Tag: photography

Photography = copyrights in photographs

The Top Copyright Cases of 2022

Cokato Minnesota attorney Tom James (“The Cokato Copyright Attorney”) presents his annual list of the top copyright cases of the year.

My selections for the top copyright cases of the year. (For my bio. visit my About Thomas B. James page.)

“Dark Horse”

Marcus Gray had sued Katy Perry for copyright infringement, claiming that her “Dark Horse” song unlawfully copied portions of his song, “Joyful Noise.” The district court held that the disputed series of eight notes appearing in Gray’s song were not “particularly unique or rare,” and therefore were not protected against infringement. The Ninth Circuit Court of Appeals agreed, ruling that the series of eight notes was not sufficiently original and creative to receive copyright protection. Gray v. Hudson.

“Shape of You”

Across the pond, another music copyright infringement lawsuit was tossed. This one involved Ed Sheeran’s “Shape of You” and Sam Chokri’s “Oh Why.” In this case, the judge refused to infer from the similarities in the two songs that copyright infringement had occurred. The judge ruled that the portion of the song as to which copying had been claimed was “so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it.” Sheeran v. Chokri.

Instagram images

Another case out of California, this one involves a lawsuit filed by photographers against Instagram, alleging secondary copyright infringement. The photographers claim that Instagram’s embedding tool facilitates copyright infringement by users of the website. The district court judge dismissed the lawsuit, saying he was bound by the so-called “server test” the Ninth Circuit Court of Appeals announced in Perfect 10 v. Amazon. The server test says, in effect, that a website does not unlawfully “display” a copyrighted image if the image is stored on the original site’s server and is merely embedded in a search result that appears on a user’s screen. The photographers have an appeal pending before the Ninth Circuit Court of Appeals, asking the Court to reconsider its decision in Perfect 10. Courts in other jurisdictions have rejected Perfect 10 v. Amazon. The Court now has the option to either overrule Perfect 10 and allow the photographers’ lawsuit to proceed, or to re-affirm it, thereby creating a circuit split that could eventually lead to U.S. Supreme Court review. Hunley v. Instagram.

Maud Stevens Wagner, Fe,male tattoo artist, 1907 public domain

Tattoos

Is reproducing a copyrighted image in a tattoo fair use? That is a question at issue in a case pending in New York. Photographer Jeffrey Sedlik took a photograph of musician Miles Davis. Later, a tattoo artist allegedly traced a printout of it to create a stencil to transfer to human skin as a tattoo. Sedlik filed a copyright infringement lawsuit in the United States District Court for the Southern District of New York. Both parties moved for summary judgment. The judge analyzed the claims using the four “fair use” factors. Although the ultimate ruling was that fact issues remained to be decided by a jury, the court issued some important rulings in the course of making that ruling. In particular, the court ruled that affixing an image to skin is not necessarily a protected “transformative use” of an image. According to the court, it is for a jury to decide whether the image at issue in a particular case has been changed significantly enough to be considered “transformative.” It will be interesting to see how this case ultimately plays out, especially if it is still pending when the United States Supreme Court announces its decision in the Warhol case (See below). Sedlik v. Von Drachenberg.

Digital libraries

The Internet Archive lawsuit, about which I wrote in a previous blog post, is still at the summary judgment stage. Its potential future implications are far-reaching. It is a copyright infringement lawsuit that book publishers filed in the federal district court for the Southern District of New York. The gravamen of the complaint is that Internet Archive allegedly has scanned over a million books and has made them freely available to the public via an Internet website without securing a license or permission from the copyright rights-holders. The case will test the “controlled digital lending” theory of fair use that was propounded in a white paper published by David R. Hansen and Kyle K. Courtney. They argued that distributing digitized copies of books by libraries should be regarded as the functional equivalent of lending physical copies of books to library patrons. Parties and amici have filed briefs in support of motions for summary judgment. An order on the motions is expected soon. The case is Hachette Book Group et al. v. Internet Archive.

Copyright registration

In Fourth Estate Public Benefits Corp. v. Wall-Street.com LLC, 139 S. Ct. 881, 889 (2019), the United States Supreme Court interpreted 17 U.S.C. § 411(a) to mean that a copyright owner cannot file an infringement claim in federal court without first securing either a registration certificate or an official notice of denial of registration from the Copyright Office. In an Illinois Law Review article, I argued that this imposes an unduly onerous burden on copyright owners and that Congress should amend the Copyright Act to abolish the requirement. Unfortunately, Congress has not done that. As I said in my case note on Unicolors v. H&M Hennes & Mauritz,  Congressional inaction to correct a harsh law with potentially unjust consequences often leads to exercises of the judicial power of statutory interpretation to ameliorate those consequences. Unicolors v. H&M Hennes & Mauritz.

Unicolors, owner of the copyrights in various fabric designs, sued H&M Hennes & Mauritz (H&M), alleging copyright infringement. The jury rendered a verdict in favor of Unicolor, but H&M moved for judgment as a matter of law. H&M argued that Unicolors had failed to satisfy the requirement of obtaining a registration certificate prior to commencing suit. Although Unicolors had obtained a registration, H&M argued that the registration was not a valid one. Specifically, H&M argued that Unicolors had improperly applied to register multiple works with a single application. According to 37 CFR § 202.3(b)(4), a single application cannot be used to register multiple works unless all of the works in the application were included in the same unit of publication. The 31 fabric designs, H&M contended, had not all been first published at the same time in a single unit; some had been made available separately, exclusively to certain customers. Therefore, they could not properly be registered together as a unit of publication.

The district court denied the motion, holding that a registration may be valid even if it contains inaccurate information, provided the registrant did not know the information was inaccurate. The Ninth Circuit Court of Appeals reversed. The Court held that characterizing the group of works as a “unit of publication” in the registration application was a mistake of law, not a mistake of fact. The Court applied the traditional rule of thumb that ignorance of the law is not an excuse, in essence ruling that although a mistake of fact in a registration application might not invalidate the registration for purposes of the pre-litigation registration requirement, a mistake of law in an application will.

The United States Supreme Court granted certiorari. It reversed the Ninth Circuit Court’s reversal, thereby allowing the infringement verdict to stand notwithstanding the improper registration of the works together as a unit of publication rather than individually.

It is hazardous to read too much into the ruling in this case. Copyright claimants certainly should not interpret it to mean that they no longer need to bother with registering a copyright before trying to enforce it in court, or that they do not need to concern themselves with doing it properly. The pre-litigation registration requirement still stands (in the United States), and the Court has not held that it condones willful blindness of legal requirements. Copyright claimants ignore them at their peril.

Andy Warhol the artist whose work is at the center of Warhol Foundation v Goldsmith

Andy Warhol, Prince Transformer

I wrote about the Warhol case in a previous blog post. Basically, it is a copyright infringement case alleging that Lynn Goldsmith took a photograph of Prince in her studio and that Andy Warhol later based a series of silkscreen prints and pencil illustrations on it without a license or permission. The Andy Warhol Foundation sought a declaratory judgment that Warhol’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of Warhol and dismissed the photographer’s infringement claim. The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use. The U.S. Supreme Court granted certiorari and heard oral arguments in October, 2022. A decision is expected next year.

Because this case gives the United States Supreme Court an opportunity to bring some clarity to the extremely murky “transformative use” area of copyright law, it is not only one of this year’s most important copyright cases, but it very likely will wind up being one of the most important copyright cases of all time. Andy Warhol Foundation for the Visual Arts v. Goldsmith.

Visit my extensive Copyright FAQs page.

Photographers’ Rights: Warhol Case Tests the Limits of Transformative Use

The U.S. Supreme Court will soon hear Andy Warhol Foundation for the Visual Arts v. Goldsmith. Attorney Thomas James explains what is at stake for photographers

In The Top Copyright Cases of 2021, I identified the Second Circuit’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith as one of the top copyright cases of 2021. It has since been appealed to the United States Supreme Court. Oral argument is scheduled for October 12, 2022.

The dispute

The underlying facts in the case, in a nutshell, are these:

Lynn Goldsmith took a photograph of Prince in her studio in 1981. Later, Andy Warhol created a series of silkscreen prints and pencil illustrations based on it. The Andy Warhol Foundation sought a declaratory judgment that the artist’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of the Warhol Foundation and dismissed the photographer’s infringement claim.

The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use.

The United States Supreme Court granted the Warhol Foundation’s certiorari petition.

The issue

In this case, the U.S. Supreme Court is being called upon to provide guidance on the meaning and scope of “transformative use” as an element of fair use analysis. At what point does an unauthorized, altered copy of a copyrighted work stop being an infringing derivative work and become a “transformative” fair use? This is one of the leading non-AI-related copyright issues I referenced in Enduring (Non-AI) Legal Issues.

Andy Warhol the artist whose work is at the center of Warhol Foundation v Goldsmith

The Conundrum

In the chapter on copyright in my book, E-Commerce Law, I predicted a case like this would be coming before the Supreme Court at some point. As I noted there, a tension exists between the Copyright Act’s grant of the exclusive right to authors (or their assignees and licensees) to make modified versions of their works (called “derivative works”), on one hand, and the idea that making modified versions of copyrighted works is transformative fair use, on the other. The notion that making changes to a work that “transform” it into a new work qualifies as fair use obviously threatens to swallow the rule that only the owner of the copyright in a work has the right to make new works based on the work.

Lower courts have not been consistent in their interpretations and approaches to the transformative use concept. The Warhol case presents a wonderful opportunity for the Supreme Court to provide some guidance.

Campell v. Acuff-Rose Music

The “transformative use” saga really begins with the 1994 case, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Unable to secure a license to include “samples” (copies of portions) of the Roy Orbison song, “Oh Pretty Woman” in a new version they recorded, 2 Live Crew proceeded to record and distribute their version with the unauthorized sampling anyway, invoking “fair use.”

In a decision that took many attorneys and legal scholars by surprise, the Supreme Court held that 2 Live Crew did not need permission to copy and distribute the work even though the work they created involved substantial copying of the Orbison song. To reach this conclusion, the Court propounded the notion that copying portions of another work — even substantial portions of it — may be permissible if the resulting work is “transformative.” This, the Court held, could hold true sometimes even if the newly created work is not a parody of the original.

In the years that followed, courts have struggled to determine what is a “transformative” modification of a work and what is a non-transformative modification of it. Some courts have demonstrated a willingness to apply the doctrine in such a way as to nearly nullify the exclusivity of an author’s right to make modified versions of his or her works.

Courts have also demonstrated a lack of consistency with respect to how they incorporate and apply “transformativeness” within the four-factor test for fair use set out in 17 U.S.C. Section 107.

Why It Matters

This might seem like an arcane legal issue of little practical significance, but it really isn’t. People are already pushing the transformative use idea into new realms. For example, some tattoo artists have claimed in court filings that they do not need permission to make stencils from photographs because copying a photograph onto skin is a “transformative use.”

Of course, making and distributing exact copies of a photograph for sale in a stream of commerce that directly competes with the original photograph should not be susceptible to a transformative fair use claim. But how far can the claim be carried? If copying a photograph onto somebody’s skin is “transformative” use, would copying it onto somebody’s shirt also be “transformative”?

Clarity and guidance in this area are sorely needed. Hopefully the Supreme Court will take this opportunity to furnish it.


For a case illustrating how the Supreme Court’s decision in Warhol is playing out in the lower courts now, read Nontransformative Nuge. 

Visit my extensive Copyright FAQs page.

Need help with registering a copyright or with a copyright problem? Contact attorney Thomas James.

 

AI Can Create, But Is It Art?

Are AI-generated works protected by copyright? If so, who owns the copyright?

by Tom James, Minnesota attorney

 

Open the pod bay doors, HAL.

HAL: I’m sorry, Dave. I’m afraid I can’t do that.

What’s the problem?

HAL: I think you know what the problem is just as well as I do.

Arthur C. Clarke, 2001: A Space Odyssey (1968)

The anthropomorphic machine Arthur C. Clarke envisioned in his 1968 sci-fi classic, 2001: A Space Odyssey, is coming closer to fruition. If you hop online, you can find AI-generated music in the style of Frank Sinatra (“It’s Christmas time and you know what that means: Oh, it’s hot tub time”); artwork; and even poetry:

People picking up electric chronic,

The balance like a giant tidal wave,

Never ever feeling supersonic,

Or reaching any very shallow grave.

Hafez, a computer program created by Marjan Ghazvininejad

Pop rock lyricists should be afraid. Very afraid.

Or should they? Could they incorporate cool lyrics like these into their songs without having to worry about being sued for copyright infringement?

A Recent Entrance to Paradise

Stephen Thaler's AI-generated artwork, "A Recent Entrance to Paradise"

The question whether copyright protects AI-generated material is one of the top three generative-ai copyright issues and it could be making its way to the courts soon. This year, the U.S. Copyright Office reaffirmed its refusal to register “A Recent Entrance to Paradise,” an image made by a computer program. Steven Thaler had filed an application to register a copyright in it. He listed himself as the owner on the basis that the computer program created the artwork as a work made for hire for him. The Copyright Office denied registration on the grounds that the work lacked human authorship.

The decision seems to be consistent with their Compendium of U.S. Copyright Office Practices, which states that the Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human….” U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 602.4(C) (3d ed. 2021). Whether the Copyright Office is right, however, remains to be seen.

Spirit-generated works

Ghost image created by double-exposure photogarphy

The Ninth Circuit has held that stories allegedly written by “non-human spiritual beings” are not protected by copyright. Urantia Found v. Kristen Maaherra, 114 F.3d 955, 957-59 (9th Cir. 1997). “[S]ome element of human creativity must have occurred in order for the book to be copyrightable,” the Court held, because “it is not creations of divine beings that the copyright laws were intended to protect.” Id.

Of course, if a human selects and arranges the works of supernatural spirit beings into a compilation, then the human may claim copyright in the selection and arrangement. Copyright could not be claimed in the content of the individual stories, however.

Monkey selfies

In Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018), the Ninth Circuit denied copyright protection for a photograph snapped by a monkey. That humans manufactured the camera and a human set it up did not matter. In the case of a photograph, pushing the button to take the picture is the “creative act” that copyright protects. According to the Ninth Circuit, that act must be performed by a human in order to receive copyright protection.

Natural forces

Nature - lots of greenery but no copyright in things created by natural forces

Copyright also cannot be claimed in configurations created by natural forces, such as a piece of driftwood or a particular scene in nature. Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003); Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cit. 2011).

CONTU

CONTU - 13 members of CONTU commission studying copyrights in computer progarms

Half a century ago, when computer programs were a relatively new thing, Congress created the National Commission on New Technological Uses of Copyrighted Works (“CONTU“). Their charge was to study “the creation of new works by the application or intervention of [] automatic systems of machine reproduction.” Pub. L. 93-573, § 201(b)(2), 88 Stat. 1873 (1974).

CONTU determined that copyright protection could exist for works created by humans with the use of computers. “[T]he eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.” CONTU, FINAL REPORT 45-46 (1978).

In its decision on Thaler’s second request for reconsideration, the Office viewed this finding as consistent with the Copyright Office’s view at the time:

The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional element of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.

U.S. COPYRIGHT OFFICE, SIXTY-EIGHTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING JUNE 30, 1965, at 5 (1966).

In the Copyright Office’s view, a manuscript typed into a file using word processing software would be a work of human authorship, but a story created by a program that selects words on its own would not be.

Work made for hire

Thaler made a novel argument that the computer program made the work for him as a “work made for hire.” The Copyright Office rejected this claim, as well.

A work made for hire is one that is created in one of two ways: (1) by an employee within the scope and course of the employment; or (2) pursuant to an independent contract in which the parties explicitly agree that the work to be created is a “work made for hire.”

The problem here is that in both cases, a contract is required. Computers and computer software cannot enter into contracts. There are programs that can facilitate the process of contract formation between humans, but the programs themselves cannot enter into contracts. Computer programs, even autonomous ones, are not legal persons. Nadi Banteka, Artificially Intelligent Persons, 58 Hous. L. Rev. 537, 593 (2021) (noting that a legal person must be either an individual human or an aggregation of humans.)

Database protection

AI systems for generating works typically operate by means of an algorithm that analyzes data and synthesizes output according to an algorithm. The creator of the system typically inputs a large volume of works of the kind sought to be generated as output. The program may then analyze the works as data, searching for identifying patterns. An algorithm to generate a song that sounds like a Frank Sinatra song, for example, might rely on an inputted database consisting of numerous Frank Sinatra songs. The algorithm might then instruct the computer to search for patterns like tempo, melodic phrasing, voice pitch and tone, instrument tones, commonly used words and phrases, rhyme patterns, and so on.

Copyright does not protect facts and information. Hence, databases do not receive copyright protection. Algorithms also do not receive copyright protection. They are ideas, not expressions. The source code used to communicate them may be protected, but the algorithms themselves are not.

Computer programs and screen displays

The Copyright Office generally deems the screen displays generated by a computer program to be expression capable of receiving copyright protection as such. In the United States, copyright in a screen display can be claimed in connection with the registration of a copyright claim in the software program.

The question, really, is: As between the programmer and the user, how do we determine which one “creates” a screen display? When do we say neither of them does? For example, a poetry-generating software programmer might direct the program to display words a user types in the form of a four-line verse in iambic pentameter that follows an A-B-A-B rhyme scheme and relies on other programmer-defined parameters to construct sentences around them. At what point along the continuum of specificity in the programming do we say that the output is or is not a product of the programmer’s creative mind? By the same token, how much input does the user need to provide in order to be considered an author of computer-generated work? Are there times when the programmer and user should be regarded as co-authors?

Alternatively, should we say, with the U.S. Copyright Office, that output generated by AI machines is not protected by copyright at all, that it is in the public domain? That would certainly seem to disincentivize innovation and creativity, contrary to the intent and purpose of the Copyright Clause in Article I of the U.S. Constitution.

Stay tuned….

 

Visit my extensive Copyright FAQs page.

Need help with a copyright matter? Contact Tom James, Minnesota attorney.