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Cybersecurity Law & Strategy
Digital Dibs: Rival Views of Generative AI Copyrights
Greg Moreman
GAI platforms like ChatGPT and OpenAI often require very little human input, shattering this legal landscape’s framework by posing a simple question: Who authored the material? We’ll explore how two countries are answering this question in different ways.
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The Intellectual Property Strategist
Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
Thomas Kjellberg and Robert W. Clarida
In Philpot v. Independent Journal Review, the Fourth Circuit found no fair use or copyright validity for a concert photographer's use of a photo of Ted Nugent as part of a collection.
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The Intellectual Property Strategist
“Holy Fair Use, Batman”: Copyright, Fair Use and the Dark Knight
David G. Kim and Michael K. Friedland
The copyright for the original versions of Winnie the Pooh and Mickey Mouse have expired. Now, members of the public can create — and are busy creating — their own works based on these beloved characters. Suppose, though, we want to tell stories using Batman for which the copyright does not expire until 2035. We’ll review five hypothetical works inspired by the original Batman comic and analyze them under fair use.
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The Intellectual Property Strategist
Intellectual Property In Legal Tech: Lessons from Recent Cases
Brian Mack, Kevin Keller and Olga V. Mack
As technology continues to permeate the legal industry, the significance of IP in safeguarding innovations, ensuring fair competition, and fostering a culture of creative legal solutions becomes paramount.
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The Intellectual Property Strategist
IP News
Justin Tilghman and Howard J. Shire
Appeals Court Backs Nickelback In Copyright Infringement Case
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Entertainment Law & Finance
U.S. Supreme Court Hears Arguments on Whether Copyright Plaintiffs Can Reach Back More Than Three Years for Infringement Damages
Stan Soocher
In a case of first impression, the Eleventh Circuit decided that a copyright plaintiff may recover damages that occur more than three years before a copyright lawsuit is filed.
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Entertainment Law & Finance
Nugent Photo Copyright Dispute Offers Appellate Look at Post-Warhol Fair-Use Analysis
Avalon Zoppo
The Fourth Circuit ruled that a copyright infringement claim against a news site, for using a photo of musician Ted Nugent without credit, could proceed, one of the first federal appellate decisions interpreting the U.S. Supreme Court’s most recent iteration of the fair use test.
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The Intellectual Property Strategist
Content-Licensing Payment Dispute Turns On Existence of Fiduciary Relationship
Stan Soocher
A recent New York federal court decision in a dispute between a broker that sublicenses program content and a broadcaster that sublicensed content from the broker considered the interaction of contract language and extra-contractual elements of the parties’ relationship to determine whether a fiduciary relationship existed.
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Cybersecurity Law & Strategy
All the News That’s Fit to Pinch: 'NYT v. OpenAI'
Jonathan Moskin and Rachel Pauley
The emerging cases by authors and copyright owners challenging various generative AI programs for using copyrighted materials are certain to create new troubles for the courts being asked to apply the fair use doctrine to this important new technology.
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The Intellectual Property Strategist
All the News That’s Fit to Pinch
Jonathan Moskin and Rachel Pauley
The emerging cases by authors and copyright owners challenging various generative AI programs for using copyrighted materials are certain to create new troubles for the courts being asked to apply the fair use doctrine to this important new technology.
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The Intellectual Property Strategist
IP News
Howard Shire and Justin Tilghman
In Patrick v. Poree, the United States Court of Appeals for the Eleventh Circuit affirmed the denial of default judgment and summary judgment of copyright infringement claims based on a lack of evidence that the plaintiff owned a valid copyright.
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How New York Times’ Lawsuit Over AI Software Copying Differs From Prior Copyright Complaints
Isha Marathe
The New York Times’ copyright infringement lawsuit against OpenAI and Microsoft is said to be AI’s “Napster Moment.” But observers are torn about the case’s legal merits, citing differing views around how exactly AI “Large Language Models” are trained.
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Entertainment Law & Finance
All the News That’s Fit to Pinch: NYT v. OpenAI Could Be Most Troublesome of AI Copyright Cases
Jonathan Moskin and Rachel Pauley
The emerging cases by authors and copyright owners challenging various generative AI programs for using copyrighted materials are certain to create new troubles for the courts being asked to apply the fair use doctrine to this important new technology.
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Cybersecurity Law & Strategy
A Scoreboard of Notable Cases In AI and Copyright
Stan Soocher
Artificial intelligence has dominated intellectual property news since the public introduction of OpenAI’s ChatGPT, the generative AI chatbot, in November 2022. Now, 2024 starts off with court decisions and procedural rulings having taken shape in 2023 lawsuits that were filed over the collision of creative content with generative AI programs.
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Entertainment Law & Finance
How Likely FTC’s Comments On Copyright & AI May Become Policy
Isha Marathe
The FTC said that the misuse of training data like infringing on a work’s copyright license is tantamount to unfair competition, thus implicating consumer protection with copyright policy and securing the agency’s jurisdiction in the regulatory space.
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Entertainment Law & Finance
Ninth Circuit Focuses On Extrinsic Test In Ruling On Choreography Copyright
Stan Soocher
Reversing and remanding, the Ninth Circuit emphasized: “The district court’s approach of reducing choreography to ‘poses’ is fundamentally at odds with the way we analyze copyright claims for other art forms, like musical compositions.”
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The Intellectual Property Strategist
IP News
Howard Shire and Justin Tilghman
Ninth Circuit Upholds Copyright Infringement Dismissal In ‘Jangle Vision Twins’ Case
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Cybersecurity Law & Strategy
AI and Law Practice: A Roadmap for Success In Modern Legal Firms, Part 2
Melissa “Rogo” Rogozinski and Steve Salkin
Part Two of a Two-Part Article
A report on the September panel discussion sponsored by the Miami Dade Bar Association Law and Technology Committee, on AI and how to effectively use it in law firms.
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Cybersecurity Law & Strategy
Federal District Court Denies Copyright to Visual Art Piece Generated Solely By Artificial Intelligence
Richard L. Hathaway
In August, the U.S. District Court of the District of Columbia affirmed the U.S. Copyright Office’s denial of a copyright application for a visual piece of art generated entirely by an artificial intelligence-driven computer called the “Creativity Machine.” 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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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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Marketing The Law Firm
Online Extra: AI Copyright — Ethical and Legal Considerations for Marketing and Sales
Melissa “Rogo” Rogozinski
Standing still and waiting to take action wasn’t easy, but the patience paid off. Now, I understand some of AI’s limitations and ways to leverage it to propel marketing and sales activities.
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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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