Generative AI has taken the world by storm since OpenAI launched ChatGPT in November 2022. But the buzz and excitement of GAI has come with difficult legal questions that threaten the new technology. Several lawsuits—some of which we have discussed in detail—have been filed against companies whose GAI products have been trained on copyrighted materials. Up until now, we have only been able to speculate how courts will handle GAI as the industry has held its collective breath.
On May 18th, the Supreme Court handed down its much‑anticipated opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. We’ve tracked the progress of this case through the trial court, Second Circuit, and Supreme Court.
The case concerns whether the Andy Warhol Foundation violated a copyright held by photographer Lynn Goldsmith when it licensed a Warhol work called Orange Prince, based on Goldsmith’s photo, to Condé Nast for use on the cover of Vanity Fair magazine. Goldsmith’s photo of Prince was the basis of a series of silkscreen portraits and drawings by Warhol known as the Prince Series. The work at issue was created without Goldsmith’s knowledge or consent. She received none of the $10,000 licensing fee paid to the Warhol Foundation for use of the image.
Bucking a legal trend in Europe, the United States Copyright Office recently recommended against adopting additional copyright-like protections for news publishers that would require online news aggregators to pay publishers for news content shared on their platforms. In a report published on June 30, 2022, the Office found such protections to be unnecessary in light of copyright protections currently held by publishers in connection with their works, and noted that any change to U.S. copyright law that would increase publishers’ ability to block or seek compensation for the use of their works by news aggregators would “necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.” Instead, the Office suggested that funding challenges faced by publishers would be better solved through other legal means, such as changes to competition law or tax policy.
On March 28th, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a case involving the core issues around copyright fair use. The case involves a series of Warhol drawings and silkscreen prints adapted from an original photograph of Prince taken by Lynn Goldsmith. Likely to interplay with the recent fair use decision in Google v. Oracle, the Supreme Court’s decision in this case has the potential to reshape the contours of fair use and the fate of the transformative use test. The outcome of the decision will have a widespread impact on how artists, particularly appropriation artists and creators of “fan art,” draw from other works.
Nearly eight months after a trial that culminated in an adverse jury verdict, pop singer Katy Perry recently achieved a “Dark Horse” victory, proving that the legal battle was “Never Really Over.”
Recently, copyright owners suing in the jurisdiction of the United States Court of Appeals for the Fifth Circuit were given a new reason to seek statutory damages instead of actual damages under the Copyright Act. Failure to mitigate damages is not an absolute defense to a claim for statutory damages, the Court ruled on Wednesday, January 15, 2020.
On Monday, March 4, the Supreme Court unanimously decided that a copyright claimant may only bring a suit for copyright infringement after the copyright has been registered by the Copyright Office, not while the registration is pending.
Imagine producing a classic Western without cowboys, saloons, or standoffs. This seems almost inconceivable because these elements are deeply integral to the genre – so much so, in fact, that they are essentially necessary for the creation of such works. Copyright law recognizes and accounts for this, by denying copyright protection to such elements under the “scènes à faire” doctrine. “Scènes à faire” literally means “scenes that must be done.” This doctrine traditionally has been applied in the context of literature and film, to keep classic tropes free for use by artists looking to create works in such genres. The Federal Circuit will soon decide, in Cisco Systems v. Arista, whether the scènes à faire doctrine can also be applied in the context of computer programming, to deny copyright protection for software commands that have become commonplace within the field.