Tag: fair use

A copyright win in the Internet Archive lawsuit

Book publishers have won their lawsuit against the Internet Archive. What does it mean for copyright owners? Cokato Copyright Attorney Tom James explains.

New York Public Library public domain image; this is NOT the library that is involved in this lawsuit.

In a previous blog post, I wrote about a lawsuit that book publishers Hachette Book Group et al. have filed against Internet Archive (“IA”) et al. The lawsuit alleges that IA scans copyright-protected printed books into a digital format, uploads them to its servers, and distributes these digital copies to members of the public via a website – all without a license and without paying the authors and publishers. The lawsuit asserts claims of copyright infringement.

A permanent injunction

Judge John Koeltl has now approved a consent judgment providing for a permanent injunction that prohibits Internet Archive from scanning and distributing copyrighted books. It applies only to books that copyright owners have already published and made available in e-book format. As Judge Koeltl put it: “The Court has narrowly tailored the injunctive relief in this case to cover only copyrighted works, like the Works in Suit, that are available from the Publishers in electronic form.”

IA reportedly plans to appeal.

A new lawsuit

This month, Sony Music Entertainment et al. filed a similar copyright infringement lawsuit against IA. This complaint alleges that IA digitized and distributed digital copies of 78 rpm records by Frank Sinatra, Billie Holiday, and other recording artists in violation of the rights of copyright owners.

Generative-AI: The Top 12 Lawsuits

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Artificial intelligence (“AI”) is generating more than content; it is generating lawsuits. Here is a brief chronology of what I believe are the most significant lawsuits that have been filed so far.

Most of these allege copyright infringement, but some make additional or other kinds of claims, such as trademark, privacy or publicity right violations, defamation, unfair competition, and breach of contract, among others. So far, the suits primarily target the developers and purveyors of generative AI chatbots and similar technology. They focus more on what I call “input” than on “output” copyright infringement. That is to say, they allege that copyright infringement is involved in the way particular AI tools are trained.

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence (May, 2020)

Thomson Reuters Enterprise Centre GmbH et al. v. ROSS Intelligence Inc., No. 20-cv-613 (D. Del. 2020)

Thomson Reuters alleges that ROSS Intelligence copied its Westlaw database without permission and used it to train a competing AI-driven legal research platform. In defense, ROSS has asserted that it only copied ideas and facts from the Westlaw database of legal research materials. (Facts and ideas are not protected by copyright.) ROSS also argues that its use of content in the Westlaw database is fair use.

One difference between this case and subsequent generative-AI copyright infringement cases is that the defendant in this case is alleged to have induced a third party with a Westlaw license to obtain allegedly proprietary content for the defendant after the defendant had been denied a license of its own. Other cases involve generative AI technologies that operate by scraping publicly available content.

The parties filed cross-motions for summary judgment. While those motions were pending, the U.S. Supreme Court issued its decision in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___, 143 S. Ct. 1258 (2023). The parties have now filed supplemental briefs asserting competing arguments about whether and how the Court’s treatment of transformative use in that case should be interpreted and applied in this case. A decision on the motions is expected soon.

Doe 1 et al. v. GitHub et al. (November, 2022)

Doe 1 et al. v. GitHub, Inc. et al., No. 22-cv-06823 (N.D. Calif. November 3, 2022)

This is a class action lawsuit against GitHub, Microsoft, and OpenAI that was filed in November, 2022. It involves GitHub’s CoPilot, an AI-powered tool that suggests lines of programming code based on what a programmer has written. The complaint alleges that Copilot copies code from publicly available software repositories without complying with the terms of applicable open-source licenses. The complaint also alleges removal of copyright management information in violation of 17 U.S.C. § 1202, unfair competition, and other tort claims.

Andersen et al. v. Stability AI et al. (January 13, 2023)

Andersen et al. v. Stability AI et al., No. 23-cv-00201 (N.D. Calif. Jan. 13, 2023)

Artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed this class action lawsuit against generative-AI companies Stability AI, Midjourney, and DeviantArt on January 13, 2023. The lawsuit alleges that the defendants infringed their copyrights by using their artwork without permission to train AI-powered image generators to create allegedly infringing derivative works.  The lawsuit also alleges violations of 17 U.S.C. § 1202 and publicity rights, breach of contract, and unfair competition.

Getty Images v. Stability AI (February 3, 2023)

Getty Images v. Stability AI, No. 23-cv-00135-UNA (D. Del. February 23, 2023)

Getty Images has filed two lawsuits against Stability AI, one in the United Kingdom and one in the United States, each alleging both input and output copyright infringement. Getty Images owns the rights to millions of images. It is in the business of licensing rights to use copies of the images to others. The lawsuit also accuses Stability AI of falsifying, removing or altering copyright management information, trademark infringement, trademark dilution, unfair competition, and deceptive trade practices.

Stability AI has moved to dismiss the complaint filed in the U.S. for lack of jurisdiction.

Flora et al. v. Prisma Labs (February 15, 2023)

Flora et al. v. Prisma Labs, Inc., No. 23-cv-00680 (N.D. Calif. February 15, 2023)

Jack Flora and others filed a class action lawsuit against Prisma Labs for invasion of privacy. The complaint alleges, among other things, that the defendant’s Lensa app generates sexualized images from images of fully-clothed people, and that the company failed to notify users about the biometric data it collects and how it will be stored and/or destroyed, in violation of Illinois’s data privacy laws.

Young v. NeoCortext (April 3, 2023)

Young v. NeoCortext, Inc., 2023-cv-02496 (C.D. Calif. April 3, 2023)

This is a publicity rights case. NeoCortext’s Reface app allows users to paste images of their own faces over those of celebrities in photographs and videos. Kyland Young, a former cast member of the Big Brother reality television show, has sued NeoCortext for allegedly violating his publicity rights. The complaint alleges that NeoCortext has “commercially exploit[ed] his and thousands of other actors, musicians, athletes, celebrities, and other well-known individuals’ names, voices, photographs, or likenesses to sell paid subscriptions to its smartphone application, Reface, without their permission.”

NeoCortext has asserted a First Amendment defense, among others.

Walters v. Open AI (June 5, 2023)

Walters v. OpenAI, LLC, No. 2023-cv-03122 (N.D. Ga. July 14, 2023) (Complaint originally filed in Gwinnett County, Georgia Superior Court on June 5, 2023; subsequently removed to federal court)

This is a defamation action against OpenAI, the company responsible for ChatGPT. The lawsuit was brought by Mark Walters. He alleges that ChatGPT provided false and defamatory misinformation about him to journalist Fred Riehl in connection with a federal civil rights lawsuit against Washington Attorney General Bob Ferguson and members of his staff. ChatGPT allegedly stated that the lawsuit was one for fraud and embezzlement on the part of Mr. Walters. The complaint alleges that Mr. Walters was “neither a plaintiff nor a defendant in the lawsuit,” and “every statement of fact” pertaining to him in the summary of the federal lawsuit that ChatGPT prepared is false. A New York court recently addressed the questions of sanctions for attorneys who submit briefs containing citations to non-existent “precedents” that were entirely made up by ChatGPT. This is the first case to address tort liability for ChatGPT’s notorious creation of “hallucinatory facts.”

In July, 2023, Jeffrey Battle filed a complaint against Microsoft in Maryland alleging that he, too, has been defamed as a result of AI-generated “hallucinatory facts.”

P.M. et al. v. OpenAI et al. (June 28, 2023)

P.M. et al. v. OpenAI LP et al., No. 2023-cv-03199 (N.D. Calif. June 28, 2023)

This lawsuit has been brought by underage individuals against OpenAI and Microsoft. The complaint alleges the defendants’ generative-AI products ChatGPT, Dall-E and Vall-E collect private and personally identifiable information from children without their knowledge or informed consent. The complaint sets out claims for alleged violations of the Electronic Communications Privacy Act; the Computer Fraud and Abuse Act; California’s Invasion of Privacy Act and unfair competition law; Illinois’s Biometric Information Privacy Act, Consumer Fraud and Deceptive Business Practices Act, and Consumer Fraud and Deceptive Business Practices Act; New York General Business Law § 349 (deceptive trade practices); and negligence, invasion of privacy, conversion, unjust enrichment, and breach of duty to warn.

Tremblay v. OpenAI (June 28, 2023)

Tremblay v. OpenAI, Inc., No. 23-cv-03223 (N.D. Calif. June 28, 2023)

Another copyright infringement lawsuit against OpenAI relating to its ChatGPT tool. In this one, authors allege that ChatGPT is trained on the text of books they and other proposed class members authored, and facilitates output copyright infringement. The complaint sets forth claims of copyright infringement, DMCA violations, and unfair competition.

Silverman et al. v. OpenAI (July 7, 2023)

Silverman et al. v. OpenAI, No. 23-cv-03416 (N.D. Calif. July 7, 2023)

Sarah Silverman (comedian/actress/writer) and others allege that OpenAI, by using copyright-protected works without permission to train ChatGPT, committed direct and vicarious copyright infringement, violated section 17 U.S.C. 1202(b), and their rights under unfair competition, negligence, and unjust enrichment law.

Kadrey et al. v. Meta Platforms (July 7, 2023)

Kadrey et al. v. Meta Platforms, No. 2023-cv-03417 (N.D. Calif. July 7, 2023)

The same kinds of allegations as are made in Silverman v. OpenAI, but this time against Meta Platforms, Inc.

J.L. et al. v. Alphabet (July 11, 2023)

J.L. et al. v. Alphabet, Inc. et al. (N.D. Calif. July 11, 2023)

This is a lawsuit against Google and its owner Alphabet, Inc. for allegedly scraping and harvesting private and personal user information, copyright-protected works, and emails, without notice or consent. The complaint alleges claims for invasion of privacy, unfair competition, negligence, copyright infringement, and other causes of action.

On the Regulatory Front

The U.S. Copyright Office is examining the problems associated with registering copyrights in works that rely, in whole or in part, on artificial intelligence. The U.S. Federal Trade Commission (FTC) has suggested that generative-AI implicates “competition concerns.”. Lawmakers in the United States and the European Union are considering legislation to regulate AI in various ways.

Copyright owners prevail in Internet Archive lawsuit

A federal district court has ruled in favor of book publishers in their copyright infringement lawsuit against Internet Archives

In June, 2020 four book publishers filed a copyright infringement lawsuit against Internet Archive. The publishers asserted that the practice of scanning books and lending digital copies of them to online users infringed their copyrights in the books. On Friday, March 24, 2023, a federal district court judge agreed, granting the publishers’ motion for summary judgment.

The Internet Archive operation

Internet Archive is a nonprofit organization that has undertaken several archiving projects. For example, it created the “Wayback Machine,” an online archive of public webpages. This lawsuit involves another of its projects, namely, the creation of a digital archive of books. Some of these are in the public domain. Also included in this archive, however, are over 3 million books that are protected by copyright. The judge determined that 33,000 of them belong to the plaintiffs in the lawsuit.

According to the Order granting summary judgment, after scanning the books, Internet Archive made them publicly available online for free, without the permission of the copyright owners.

“Fair Use”

According to the Order, Internet Archive did not dispute that it violated copyright owners’ exclusive rights to reproduce the works, to make derivative works based on them, to distribute their works, to publicly perform them (Internet Archive offered a “read aloud” function on it website), and to display them (in this case, on a user’s browser.) In short, the Order determined that the operation violated all five of the exclusive rights of copyright owners protected by the United States Copyright Act (17 U.S.C. sec. 106).

Internet Archive asserted a “fair use” defense.

In previous cases involving massive operations to scan and digitize millions of books, Authors Guild v. Google., Inc. and Authors Guild v. HathiTrust, judicial analyses resulted in “fair use” determinations unfavorable to copyright owners. Internet Archive, of course, invited the judge to do the same thing here. The judge declined the invitation.

The judge distinguished this case from its predecessors by ruling that unlike the uses made of copyrighted works in those cases, the use in this case was not transformative. For example, Google had digitized the entire text of books in order to create a searchable index of books. “There is nothing transformative,” however, about copying and distributing the entire texts of books to the public, the judge declared.

The judge observed that Google reproduces and displays to the public only enough context surrounding the searched term to help a reader evaluate whether the book falls within the range of the reader’s interest. The Court of Appeals in Google had warned that “[i]f Plaintiff’s claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” then the “claim [of copyright infringement] would be strong.”

The judge also determined that the alleged benefit to the public of having access to the entire text of books without having to pay for them “cannot outweigh the market harm to the publishers.”

Ultimately, the judge concluded that all four “fair use” factors (character and purpose of the use, nature of the work, amount and substantiality of the portion copied, and the effect on the market for the work) weighed against a finding of fair use.

What’s next?

Internet Archive apparently intends to appeal the decision. In the meantime, it appears that it will continue other kinds of digitized book services, such as interlibrary loans, citation linking, access for the print-disabled , text and data mining, purchasing e-books, and receiving and preserving books.

Why Machine Training AI with Protected Works is Not Fair Use

… if the underlying goal of copyright’s exclusive rights and the fair use exception is to promote new “authorship,” this is doctrinally fatal to the proposal that training AIs on volumes of protected works favors a finding of fair use.

Guest blogger David Newhoff lays out the argument against the claim that training AI systems with copyright-protected works is fair use. David is the author of Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright (Potomac Books 2020) and is a copyright advocate/writer at The Illusion of More.

As most copyright watchers already know, two lawsuits were filed at the start of the new year against AI visual works companies. In the U.S., a class-action was filed by visual artists against DeviantArt, Midjourney, and Stability AI; and in the UK, Getty Images is suing Stability AI. Both cases allege infringing use of large volumes of protected works fed into the systems to “train” the algorithms. Regardless of how these two lawsuits might unfold, I want to address the broad defense, already being argued in the blogosphere, that training generative AIs with volumes of protected works is fair use. I don’t think so.

Copyright advocates, skeptics, and even outright antagonists generally agree that the fair use exception, correctly applied, supports the broad aim of copyright law to promote more creative work. In the language of the Constitution, copyright “promotes the progress of science,” but a more accurate, modern description would be that copyright promotes new “authorship” because we do not tend to describe literature, visual arts, music, etc. as “science.”

The fair use doctrine, codified in the federal statute in 1976, originated as judge-made law, and from the seminal Folsom v. Marsh to the contemporary Andy Warhol Foundation v. Goldsmith, the courts have restated, in one way or another, their responsibility to balance the first author’s exclusive rights with a follow-on author’s interest in creating new expression. And as a matter of general principle, it is held that the public benefits from this balancing act because the result is a more diverse market of creative and cultural works.

Fair use defenses are case-by-case considerations and while there may be specific instances in which an AI purpose may be fair use, there are no blanket exceptions. More broadly, though, if the underlying goal of copyright’s exclusive rights and the fair use exception is to promote new “authorship,” this is doctrinally fatal to the proposal that training AIs on volumes of protected works favors a finding of fair use. Even if a court holds that other limiting doctrines render this activity by certain defendants to be non-infringing, a fair use defense should be rejected at summary judgment—at least for the current state of the technology, in which the schematic encompassing AI machine, AI developer, and AI user does nothing to promote new “authorship” as a matter of law.

The definition of “author” in U.S. copyright law means “human author,” and there are no exceptions to this anywhere in our history. The mere existence of a work we might describe as “creative” is not evidence of an author/owner of that work unless there is a valid nexus between a human’s vision and the resulting work fixed in a tangible medium. If you find an anonymous work of art on the street, absent further research, it has no legal author who can assert a claim of copyright in the work that would hold up in any court. And this hypothetical emphasizes the point that the legal meaning of “author” is more rigorous than the philosophical view that art without humans is oxymoronic. (Although it is plausible to find authorship in a work that combines human creativity with AI, I address that subject below.)

As a matter of law, the AI machine itself is disqualified as an “author” full stop. And although the AI owner/developer and AI user/customer are presumably both human, neither is defensibly an “author” of the expressions output by the AI. At least with the current state of technologies making headlines, nowhere in the process—from training the AI, to developing the algorithm, to entering prompts into the system—is there an essential link between those contributions and the individual expressions output by the machine. Consequently, nothing about the process of ingesting protected works to develop these systems in the first place can plausibly claim to serve the purpose of promoting new “authorship.”

But What About the Google Books Case?

Indeed. In the fair use defenses AI developers will present, we should expect to see them lean substantially on the holding in Authors Guild v. Google Books—a decision which arguably exceeds the purpose of fair use to promote new authorship. The Second Circuit, while acknowledging that it was pushing the boundaries of fair use, found the Google Books tool to be “transformative” for its novel utility in presenting snippets of books; and because that utility necessitates scanning whole books into its database, a defendant AI developer will presumably want to make the comparison. But a fair use defense applied to training AIs with volumes of protected works should fail, even under the highly utilitarian holding in Google Books.

While people of good intent can debate the legal merits of that decision, the utility of the Google Books search engine does broadly serve the interest of new authorship with a useful research tool—one I have used many times myself. Google Books provides a new means by which one author may research the works of another author, and this is immediately distinguishable from the generative AI which may be trained to “write books” without authors. Thus, not only does the generative AI fail to promote authorship of the individual works output by the system, but it fails to promote authorship in general.

Although the technology is primitive for the moment, these AIs are expected to “learn” exponentially and grow in complexity such that AIs will presumably compete with or replace at least some human creators in various fields and disciplines. Thus, an enterprise which proposes to diminish the number of working authors, whether intentionally or unintentionally, should only be viewed as devastating to the purpose of copyright law, including the fair use exception.

AI proponents may argue that “democratizing” creativity (i.e., putting these tools in every hand) promotes authorship by making everyone an author. But aside from the cultural vacuum this illusion of more would create, the user prompting the AI has a high burden to prove authorship, and it would really depend on what he is contributing relative to the AI. As mentioned above, some AIs may evolve as tools such that the human in some way “collaborates” with the machine to produce a work of authorship. But this hypothetical points to the reason why fair use is a fact-specific, case-by-case consideration. AI Alpha, which autonomously creates, or creates mostly without human direction, should not benefit from the potential fair use defense of AI Beta, which produces a tool designed to aid, but not replace, human creativity.

Broadly Transformative? Don’t Even Go There

Returning to the constitutional purpose of copyright law to “promote science,” the argument has already been floated as a talking point that training AI systems with protected works promotes computer science in general and is, therefore, “transformative” under fair use factor one for this reason. But this argument should find no purchase in court. To the extent that one of these neural networks might eventually spawn revolutionary utility in medicine or finance etc., it would be unsuitable to ask a court to hold that such voyages of general discovery fit the purpose of copyright, to say nothing of the likelihood that the adventure strays inevitably into patent law. Even the most elastic fair use findings to date reject such a broad defense.

It may be shown that no work(s) output by a particular AI infringes (copies) any of the works that went into its training. It may also be determined that the corpus of works fed into an AI is so rapidly atomized into data that even fleeting “reproduction” is found not to exist, and, thus, the 106(1) right is not infringed. Those questions are going to be raised in court before long, and we shall see where they lead. But to presume fair use as a broad defense for AI “training” is existentially offensive to the purpose of copyright, and perhaps to law in general, because it asks the courts to vest rights in non-humans, which is itself anathema to caselaw in other areas.[1]

It is my oft-stated opinion that creative expression without humans is meaningless as a cultural enterprise, but it is a matter of law to say that copyright is meaningless without “authors” and that there is no such thing as non-human “authors.” For this reason, the argument that training AIs on protected works is inherently fair use should be denied with prejudice.

[1] Cetaceans v. Bush holding that animals do not have standing in court was the basis for rejecting PETA’S complaint against photographer Slater for infringing the copyright rights of the monkey in the “Monkey Selfie” fiasco.

Getty Images Litigation Update

Getty Images has now filed a lawsuit for copyright infringement in the United States.

In a previous post, I reported on a lawsuit that Getty Images had filed in the United Kingdom against Stability AI. Now the company has filed similar claims against the company in the United States.

The complaint, which has been filed in federal district court in Delaware, alleges claims of copyright infringement; providing false copyright management information; removal or alteration of copyright management information; trademark infringement; trademark dilution; unfair competition; and deceptive trade practices. Both monetary damages and injunctive relief are being sought.

An interesting twist in the Getty litigation is that AI-generated works allegedly have included the Getty Images trademark.

Getty Images logo on AI-generated image
(Reproduction of a portion of the Complaint filed in Getty Images v. Stability AI, Inc. in U.S. district court for the district of Delaware, case no. Case 1:23-cv-00135-UNA (2023). The image has been cropped to avoid reproducing the likenesses of persons appearing in the image and to display only what is needed here for purposes of news reporting and commentary,)

Getty Images, which is in the business of collecting and licensing quality images, alleges (among other things) that affixing its trademark to poor quality AI-generated images tarnishes the company’s reputation. If proven, this could constitute trademark dilution, which is prohibited by the Lanham Act.

Court agrees to hear parody goods case

The U.S. Supreme Court will hear Jack Daniel’s v. VIP Products, the “dog toy” trademark case. Cokato Copyright Attorney Thomas James explains.

In my last blog post (“MSCHF Testing the Limits of Free Speech“) I wrote about the Wavy Baby Shoes case in the Second Circuit Court of Appeals. Now, in a different case raising similar issues, the United States Supreme Court will have an opportunity to resolve a circuit split on the parody goods question. On Monday, the Court granted certiorari in Jack Daniel’s Properties v. VIP Products.

The “Bad Spaniels” Dog Toy

Jack Daniel’s Products claims trademark rights, including trade dress, in the distinctive shape and label of its whiskey product. VIP Products has made a dog toy called “Bad Spaniels.” It has a very similar shape and label. Jack Daniel’s sued VIP, asserting trademark infringement and dilution claims.

The district court ruled in favor of Jack Daniel’s, finding that the dog toy was likely to confuse consumers about the source of the product and tarnish the Jack Daniel’s brand. The Ninth Circuit Court of Appeals however, reversed. The dog toys, the Court ruled, are parody goods protected as expression by the First Amendment.

The Second, Seventh and Eighth Circuit Courts of Appeals have taken different approaches regarding the scope of First Amendment protection for parody goods. The Supreme Court granted certiorari to resolve the split in the circuits.

The Trademark Dilution Revision Act

The Trademark Dilution Revision Act expressly excludes parody from dilution liability. It applies, however, only when the challenged use is “other than as a designation of source for the person’s own goods or services.” 15 U.S.C. § 1125(c)(3)(A)(ii). Thus, the Act covers parody advertisements or other parodic references to a product in a magazine, movie or other traditional form of artistic or literary expression, but it does not reach situations where a parody mark is used as a designation of source.

Rogers v. Grimaldi

As discussed in a previous blog post, the Second Circuit Court of Appeals ruled, in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), that the use of a trademark in the title of a film or other artistic work is not actionable unless “the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Id. at 999.

In the Jack Daniel’s case, the district court held that the rule articulated in Rogers is limited to the use of a trademark in the title of a film or other artistic work. The Ninth Circuit Court of Appeals did not agree that the rule is so limited.

The case squarely raises the question whether and to what extent the First Amendment insulates makers and sellers of parody goods from trademark liability.

Conclusion

A decision in this case will be coming in a few months. It is difficult to predict what it will be. Many legal scholars, I am sure, will frame the issue as whether the Court will choose to extend Grimaldi to parody goods, on one hand, or to limit the case to its facts, on the other. Another possibility, however, is that the Court might choose to disapprove Grimaldi altogether. As usual, we will just have to wait and see.

The Top Copyright Cases of 2021

by Minnesota attorney Thomas James

I initially had set out to put together a “Top 10” list. Really, though, I think the list can be boiled down to three. Admittedly, this is only my personal opinion. Time will tell. Nevertheless, for what it’s worth, here is my list of the 3 Top Copyright Cases of 2021.

Google v. Oracle America

Google v. Oracle America, __ U.S. __, 141 S. Ct. 1183 (2021)

This United States Supreme Court decision is the culmination of many years of litigation between tech giants Google and Oracle.

At issue was Google’s copying of 11,500 lines of code of the Java SE API. Illustrating the murkiness of the “fair use” concept, the United States Supreme Court declared that this was fair use.

The case highlights the relatively weak protection that copyright offers for computer programs. The functional aspects of a computer program are better protected by patent than copyright.

It is dangerous to read too much into the decision, though. It does not mean that computer program copyrights are worthless To the contrary, the case was decided on the basis of fair use. Google’s copying of the code was infringement. “Fair use” simply means that a court came to the conclusion that a particular defendant should not be held liable for a particular kind or instance of infringement. Another court could come to a different conclusion in a different case involving different parties, a different kind of computer program, and a different kind of use of it.

Warhol v. Goldsmith

Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 19-2420 (2nd Cir. 2021).

This case is notable primarily because of the celebrities involved. Lynn Goldsmith took a photograph of Prince in her studio in 1981. Andy Warhol created a series of silkscreen prints and pencil illustrations based on it. Goldsmith sued for infringement of the copyright in the photograph. The district court found in favor of Warhol, citing the transformative use doctrine. The Court of Appeals reversed, asserting that the district court misapplied the four “fair use” factors.

Reversals of “fair use” findings on appeal are not uncommon. They illustrate the nebulous nature of the four-factor test that courts use to evaluate fair use claims.

Design Basics v. Signature Construction

Design Basics v. Signature Construction, No. 19-2716 (7th Cir. 2021).

Design Basics holds registered copyrights in thousands of floor plans for single-family homes. The company attempts to secure “prompt settlements” of infringement claims. The court ruled against the company on an infringement claim, finding that these designs consisted mainly of unprotectable stock elements, much of which were dictated by functional considerations and existing design considerations.

Architectural designs are protected by copyright, but the protection is thin. Only a “strikingly similar” work can give risk to an infringement claim. In other words, infringement of an architectural work requires a showing of extremely close copying.

    Need help with a copyright registration or a copyright matter? Contact the Cokato Copyright Attorney Tom James.

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