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The Supreme Court to Decide Whether Andy Warhol’s Artwork is Transformative or Copyright Infringement

This week, the U.S. Supreme Court agreed to hear an appeal filed by the Andy Warhol Foundation to overturn the U.S. Court of Appeals for the Second Circuit’s decision finding that Warhol’s paintings of the musician Prince created in 1984 were not “fair use” of Lynn Goldsmith’s photograph taken in 1981. More specifically, last year the 2nd Circuit held that a “transformative” work must have a “fundamentally different and new artistic purpose and character.” However, Warhol’s paintings were found to be “much closer to presenting the same work in a different form.” Accordingly, the Foundation is now asserting that the Second Circuit‘s ruling “chill[s] artistic expression and undermine[s] First Amendment values” and “casts a cloud of legal uncertainty over an entire genre of visual art” in the hopes that the Supreme Court will recognize that Warhol’s works are fully protected under the law. This impending decision will not only assess what it means to be a transformative work; it will also examine the scope of the fair use defense to copyright infringement.

Artwork Made by Artificial Intelligence Denied Copyright Protection

In the face of human authorship and human inventorship requirements, many wonder how and when, if ever, protection for inventions and creative works generated by artificial intelligence (AI) will fit into the intellectual property realm.

On February 14, 2022, a second request for reconsideration in a copyright application for AI-made artwork, entitled A Recent Entrance to Paradise, was rejected because it lacked the required human authorship to receive protection. The Copyright Review Board, which hears final administrative appeals of refusals of copyright registrations at the U.S. Copyright Office, issued the rejection. Applicant Steven Thaler argued throughout the proceedings that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.” In its decision, however, the Board pointed to a robust body of precedent in response, including Supreme Court opinions, as well as sections of the Compendium of U.S. Copyright Office Practices to support its rejection. The Board summarized that copyright law protects only “the fruits of intellectual labor” that “are founded in the creative powers of the human mind.” Irrespective of the type of creative work, the Board emphasized that the U.S. Copyright Office currently “will refuse to register a claim if it determines that a human being did not create the work.”

The denial of protection for A Recent Entrance to Paradise comes on the heels of a U.S. Patent and Trademark Office (“USPTO”) decision from 2020, known as the “DABUS” case. There, the USPTO concluded that AI cannot be considered an inventor under our patent regime. The catalyst in the DABUS case was a petition regarding a patent application, in which the applied-for invention was generated by an AI creativity machine named “DABUS.” Accordingly, the petitioner named DABUS as the inventor on the application, claiming that “it was the machine, not a person, which recognized the novelty and salience of the invention.” In a manner similar to Thaler, the DABUS petitioner argued that inventorship should not be limited to natural persons, but the USPTO fiercely disagreed.

In finding that the patent laws preclude naming an AI as an inventor, the USPTO relied on Title 35 of the U.S. Code (“35 U.S.C.”) and relevant precedent. The opinion noted that 35 U.S.C. “consistently refers to inventors as natural persons” and pointed to § 100(a), under which an “inventor” is defined as an “individual.” The USPTO also emphasized § 101, which states: “Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter . . . may obtain a patent therefor. . . .” From this language, the USPTO reasoned that the term “whoever” suggests a natural person. The Office also described sections of 35 U.S.C. employing “pronouns specific to natural persons” such as “himself” or “herself,” in addition to citing a requirement that an inventor who executes an oath must be a person. All in all, the USPTO decided that “the patent laws require that an inventor be a natural person.” The DABUS application was finally rejected, and the Office declared that “[n]o further requests for reconsideration [would] be entertained.”

A Recent Entrance To Paradise

[1] See, e.g., U.S. Patent Application No. US16/524,350 (filed July 29, 2019) (Dep. Comm’r Pat.

Apr. 27, 2020) (petition denied) (https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf)  (inventor listed on patent was a non-human AI machine named DABUS).

[2] COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES ch. 300 § 306 (2021),

https://copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf.

[3] A Recent Entrance to Paradise, Copyright Review Board (https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf) (last accessed February 24, 2022 at 2:56 PM).

[4] Id.

[5] See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (wherein the Court refers to authors as human).

[6] A Recent Entrance to Paradise, Copyright Review Board (https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf) (last accessed February 24, 2022 at 2:56 PM) (emphasis added).

[7] Id.

[8] U.S. Patent Application No. US16/524,350 (filed July 29, 2019) (Dep. Comm’r Pat.

Apr. 27, 2020) (petition denied) (https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf).

[9] Id.

[10] Id.

Swiftly Re-Recorded: Taylor Swift Exercises Copyright Ownership to Circumvent Album Rights

Swiftly Re-Recorded: Taylor Swift Exercises Copyright Ownership to Circumvent Album Rights

The music industry is abuzz this week due to Taylor Swift’s tactical re-release of her hit album, Red, as Red (Taylor’s Version). From 2005 to 2018, Swift was signed with Big Machine Records, the record label under which she skyrocketed to stardom. The thirteen-year contract provided that Big Machine would own the masters, or the original recordings, for the songs on Swift’s albums, which ultimately included those on: Taylor Swift (2006), Fearless (2008), Speak Now (2010), Red (2012), 1989 (2014), and Reputation (2017). On the other hand, Swift, who is famous for penning and composing her own love songs, retained the rights to her original lyrics and melodies under the agreement.

Swift left Big Machine for Universal’s Republic Records in 2018, and ensured that she secured the ownership of her future masters under the new contract. Then, in a move that shocked the music industry, Big Machine was quietly acquired in 2019 by Ithaca Holdings, a private equity group owned by Scooter Braun. Swift was unaware that her masters would fall into the hands of Braun, with whom she publicly had bad blood. Swift responded to the sale by calling Braun an “incessant, manipulative bully.” In the aftermath, there were attempts to block Swift from using the masters of her own songs, such as in her performance at the 2019 American Music Awards and in her Netflix documentary Miss Americana.

Equipped with her remaining rights, Swift resolved to re-record and re-release the albums she created under Big Machine in an attempt to regain control of her music. The re-recorded albums bear the same names as the originals, but each are marked as (Taylor’s Version).

ELEVENTH CIRCUIT ISSUES EN BANC DECISION IN COPYRIGHT CASE

In an en banc decision, the Eleventh Circuit issued a ruling in the case of Greenberg v. National Geographic Society, holding that National Geographic was privileged, under the Copyright Act, to reproduce its print magazine issues on a digital CD-ROM format, without compensating a freelance photographer who had contributed items to the print magazine issues.  The Court, relying heavily on a United States Supreme Court named New York Times v. Tasini, 533 U.S. 483 (2001), reasoned that the addition of a montage to the CD-ROM did not make it “new” under copyright law, sufficient to require National Geographic to compensate the freelance photographer for publication of the photographs in the CD-ROM format.  Instead, the Court held that the changes contained in the CD-ROM constituted a revision to a collective work, which fell squarely within a privilege contained in the Copyright Act.  The complete decision is available HERE.

Internet-Famous ”Grumpy Cat” Awarded $700,000.00 in Infringement Action

Grumpy Cat Limited, owner of copyrights and trademarks pertaining to the cat named Tardar Sauce (which gained notoriety for its permanent scowl shown in popular memes), licensed certain limited rights to Grenade Beverage in relation to its “Grumppuccino” iced coffee.  After Grenade Beverage allegedly breached and exceeded the scope of the agreement by selling “Grumppuccino” t-shirts and other coffee products, Grumpy Cat Limited filed suit in the United States District Court for the Central District of California.

After three years of litigation, a jury ultimately found in favor of Grumpy Cat Limited — with Tardar Sauce actually making an appearance at one point during the trial — and awarded $710,000.00 in damages for trademark and copyright infringement.  David Jonelis, lawyer for Grumpy Cat Limited, was quoted saying that it was “the first verdict ever rendered in favor of a viral meme,” and that “memes have rights too.”

COPYRIGHTING MOTHER NATURE’S IMAGES

 “One of California’s most popular specialty license plates — depicting the tail of a Pacific humpback whale rising out of misty waters — could soon become endangered itself.  Robert Wyland, the artist who created the pale blue image and gave it to the state more than a decade ago to help it raise money for marine programs, is now demanding 20 percent of any future revenue for his art foundation.” 

STORY LINK:  HERE 

THE LICENSE PLATE IN QUESTION:  HERE

Considering the number of works of art that incorporate images found in nature, it’s worth taking a moment to consider the extent to which such works should be protected.   While works of art that depict animals or plants in their natural state likely fall within the public domain; works taking more artistic liberties will likely be accorded more protection.   An interesting article discussing the issue in more detail is available HERE.  

HARRY POTTER AND THE IRREPARABLE HARM

J.K Rowling emerged victorious in a copyright decision that was announced earlier today by the Southern District of New York.  The work at issue?  A Harry Potter encyclopedia written by a librarian and rabid Harry Potter fan.  In permanently blocking publication of the work, the court rejected the defendant’s “fair use” defense, finding that the encyclopedia incorporated “too much of Rowling’s creative work” and would cause J.K Rowling “irreparable harm” as a writer.  

Obviously, a guide to a “fictional universe” must necessarily incorporate lengthy references and passages of the underlying fictional work.   However, today’s decision highlights the limited applicability of the “fair use” defense to such works (which are not, in a strict sense, academic.)   Accordingly, future authors of such literary guides may want to consider seeking a copyright holder’s consent prior to beginning any such endeavor.  Otherwise, they too will risk having their book tossed into a ‘goblet of fire’ (or ‘chamber of secrets’) by an adverse copyright ruling.

Find the story here.

Find an explanation of the “fair use” defense here.

LIL BO AND HIS PEEPS PREVAIL IN COPYRIGHT INFRINGEMENT CASE

Rap artists Lil Jon, Lil Bo, and Big Sam, who together comprise the hip hop group Lil Jon and the East Side Boyz, prevailed in a copyright infringement case regarding the song “The Weedman”, from their platinum album, “Kings of Crunk”.  The case was brought by a freelance musician and producer who claimed copyright ownership of the work, and the artists prevailed after successfully asserting a defense which was primarily based on the existence of an implied license for the use of the work.  

The decision rendered by the United States Court of Appeals for the Eleventh Circuit can be found here.

REMOVING KINDLE FROM THE FIRE

Anyone who has happened upon Amazon.com over the past several months has undoubtedly noticed Amazon’s painstaking efforts to market its new Kindle 2 device to readers-at-large.  The Kindle – a hardware device about the size and weight of an average book – allows users to directly download e-books (up to 1500 at a time) and read the titles on its “electronic paper” display.    Of all of the Kindle 2’s new features, the most heavily promoted is its ability to “read” books aloud to the user by relying on text-to-speech software.

However, this new feature has come under attack by the Author’s Guild which contends that a purchaser of an “e-book” buys only the right to read the book — not the right to have the book read out loud.  In fact, the concern that this feature will cannibalize the market for audio-books was apparently big enough to incite the President of the Author’s Guild to author a New York Times opinion column on the issue.  As noted in his article, technology has advanced to a point where the “computerized voices” on text-to-speech software are “almost indistinguishable from human ones”; with some of these programs going so far as to include an occasional ‘um,’ ‘er’, sigh and — even — coughs, in order to accurately simulate a human reader.  Thus, the threat posed to audiobooks by text-to-speech software is greater than would have been possible in the past.

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