Posts in Copyright

Panelists at IPWatchdog’s Artificial Intelligence Masters Program today debated how artificial intelligence (AI) interacts with intellectual property protection, and how laws around who (or what) can be an inventor or creator, as well as areas like patent eligibility, will need to evolve to ensure the continued “gold standard” status of the U.S. IP system. Attorneys working on some of the biggest cases in the AI space today took part in day one of AI Masters, including Professor Ryan Abbott, who is representing Stephen Thaler in his myriad of cases involving the AI machine, DABUS, both in the United States and elsewhere, and Van Lindberg, who represented Kristina Kashtanova in their recent bid to copyright a partially AI-generated graphic novel.

The Copyright Claims Board (CCB) has issued its first final decision since it was established by law in December 2020, finding in favor of a photographer who claimed a lawyer infringed his copyright by displaying one of his photographs on his law firm website. David Oppenheimer’s case against Douglas Prutton was referred to the CCB by the U.S. District Court for the Northern District of California in April 2022, two months before the Board opened to receive claims. Oppenheimer said he discovered his aerial photograph of the Ronald V. Dellums Federal Building and U.S. Courthouse in Oakland, California on Prutton’s website in 2018, on a page titled “Where We Work.” Oppenheimer admitted that he copied and displayed the photograph without permission, but said his adult daughter actually found the photo and placed it on his site, and also argued fair use and unclean hands in defending his use of the work.  

Companies rely on copyright protections to shield their software, data sets, and other works that are licensed to their customers; however, a reframing of what constitutes a “transformative use,” and the extent a license can restrict such fair uses, may whittle away all avenues of protections. On October 22, 2022, the Supreme Court of the United States heard arguments for Andy Warhol Foundation v. Goldsmith. The question before the Court is where does a copyright holder’s right to create derivative works stop and “fair use” of the work begin? Companies that license data sets or data feeds should pay close attention, as the Court’s decision could narrow contractual remedies. 

The U.S. Copyright Office (USCO) this week finalized its refusal to uphold, in part, a registration it issued to Kristina Kashtanova for a graphic novel that contained generative artwork and human story and design elements. In a letter sent to Kashtanova’s counsel on Tuesday, the USCO expressed its concerns that underlying artwork generated using the AI-powered text-to-image tool Midjourney was capable of meeting the human authorship requirement for copyright protection. “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,” the USCO wrote in the letter.

In Allen v. Cooper, the U.S. Supreme Court held that the Copyright Remedy Clarification Act of 1990 (CRCA) (codified at 17 U.S.C. §§ 501(a) & 511) did not abrogate a state’s sovereign immunity from copyright infringement liability. A casual reading of that decision might have led one to reasonably believe that it ended the plaintiffs’ copyright case. After all, the Supreme Court indicated that it affirmed a holding that the CRCA was “invalid.” But, as with so many other issues encountered in the legal realm, much lies below the surface. The aftermath of the Supreme Court’s decision cast light on the realization that the Court addressed only “prophylactic” abrogation, which seeks to deter constitutional harm before it occurs. On remand, the plaintiffs convinced the district court to consider whether the state’s sovereign immunity could be negated via a “case by case” type of abrogation, which requires actual violation of both a federal statute and the Fourteenth Amendment.

The Global Innovation Policy Center (GIPC) of the U.S. Chamber of Commerce issued its 11th annual International IP Index today, striking what seems like a more dismal tone than usual compared with past reports. While 18 economies saw modest progress on IP protection improvements, 28 economies, including many of the high-scorers, like the United States and the United Kingdom, had a 0% change in score. Only two countries had a 0% change in the 10th edition of the Index. The Index covers 55 economies that represent “most of the global economic output, together contributing over 90% of global GDP.”

Now is an exciting time in the world of artificial intelligence (AI) and intellectual property law. Academics have been interested in this field for a long time, and more narrowly in certain issues, like the legal status of works created by an AI in the absence of a traditional human author (AI-generated works). But AI-generated works have not traditionally been very interesting to lawyers, policymakers, or businesses, because while AI has been functionally making creative works for decades, the technology was never that commercially useful.

Scroll through social media and you’re certain to find countless posts of images generated by artificial intelligence, or “AI.” Tools such as DALL-E 2, Starry AI, Jasper, and the like have exploded in popularity, allowing users to do everything from creating stylized versions of the user’s own photographs, to inputting silly, incongruous prompts like “red headed cow with John Lennon sunglasses,” and receiving almost instantaneous results with no further effort by the user. Users have taken to such websites in droves because they are easy to use, free, and most importantly, fun. The problem: in most if not all cases, the AI obtains its images by “scraping” the internet, obtaining and using massive amounts of copyrighted images to train itself in the meaning of certain words and in the stylistic choices employed in those images.

Recently, Netflix released a documentary titled, “The Most Hated Man on the Internet,” which is about anti-revenge porn activists and their efforts to take down the website, IsAnyoneUp.com. The site was founded by Hunter Moore and allowed anyone to anonymously upload nude photos with social media handles or to submit sexually explicit photos of others without their consent. The documentary follows Charlotte Laws, whose daughter’s photos were shared on the site, as she launches a campaign to shut it down.

On Monday, January 23, the U.S. Copyright Office (USCO) Copyright Public Records System (CPRS) reflected that the registration for a graphic novel that was made using the AI text-to-image tool, Midjourney, had been cancelled. The Office has since clarified that the update was a system error (see above note). The USCO previously registered the work in September 2022. However, a month later, and following significant press attention, the Office issued a notice indicating that the registration may be cancelled. With Monday’s development, the cancellation seemed to be final.

At the U.S. Patent and Trademark Office’s (USPTO) Women’s Entrepreneurship (WE) event in Naples, Florida, on Wednesday, January 18, USPTO Director Kathi Vidal announced that the Office has a new tool, called the Intellectual Property (IP) Identifier, intended to assist those “less familiar with IP” in identifying what IP they have and what rights they need to protect it. The tool also provides basic information on patents, trademarks, trade secrets and copyright. Vidal said in a press release Wednesday that anyone “considering starting a business or trying to grow one” should use the tool and that “it’s another example of our work to bring more people into the innovation ecosystem to increase American competitiveness, grow the economy, and solve world problems.” 

According to new research released by Corsearch, a significant number of websites engaging in piracy and counterfeiting use Cloudflare’s Content Delivery Network (CDN) services. Cloudflare was detected as providing services to websites that infringed trademarks and copyright six times more than the next service provider. 49% of the websites Corsearch flagged for content piracy used Cloudflare in addition to 23.5% of websites flagged for offering counterfeit goods. Additionally, Corsearch notifies Google when it believes a website should be demoted in its search engine due to infringing trademarks or copyright. When Corsearch analyzed this data, it found 71% of these websites used Cloudflare’s services.

Last week, artificial intelligence (AI) systems developer Dr. Stephen Thaler filed a motion for summary judgment in the U.S. District Court for the District of Columbia in a lawsuit over copyright eligibility for artwork created by AI systems. Thaler’s motion for summary judgment argues that AI-generated works are copyrightable under U.S. federal law and that the copyright should vest in Thaler under common law property principles and the work made for hire doctrine.

“Non-fungible tokens (NFTs),” “blockchain,” “metaverse,” “web3,” and “artificial intelligence (AI)” are buzzwords that solicited significant discussion and development in the area of intellectual property (IP) law in 2022. This overview covers five key topics in IP law that affected the growth and mainstream adoption of these emerging technologies last year.