No doubt by this point you have seen the headlines about the U.S. District Court’s June 23rd order (the “June 23rd Order”) in the matter of Bartz v. Anthropic PBC (US Dist. Ct. N.D. California Docket 3:24-cv-05417-WHA). In the abstract, the fact pattern is a familiar one by now for those who are following the copyright related litigation initiated by authors against the artificial intelligence developers: the developer copies legally protected works at scale without any license or payment to the rights holders, and uses those protected works to train software.
The New Copyright Office Guidance on AI: a Primer
When I started the Tuk’s Copyright Law Report five years ago, I never thought that artificial intelligence would take up such a large part of the legal landscape. Yet, here we are.
The stakes are high. If works created solely by AI can be protected under US Copyright Law, human artistry will be obliterated.
There is no other way to view it. When some person with no artistic training or ability can use AI to write (and market) 1,000 novels in a relatively short time, it becomes that much more difficult for a real writer to get their book noticed in the marketplace. In theory, AI could generate a near infinite amount of output, essentially eclipsing human creativity whole.
In January, the Copyright Office (“USCO”) issued the second part of a three part report on US Copyright Law and artificial intelligence. USCO's report on "Copyright and Artificial Intelligence: Part 2 - Copyrightability" addresses the legal and policy issues related to the copyrightability of works created using generative AI. The Report is based on extensive public input and research, and the USCO attempts to provides an analysis of the degree of human contribution necessary for AI-generated outputs to qualify for copyright protection under US law.
Supreme Court Rules in Favor of Rock and Roll Photographer Against Warhol Foundation
Here’s the first question: Do you subscribe to Tuk’s Copyright Law Report? You should! If your job touches any intellectual property issues in the worlds of music, photography, film, literary properties, you are missing out.
Now that THAT is out of the way, go to the TCLR for a free analysis of the Court’s ruling. Or, you can read the entire ruling yourself below.
How Will the Copyright Claims Board Work?
The creation of the Copyright Claims Board (the “Board”) under the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act” or “Act”)) is one of the unexpected byproducts of the Consolidated Appropriations Act of 2021. What follows is a brief summary of the major points of the Act.
There were advocates on both sides of this legislation. Supporting the legislation was Copyright Alliance. Opposing the legislation was the Electronic Frontier Foundation.
As of right now, until the Board is firing on all cylinders, the only way to prosecute a copyright infringement claim is to file a lawsuit in the US District Court. A claimant should be represented by legal counsel who can navigate the federal rules of civil procedure and move the matter forward.
It would seem logical to think that a purpose behind the CASE Act is to create an alternative dispute resolution system for copyright claims to be resolved outside of the federal court system. On the surface, it sounds like a reasonable idea. So far, so good. However, like everything else, the devil is in the details.
You can read my detailed analysis over at Tuk’s Copyright Law Reporter.
For the relevant statutory language, please see below:
CASE Act Excerpt 12292020 by Bryan Tuk on Scribd
Second Session Announced: Videoconference Exploring the Ninth Circuit’s Ruling in Tresona v. Burbank High School Music Boosters
Due to demand, On Friday, April 3rd at 3:30pm eastern, there will be a second videoconference on the Ninth Circuit’s decision, which I broke down initially here. The videoconference will be interactive, and will address questions from music educators about how the field of copyright law has significantly shifted this this court ruling.
iPhone Photography & News Outlets
This is how a simple, everyday experience of one man and his smart phone turns into big dollars. In short, a person (not a professional photographer), takes a picture of a criminal defendant. That picture is newsworthy. The picture is posted to Instragram. Cox Media uses the picture without first licensing it. The Plaintiff, who has now registered the photograph with the US Copyright Office, sues for infringement and wins the liability phase of the case on summary judgment. The Defendant asserts a fair use defense and loses.
This is the tale of Cruz x. Cox Media Grp., LLC, Docket No. 18-CV-1041 in the US District Court for the Eastern District of New York. A copy of the Court’s Memorandum and Order appears below.
Here are a streamlined version of the facts, as presented by the Court in its opinion granting the Plaintiff’s summary judgment motion:
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