acquisition of copies) is fair use.

Pirating Is Not Fair Use

In addition to lawfully purchasing copies of some works, Anthropic also acquired infringing copies of works from pirate sites. Judge Alsup ruled that these, and uses made from them, are not fair use. The case will now proceed to trial on the issue of damages resulting from the infringement.

Conclusion

Each of these rulings seems, well, sort of obvious. It is nice to have the explanations laid out so clearly in one place, though.

The Copyright Discovery Rule Stands

Last year, the United States Supreme Court held that as long as a claim is timely filed, damages may be recovered for any loss or injury, including losses incurred more than three years before the claim is filed (Warner Chappell Music. v. Nealy). The Court expressed no opinion about whether the Copyright Act’s three-year limitation period begins to run when the infringing act occurs or when the victim discovers it, leaving that question for another day. “Another day” arrived, but the Court still declined to address it. What, if anything, can be made of that?

Statute of Limitations for Copyright Infringement

The Copyright Act imposes a 3-year limitations period for copyright infringement claims. Specifically:

No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

17 U.S.C. 507(b).

But when does a claim accrue? That is the (potentially) million-dollar question.

According to the “incident of injury” rule, an infringement claim accrues when an infringing act occurs. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. 663, 670 (2014). Under this rule, an infringement victim who did not learn about an infringing act until three years after it occurred would be out luck.

Courts in many circuits, however, apply an alternative rule. Known as the “discovery rule,” it holds that a copyright infringement claim accrues when “the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim.” William A. Graham Co. v. Haughey, 568 F. 3d 425, 433 (CA3 2009) (internal quotation marks omitted). According to Patry on Copyright, this is the majority rule.

If a court applies the discovery rule, then the infringement complaint must be filed within three years after the victim learns or should reasonably have learned of the infringing act, even if that act occurred more than three years earlier.


The Look-Back Period for Damages

As I explained in a previous blog post, the United States Supreme Court did not have the question about the validity of either accrual theory before it in Warner Chappell Music. Accordingly, it did not address the issue. Instead, the Court limited itself to deciding only the specific question before it, namely, whether damages can be claimed for all injuries that occurred before the victim learned (or reasonably should have learned) of an infringing act. The Court held that they can be. And this is true even for losses occurring more than three years before the infringement was discovered. Statutes of limitations only determine when a claim may be filed; they do not limit the look-back period for recovering damages for injury. “The Copyright Act contains no separate time-based limit on monetary recovery.” Warner Chappell Music, supra.

It must be kept in mind that the discovery rule has an important proviso. The clock starts clicking on a claim from the first date a victim actually knew or should have known of an infringement. In many cases, it may become more difficult to convince a judge that the victim’s unawareness of the infringing act was reasonable if a lot of time has gone by since the infringement occurred. Reasonableness, however, depends on all the facts and circumstances, so it has to be decided on a case-by-case basis.

RADesign, Inc. v. Ruthie Davis et al.

Michael Grecco Productions, Inc. sued RADesign, Inc. and others for copyright infringement. The complaint alleged that the defendant’s infringing use of a copyright-protected photograph began on August 16, 2017, and that the plaintiff discovered it on February 8, 2021. The complaint was filed in October, 2021. As a result, the claim would be barred under the “incident of injury” rule because it was filed more than three years after the alleged infringement occurred. The complaint, however, was filed in the Second Circuit, a jurisdiction that recognizes the discovery rule. Therefore, the question became whether the failure to discover the infringement within three years was reasonable. The district court held that it was not. The court described the copyright owner in this case as “sophisticated” in detecting and litigating infringements and therefore not entitled to the benefit of the discovery rule.

The Second Circuit Court of Appeals reversed, declaring, “This ‘sophisticated plaintiff’ rationale has no mooring to our cases.”

The U.S. Supreme Court’s Denial of Certiorari

RADesign, Inc. filed a petition for certiorari to the United States Supreme Court. The sole question presented was “Whether a claim ‘accrue[s]’ under the Copyright Act’s statute of limitations for civil actions, 17 U.S.C. 507(b), when the infringement occurs (the ‘injury rule’) or when a plaintiff discovers or reasonably should have discovered the infringement (the ‘discovery rule’).” The petition argued that the Copyright Act does not explicitly provide for a discovery rule and asserted that the courts of appeal should not have adopted one.

Unlike in Warner Chappell Music, the Court now had the validity of the discovery rule in copyright infringement cases squarely before it. The Court, however, declined the invitation to review that question. On June 16, 2025, it denied certiorari.

What a Denial of Certiorari Means

Really, the only legal effect of a denial of certiorari is that the lower court’s decision stands. In this case, that would mean that the Second Circuit Court of Appeals’ decision remains in effect for that specific case. For the time being, anyway, attorneys can cite the reasoning and holding of the Second Circuit Court of Appeals decision as legal precedent in other cases.

What a Denial of Certiorari Does Not Mean

A denial of certiorari does not mean that the Supreme Court agreed with the Court of Appeals. The Court of Appeal’s decision sets a precedent in the Second Circuit, but the denial of certiorari does not have that effect. It simply means the Supreme Court has decided not to trouble itself with the question at this time.

Caveats

Copyright owners and practitioners should not read too much into this decision. Even if the discovery rule forecloses a finding of untimeliness on the face of a complaint, a defendant may still be able to assert untimeliness as an affirmative defense. Again, the reasonableness of delayed acquisition of knowledge of infringement must be decided on a case-by-case basis. Copyright owners and their attorneys should be vigilant in detecting infringement of protected works and diligent in timely filing claims.


When Your Car Is a Character

Carroll Shelby Licensing v. Halicki et al.

If you’re like me, you’ve probably owned a car with character, or even several cars with character, at some time in your life. A used Volkswagen Jetta with a replacement alternator that was held in place with washers. An old Plymouth Duster with a floor and doors that rusted clean through before the slant-6 ever had a problem. A Honda Fit that . . . well, this is probably a good place to stop dredging up memories. This post isn’t about cars with character. It’s about cars as characters. Specifically, the question whether it is possible to claim copyright protection in a car that appears in a book, movie, song, or other work.

The Ninth Circuit Court of Appeals had occasion to address this very question in Carroll Shelby Licensing et al. v. Halicki et al, No. 23-3731 (9th Cir., May 27, 2025).

Gone in 60 Seconds and Sequela

In the 1974 movie, Gone in 60 Seconds, the protagonist is tasked with stealing forty-eight types of cars. He and his colleagues assign them names. They call the Ford Mustang with black stripes “Eleanor.” Action ensues.

Three movies incorporating elements of this one were made and released thereafter — The Junkman, Deadline Auto Theft, and a year 2000 remake of Gone in 60 Seconds. A car that was made to look like the Mustang in the original Gone in 60 Seconds appeared in these movies, as well. The message, “‘Eleanor’ from the movie Gone in 60 Seconds” was painted on its side.

Shelby contracted with Classic Recreations to produce “GT-500CR” Mustangs. Without going into all of the contractual and procedural details, the owner of the copyright in the first three movies eventually asserted a claim of copyright infringement, raising the question whether copyright can be claimed in “Eleanor,” the Ford Mustang car that appeared in the movies.

Character Copyrights

Fictional works generally are eligible for copyright protection. Sometimes copyright protection will extend to fictional characters within one as well. Mickey Mouse and Godzilla are examples.

NOTE: This blog post was not produced, sponsored or endorsed by Disney, and is not affiliated with Disney or any person, company or organization affiliated or associated with Disney.

The test for independent character copyright protection is set out in DC Comics v. Towle. In sum, the character must:

  1. have both physical and conceptual qualities;
  2. be “sufficiently delineated” to be recognizable as the same character whenever it appears; and
  3. be “especially distinctive” with “some unique elements of expression.”

The 9th Circuit Court of Appeals held that “Eleanor” failed to meet any of these criteria.

1. Physical and conceptual qualities

Eleanor had physical qualities, but the Court held that it lacked conceptual qualities. Conceptual qualities include “anthropomorphic qualities, acting with agency and volition, displaying sentience and emotion, expressing personality, speaking, thinking, or interacting with other characters or objects.” Shelby, supra. The character does not have to be human. It can be almost anything, so long as it has some of the above traits. Thus, the Batmobile could qualify.

The Court determined, however, that Eleanor the car lacked any of these conceptual qualities, likening her to prop rather than a character.

2. Sufficient delineation

Here, the Court determined that Eleanor lacked consistent traits. In some iterations, Eleanor appeared as a yellow and black Fastback Mustang; in others, as a gray and black Shelby GT-500 Mustang, or a rusty, paintless Mustang. The Court concluded that Eleanor was too lightly sketched to satisfy the “sufficient delineation” test.

3. Unique elements of expression

Having no regard at all for Eleanor’s feelings, the Court declared, “Nothing distinguishes Eleanor from any number of sports cars appearing in car-centric action films.” According to the Court, she was just a run-of-the-mill automobile. Accordingly, she failed the distinctiveness test.

Quiz

Just for fun, try your hand at applying the Towle test to determine which of these might qualify for copyright protection and which ones don’t:

  1. Chuck Berry’s Maybeline
  2. My Mother the Car
  3. Prince’s Little Red Corvette
  4. Chitty Chitty Bang Bang
  5. Christine
  6. KITT in Knight Rider
  7. The Magic School Bus
  8. Thomas the Tank Engine
  9. Gumdrop
  10. Dick Turpin
  11. Truckster in National Lampoon’s Vacation
  12. The Bluesmobile in The Blues Brothers
  13. The Hearse
  14. Herbie in The Love Bug
  15. The DeLorean in Back to the Future
  16. The Gnome-Mobile
  17. Ecto-1 in Ghostbusters
  18. Bessie in Doctor Who
  19. General Lee in The Dukes of Hazzard
  20. The Munster Coach in The Munsters
  21. Shellraiser in Teenage Mutant Ninja Turtles
  22. Benny the Cab in Who Framed Roger Rabbit?
  23. Lightning McQueen in Cars
  24. The Mystery Machine in Scooby-Doo
  25. The Gadgetmobile in Inspector Gadget
  26. Mustang Sally
  27. Killdozer
  28. Ivor the Engine
  29. Tootle
  30. Roary the Racing Car.

Give yourself 3,500 extra points if you are familiar with all of these references.

Points are not redeemable for value.

Concluding Thought

Even if a fictional character does not qualify for copyright protection, it might be protected as a trademark in some cases. The requirements for trademark protection are a subject for another day.

Photographers’ Rights

The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte. Romanova v. Amilus, Inc.

Romanova v. Amilus, Inc., No. 23-828 (2nd Cir., May 23, 2025)

The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte.

Photographer Jana Romanova created a photograph of a woman with a snake wrapped around her left hand and another snake crawling up her torso. (Not the one pictured here.) She licensed it to National Geographic Magazine for a single use. According to the complaint, Amilus, Inc. allegedly made a copy of the photograph and published it to its website. Romanova allegedly sent notifications demanding the removal of the photograph from the website. The defendant allegedly did not respond. This lawsuit followed.

The defendant allegedly did not appear or respond to the complaint, so Romanova moved for the entry of default judgment. Rather than grant a default judgment, however, the district court judge sua sponte ordered Romanova to show cause why the court should not dismiss the case on the grounds that the defendant’s use of the photograph was fair use. Although fair use is an affirmative defense, which defendants have the burden of asserting and proving, the judge opined that the fair use defense did not need to be pleaded because the judge believed the fair use defense was “clearly established on the fact of the complaint.”

Romanova appealed. The Second Circuit Court of Appeals reversed, effectively allowing the infringement claim to go forward.

Fair Use

In its decision, the Second Circuit Court of Appeals clarified how courts are to interpret and apply the four-factor “fair use” test outlined in the Copyright Act, 17 U.S.C. § 107 (purpose and character of the use; nature of the work; amount and substantiality of the portion copied; and the effect on the market for the work.)

The district court concluded that the defendant’s publication of the photograph communicated a different message than what the photographer intended. According to the district court, the purpose of the publication in the National Geographic was “to showcase persons in [her] home country of Russia that kept snakes as pets, specifically to capture pet snakes in common environments that are more associated with mainstream domesticated animals.” The district court found that the purpose of the defendant’s publication was to communicate a message about “the ever-increasing amount of pet photography circulating online.”

Apparently the district court was under the impression that the use of a copyright-protected work for any different purpose, or to communicate any different message, is “transformative” and therefore “fair use.” The Court of Appeals clarified that is not the case. In addition to alleging and proving the use was for a different purpose or conveyed a different meaning, a defendant seeking to establish a fair use defense must also allege and prove a justification for the copying.

Examples of purposes that may justify copying a work include commentary or criticism of the copied work, or providing information to the public about the copied work, in circumstances where the copy does not become a substitute for the work. (See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202, 212 (2d Cir. 2015).) Copying for evidentiary purposes (such as to support a claim that the creator of the work published a defamatory statement) can also be a valid justification to support a fair use defense. Creating small, low-resolution copies of images (“thumbnails”) may be justified when the purpose is to facilitate Internet searching. (Perfect 10 v. Amazon.com, 508 F.3d 1146, 1165 (9th Cir. 2007). Facilitating blind people’s access to a work may provide a justification for converting it into a format that blind people can read. (Authors Guild v. HathiTrust, 755 F.3d 87, 97 (2d Cir. 2014).

The Court cited other examples of potential justifications for copying. The Court admonished, however, that the question whether justification exists is a fact-specific determination that must be made on a case-by-case basis.

[J]ustification is often found when the copying serves to critique, or otherwise comment on, the original, or its author, but can also be found in other circumstances, such as when the copying provides useful information about the original, or on other subjects, usually in circumstances where the copying does not make the expressive content of the original available to the public.

Romanova, supra.

The only “justification” the district court cited for the copying was that it believed the defendant merely wanted to illustrate its perception of a growing trend to publish photographs of people with pets. “Little could remain of an author’s copyright protection if others could secure the right to copy and distribute a work simply by asserting some fact about the copied work,” the Court observed. The defendant’s publication of the copy did not communicate criticism or commentary on the original photograph or its author, or any other subject, the Court held.

The Court held that the remaining three fair use factors also militated against a finding of fair use.

Sua Sponte Dismissal for “Fair Use”

Justice Sullivan filed a concurring opinion. He would have reversed on procedural grounds without reaching the substantive issue. Specifically, Justice Sullivan objected to the trial judge’s raising of the fair use defense sua sponte on behalf of a non-appearing defendant. Normally, if a complaint establishes a prima case for relief, the court does not consider affirmative defenses (such as fair use) unless the defendant asserts them. That is to say, fair use is an affirmative defense; the defendant, not the plaintiff, bears the burden of proof.

Conclusion

Appeals courts continue to rein in overly expansive applications of “transformative” fair use by the lower courts. Here, the Court of Appeals soundly reasoned that merely being able to articulate an additional purpose served by publishing an author’s entire work, unchanged, will not, by itself, suffice to establish either transformative use or fair use.

Court of Appeals Affirms Registration Refusal for AI-Generated Output

In 2019, Stephen Thaler developed an AI system he called The Creativity Machine. He generated output he called A Recent Entrance to Paradise. When he applied to register a copyright claim in the output, he listed the machine as the author. He claimed ownership of the work as a work made for hire. In his application, he asserted that the work was autonomously created by a machine. The Copyright Office denied the claim on the basis that human authorship is a required element of a copyright claim.

On appeal, the United States district court affirmed the Copyright Office’s decision. Thaler attempted to argue, for the first time, that it was copyrightable because he provided instructions and directed the machine’s creation of the work. The district court found that he had waived that argument.

The Court of Appeals Affirms

Thaler sought review in the Court of Appeals for the Federal Circuit. On March 18, 2025, the Court of Appeals affirmed. The Court cited language in the Copyright Act that suggested Congress intended only human beings to be authors. The Court did not reach the question whether the Copyright Clause of the U.S. Constitution might protect machine-generated works if Congress should choose someday to extend copyright protection to these kinds of materials.

The Court held that the question whether Thalercould claim authorship on the basis of the fact that he made and directed the operation of the Creativity Machine has not been preserved for appeal.

Copyrights in AI-Generated Content

Copyright registrations are being issued for works created with generative-AI tools, subject to some important qualifications. Also, Internet Archves revisited (briefly)

The U.S. Copyright Office has issued its long-awaited report on the copyrightability of works created using AI-generated output. The legality of using copyrighted works to train generative-AI systems is a topic for another day.

Key takeaways:

  • Copyright protects the elements of a work that are created by a human, but does not protect elements that were AI-generated (probably the key take-away from the Report)
  • The Copyright Office believes existing law is adequate to deal with AI copyright issues; it does not believe any new legislation is needed
  • Using AI to assist in the creative process does not affect copyrightability
  • Prompts do not provide sufficient control over the output to be considered creative works.
  • Protection exists for the following, if they involve sufficient human creativity:
    • Selection, coordination, and arrangement of AI-generated output
      • Modification of AI-generated content
        • Human-created elements distinguishable from AI-generated elements.

Prompts

A key question for the Copyright Office was whether a highly detailed prompt could suffice as human creative expression. The Office says no; “[P]rompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectable ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output.”

How much control does a human need over the output-generation process to be considered an author? The answer, apparently, is “So much control that the AI mechanism’s contribution was purely rote or mechanical. “The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.”

Expressive prompts

If the prompt itself is sufficiently creative and original, the expression contained in the prompt may qualify for copyright protection. For example, if a user prompts an AI tool to change a story from first-person to third-person point of view, and includes the first-person version in the prompt, then copyright may be claimed in the story that was included in the prompt. The author could claim copyright in the story as a “human-generated element” distinguishable from anything AI thereafter did to it. The human-created work must be perceptible in the output.

Registration of hybrid works

The U.S. Copyright Office has now issued several registrations for works that contain a combination of both human creative expression and AI-generated output. Examples:

Irontic, LLC has a registered copyright in Senzia Opera, a sound recording with “music and singing voices by [sic] generated by artificial intelligence,” according to the copyright registration. That material is excluded from the claim. The registration, however, does provide protection for the story, lyrics, spoken words, and the selection, coordination, and arrangement of the sound recording.

Computer programs can be protected by copyright, but if any source code was generated by AI, it must be excluded from the claim. Thus, the Adobe GenStudio for Performance Marketing computer program is protected by copyright, but any source code in it that was AI-generated is not.

A record company received a copyright registration for human additions and modifications to AI-generated art.

As an example of a “selection, coordination and arrangement” copyright, there is the registration of a work called “A Collection of Objects Which Do Not Exist,” consisting of a collage of AI-generated images. “A Single Piece of American Cheese,” is another example of a registered copyright claim based on the selection, coordination, or arrangement of AI-generated elements.

China

A Chinese court has taken a contrary position, holding that an AI-generated image produced by Stable Diffusion is copyrightable because the prompts he chose reflected his aesthetic choices.

Internet Archives Postscript

In January, the Second Circuit Court of Appeals affirmed the decision in Hachette Book Group, Inc. v. Internet Archive. This came as no surprise. A couple of important things that bear repeating came out of this decision, though.

First, the Court of Appeals reaffirmed that fair use is an affirmative defense. As such, the defendant bears the burden of establishing the level of market harm the use has caused or may cause. While a copyright owner may reasonably be required to identify relevant markets, he/she/it is not required to present empirical data to support a claim of market harm. The defendant bears the burden of proof of a fair use defense, including proof pertinent to each of the four factors comprising the defense.

Confusion seems to have crept into some attorneys’ and judges’ analysis of the issue. This is probably because it is well known that the plaintiff bears the burden of proof of damages, which can also involve evidence of market harm. The question of damages, however, is separate and distinct from the “market harm” element of a fair use defense.

The second important point the Second Circuit made in Hatchette is that the “public benefit” balancing that Justice Breyer performed in Google LLC v. Oracle America, Inc. needs to focus on something more than just the short-term benefits to the public in getting free access to infringing copies of works. Otherwise, the “public benefit” in getting free copies of copyright-protected stuff would outweigh the rights of copyright owners every time.  The long-term benefits of protecting the rights of authors must also be considered.

True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? [Those consequences, i.e.,] depriv[ing] publishers and authors of the revenues due to them as compensation for their unique creations [outweigh any public benefit in having free access to copyrighted works.]

Id.

They reined in Google v. Oracle.

Thomas James is a human. No part of this article was AI-generated.

Fair Use Decision in Thomson Reuters v. Ross

A court has handed down the first known ruling (to me, anyway) on “fair use” in the wave of copyright infringement lawsuits against AI companies that are pending in federal courts.

A court has handed down the first known ruling (to me, anyway) on “fair use” in the wave of copyright infringement lawsuits against AI companies that are pending in federal courts. The ruling came in Thomas Reuters v. Ross. Thomas Reuters filed this lawsuit against Ross Intelligence back in 2020, alleging that Ross trained its AI models on Westlaw headnotes to build a competing legal research tool, infringing numerous copyrights in the process. Ross asserted a fair use defense.

In 2023, Thomson Reuters sought summary judgment against Ross on the fair use defense. At that time, Judge Bibas denied the motion. This week, however, the judge reversed himself, knocking out at least a major portion of the fair use defense.

Ross had argued that Westlaw headnotes are not sufficiently original to warrant copyright protection and that even if they are, the use made of them was “fair use.” After painstakingly reviewing the headnotes and comparing them with the database materials, he concluded that 2,243 headnotes were sufficiently original to receive copyright protection, that Ross infringed them, and that “fair use” was not a defense in this instance because the purpose of the use was commercial and it competed in the same market with Westlaw. Because of that, it was likely to have an adverse impact on the market for Westlaw.

While this might seem to spell the end for AI companies in the many other lawsuits where they are relying on a “fair use” defense, that is not necessarily so. As Judge Bibas noted, the Ross AI was non-generative. Generative AI tools may be distinguishable in the fair use analysis.

I will be presenting a program on Recent Developments in AI Law in New Jersey this summer. This one certainly will merit mention. Whether any more major developments will come to pass between now and then remains to be seen.

New AI Copyright Infringement Lawsuit

Another copyright and trademark infringement lawsuit against an AI company was filed this week. This one pits news article publishers Advance Local Media, Condé Nast, The Atlantic, Forbes Media, The Guardian, Business Insider, LA Times, McClatchy Media Company, Newsday, Plain Dealer Publishing Company, POLITICO, The Republican Company, Toronto Star Newspapers, and Vox Media against AI company Cohere.

The complaint alleges that Cohere made unauthorized use of publisher content in developing and operating its generative AI systems, infringing numerous copyrights and trademarks. The plaintiffs are seeking an injunction and monetary damages.

More copyright stories here.

Copyright Infringement Damages

Warner Chappell Music v. Nealy

Are damages for copyright infringement always limited to the three-year period before suit is filed? The Supreme Court says no.

The Limitations Period for Copyright Infringement

The Copyright Act imposes a three-year statute of limitations for copyright infringement claims: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. 507(b). It turns out the rule was easier for legislators to write than for courts to apply.

Sherman Nealy’s Infringement Claims

In the 1980s, Sherman Nealy and Tony Butler formed Music Specialist, Inc. The company released several recordings before the venture was dissolved. Nealy subsequently served two terms in prison, one from 1989 to 2008, and the other from 2012 to 2015.

Meanwhile, Butler licensed songs from the Music Specialist catalog to Warner Chappell Music, without Nealy’s knowledge. Warner Chappell, in turn, licensed them to popular recording artists and television shows.

In 2018, Nealy sued Warner Chappell for copyright infringement. He sought damages and profits for infringement occurring between 2008 and 2018. A significant portion of this claim would have been time-barred if “accrual,” as used in Section 107(b), referred only to the date on which an infringing act occurred. Some courts have held, however, that the rule does not apply if the copyright owner neither knew nor should have known that infringement was occurring. In that situation, a claim accrues when a “plaintiff discovers, or with due diligence should have discovered,” the infringing act. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. 663, 670 (2014). Once a copyright claimant learns that infringement has occurred, he or she then has three years from that time to file suit. Nealy alleged that he did not learn of the infringement until 2016, which was within the three-year limitations under the discovery rule.

The district court ruled that although his claims were timely filed, he could recover damages only for infringement occurring during the three-year period preceding his commencement of the lawsuit.

The Circuit Split

The district court’s ruling was consistent with the Second Circuit’s decision in Sohn v. Scholastic, Inc. 959 F.3d 39, 51-52 (2nd. Cir. 2020). The Ninth Circuit, however, allows recovery for all infringing acts, even beyond the three-year period, when a claim is timely filed under the discovery rule. Starz Entertainment v. MGM, 39 F. 4th 1236, 1244 (CA9 2022)). The Eleventh Circuit Court of Appeals adopted the Ninth Circuit’s view. It therefore reversed the district court.

The United States Supreme Court granted certiorari to resolve the circuit split.

The Supreme Court Decision

The Court has never ruled on the validity of the discovery rule. That question, however, was not before it in this case. Warner Chappell had not challenged the rule in the lower court, so the Court limited its review to the scope of recovery under the discovery rule.

Its ruling on that question was simple. The Act prescribes a three-year limitation for filing suit. It imposes no limit on the time for recovering damages. The Act says only that an infringer is liable for damages and profits made from the infringing act. “The Copyright Act contains no separate time-based limit on monetary recovery.” Id.

Justices Gorsuch, Thomas and Alito dissented. In their view, the discovery rule is not valid. Accordingly, they would have dismissed the petition as improvidently granted. They would have preferred for the Court to wait for a case that squarely raises the validity of the discovery rule instead of deciding an issue that requires them to assume, arguendo, that it is.

The Take-Away

The decision obviously is a victory for copyright owners and claimants. As long as they file an infringement claim within three years of learning they have one, it does not matter how long ago the infringement occurred. Recovery is not limited to the three years prior to the commencement of the action. It is important, however, to be aware of two limitations on the Court’s decision.

Known infringement

First, the three-year limitation period still exists. 

Example: Chuck learns in 2019 that Robert has been infringing his copyright for years. The infringement is ongoing. He waits until 2023, however, to file a claim. Because he did not file a claim within three years of learning of the pre-2019 infringing acts, he will not be able to recover damages or profits for them. In this situation, his recovery will be limited to the three-year period prior to commencing an action.
The validity of the discovery rule

As the dissenters observed, the Court has never directly ruled on the validity of the discovery rule. It is possible that if a litigant were to raise that issue, the question could make its way to the Supreme Court. It is also possible that the Court could decide against its validity at that time.

It does seem to be a just and fair rule. After all, why should infringers be permitted to benefit from their victims’ lack of knowledge? The Court, however, could decide against adopting a per se rule of validity, instead leaving it to trial courts to balance the equities in each individual case. We simply have no way of knowing, at this point, what approach the Court would take if the validity of the discovery rule were to come squarely before it.

Subject to these caveats, the decision is cause for celebration in the creative community.

Continuing education

Interested in learning how to do a trademark search? On June 10, 11 and 12, I will be presenting a series of 1-hour webinars covering: basic trademark law and “likelihood of confusion” analysis; searching the USPTO database; and advanced searching with RegEx. For more information, visit the Echion CLE course page.

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