Tag: tom james

Tom James is Cokato Minnesota attorney Tom James, also known as lawyer Thomas James or attorney Thomas B James

When Your Car Is a Character

Carroll Shelby Licensing v. Halicki et al.

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

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

Gone in 60 Seconds and Sequela

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

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

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

Character Copyrights

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

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

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

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

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

1. Physical and conceptual qualities

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

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

2. Sufficient delineation

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

3. Unique elements of expression

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

Quiz

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

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

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

Points are not redeemable for value.

Concluding Thought

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

Copyrights in AI-Generated Content

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

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

Key takeaways:

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

Prompts

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

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

Expressive prompts

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

Registration of hybrid works

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

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

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

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

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

China

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

Internet Archives Postscript

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

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

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

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

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

Id.

They reined in Google v. Oracle.

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

Fair Use Decision in Thomson Reuters v. Ross

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

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

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

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

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

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

New AI Copyright Infringement Lawsuit

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

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

More copyright stories here.

New Trademark Fees Coming

The USPTO has announced that trademark fees in the United States will be undergoing significant increases on January 18, 2025. Here is a summary of the changes.

Application Fees

You will no longer enjoy a discounted fee for filing a TEAS-Plus application instead of a TEAS-Standard application. All applications. other than applications filed under the Madrid Protocol, will require a fee of $350 per class. For Madrid applications, the fee is $600 per class.

Additional fees must be paid in the following situations:

  • Insufficient information in the application: $100
  • Use of a custom-made identification of goods or services (as distinguished from using one of the pre-approved descriptions appearing in the Trademark ID Manual): $100
  • Each additional group of 1,000 characters over the first 1,000 characters in an identification: $200.

Madrid applications are not subject to these additional fees.

Statement of Use Fees

Beginning January 18, 2025, filing a Statement of Use or an Amendment to Allege Use will cost $150 each instead of $100.

Maintenance Fees

The filing fee for a declaration of use under Section 8 or 71 will be $325 per class instead of $225 per class.

The filing fee for an affidavit of incontestability under Section 15 will be $250 per class.

The filing fee for a Section 9 registration will be $350.

In conjunction with the Trademark Office’s new audit program, these fee increases provide a strong incentive to review your registration portfolio to see if there are any registrations, or registration classes, that should be removed.

You can find a full list of the fee changes here.

Another AI lawsuit against Microsoft and OpenAI

Last June, Microsoft, OpenAI and others were hit with a class action lawsuit involving their AI data-scraping technologies. On Tuesday (September 5, 2023) another class action lawsuit was filed against them. The gravamen of both of these complaints is that these companies allegedly trained their AI technologies using personal information from millions of users, in violation of federal and state privacy statutes and other laws.

Among the laws alleged to have been violated are the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the California Invasion of Privacy Act, California’s unfair competition law, Illinois’s Biometric Information Privacy Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act. The lawsuits also allege a variety of common law claims, including negligence, invasion of privacy, conversion, unjust enrichment, breach of the duty to warn, and such.

This is just the most recent lawsuit in a growing body of claims against big AI. Many involve allegations of copyright infringement, but privacy is a growing concern. This particular suit is asking for an award of monetary damages and an order that would require the companies to implement safeguards for the protection of private data.

Microsoft reportedly has invested billions of dollars in OpenAI and its app, ChatGPT.

The case is A.T. v. OpenAI LP, U.S. District Court for the Northern District of California, No. 3:23-cv-04557 (September 5, 2023).

Is Microsoft “too big to fail” in court? We shall see.

A Recent Exit from Paradise

Over a year ago, Steven Thaler filed an application with the United States Copyright Office to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” In the application, he listed a machine as the “author” and himself as the copyright owner. The Copyright Office refused registration  on the grounds that the work lacked human authorship. Thaler then filed a lawsuit in federal court seeking to overturn that determination. On August 18, 2023 the court upheld the Copyright Office’s refusal of registration. The case is Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).

Read more about the history of this case in my previous blog post, “A Recent Entrance to Complexity.”

The Big Bright Green Creativity Machine

In his application for registration, Thaler had listed his computer, referred to as “Creativity Machine,” as the “author” of the work, and himself as a claimant. The Copyright Office denied registration on the basis that copyright only protects human authorship.

Taking the Copyright Office to court

Unsuccessful in securing a reversal through administrative appeals, Thaler filed a lawsuit in federal court claiming the Office’s denial of registration was “arbitrary, capricious, an abuse of discretion and not in accordance with the law….”

The court ultimately sided with the Copyright Office. In its decision, it provided a cogent explanation of the rationale for the human authorship requirement:

The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.

Id.

A Complex Issue

As I discussed in a previous blog post, the issue is not as simple as it might seem. There are different levels of human involvement in the use of an AI content generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.

At the other end of the spectrum are AI services like DALL-E and ChatGPT. These tools are capable of generating content with very little user input. If the only human input is a user’s directive to “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.

The difficult question – and one that is almost certain to be the subject of ongoing litigation and probably new Copyright Office regulations – is exactly how much, and what kind of, human input is necessary before a human can claim authorship.  Equally as perplexing is how much, if at all, the Copyright Office should involve itself in ascertaining and evaluating the details of the process by which a work was created. And, of course, what consequences should flow from an applicant’s failure to disclose complete details about the nature and extent of machine involvement in the creative process.

Conclusion

The court in this case did not dive into these issues. The only thing we can safely take away from this decision is the broad proposition that a work is not protected by copyright to the extent it is generated by a machine.

Is Jazz Confusingly Similar to Music?

Is jazz confusingly similar to music? No, that wasn’t the issue in this case. It was a contest between APPLE JAZZ and APPLE MUSIC involving tacking.

Bertini v. Apple Inc., No. 21-2301 (Fed. Cir. 2023). Apple, Inc. attempted to register the trademark APPLE MUSIC for both sound recordings and live musical performances (among other things). Bertini, a professional musician, filed an opposition, claiming to have used the mark APPLE JAZZ in connection with live performances since 1985, and to have started using it in connection with sound recordings in the 1990s. Bertini argued that APPLE MUSIC would likely cause confusion with APPLE JAZZ.

The first question that popped into my head, of course, was whether a consumer would really be likely to confuse jazz with music. I mean, come on.

Sadly, however, that was not the legal issue in this case. The legal issue was whether, and in what circumstances, priority of use can be established by “tacking” a new trademark registration onto an earlier one for a mark in a different category of goods or services.

The Opposition Proceeding

Apple applied to register APPLE MUSIC as a trademark in several categories of services in IC 41, including the production and distribution of sound recordings, and organizing and presenting live musical performances. Bertini, a professional jazz musician, filed a notice of opposition to Apple’s application, on the basis that he has used the mark APPLE JAZZ in connection with live performances since 1985. In the mid-1990s, Bertini began using APPLE JAZZ to issue and distribute sound recordings. Bertini opposed Apple’s registration of APPLE MUSIC on the ground that it would likely cause confusion with Bertini’s common law trademark APPLE JAZZ.

The Trademark Trials and Appeals Board (TTAB) dismissed the opposition. Bertini appealed to the Federal Circuit Court of Appeals.

The Appeal

On appeal, the parties did not dispute that there was a likelihood consumers would confuse Bertini’s use of APPLE JAZZ and Apple’s use of APPLE MUSIC. The only dispute on appeal was priority of use.

Apple, Inc. began using APPLE MUSIC in 2015, when it launched its music streaming service, nearly thirty years after Bertini had begun using APPLE JAZZ. Apple, however, argued that it was entitled to an earlier priority dating back to a 1968 registration of the mark APPLE for “Gramophone records featuring music” and “audio compact discs featuring music.” (The company had purchased the registration from Apple Corps, the Beatles’ record company.)

The TTAB agreed with Apple’s argument, holding that Apple was entitled to tack its 2015 use of APPLE MUSIC onto Apple Corp’s 1968 use of APPLE and therefore had priority over Bertini’s APPLE JAZZ.

The appellate court reversed, holding that Apple cannot tack its use of APPLE MUSIC for live musical performances onto Apple Corps’ use of APPLE for gramophone records, and that its application to register APPLE MUSIC must therefore be denied.

The Court of Appeals construed the tacking doctrine narrowly. Framing the question as “[W]hether a trademark applicant can establish priority for every good or service in its application merely because it has priority through tacking in a single good or service listed in its application,” the Court answered no. While Apple might have been able to use tacking to claim priority in connection with the production and distribution of sound recordings, it could not use that priority to establish priority with respect to other categories of services, such as organizing and presenting live performances.

Contact attorney Thomas James for help with trademark registration.

A Recent Entrance to Complexity

The United States Copyright Office recently reaffirmed its position that it will not register AI-generated content, because it is not created by a human. The rule is easy to state; the devil is in the details. Attorney Thomas James explains.

Last year, the United States Copyright Office issued a copyright registration to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. A month later, the Copyright Office issued a notice of cancellation of the registration, along with a request for additional information.

The Copyright Office, consistent with judicial decisions, takes the position that copyright requires human authorship. The Office requested additional information regarding the creative process that resulted in the novel because parts of it were AI-generated. Kashtanova complied with the request for additional information.

This week, the Copyright Office responded with a letter explaining that the registration would be cancelled, but that a new, more limited one will be issued. The Office explained that its concern related to the author’s use of Midjourney, an AI-powered image generating tool, to generate images used in the work:

Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output”

U.S. Copyright Office letter

The Office concluded that the text the author wrote, as well as the author’s selection, coordination and arrangement of written and visual elements, are protected by copyright, and therefore may be registered. The images generated by Midjourney, however, would not be registered because they were “not the product of human authorship.” The new registration will cover only the text and editing components of the work, not the AI-generated images.

A Previous Entrance to Paradise

Early last year, the Copyright Office refused copyright registration for an AI-generated image. Steven Thaler had filed an application to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” He listed himself as the copyright owner. The Copyright Office denied registration on the grounds that the work lacked human authorship. Thaler filed a lawsuit in federal court seeking to overturn that determination. The lawsuit is still pending. It is currently at the summary judgment stage.

The core issue

The core issue, of course, is whether a person who uses AI to generate content such as text or artwork can claim copyright protection in the content so generated. Put another way, can a user who deploys artificial intelligence to generate a seemingly expressive work (such as artwork or a novel) claim authorship?

This question is not as simple as it may seem. There can be different levels of human involvement in the use of an AI content generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.

At the other end of the spectrum are AI services like DALL-E and ChatGPT. Text and images can be generated by these systems with minimal human input. If the only human input is a user’s directive to “Write a story” or “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.

Peering into the worm can

The complicating consideration with content-generative AI mechanisms is that they have the potential to allow many different levels of user involvement in the generation of output. The more details a user adds to the instructions s/he gives to the machine, the more it begins to appear that the user is, in fact, contributing something creative to the project.

Is a prompt to “Write a story about a dog” a sufficiently creative contribution to the resulting output to qualify the user as an “author”? Maybe not. But what about, “Write a story about a dog who joins a traveling circus”? Or “Write a story about a dog named Pablo who joins a traveling circus”? Or “Write a story about a dog with a peculiar bark that begins, ‘Once upon a time, there was a dog named Pablo who joined a circus,’ and ends with Pablo deciding to return home”?

At what point along the spectrum of user-provided detail does copyright protectable authorship come into existence?

A question that is just as important to ask is: How much, if at all, should the Copyright Office involve itself with ascertaining the details of the creative process that were involved in a work?

In a similar vein, should copyright registration applicants be required to disclose whether their works contain AI-generated content? Should they be required to affirmatively disclaim rights in elements of AI-generated content that are not protected by copyright?

Expanding the Rule of Doubt

Alternatively, should the U.S. Copyright Office adopt something like a Rule of Doubt when copyright is claimed in AI-generated content? The Rule of Doubt, in its current form, is the rule that the U.S. Copyright Office will accept a copyright registration of a claim containing software object code, even though the Copyright Office is unable to verify whether the object code contains copyrightable work. If effect, if the applicant attests that the code is copyrightable, then the Copyright Office will assume that it is and will register the claim. Under 37 C.F.R. § 202.20(c)(2)(vii)(B), this may be done when an applicant seeks to register a copyright in object code rather than source code. The same is true of material that is redacted to protect a trade secret.

When the Office issues a registration under the Rule of Doubt, it adds an annotation to the certificate and to the public record indicating that the copyright was registered under the Rule of Doubt.

Under the existing rule, the applicant must file a declaration stating that material for which registration is sought does, in fact, contain original authorship.

This approach allows registration but leaves it to courts (not the Copyright Office) to decide on a case-by-case basis whether material for which copyright is claimed contains copyrightable authorship.  

Expanding the Rule of Doubt to apply to material generated at least in part by AI might not be the most satisfying solution for AI users, but it is one that could result in fewer snags and delays in the registration process.

Conclusion

The Copyright Office has said that it soon will be developing registration guidance for works created in part using material generated by artificial intelligence technology. Public notices and events relating to this topic may be expected in the coming months.

Need help with a copyright matter? Contact attorney Thomas James.

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.

(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.

Newly Public Domain Works 2023

Thousands of books, movies, songs and other creative works entered the public domain in the United States in 2023. Here is a partial list compiled by Cokato Minnesota attorney Thomas James.

Thousands of books, movies, songs and other creative works enter the public domain in the United States this year. Here is a partial list. (Click here for last year’s list).

Sherlock Holmes

Last year, it was Winnie the Pooh. This year, Sherlock Holmes officially enters the public domain. Pooh’s release from copyright protection sparked some creative uses of A. Milne’s fictional bear, from a comic strip in which Pooh Bear appears completely naked (i.e., without his red shirt on) to a slasher film called Winnie the Pooh: Blood and Honey, coming soon to a theater near you.

Sherlock Holmes and his sidekick, Dr. Watson, have actually been in the public domain for a long time, since Arthur Conan Doyle began publishing stories about them in the late nineteenth century. The copyrights in those works had already expired when Congress extended copyright terms in 1998. Legal controversies continued to arise, however, over which elements of those characters were still protected by copyright. New elements that were added in later stories potentially could still be protected by copyright even if the copyrights in previous stories in the series had expired. Now, however, the copyright in the last two Sherlock Holmes stories Doyle wrote have expired. Therefore, it appears that all elements of Doyle’s Sherlock Holmes stories are in the public domain now.

One can only imagine what creative uses people will make of the Holmes and Watson characters now that they are officially in the public domain, too.

The Tower Treasure (Hardy Boys)

The Tower Treasure is the first book in the Hardy Boys series of mystery books that Franklin W. Dixon wrote. As of this year, it is in the public domain.

Again, however, only the elements of the characters and the story in that particular book are in the public domain now. Elements that appeared only in later volumes in the series might still be protected by copyright.

Steppenwolf

Herman Hesse’s Der Steppenwolf, in the original German, is now in the public domain. This version is to be distinguished from English translations of the work, which might still be protected by copyright as derivative works. It is also to be distinguished from the classic rock band by the same name. It is always important to distinguish between trademark and other kinds of uses of a term.

The Bridge of San Luis Rey

Thornton Wilder’s Pulitzer Prize winning novel about an investigation into the lives and deaths of people involved in the collapse of a Peruvian rope bridge has now entered the public domain.

Mosquitoes

William Faulkner’s satiric novel enters the public domain this year. This work is to be distinguished from the insect by the same name. The insect, annoyingly, has been in the public domain for centuries.

The Gangs of New York

Herbert Asbury’s The Gangs of New York is now in the public domain.

Amerika

Franz Kafka’s Amerika (also known as Lost In America) — was published posthumously in 1927. It is now in the public domain.

The Jazz Singer

The Jazz Singer is a 1927 American film and one of the first to feature sound. Warner Brothers produced it using the Vitaphone sound-on-disc system and it featured six songs performed by Al Jolson. The short story on which it is based, “The Day of Atonement,” has already been in the public domain for some time. Now the film is, too.

The Battle of the Century

The Laurel and Hardy film, The Battle of the Century, is now in the public domain. Other Laurel and Hardy films, however, may still be protected by copyright.

Metropolis

Science fiction fans are most likely familiar with this 1927 German science fiction silent movie written by Thea von Harbou and Fritz Lang based on von Harbou’s 1925 novel. It was one of the first feature-length movies in that genre. The film is also famous for the phrase, “The Mediator Between the Head and the Hands Must Be the Heart.”

The Lodger

Alfred Hitchcock’s first thriller has entered the public domain.

“We All Scream for Ice Cream”

The song, “I Scream; You Scream; We All Scream for Ice Cream” is now in the public domain. Don’t worry if you uttered this phrase prior to January 1, 2023. Titles and short phrases are not protected by copyright. Now, it would be a different story if you’ve publicly performed the song, or published or recorded the song and/or the lyrics. Merely uttering those words, however, is not a crime.

“Puttin’ on the Ritz”

This song was originally written by Irving Berlin in 1927. Therefore it is now in the public domain. Taco released a performance of a cover version of this song in 1982. This version of the song made it all the way to number 53 in VH1’s 100 Greatest One-Hit Wonders of the 80’s special. Note that even if the original musical composition and lyrics are in the public domain now, recorded performances of the song by particular artists may still be protected. The copyrights in a musical composition and a recording of a performance of it are separate and distinct things. Don’t go copying Taco’s recorded performance of the song without permission. Please.

“My Blue Heaven”

This song, written by Walter Donaldson and George Whiting, is now in the public domain. It was used in the Ziegfeld Follies and was a big hit for crooner Gene Austin. It is not to be confused with the 1990 Steve Martin film with that name, which is still protected by copyright.

“The Best Things In Life Are Free”

This song was written by Buddy DeSylva, Lew Brown and Ray Henderson for the 1927 musical Good News. Many performers have covered it since then. The (ahem) good news is that it is now in the public domain.

Caveats

The works described in this blog post have entered the public domain under U.S. copyright law. The terms of copyrights in other countries are not the same. In the European Union, for example, Herman Hesse’s Der Steppenwolf is still protected by copyright as of January 1, 2023.

And again, remember that even if a work has entered the public domain, new elements first appearing in a derivative work based on it might still be protected by copyright.

The featured image in this article is “The Man with the Twisted Lip.” It appeared in The Strand Magazine in December, 1891. The original caption was “The pipe was still between his lips.” The drawing is in the public domain.

Exit mobile version
%%footer%%