Copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”
The United States Supreme Court has put an end to Stephen Thaler’s crusade for machine rights. Okay, that’s the sensational news article way of putting it. He wasn’t really crusading for machine rights. He was trying to establish a precedent for claiming copyright in AI-generated works.
I first wrote about this back in May, 2022 (“AI Can Create, But Is It Art?”). At that time, the U.S. Copyright Office had denied registration of “A Recent Entrance to Paradise.” This was an image that was generated by Thaler’s AI tool, the Creativity Machine. Thaler had sought to register it as a work for hire made by the machine. The Copyright Office denied registration because it lacked human authorship.
The decision was consistent with appellate court decisions suggesting that stories allegedly written by “non-human spiritual beings” are not protected by copyright, although a human selection or arrangement of them might be. Urantia Foundation v. Kristen Maaherra, 114 F.3d 955 (9th Cir. 1997). Neither are works created by non-human animals, such as a monkey selfie.
Thaler sought review by the federal district court. Judge Howell affirmed the Copyright Office’s decision, writing that copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”
The Court of Appeals affirmed the refusal of registration. Thaler petitioned for review by the United States Supreme Court. On March 2, 2026, the Court denied review, without comment.
An argument that Thaler advanced in the petition for certiorari was bascially that because images output by a camera are protected by copyright (See Burrow-Giles Lithographic v. Sarony), images generated by a computer should be, too.
The Copyright Office has since published guidance explaining that using AI as a tool in the creative process does not categorically rule out copyright protection. Rather, assessments must be made on a case-by-case basis about the nature and extent of human creativity that was contributed.
The narrowest interpretation of the Supreme Court’s denial of certiorari is that it did not see a need to disturb the ruling that a machine cannot be an “author,” for purposes of copyright law. The facts of the case did not present an opportunity to opine on whether, and under what circumstances, a human can claim to be an author of an AI-assisted creation.
Trademark News
Buc-ee’s, a popular chain of gas-and-convenience stores in the South, has filed a trademark infringement lawsuit against Mickey’s gas stations. According to the complaint:
Consumers are likely to perceive a connection or association as to the source, sponsorship, or affiliation of the parties’ products and services, when in fact none exists, given the similarity of the parties’ logos, trade channels, and consumer bases.
Here are the two logos, side by side for comparison:
Trademark infringement occurs when one company’s logo or other mark is used in commerce in a way that is likely to confuse consumers about the source of a product or service. What do you think, folks? Might a weary traveler mistake a moose for a beaver?
Copyright cannot be claimed in a voice. Copyright law protects only expression, not a person’s corporeal attributes.
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)
Anthropic also acquired infringing copies of works from pirate sites. Judge Alsup ruled that these, and uses made from them, are not fair use.
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.
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.
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.
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.
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:
have both physical and conceptual qualities;
be “sufficiently delineated” to be recognizable as the same character whenever it appears; and
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:
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.
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.)
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.
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.
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 is the “human authorship” requirement that the Copyight Office invoked in denying registration of Stephen Thaler’s AI-generated output. I wrote about that a couple of years ago in “AI Can Create But Is It Art?”
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.]
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.
