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The Battle Over the Banana Ripens: Artist Maurizio Cattelan Answers Artist Joe Morford’s Copyright Infringement Complaint.

Back in January, Miami-based artist Joe Morford filed a lawsuit in the Southern District of Florida alleging Italian artist Maurizio Cattelan’s viral duct-taped banana sculpture, Comedian, is “plagiarized”. In the Complaint, Morford argues that Cattelan’s work is substantially similar to his vertical diptych, Banana & Orange, which has been registered with the U.S. Copyright Office since 2000.

Due to Judge Robert N. Scola Jr. rejection of Cattelan’s Motion to Dismiss the case, Cattelan recently filed an answer and 19 affirmative defenses. In his defense, Cattelan asserts that Morford’s claims for copyright infringement fail because Cattelan created the work “independently” and “without knowledge of or reference to Plaintiff’s work.” Moreover, Cattelan states that if any infringement occurred, it was innocent and not willful. Though, Cattelan largely questions the validity of Morford’s copyright to begin with.

Pursuant to the Joint Interim Status Report filed on September 20, 2022, discovery is ongoing, and the parties will mediate next month.   

 
Photo via court documents.

The case is 21-cv-20039, Morford v. Cattelan.  

AI Image Generators Raise Ownership Questions

A number of artificial intelligence image generators have seen a rise in popularity lately due in part to the increasing availability of access to various platforms. Their ability to generate images from text prompts raises numerous possibilities and questions, not the least of which is who “owns” the images created by these artificial intelligence platforms? The U.S. Copyright Office has already ruled that these images lack the requisite “human expression” to be eligible for copyright protection, but this decision is subject to review by the courts and could be addressed by the legislature. A few countries, such as Australia and South Africa, have determined that “AI” creations are eligible for patent protection, so it may not be out of the realm of possibility to see a computer treated as an “author” for purposes of a copyright registration. However, in the meanwhile, it may be difficult to assert exclusive rights to an “AI” generated image as any such exclusive rights may depend heavily on the facts of the case.

A cottage industry of “AI Whisperers” has also cropped up via online marketplaces where one may purchase the services of one of these “Whisperers” to write prompts for “AI” image generators, apparently to achieve greater results. Historically, however, the kind of short phrases and descriptions that constitute a typical text prompt for one of these “AI” image generators have not been eligible for copyright protection either. Accordingly, it may be important to ensure that proper contractual obligations are set in place before selling a prompt.

Paramount Facing Lawsuit Upon the Release of Their “Top Gun: Maverick” Movie

Israeli writer, Ehud Yonay, authored an article in 1983 which inspired the 1986 movie “Top Gun” starring Tom Cruise. In 2018, the Yonays sent Paramount a statutory notice of termination under the Copyright Act, making them the sole owners of the US copyright for the story in 2020. In doing this, the Yonay’s invoked an aspect of the law that allows artists to reclaim transferred copyrights 35 years later. Upon the release of the new “Top Gun: Maverick” movie just last month, Yonay’s family commenced a lawsuit in California alleging that Paramount’s response to their May cease-and-desist letter was a “total denial of the fact that its 2022 sequel was obviously derivative of” Ehud Yonay’s story. Throughout the lawsuit, Paramount has claimed, however, that the “Top Gun: Maverick” movie had been “sufficiently completed” before the effective termination date of its copyrights. The Yonays are alleging that Paramount infringed on their copyright, in addition to seeking declaratory and injunctive relief. The case is Yonay v. Paramount Pictures Corp., 22-cv-03846, US District Court, District of Central California (Los Angeles).

The Deepfakes in Kendrick Lamar’s Latest Music Video Reveal Real Issues in U.S. Copyright Law

The American rapper Kendrick Lamar recently released a music video entitled “The Heart Part 5”. In the video, Lamar transforms into celebrities, including Will Smith and Kobe Bryant, using deepfakes. Deepfakes employ “deep learning” technology to create fake videos and images of people. However, there are no copyright laws specifically addressing the use of deepfakes. Instead, deepfakes arguably fall under the “fair use” exception to copyright infringement. Accordingly, the celebrities who seemingly appear in the video may not have legal recourse under copyright law. 

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.