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Entertainment Law & Finance
How D.C. Fed. Court Denied Copyright to AI-Created Artwork
Robert W. Clarida and Thomas Kjellberg
The U.S. District Court for the District of Columbia recently upheld a final refusal by the U.S. Copyright Office to register a visual work that was “autonomously created by a computer algorithm running on a machine,” which the plaintiff called the Creativity Machine and identified as the “author” of the work.
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The Intellectual Property Strategist
Federal District Court Denies Copyright to AI-Generated Art Piece
Richard L. Hathaway
Recognizing that U.S. “copyright law protects only works of human creation,” the court determined that the Copyright Office “acted properly in denying copyright registration for a work created absent any human involvement.”
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Cybersecurity Law & Strategy
The Impact of the Supreme Court’s Goldsmith Decision on Copyright Enforcement Against AI Tools
Edward D. Lanquist and Dominic Rota
The U.S. Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith sent ripples through the legal and artistic communities. Months later, legal scholars and art journalists continue to debate whether the decision opens the door for federal courts to act as “art critics.” Many, however, downplay how the Supreme Court’s decision impacts the ways in which copyright owners may enforce their rights against generative AI tools.
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Entertainment Law & Finance
Termination Notices and Copyright Act Claims Accruals
Thomas Kjellberg and Robert W. Clarida
Termination is not automatic. It may be effected only through affirmative action on the part of the author or his or her statutory successors, who must serve an advance notice, signed by or on behalf of all of those entitled to terminate the grant, on the current copyright owner within specified time limits and under specified conditions.
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The Intellectual Property Strategist
The Intersection of Generative AI and Copyright Law
Karl Zielaznicki, Victoria D. Summerfield and Eliza Cen
Whether prompted to write a corporate slogan, create music, generate works of art and advertisements, or summarize a book — GAI can do it all. However, its increasing popularity means that users of GAI programs face substantial intellectual property risks — particularly when businesses use GAI for marketing and other public-facing purposes.
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Cybersecurity Law & Strategy
Generative AI and Copyright Law
Karl Zielaznicki, Victoria D. Summerfield and Eliza Cen
Generative AI can do it all. However, its increasing popularity means that users of GAI programs face substantial intellectual property risks — particularly when businesses use GAI for marketing and other public-facing purposes.
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Cybersecurity Law & Strategy
How the Supreme Court Saved the Internet from Itself: 'Gonzalez v. Google' and 'Twitter v. Taamneh'
Erick Franklund
The Internet is still standing, but the Supreme Court’s reasoning in theGonzalez opinion remains perplexing. Gonzalez and Taamneh are a story about how the Supreme Court “saved” the Internet from itself, and the Court needed both cases to do so.
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Entertainment Law & Finance
The Problem With Sup. Ct. Majority Opinion In Andy Warhol Foundation
Nicole D. Galli and Andrew J. Costa
Commentary
The high court’s decision’s future application is anything but clear and clarification of the parameters of a “transformative” fair use is left open for another day.
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Entertainment Law & Finance
9th Circuit Bases Attorney Fees On What Class-Action Clients Get In Hand
Avalon Zoppo
The U.S. Court of Appeals for the Ninth Circuit made clear its view — that class-action plaintiffs’ lawyers generally should not be awarded fees that exceed the amount their clients get from a settlement — as the court struck down a $1.7 million fee award in which a copyright plaintiffs’ class received less than $53,000 in an infringement dispute settlement.
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The Intellectual Property Strategist
Online Extra: The Other Recent Copyright Infringement Lawsuit Against Ed Sheeran
Stan Soocher
The lion’s share of attention to copyright-infringement claims against Ed Sheeran over his song of the Year “Thinking Out Loud” recently focused on the trial in New York federal court in which a jury found in Sheeran’s favor in the lawsuit brought by the heirs of a co-author of the 1970s soul-song classic “Let’s Get It On.” But in September 2022, a related infringement suit over the same songs’ matching chord progression and harmonic rhythm was allowed to go forward.
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Entertainment Law & Finance
The Other Recent Infringement Lawsuit Judgment Over Ed Sheeran’s ‘Thinking Out Loud’
Stan Soocher
The lion’s share of attention to copyright-infringement claims against Ed Sheeran over his 2016 Grammy-winning Song of the Year “Thinking Out Loud” recently focused on the trial in New York federal court. But in September 2022, a related infringement suit over the same songs’ matching chord progression and harmonic rhythm was allowed to proceed.
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The Intellectual Property Strategist
All Is Not Fair In Love and Warhol
Jonathan Moskin
A new balance must be struck between the new use and the exclusive right of authors to make derivative works, and part of that balance includes a clearer focus on the statutory fair use factors as well as the commercial nature or not of the new work. As a practical matter, how much the decision changes in this “troublesome” area remains to be seen.
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The Intellectual Property Strategist
Music Rates and Royalties In 2023
Jeff Brabec and Todd Brabec
Part Two of a Two-Part Article
Part One of this article discussed mechanical licenses and interactive streaming services. Part Two covers songwriters and music publishers, and record labels.
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Entertainment Law & Finance
Copyright Office On AI-Works Registrations
Isha Marathe
The U.S. Copyright Office recently found itself waffling on a copyright registration it granted, and then revoked, within a span of months. The work in question, a comic book, transcended the traditional artificial-intelligence authorship debate it contained an amalgam of human-created text and generative AI-created artwork.
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The Intellectual Property Strategist
Authorship and Copyright In Hybrid AI-Human Collaborative Works
Aaron Dunn and Chris King
The United States Copyright Office recently issued a letter ruling on the copyrightability of Kristina Kashtanova’s comic book-like work, Zarya of the Dawn. The Kashtanova ruling indicates that the Copyright Office’s determination of copyrightability of works involving use of AI will rely on whether the author is able to control and foresee with some measure of predictability the output of the authorial process
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Entertainment Law & Finance
Music Publishing and Recording Rates and Royalties 2023: Past, Present and Future
Jeff Brabec and Todd Brabec
Part Two of a Two-Part Article
In the United States and in most foreign countries, the “performance right” is one of the most important rights of copyright and, in many cases, the most lucrative. In the United States, there is no statutory license under the Copyright Act for this right. Songwriters, composers, lyricists (jointly “writers”) and music publishers join these organizations, which in turn negotiate licenses with the users of music, collect the license fees from those users and distribute the monies to writers and publishers based on surveys of performances, specific payment schedules and distribution rules, as well as other factors.
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Entertainment Law & Finance
11th Circuit Joins Controversy Among Circuits on Copyright Damages Look Back
Michael A. Mora
The federal appellate court in Atlanta, GA, in a case of first impression “that has divided our sister courts” over the U.S. Copyright Act’s §507(b) statute of limitations on recovering damages beyond three years of a copyright lawsuit filing, just added to that division.
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Entertainment Law & Finance
Music Rates and Royalties 2023: Past, Present and Future
Jeff Brabec and Todd Brabec
Part One of a Two Part Article
Analysis of the most important music rate and royalty areas, both past, present and future and how and by whom they are set or determined as well as the effect that legislation, litigation, the Copyright Royalty Board and the Department of Justice have had on the process.
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Entertainment Law & Finance
Getty Images’ Suit Over AI Generator
Isha Marathe
The magical world of AI-generated art has become more mainstream over the past few months. There has also been some backlash against the industry, including brewing class action lawsuits alleging copyright violations and resistance from online artist communities. But until recently, a substantial legal threat was yet to emerge against the technology that underpins artificial-intelligence art.
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Entertainment Law & Finance
Handling IP Ownership Issues In Remote Work
Sarah Schaedler and Jennifer T. Criss
Even with legal assumptions that certain intellectual property rights in works created by employees are owned by the employer, these should not be relied upon exclusively. A well-drafted employee-agreement form is increasingly essential in light of the explosive growth of remote and flexible work arrangements.
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The Intellectual Property Strategist
Music Rates and Royalties In 2023
Jeff Brabec and Todd Brabec
Part One of a Two Part Article
A look at the most important music rate and royalty areas, both past, present and future and how and by whom they are set or determined as well as the effect that legislation, litigation, the Copyright Royalty Board and the Department of Justice have had on the process.
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The Intellectual Property Strategist
The Difference Between ‘Covenant’ and ‘Condition Precedent’ In Song Licensing Agreements
Stan Soocher
A question of law arose for a District Judge when a songwriter sued YouTube, claiming she never approved licensing her works to YouTube — whether the administration agreement’s notice-and-consent clause was a condition precedent to the administrator’s ability to license the songwriter's songs.
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The Intellectual Property Strategist
Fair Use of Embedded Content on Social Media
Stephen M. Kramarsky and John Millson
The change in character of social media, from purely social communication to a mixture of the social and commercial, has had knock-on effects for courts applying traditional legal principles, notably, the application of copyright law.
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Entertainment Law & Finance
What Is the Difference Between ‘Covenant’ and ‘Condition Precedent’ In Song Administration Agreement?
Stan Soocher
A question of law arose for a District Judge when a songwriter sued YouTube, claiming she never approved licensing her works to YouTube — whether the administration agreement’s notice-and-consent clause was a condition precedent to the administrator’s ability to license the songwriter's songs.
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Entertainment Law & Finance
Copyright Claims Board: Now Entering the “Active Phase"
Michelle Davis
2023 is shaping up to be a big year for small claims. Since making its debut in June of 2022, the Copyright Claims Board (CCB) has received over 250 claims, and at least 11 have made it to the “active phase,” with more on the way. Active phase means a respondent was served, failed to “opt out,” and now the esteemed three-member tribunal of copyright experts may finally get a chance to make some rulings.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
COVID-19 Insurance Coverage Affirmed for Cancellation of Tina Turner Musical
MTV Floribama Shore Overcomes Trademark Infringement Claim
New York Appellate Division Reinstates Lawsuit Alleging Misappropriation of Reality TV Concept
Ninth Circuit Affirms Film Clip In Talent Acting Reel Was Fair Use
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The Intellectual Property Strategist
Copyright Claims Board: A New Stage for Copyright Infringement Claims
Robert E. Browne and Michael D. Hobbs
Copyright holders would be well advised to familiarize themselves with the Copyright Claims Board for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.
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Entertainment Law & Finance
Conn. Fed. Court Distinguishes Funny Girl Lyrics Royalty Rights from Copyright
Allison Dunn
A federal judge in the U.S. District Court for the District of Connecticut sided with the family of a production company executive in finding that the wife of late Broadway lyricist Bob Merrill had no right, under §304(c) of the U.S. Copyright Act, to cancel a more than 50-year-old royalty agreement between the executive and Merrill.
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Cybersecurity Law & Strategy
A New Stage for Online Copyright Infringement Disputes
Robert E. Browne and Michael D. Hobbs
Copyright holders would be well advised to familiarize themselves with the Copyright Claims Board for resolving copyright infringement claims and to consider its benefits and potential downsides in bringing or defending copyright infringement actions.
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Entertainment Law & Finance
Second Circuit Addresses Significant Music Compulsory Licensing Issues In Bill Graham Archives Dispute
Stan Soocher
In 2015, a group of music publishers sued the purchaser of the Bill Graham Archives — a repository that includes live performances staged by the late, legendary concert promoter of an array of musical artists beginning in the 1960s. Now, the Second Circuit has handed down its appellate opinion in the litigation, addressing the important compulsory licensing concerns as well as some of the additional issues in the case.
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Entertainment Law & Finance
Fight Stream Distributor Can Pursue Claim Against TN Grill
Allison Dunn
In a matter of first impression, the Sixth Circuit sided with a third-party sporting events distributor by finding the distributor has standing to sue a Kingsport, TN, bar under the U.S. Copyright Act for livestreaming a 2017 boxing match between Floyd Mayweather and Conor McGregor without the proper licensing.
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Entertainment Law & Finance
Copyright Attorney Fees Ruling in Friday the 13th Termination Case
Mason Lawlor
The U.S. District Court for the District of Connecticut granted Friday the 13th screenwriter Victor Miller partial attorney fees totaling more than $886,564, in his long-running fight against the 1980 horror film’s production outfit Manny Co. over proceeds from the film.
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Entertainment Law & Finance
Report on Oral Arguments At Supreme Court In 'Warhol' Case
Scott Graham
During the recent oral arguments before it, the U.S. Supreme Court sounded open to extending more fair use protection to an Andy Warhol painting of rock icon Prince than the U.S. Court of Appeals for the Second Circuit did.
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Entertainment Law & Finance
Pondering AI Machine Learning and Copyright Fair Use
Cassandre Coyer
By feeding machine-learning models hundreds of copyrighted pictures to train them to identify and “read” certain concepts, companies could face violating copyright laws.
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The Intellectual Property Strategist
Supreme Court Set to Hear Transformativeness Fair Use 'Warhol' Case
Eric Alan Stone and Catherine Nyarady
In the October 2022 Term, the Supreme Court is set to decide whether courts assessing transformativeness under the first fair-use factor of the Copyright Act may consider “the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material.” The case may profoundly affect the fair use analysis, and in turn, the scope of copyright protection for many works.
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Entertainment Law & Finance
Fresh Filings
ELF Staff
A look at moves among attorneys, law firms, companies and other players in entertainment law.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Brian Wilson’s Ex-Wife Wins Remand Back to State Court of Her Claim to Share of Revenues from Sale of His Song Catalog
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Entertainment Law & Finance
Ninth Circuit Says Copyright Plaintiffs Can Reach Back More Than Three Years In Seeking Infringement Damages
Stan Soocher
How far back from accrual of a claim may a plaintiff reach for copyright damages?
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Entertainment Law & Finance
‘Banana’ Artwork Dispute Presents Slippery Slope for Copyright
Robert W. Clarida and Thomas Kjellberg
In July, the U.S. District Court for the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, a decision that began by posing the question: “Can a banana taped to a wall be art?”
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The Intellectual Property Strategist
One Banana, Two Banana: Can a Banana Taped to a Wall Be Copyright Protected Art?
Robert W. Clarida and Thomas Kjellberg
On July 7, 2022, the Southern District of Florida denied a motion to dismiss in Morford v. Cattelan, which began by posing the following question: “Can a banana taped to a wall be art?”
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The Intellectual Property Strategist
Copyright Plaintiffs Can Reach Back More Than Three Years In Seeking Infringement Damages, Ninth Circuit Rules
Stan Soocher
How far back from accrual of a claim may a plaintiff reach for copyright damages?
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The Intellectual Property Strategist
IP News
Howard Shire and Stephanie Remy
Copyright Standing and Fifth Circuit Trade Dress Factors
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Entertainment Law & Finance
'To Kill a Mockingbird'’s State Adaptation Rights Results In Ambiguity Battle
Stan Soocher
A current dispute over contract language in grants to different parties for theatrical adaptations of the classic 1960 novel "To Kill a Mockingbird" is an apt example of what can happen if contract language isn’t specific enough.
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Entertainment Law & Finance
State Law Requiring Offer to License Conflicts With Copyright Act
Allison Dunn
A federal judge has sided with the Association of American Publishers (AAP), finding in June that a recently enacted Maryland library e-book law conflicts with federal copyright laws.
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Entertainment Law & Finance
Second Circuit Interprets ‘Executed By the Author’ In Copyright Act’s §203 Grant Termination Provision
Stan Soocher
Composers of pre-1978 works often assigned both the initial and renewal copyright terms in their works when signing songwriter agreements with music publishers. But what happens when a grant of the copyright renewal term of a pre-1978 work has been made post-1977?
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The Intellectual Property Strategist
‘Executed By the Author’ In Copyright Act’s §203 Grant Termination Provision Interpreted By Second Circuit
Stan Soocher
Composers of pre-1978 works often assigned both the initial and renewal copyright terms in their works when signing songwriter agreements with music publishers. But what happens when a grant of the copyright renewal term of a pre-1978 work has been made post-1977?
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The Intellectual Property Strategist
Commentary: What the Music Industry Can Learn from Cable When It Comes to ISPs and Infringement
Keith Hauprich
In the last two decades, the music industry and, more specifically, songwriters, producers and recording artists have been losing the value of their efforts to online piracy. Perhaps a business-to-business solution can be found between the music industry and cable providers.
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Entertainment Law & Finance
Commentary: How the Music Industry Can Learn from Cable When It Comes to ISPs and Infringement
Keith Hauprich
In the last two decades, the music industry and, more specifically, songwriters, producers and recording artists have been losing the value of their efforts to online piracy. Perhaps a business-to-business solution can be found between the music industry and cable providers.
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Entertainment Law & Finance
Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers
Stan Soocher
There’s current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.
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Entertainment Law & Finance
Supreme Court’s Breyer Ruling on Mistakes In Copyright Registrations
Scott Graham
The Ninth Circuit had ruled in 2020 that §411(b)(1)(A) of the federal Copyright Act excuses inadvertent mistakes of fact on copyright registrations but not mistakes of law. The Supreme Court has now ruled 6-3 that the provision covers both mistakes of facts and law.
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