Getty Images Launches Commercially Safe Generative AI Offering

From Getty Images:

Trained on Getty Images’ world‑class creative content, Generative AI by Getty Images allows customers to explore the power of generative AI with full protection and usage rights

New York – September 25, 2023: Getty Images (NYSE: GETY), a preeminent global visual content creator and marketplace, today announced the launch of Generative AI by Getty Images, a new tool that pairs the company’s best‑in‑class creative content with the latest AI technology for a commercially safe generative AI tool.

Generative AI by Getty Images is trained on the state‑of‑the‑art Edify model architecture, which is part of NVIDIA Picasso, a foundry for generative AI models for visual design. The tool is trained solely from Getty Images’ vast creative library, including exclusive premium content, with full indemnification for commercial use. Sitting alongside the company’s broader, industry‑leading services, Generative AI by Getty Images works seamlessly with the company’s expansive library of authentic and compelling visuals and Custom Content solutions, allowing customers to elevate their entire end‑to‑end creative process to find the right visual content for any need.

. . . .

Customers creating and downloading visuals through the tool will receive Getty Images’ standard royalty‑free license, which includes representations and warranties, uncapped indemnification, and the right to perpetual, worldwide, nonexclusive use in all media. Content generated through the tool will not be added into existing Getty Images and iStock content libraries for others to license. Further, contributors will be compensated for any inclusion of their content in the training set.

“We’ve listened to customers about the swift growth of generative AI – and have heard both excitement and hesitation – and tried to be intentional around how we developed our own tool,” said Grant Farhall, Chief Product Officer at Getty Images. “We’ve created a service that allows brands and marketers to safely embrace AI and stretch their creative possibilities, while compensating creators for inclusion of their visuals in the underlying training sets.”

. . . .

Customers will soon be able to customize Generative AI by Getty Images with proprietary data to produce images with their unique brand style and language. 

Link to the rest at Getty Images

PG has previously suggested that the owners of images used to train an AI are likely not going to be able to pursue a claim for copyright infringement effectively.

That said, large business organizations and their legal departments will be able to use Getty’s AI system without concerns about claims of copyright infringement by the owners of the images used provide grist for Getty’s AI mill.

Generative AI vs. Copyright

From Publishers Weekly:

The balance between copyright and free speech is being challenged by generative AI (GAI), a powerful and enigmatic tool that mimics human responses to prompts entered into an internet search box. The purpose of copyright law, according to the U.S. Constitution, is “to promote the Progress of Science and useful Arts, by securing to Authors and Inventors the exclusive Right to their exclusive writings.” The problem is that GAI’s ability to incentivize progress and innovation threatens the entertainment industry’s dependence on copyright to protect creative works.

Copyright law strikes a balance between those who create content and the public’s interest in having wide access to that content. It does this via granting authors a limited monopoly over the dissemination of original works by giving them the exclusive right to reproduce, distribute, and create derivative works based on copyrighted material. However, the concept of exclusive rights doesn’t really apply to artificially intelligent robots and computers scraping ideas and facts from public websites.

Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement. To prove copyright infringement, one must prove that the defendant had access to the copyrighted work and that the defendant’s work is substantially similar to protected aspects of the first work.

For AI output to infringe upon a book, it must have taken a substantial amount of copyrightable expression from the author’s work. When it comes to text, GAI is an artful plagiarist. It knows how to dance around copyright. The predictive model emulates, it doesn’t copy. Insofar as text generated in response to a prompt is not substantially similar—a legal term of art—to the data it is scraping, it is not an infringement. In other words, don’t overestimate the value of litigation.

The fair-use doctrine is another limitation on the exclusive rights of authors. Its purpose is to avoid the rigid application of copyright law in ways that might otherwise stifle the growth of art and science. Fair use is highly fact specific. Which is another way of saying it’s a murky and contentious area of the law.

Several cases decided before the advent of GAI suggest fair use encompasses the ingestion and processing of books by GAI. For example, in 2015, in Authors Guild v. Google, the court ruled that Google’s digitizing of books without consent to create a full-text searchable database that displayed snippets from those titles was a transformative use that served a different purpose and expression than the original books.

Fair use favors transformative uses. However, over time, the concept evolved from using a protected work as a springboard for new insights or critiquing the original to taking someone else’s photographs or other images and including them in a painting and declaring it a fair use.

In 2023, in Andy Warhol Foundation for the Visual Arts v. Goldsmith, the U.S. Supreme Court held that the claim to fairness is severely undermined “where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it.” AI-generated works can devalue human-created content, but is that the kind of economic harm contemplated in the Supreme Court’s decision?

To sum up, on a case-by-case basis, courts must determine if substantial similarity exists and then engage in line drawing—balancing free expression and the rights of creators.

. . . .

In an age of disinformation, an author’s brand, a publisher’s imprint, and the goodwill associated with them are valuable assets. I believe the industry is less vulnerable than many think. But, to quote Nick Lowe, “Where it’s goin’ no one knows.”

Link to the rest at Publishers Weekly

PG notes that the author of the OP is an attorney, so he will cut and paste his disclaimer from the post he just published so no one who reads only this TPV post will not be misled.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an article for Publishers Weekly.

Using Generative AI? Consider These 7 Tips From a Legal Expert

From Learn2G2:

As G2’s General Counsel, it’s my job to help build and protect the company, so it’s likely no surprise that generative AI is top of mind for me (and lawyers everywhere!).

While AI presents an opportunity for organizations, it also poses risks. And these risks raise concerns for all business leaders, not only legal departments.

With so much information out there, I recognize these waters can be difficult to navigate. So, to help get to the crux of these concerns and boil them down into a helpful guide for all business leaders, I recently sat down with some of the top minds in the AI space for a round-table discussion in San Francisco.

There, we discussed the changing landscape of generative AI, the laws affecting it, and what this all means for how our businesses operate.

We came to the agreement that, yes, generative AI tools are revolutionizing the way we live and work. However, we also agreed that there are several legal factors businesses should consider as they embark on their generative AI journeys.

Based on that discussion, here are seven things to consider when integrating AI into your company.

Understand the lay of the land

Your first task is to identify whether you’re working with an artificial intelligence company or a company that uses AI. An AI company creates, develops, and sells AI technologies, with AI as its core business offering. Think OpenAI or DeepMind.

On the other hand, a company that uses AI integrates AI into its operations or products but doesn’t create the AI technology itself. Netflix’s recommendation system is a good example of this. Knowing the difference is pivotal, as it determines the complexity of the legal terrain you need to navigate and deciphers which laws apply to you.

G2 lays out the key AI software in this developing field. When you have a bird’s-eye view of the possible tools, you can make better decisions on which is right for your business.

Keep an eye out on the latest developments in the law, as generative AI regulations are on the horizon. Legislation is rapidly developing in the US, UK, and Europe. Likewise, litigation involving AI is actively being decided. Keep in touch with your attorneys for the latest developments.

Choose the right partner, keeping terms of use in mind

You can tell a lot about a company by its terms of use. What does a company value? How do they handle the relationship with their users or customers? The terms of use can serve as a litmus test.

OpenAI, for instance, explicitly states in its usage policies that its technology shouldn’t be used for harmful, deceptive, or otherwise unethical applications. Bing Chat requires users to comply with laws prohibiting offensive content or behavior. Google Bard, meanwhile, focuses on data security and privacy in its terms – highlighting Google’s commitment to protecting user data. Evaluating these terms is essential to ensuring your business aligns with the AI partner’s principles and legal requirements.

We compared the terms of use and privacy policies of several key generative AI players to help us determine which AI tools would work best for our company’s risk profile and recommend you do the same.

Between your company and the AI company, who owns the input? Who owns the output? Will your company data be used to train the AI model? How does the AI tool process, and to whom does it send personally identifiable information? How long will the input or output be retained by the AI tool?

Answers to these questions inform the extent to which your company will want to interact with the AI tool.

Navigate the labyrinth of ownership rights

When using generative AI tools, it’s paramount to understand the extent of your ownership right to the data that you put into the AI and the data that is derived from the AI.

From a contractual perspective, the answers depend on the agreement you have with the AI company. Always ensure that the terms of use or service agreements detail the ownership rights clearly.

For example, OpenAI takes the position that between the user and OpenAI, the user owns all inputs and outputs. Google Bard, Microsoft’s Bing Chat, Jasper Chat, and Anthropic’s Claude similarly each grant full ownership of input and output data to the user but simultaneously reserve for themselves a broad license to use AI-generated content in a multitude of ways.

Anthropic’s Claude grants ownership of input data to the user but only “authorizes users to use the output data.” Anthropic also grants itself a license for AI content, but only “to use all feedback, ideas, or suggested improvements users provide.” The contractual terms you enter into are highly variable across AI companies.

Strike the right balance between copyright and IP

AI’s ability to generate unique outputs creates questions about who has intellectual property (IP) protections over those outputs. Can AI create copyrightable work? If so, who is the holder of the copyright?

The law is not entirely clear on these questions, which is why it’s crucial to have a proactive IP strategy when dealing with AI. Consider whether it is important for your business to enforce IP ownership of the AI output.

Presently, jurisdictions are divided about their views on copyright ownership for AI-generated works. On one hand, the U.S. Copyright Office takes the position that AI-generated works, absent any human involvement, cannot be copyrighted because they are not authored by a human.

Link to the rest at Learn2G2

The article goes on to discuss several other interesting legal and intellectual property points.

PG notes that nothing you read on TPV constitutes legal advice. If you want legal advice, you need to hire a lawyer, not read a blog post.

PG will also note that the OP includes some other suggestions by the author, who is an attorney, which you may want to consider, but hire your own lawyer because, just like PG, the author of the OP is not your attorney and isn’t giving legal advice by writing an online article.

Willingham Sends Fables Into the Public Domain

From These Foolish Games:

Fables Press Release

Subject: Fables Enters the Public Domain

15 September 2023

By Bill Willingham

For Immediate Release

The Lede

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.

Q: Why Did You Do This?

A number of reasons. I’ve thought this over for some time. In no particular order they are:

1) Practicality: When I first signed my creator-owned publishing contract with DC Comics, the company was run by honest men and women of integrity, who (for the most part) interpreted the details of that agreement fairly and above-board. When problems inevitably came up we worked it out, like reasonable men and women. Since then, over the span of twenty years or so, those people have left or been fired, to be replaced by a revolving door of strangers, of no measurable integrity, who now choose to interpret every facet of our contract in ways that only benefit DC Comics and its owner companies. At one time the Fables properties were in good hands, and now, by virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.

            Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

            I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

2) Philosophy: In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

Of course, if I’m going to believe such radical ideas, what kind of hypocrite would I be if I didn’t practice them? Fables has been my baby for about twenty years now. It’s time to let it go. This is my first test of this process. If it works, and I see no legal reason why it won’t, look for other properties to follow in the future. Since DC, or any other corporate entity, doesn’t actually own the property, they don’t get a say in this decision.

Q: What Exactly Has DC Comics Done to Provoke This?

Too many things to list exhaustively, but here are some highlights: Throughout the years of my business relationship with DC, with Fables and with other intellectual properties, DC has always been in violation of their agreements with me. Usually it’s in smaller matters, like forgetting to seek my opinion on artists for new stories, or for covers, or formats of new collections and such. In those times, when called on it, they automatically said, “Sorry, we overlooked you again. It just fell through the cracks.” They use the “fell through the cracks” line so often, and so reflexively, that I eventually had to bar them from using it ever again. They are often late reporting royalties, and often under-report said royalties, forcing me to go after them to pay the rest of what’s owed.

            Lately though their practices have grown beyond these mere annoyances, prompting some sort of showdown. First they tried to strong arm the ownership of Fables from me. When Mark Doyle and Dan Didio first approached me with the idea of bringing Fables back for its 20th anniversary (both gentlemen since fired from DC), during the contract negotiations for the new issues, their legal negotiators tried to make it a condition of the deal that the work be done as work for hire, effectively throwing the property irrevocably into the hands of DC. When that didn’t work their excuse was, “Sorry, we didn’t read your contract going into these negotiations. We thought we owned it.”

            More recently, during talks to try to work out our many differences, DC officers admitted that their interpretation of our publishing agreement, and the following media rights agreement, is that they could do whatever they wanted with the property. They could change stories or characters in any way they wanted. They had no obligation whatsoever to protect the integrity and value of the IP, either from themselves, or from third parties (Telltale Games, for instance) who want to radically alter the characters, settings, history and premises of the story (I’ve seen the script they tried to hide from me for a couple of years). Nor did they owe me any money for licensing the Fables rights to third parties, since such a license wasn’t anticipated in our original publishing agreement.

            When they capitulated on some of the points in a later conference call, promising on the phone to pay me back monies owed for licensing Fables to Telltale Games, for example, in the execution of the new agreement, they reneged on their word and offered the promised amount instead as a “consulting fee,” which avoided the precedent of admitting this was money owed, and included a non-disclosure agreement that would prevent me from saying anything but nice things about Telltale or the license.

            And so on. There’s so much more, but these, as I said, are some of the highlights. At that point, since I disagreed on all of their new interpretations of our longstanding agreements, we were in conflict. They practically dared me to sue them to enforce my rights, knowing it would be a long and debilitating process. Instead I began to consider other ways to go.

Q: Are You Concerned at What DC Will Do Now?

No. I gave them years to do the right thing. I tried to reason with them, but you can’t reason with the unreasonable. They used these years to make soothing promises, tell lies about how dedicated they were towards working this out, and keep dragging things out as long as possible. I gave them an opportunity to renegotiate the contracts from the ground up, putting everything in unambiguous language, and they ignored that offer. I gave them the opportunity, twice, to simply tear up our contracts, and we each go our separate ways, and they ignored those offers. I tried to go over their heads, to deal directly with their new corporate masters, and maybe find someone willing to deal in good faith, and they blocked all attempts to do so. (Try getting any officer of DC Comics to identify who they report to up the company ladder. I dare you.) In any case, without giving them details, I warned them months in advance that this moment was coming. I told them what I was about to do would be “both legal and ethical.” Now it’s happened.

            Note that my contracts with DC Comics are still in force. I did nothing to break them, and cannot unilaterally end them. I still can’t publish Fables comics through anyone but them. I still can’t authorize a Fables movie through anyone but them. Nor can I license Fables toys nor lunchboxes, nor anything else. And they still have to pay me for the books they publish. And I’m not giving up on the other money they owe. One way or another, I intend to get my 50% of the money they’ve owed me for years for the Telltale Game and other things.

However, you, the new 100% owner of Fables never signed such agreements. For better or worse, DC and I are still locked together in this unhappy marriage, perhaps for all time.

But you aren’t.

If I understand the law correctly (and be advised that copyright law is a mess; purposely vague and murky, and no two lawyers – not even those specializing in copyright and trademark law – agree on anything), you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it’s your property.

Mark Buckingham is free to do his version of Fables (and I dearly hope he does). Steve Leialoha is free to do his version of Fables (which I’d love to see). And so on. You don’t have to get my permission (but you might get my blessing, depending on your plans). You don’t have to get DC’s permission, or the permission of anyone else. You never signed the same agreements I did with DC Comics.

Link to the rest at These Foolish Games and thanks to B. for the tip

PG notes that, absent a provision that specifically prohibits them from being sold, assigned or transferred, most publishing agreements can be assigned/sold to someone the author doesn’t know.

The promises made by employees of publishers regarding ambiguous language in publishing contracts that “we don’t believe that provision means what you think it might mean” or “we would never use this provision in the way you’re suggesting because that wouldn’t be fair to our authors and that’s something we won’t ever do,” while having been accepted by a huge number of traditionally-published authors, are no protection for the author.

As described in the OP, new management or new owners will look to the contract language and, often, give no effect to understandings between the publisher and the author that are not spelled out clearly in the written contracts.

There is an argument to be made that, by the publisher’s earlier voluntary actions, the previous bunch effectively modified the written words of the contract and the former publisher’s purchasers/assignees should be bound by the acts of the previous publisher. However, speaking generally, that’s a desperate legal tactic that may or may not fly, depending on how a judge is feeling on the day she/he hears the case.

That said, most judges on most days will default to looking to the language of the written contract to determine whether the author granted the publisher the right to do what the latest owners of the publisher want to do.

The actions taken by Mr. Willingham, the author of the OP and the creator of the intellectual property under new and unfriendly management, while emotionally understandable, end up trashing the value of Mr. Willingham’s creations.

PG has mentioned the following suggestions far more than once on TPV:

  1. Read every word of the contract. If you don’t understand any portion of the contract, you need to contact a competent attorney who has spent enough time with copyright licenses to know what she/he is doing. (PG used to fall into that category, but he has permanently taken down his shingle and doesn’t practice law any more.)
  2. If you or your attorney objects to any portion of the contract language and the counter-party says something like, “We would never do that” or “We don’t think that provision means what you think it means,” your unfailing response should be some variation of “I’m so pleased to know that. Let’s change the contract language to state the actual ways we’re going to do business with each other to avoid any possible future misunderstandings and keep our business relationship on an amicable basis.”

There are more than a few other things to consider/fix, but the two paragraphs above are the bones of making certain an author signs a fair contract and doesn’t have any nasty surprises with the publisher or whoever manages or buys the publisher in the future.

Why This Award-Winning Piece of AI Art Can’t Be Copyrighted

From Wired:

AN AWARD-WINNING PIECE of AI art cannot be copyrighted, the US Copyright Office has ruled. The artwork, Théâtre D’opéra Spatial, was created by Matthew Allen and came first in last year’s Colorado State Fair. Since then, the piece has been embroiled in a precedent-affirming copyright dispute. Now, the government agency has issued its third and final decision: Allen’s work is not eligible for copyright.

Now, Allen plans to file a lawsuit against the US federal government. “I’m going to fight this like hell,” he says.

The problem? Allen used the generative AI program Midjourney to create his entry, and copyright protections are not extended to artificial intelligence—not even the kind that wows art judges. “It’s in line with previous decisions that require human authors,” says Rebecca Tushnet, a Harvard Law School professor and leading copyright scholar.

It’s a precedent that goes back to 2018 when a photo taken by a macaque was declared public domain because monkeys can’t hold copyright. PETA may beg to differ, but under the law, monkeys and machines have about the same claim on copyright protections right now. (And this isn’t just in the US. In nearly every country, copyright is pegged to human authorship.)

Allen was dogged in his attempt to register his work. He sent a written explanation to the Copyright Office detailing how much he’d done to manipulate what Midjourney conjured, as well as how much he fiddled with the raw image, using Adobe Photoshop to fix flaws and Gigapixel AI to increase the size and resolution. He specified that creating the painting had required at least 624 text prompts and input revisions.

The Copyright Office agreed that the parts of the painting that Allen had altered with Adobe constituted original work. However, it maintained that other parts generated by AI could not be copyrighted. In other words: Allen could copyright parts of the painting, but not the whole thing. This July, Allen appealed once more, arguing that the office had ignored “the essential element of human creativity” needed to use Midjourney. He attempted to use the fair use doctrine to argue that his work should be registered, because it amounts to a transformative use of copyrighted material.

“The underlying AI generated work merely constitutes raw material which Mr. Allen has transformed through his artistic contributions,” Allen wrote.

The Copyright Office didn’t buy it. “The work cannot be registered,” it wrote in its final ruling on September 5.

Allen’s dashed efforts highlight a solidifying legal consensus. This August, a US federal judge dismissed a case brought by Missouri-based AI researcher Stephen Thalus, who has been on a mission to prove that the AI system he invented deserves copyright protections. “Plaintiff can point to no case in which a court has recognized copyright in a work originating with a nonhuman,” wrote Judge Beryl Howell of the US District Court for the District of Columbia in her decision.

Thalus is currently appealing the verdict. Ryan Abbot, his attorney, does not believe that the Copyright Office’s decision on Allen will have an impact on his client’s appeal. But he does see it as having a chilling effect on the wider world of AI-assisted art. “I think it will be a major disincentive to people developing and using AI to make art,” Abbot says.

On this point, Allen (as one might predict) agrees wholeheartedly. “This is the definition of stifling innovation and creativity, the very thing the copyright office claims to protect,” he says.

The Allen ruling may certainly nudge artists to increase the amount of work they put into art produced using AI tools. “Tweaks by a human, if they actually have an aesthetic impact, will likely add enough human authorship to get a copyright on the work as a whole,” Tushnet says.

Allen’s rejected bid demonstrates that it’s entirely unclear how many tweaks constitute human authorship. We know 624 adjustments did not make the work copyrightable—so what about 625? 626?

Link to the rest at Wired

US appeals court curbs Copyright Office’s mandatory deposit policy

From Reuters:

The U.S. Constitution bars the U.S. Copyright Office from demanding that a publisher deposit physical copies of its books with the office or pay a fine, a Washington, D.C., federal appeals court said on Tuesday.

In a ruling for Richmond, Virginia-based Valancourt Books, the U.S. Court of Appeals for the District of Columbia Circuit said the Copyright Office’s demand amounted to an unconstitutional government taking of Valancourt’s property.

The Copyright Office said in a statement that it was reviewing the decision.

Valancourt’s co-owner and co-counsel James Jenkins said the publisher was “thrilled” with the decision. Valancourt attorney Robert McNamara of the Institute of Justice said the ruling was a “victory for property rights, free speech and anyone who loves either one.”

The Copyright Office requires a physical copy of any work published in the United States to be deposited with it. The office has said the requirement ensures that the Library of Congress “has an opportunity to obtain copies of every copyrightable work published in the United States”

It demanded copies of 341 books from Valancourt, which publishes rare and out-of-print fiction, and threatened the publisher with fines of up to $250 per book plus $2,500 more if it failed to comply.

Valancourt sued the Copyright Office in 2018 in Washington, D.C., federal court, arguing the demands were illegal based on the U.S. Constitution’s protections against government seizures of private property without fair compensation.

The district court ruled in 2021 that the office’s demands were constitutional as part of a voluntary exchange for federal copyright protection. But the D.C. Circuit said on Tuesday that copyright owners do not receive any benefits from depositing the copies.

The appeals court said that a work receives copyright protection automatically when it is created. It also noted that the mandatory-deposit requirement is separate from the requirement for deposit copies in order to register copyrights, which does grant government benefits.

Link to the rest at Reuters and thanks to K. and others for pointing out this court decision.

PG says the mandatory deposit requirement is greatly outdated when virtually all books are created electronically and some are never published in hard copy.

Supreme Court Rules Against Andy Warhol in Copyright Case

From The New York Times:

The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for an image of the musician that his estate licensed to a magazine, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.

The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

She focused on the fact that Warhol and Lynn Goldsmith, the photographer whose work he altered, were both engaged in the commercial enterprise of licensing images of Prince to magazines.

“To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals,” Justice Sotomayor wrote. “As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use.”

In dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., wrote that the decision “will stifle creativity of every sort.”

“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”

The dueling opinions, from two liberal justices who are often allies, had an unusually sharp tone.

Justice Kagan’s opinion, Justice Sotomayor wrote, was made up of “a series of misstatements and exaggerations, from the dissent’s very first sentence to its very last.”

Justice Kagan responded that Justice Sotomayor wholly failed to appreciate Warhol’s art.

“The majority does not see it,” Justice Kagan wrote. “And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.”

The decision was also unusual for including more than a dozen reproductions of artworks by Warhol and others, most of them in color.

The portrait of Prince at issue in the case was taken in 1981 by Lynn Goldsmith, a successful rock photographer on assignment for Newsweek.

In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.

In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, mask-like appearance.” Vanity Fair ran one of them.

Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Ms. Goldsmith received no money or credit.

The majority’s analysis, Justice Kagan wrote, was simplistic and wooden.

“All of Warhol’s artistry and social commentary,” she wrote, “is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion.”

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869, concerned the limits of the fair-use defense, which allows copying that would otherwise be unlawful if it involves activities like criticism and news reporting.

Lower courts differed about whether Warhol’s alterations of the photograph transformed it into something different. Judge John G. Koeltl of the Federal District Court in Manhattan ruled that Warhol had created something new by imbuing the photograph with fresh meaning.

But a three-judge panel of the U.S. Court of Appeals for the Second Circuit said that judges should compare how similar the two works are and leave the interpretation of their meaning to others.

“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” Judge Gerard E. Lynch wrote for the panel. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

Justice Sotomayor wrote that a crucial factor in the fair-use analysis — “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” — weighed in Ms. Goldsmith’s favor.

“Warhol himself paid to license photographs for some of his artistic renditions,” Justice Sotomayor wrote. “Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.”

Other Warhol works, like Warhol’s images of Campbell’s soup cans, were a different matter, she wrote.

“The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose,” Justice Sotomayor wrote. “Rather, the soup cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism.”

Link to the rest at The New York Times and thanks to K. and others for the tip

PG has previously showed the original photo beside the Warhol print. Here it is again:

These are the two images that were considered by the Supreme Court in today’s decisions. The photographer, Lynn Goldsmith, who created the photo on the left, won her case against Andy Warhol (his foundation to be specific), the artist who created the painting on the right.

PG suggest that many appellate courts have problems with copyright cases involving visual images. Quite often he has the impression that the judges/justices begin with an approach that boils down to “I’ll know it when I see it,” and move on from there with references to various prior copyright cases that support their visual conclusions.

Copyright infringement cases involving written works tend to be slightly more predictable and involve multiple paragraphs from one book compared to multiple paragraphs from another. That said, decisions tend to go down to the judicial golden gut.

One of the other characteristics of the Supreme Court opinions on copyright infringement is that, most of the time, the Supremes tend not to accept such appeals, allowing the decisions of the U.S. Circuit Courts of Appeal to stand.

The problem with the Supremes not feeling particularly comfortable with copyright is that various Circuit Courts do not always agree on how copyright infringement should be assessed, so, excluding slam-dunk copyright violations, appealing a close federal trial court’s decision may result in a win for one party which would have likely gone another way had the appeal been heard in a different Circuit Court of appeal due to the differences between the Circuits.

That said, 90% of copyright lawsuits are slam dunks for one side or the other, which explains why only a small number of Federal District court cases end up going to trial because the party likely to lose is invented to reach an agreement to settle the case prior to a trial to save a lot of expensive legal fees.

Here’s the entire opinion so you can review all 87 pages, including pictures and giant traditional and historic margins!

Judgment Entered in Publishers, Internet Archive Copyright Case

From Publishers Weekly:

More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered).

Most importantly, the proposed agreement includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of in-copyright, commercially available books, as well as bar the IA from “profiting from” or “inducing” any other party’s “infringing reproduction, public distribution, public display and/or public performance” of books “in any digital or electronic form” once notified by the copyright holder. Under the agreement, the injunction will not be stayed while the case is on appeal—essentially meaning that once Koeltl signs off, the IA will have to take stop making unauthorized scans of copyrighted works available to be borrowed within two weeks of notification.

The parties left one final dispute for Koeltl to clean up, however: what books will be “covered” by the proposed injunction?

In a letter to the court, IA attorneys argue that “Covered Books” should be limited to books that are both “commercially available” and available in digital format. “This case involved only works that the Publishers make available as e-books and so the scope of any injunction should be limited accordingly,” IA attorneys argue. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question.”

Lawyers for the plaintiff publishers counter that the injunction should cover all unauthorized scans of commercially available books, whether the copyright holder has licensed a digital edition or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argues. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”

It is expected Koeltl will simply rule on the dispute based on what’s already been filed, and move forward with the proposed judgment.

In his emphatic March 24 summary judgment ruling, Koeltl easily found the IA’s program to be infringement, eviscerating the IA’s fair use defense in the process. “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

Link to the rest at Publishers Weekly

PG was more than a little surprised that the publisher who won the case spent so much time in negotiations with The Internet Archive.

IA was patently wrong in doing what they were doing. The organization’s rationale was the frothiest legal argument PG has seen for a long time. This decision and opinion was one of the easiest to make that the trial judge has had in several years.

Judgment Phase of Internet Archive Copyright Case Appears Imminent

From Publishers Weekly:

It’s now been more than four months since a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books. But after a court order late last week, the parties finally appear headed toward the judgment phase of the litigation.

Since the verdict, the parties have (per the court’s order) been conferring over the contours an “appropriate procedure to determine the judgment to be entered in the case.” And after numerous extensions through the spring and summer, judge John G. Koeltl appears to have run out of patience. In a July 28 order, Koeltl gave the parties until August 11 to deliver their recommendations, adding “no more extensions.”

. . . .

In his emphatic March 24 opinion, Koeltl found the Internet Archive infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as CDL (controlled digital lending). “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

In court filings, the publishers have asked for damages and injunctive relief, including the destruction of potentially infringing scans. Lawyers for the Internet Archive have argued that statutory damages should be remitted per section 504 of the Copyright Act, which offers some relief where the infringer is a “nonprofit educational institution, library, or archives,” and the infringers “believed and had reasonable grounds for believing” that its use of the work was fair use.

Link to the rest at Publishers Weekly

Canada’s Crisis Triggers Downsizing at Access Copyright

From Publishing Perspectives:

Today, we include in our rights edition an urgent story that’s not focused on translation- and publication-rights deals but on a crippling copyright fiasco that has damaged a major publishing market for more than a decade. The news, arriving today (July 14), is not good. And copyright, after all, is precisely at the heart of every rights meeting, offer, and deal made across trading-center tables and borders the world over.

As Publishing Perspectives readers know, the story of Canada’s ironically named Copyright Modernization Act of 2012 has entered its 11th year. The act—like those parties taking advantage of it to utilize copyrighted material without payment—has crippled English-language Canadian publishers and authors, causing a loss of as much as US$151.3 million in lost licensing revenues.

The board of directors at Access Copyright—the collective management organization duly established by creators and publishers for English-language Canada—made the organization’s most alarming announcement yet, saying that it is initiating “a significant downsizing and restructuring of the organization because of the federal government’s decade-long inaction in fixing Canada’s publishing marketplace.”

The board’s statement confirms that “Canadian writers, visual artists, and publishers—an indispensable part of Canada’s culture—have been deprived of more than CA$200 million in unpaid royalties under tariffs certified by the Copyright Board of Canada.

“This staggering figure,” the board’s statement says, “is among the many impacts, including job losses and several educational publishers stepping away from the K-12 or post-secondary markets, that have hit Canadian creators and publishers since amendments to Canada’s Copyright Act were enacted in 2012.”

. . . .

What the board of directors describes as “mass, systemic, free copying of creators’ works by Canada’s education sector outside of Quebec since 2012” has led to Access Copyright’s “total distributions to rightsholders dropping by 79 percent.”

Despite the fact that Access Copyright, more than 30 years old, is “a key piece of Canada’s cultural infrastructure that Canadian creators and publishers rely on to be fairly compensated for the use of their work,” the government in Ottawa has not gotten around to addressing this fast-deteriorating situation, even after the national budget in April 2022 specifically promised relief for unpaid copyright holders.

The pertinent language in the federal budget pledges “to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

This, the Access Copyright board members point out, “was a direct acknowledgment of the harm that the 2012 changes to the Copyright Act have caused and the need for legislative action to repair it.” And yet no action has materialized. “Creators nationally continue to wait for the government to make good on its commitment, and the marketplace for a viable Canadian educational publishing industry continues to dry up.”

. . . .

Much of the world publishing industry has looked on in disbelief as the education system itself sued Access Copyright at one point, and as court rulings went in the agency’s and publishers’ favor and then against it—leaving a legislative remedy the only hope. By late 2021, Copyright Clearance Center‘s Michael Healy, one of the most influential voices in world copyright issues, told Publishing Perspectives in his annual year-end interview with us on copyright issues, “It’s clearly the end of the judicial road” in Canada.

Critics say that as much as Canadian Heritage—the cultural division of Canada’s federal framework—has been admired in many parts of the world in the past, the Canadian government appears not to care that its own botched legislative action has cratered its once-prized Canadian educational publishing industry.

. . . .

Speaking for the Writers’ Union of Canada, its CEO, John Degen, is quoted, saying, “The abandonment of Canadian creators and publishers is a blight on our country, and an international embarrassment.

“When the Copyright Act was amended to include a fair-dealing exception for education, the Liberals in opposition then expressed deep concern that it was likely to be exploited at the expense of creators. They were right; that’s exactly what happened.

“The government has promised to fix the gaps in the act many times, but we are still waiting for meaningful change. In the meantime, a key market has disappeared and, with it, countless Canadian stories.”

. . . .

The news that Access Copyright is downsizing is devastating to Canadian literary publishers, especially as there are solutions at the ready that would meaningfully address the current ambiguity in fair dealing and add clarity to fair compensation for the use of creators’ works.

“The federal government must stand up for Canadian creators and publishers. We are out of time.”

Link to the rest at Publishing Perspectives

European Publishers See Audiobooks, AI as Inevitabilities

From Publisher’s Weekly:

The Readmagine publishing conference ran from June 7-9 in Madrid, featuring an A-list of publishing pros.

. . . .

The boom in audiobook sales, which continues to transform the landscape across Europe, was a point of conversation. Enrico Turrin, deputy director of the Federation of European Publishers, told the audience that when all the data from FEP’s members is in, audiobooks are likely to account for as much as 4-5% of sales. This shift follows that in the U.S., where Michele Cobb, executive director of the Audiobook Publishers Association, noted that the U.S. has seen 11 years of double-digit growth. “Now, 53% of the U.S. population has listened to an audiobook,” Cobb said.

Cobb noted that there was a potential shift in prevailing business models, moving from a credits-based system to the all-you-can-consume model. “There is growth in both areas,” she said. Discovery too is changing as new consumers are increasingly finding books on TikTok – “you might call it AudioTok,” Cobb said. People are building online communities around listening to audiobooks, but like with print, “the biggest challenge is marketing” and many publishers are “using influencers to do their marketing.”

Kurt Thielen, CEO at audiobook publisher Zebralution, said that he was seeing the market shift in Germany, where the company is based. “We’re seeing people do an audiobook with everything, from books to magazines to personal brand content. It’s a fundamental change in the marketing approach.” Thielen said that short, 30-minute episodic serialization is becoming more prevalent.

Growth for audiobooks has been strong across most demographics, but the born-digital Gen Z – those 18-28 years old—are showing a preference for audiobooks over digital reading, said Shauna Moran, trends manager for Global Web Index, an U.K. based consultancy. “68% of European Gen Zers say they prefer audio books to e-books,” and “28% regularly listen to podcasts.” Moran noted that the content Gen Z preferred was “engaging and goal oriented” – meaning self-help and publishers of DIY content might have an opportunity with short form audio. As far as discovery goes, there was no surprise when she referenced the power of TikTok to persuade readers. “People want to be told what to [read],” she said.

Matt Locke, director of Storythings, a media consultancy from the U.K., concurred. He went on to say that future innovation in publishing would require some tangential thinking, insofar as the past patterns of consumption are evolving into a situation where people want “everything, everywhere all at once,” which has helped fuel the shift from “visual to listening.”

When it comes to innovation from inside the established publishing industry, HarperCollins’s Restivo-Alessi, was part of a panel that tried to peer into the future. The panelists made several observations. They saw the possibility of famous authors, following in the footsteps of Swiss bestseller Joel Dicker and fantasy novelist Brandon Sanderson, going the self-publishing route; and authors merging genres, such as romance and fantasy becoming “romantacy,” which was already a big trend as of Frankfurt 2022.

Unsurprisingly, AI was a main point of discussion, with the panel referencing a variety of ways the industry has already been impacted, from the launch of Reedz, an AI-powered translation company based in Sweden; Bookwire’s incorporation of ChatGPT into its platform; and the launch of Sudowrite, AI-powered writing software. Restivo-Alessi quoted HC CEO Brian Murray’s speech at the London Book Fair earlier this year, noting that “AI is both an opportunity and a risk.” It offers publishers a chance to streamline some editorial and marketing tasks, such as the production of metadata and production of social media posts, but also threatens the integrity of “human-centric storytelling.”

Link to the rest at Publisher’s Weekly

As PG has said before, he sees AI voices replacing humans very quickly, but takes no pleasure in the disruption of the lives and businesses of human voice actors.

That said, AI for ebooks will provide a great many benefits to publishers and self-publishers. AI will do the job much faster, enabling indie authors to publish ebooks, hard copy and audiobooks at the same time or stage the entry of each of those versions of the book if that appears to be a better way of maximizing revenue and profits.

PG expects to see creators of AI voices wanting to monetize their investments in building and perfecting text to speech, but he predicts that there will be a whole lot of competitors in text to speech showing up in a hurry and, at least some systems designers, perhaps academics, who will make an text to speech AI widely available at no charge or much lower charges than commercial versions of that service.

One interesting issue PG predicts will surface relatively quickly with AI narrators vs. human narrators will be a squeezing out of humans in this process for both cost and time-to-market benefits.

Supreme Court Rejects Genius’ Preposterously Stupid Lawsuit Against Google

From Above the Law:

Look, we were not kind when Genius first accused Google of copying lyrics from its site. The only interesting bit was the cleverness with which Genius figured out Google had copied the lyrics from its site, by sneakily adding in curved or non-curved apostrophes to see if the same ones showed up in Google’s version of the lyrics.

But, as we noted at the time, even if Google copied the lyrics from Genius, that was not a legal matter. After all, Genius did not hold any rights in the lyrics, and its method of “getting” the lyrics was basically having people copy down what they heard (one of the stupid things about copyright and lyrics is that there are no official lyrics most of the time, and every lyric site, even those that “license” lyrics, still have to figure out what those lyrics are, which is just kinda crazy when you think about it). And, more importantly, we had a lawsuit almost exactly on this point years ago, where a phone book company inserted fake entries to capture those who “copied” their phone book, and the court said that you can’t copyright facts, and allowed it to stand.

We were even less kind when Genius stupidly sued Google anyway. And we were not at all surprised when a judge rejected the many, many, many ways in which the company tried to turn this into a legal claim. And so, it’s no surprise that this case ends with a complete whimper as the Supreme Court rejected Genius’ cert petition with no comment.

Link to the rest at Above the Law

An AI Cease-and-Desist Letter

PG decided to ask ChatGPT to write a cease-and-desist letter to someone who is stealing PG’s writing and selling it as his own, a fanciful thought if ever there was one.

PG’s prompt: Write a multi-paragraph cease-and-desist letter to John Smith, an author who is stealing my writing and selling it as his own.

The result:

[Your Name]
[Your Address]
[City, State, ZIP Code]
[Email Address]
[Phone Number]

John Smith
[City, State, ZIP Code]

Subject: Cease and Desist Copyright Infringement

Dear Mr. Smith,

I hope this letter finds you well. However, it has come to my attention that you have been engaged in a serious act of intellectual property infringement. It has been brought to my notice that you have been unlawfully reproducing, distributing, and selling written material that I have authored, thereby infringing upon my exclusive rights as the copyright holder. This unauthorized use of my work is a clear violation of applicable copyright laws.

I am the sole owner and creator of the written content in question, which includes [specific titles or descriptions of the work(s)]. These works are protected by copyright law under the [Copyright Registration Number, if applicable] and are subject to the provisions outlined in the United States Copyright Act [Title 17 of the United States Code].

Upon careful examination, I have gathered substantial evidence demonstrating that you have blatantly copied and utilized my original work without seeking my permission or obtaining the necessary licenses. This constitutes copyright infringement and undermines the rights and financial interests that are rightfully mine as the lawful copyright holder.

I demand that you immediately cease and desist from any further use, distribution, sale, or display of my copyrighted material. Additionally, I insist that you promptly remove all unauthorized copies of my work from any websites, platforms, or other mediums under your control or influence. Failure to comply with these demands will leave me with no choice but to pursue all available legal remedies to protect my intellectual property rights.

In order to resolve this matter swiftly and amicably, I request that you respond to this letter within [reasonable time frame, e.g., 10 business days] from the date of receipt. Your response should confirm your compliance with my demands and provide a detailed account of the actions taken to rectify the copyright infringement. Furthermore, I expect you to provide a written assurance that you will refrain from any future unauthorized use of my copyrighted material.

Please be advised that this letter is not intended to be a complete or exhaustive statement of my rights, legal or otherwise, in connection with the infringement. I expressly reserve all rights and remedies available to me under the law, including the right to seek injunctive relief, damages, and attorney fees.

I strongly urge you to reconsider your actions and rectify this situation promptly. By doing so, we can potentially avoid costly and protracted legal proceedings. I hope we can resolve this matter amicably and without further escalation.

Thank you for your immediate attention to this serious matter. I trust that you will comply with my demands and respect the rights of copyright holders going forward.


[Your Name]

PG says this is better than some cease-and-desist letters written by other attorneys that he has reviewed.

AI Makers Guaranteeing That Your Generative AI Output Is Safe From Copyright Exposures Might Be A Lot Less Filling Than You Think, Says AI Ethics And AI Law

From Forbes:

Violating someone’s copyrighted content can be quite costly.

Whether you realize it or not, those popular generative AI apps can inadvertently lead you into the costly throes of copyright infringement. Indeed, that’s why some that are in the know are hesitant to use generative AI apps at all, especially in generating artwork or images. They anxiously worry that doing so might land them in dire legal and abysmal financial jeopardy.

Yes, just to be clear, you the user of the generative AI can be and most likely are the one on the hook for copyright infringement based on generating and then using outputs that violate someone else’s Intellectual Property (IP) rights.

That’s right, you are.

By and large, it is up in the air as to whether you could wiggle out and seek to place the blame entirely instead on the AI maker. The chances are that you will take some or all of the fall, particularly when using generative AI that entails you agreeing to indemnify the AI maker, as I’ve explained can occur without you realizing that you’ve done so (via accepting those densely packed and seemingly unreadable online licensing agreements associated with the multitude of generative AI apps.

. . . .

Maybe you don’t have to avoid generative AI and maybe the AI makers might try to come to your aid. Well, I said maybe. Don’t be cashing in your chips too soon.

In today’s column, I’ll be examining how generative AI such as the widely and wildly successful ChatGPT and others such as Bard (Google), Claude (Anthropic), etc. are potentially skating on thin ice when it comes to possibly infringing on copyrighted material. I’ve covered this previously, including matters of plagiarism, copyrights, and overarching Intellectual Property rights issues underlying modern-day generative AI.

Into this mix, I’ll be especially focusing herein on Adobe Firefly due to last week’s fascinating announcement by Adobe regarding how they will seek to protect users when it comes to potential copyright infringement. In short, Adobe indicated that their generative AI tool called Firefly will be backed by Adobe such that they will indemnify or legally and financially presumably cover your back on copyright infringement allegations, under certain circumstances.

The question on your mind might be whether this is going to be as good as it sounds. Turns out that the devil is in the details and you’d be wise to keep your eyes wide open and your Spidey sense on alert.

. . . .

Into all of this comes a plethora of AI Ethics and AI Law considerations.

There are ongoing efforts to imbue Ethical AI principles into the development and fielding of AI apps. A growing contingent of concerned and erstwhile AI ethicists are trying to ensure that efforts to devise and adopt AI takes into account a view of doing AI For Good and averting AI For Bad. Likewise, there are proposed new AI laws that are being bandied around as potential solutions to keep AI endeavors from going amok on human rights and the like. For my ongoing coverage of AI Ethics and AI Law, see the link here.

The development and promulgation of Ethical AI precepts are being pursued to hopefully prevent society from falling into a myriad of AI-inducing traps. For my coverage of the UN AI Ethics principles as devised and supported by nearly 200 countries via the efforts of UNESCO, see the link here. In a similar vein, new AI laws are being explored to try and keep AI on an even keel. One of the latest takes consists of a set of proposed AI Bill of Rights that the U.S. White House recently released to identify human rights in an age of AI, see the link here. It takes a village to keep AI and AI developers on a rightful path and deter the purposeful or accidental underhanded efforts that might undercut society.

Okay, let’s now back to our focus on potential copyright infringement associated with generative AI.

Imagine that out there on the Internet are lots of art pieces depicting cute-looking cartoonish portrayals of frogs. I’m sure there are zillions of such posted art pieces. Assume that the pattern-matching of generative AI is set up to scan one after another. Gradually, the pattern-matching coalesces toward a certain kind of patterned template about how to depict cartoon-style frogs.

If you ask the generative AI to generate or produce artwork of a cartoony frog, you likely will get one that looks decently apt and akin to all those others that already have been posted online here or there. Since the pattern that was devised is really more of a template, you won’t necessarily get a frog depiction that exactly matches any of the ones scanned during the data training. In a sense, you now seemingly have a unique piece of artwork that depicts a cartoonish frog, and you are the only one on planet Earth to have that particular imagery.


Now, you might be wondering whether someone else using the same generative AI might end up getting the same exact imagery of the cartoon frog if they also perchance ask to see such an image. Overall, the odds are somewhat slim that this would occur. Part of the reason is that the generative AI is customarily making use of probabilities when it generates the end product, such that there will be sometimes subtle and sometimes dramatic differences each time the otherwise same item is requested.

Like a box of chocolates, you never know precisely what you will get.

So far, so good. We have noted that generative AI is data trained toward pattern-matching rather than strictly copying digital materials found online. In addition, whenever a request is made to generate something, the use of probabilities will vary the look of the generated output. All in all, it seems like we are free and clear of any concerns over copyright infringement.

Sorry to say, the matter is hardly cut and dry.

You can readily veer into copyright violation territory.

Plus, some exhort that we are perilously heading toward copyright infringement at scale.

This clever catchphrase is used to suggest that with millions upon millions of people using generative AI on a daily basis, the round-and-round rolling of the dice associated with statistics and probabilities are going to catch up with us. The volume of copyright infringement is going to be enormous and beyond anything we’ve witnessed before the advent of generative AI.

. . . .

What’s The Deal About Copyrights And Generative AI

Here’s a handy-dandy definition of copyright in the U.S.:

  • “Copyright infringement is the unauthorized use of another’s work. This is a legal issue that depends on whether or not the work is protected by copyright in the first place, as well as on specifics like how much is used and the purpose of the use. If one copies too much of a protected work, or copies for an unauthorized purpose, simply acknowledging the original source will not solve the problem. Only by seeking prior permission from the copyright holder does one avoid the risk of an infringement charge” (Duke University School of Law).

Let’s see how that definition pertains to generative AI and the production of generative AI outputs.

I said earlier that the pattern-matching during data training of scanned data from the Internet is ordinarily aiming to contrive a template or an overall pattern. That’s usually the case. Nonetheless, there is also a chance that within the crux of the generative AI, there can be a verbatim digital copy of something that was scanned. This can and does happen.

The rub of course is that if you happen to ask for a digital artwork to be devised by the generative AI, it could be that the item produced is not a templated variation and instead consists of the verbatim copy. You would not particularly have any means of knowing that this has happened. It is unlikely that the generative AI would be devised to alert you to this condition (though, notably, it could be so devised, if the AI makers wished to do so or were compelled to do so).

As an aside, for those of you lawyers examining these issues, that’s a notable point of argumentation.

Should the AI maker be expected and in a sense obligated to alert the user when a verbatim copy is brought forth to the user? Most of the licensing agreements for generative AI try to stipulate that if that does happen, the user is already supposed to be generally aware that it can happen. The counterargument would be that it is not of much use to broadly warn people. The moment that it happens is when the warning really needs to be conveyed. The retort to that contention is that once someone has been overall forewarned, no further warning is needed or required. On and on this goes.

. . . .

There are various limitations associated with how far copyright law extends, consider these crucial points:

  • “Copyright does not protect ideas, only the specific expression of an idea. For example, a court decided that Dan Brown did not infringe the copyright of an earlier book when he wrote The Da Vinci Code because all he borrowed from the earlier work were the basic ideas, not the specifics of plot or dialogue. Since copyright is intended to encourage creative production, using someone else’s ideas to craft a new and original work upholds the purpose of copyright, it does not violate it. Only if one copies another’s expression without permission is copyright potentially infringed” (Duke University School of Law).

I bring up that insight about the range or scope of copyright to mention that this is something of some refuge for the text-output versions of generative AI.

. . . .

There is a somewhat wide array of allowed exceptions for legally copying copyrighted materials, as this description notes:

“The Copyright Act’s exceptions and limitations found in sections 107-122 include fair use, the “first sale doctrine,” some reproductions by libraries and archives, certain performances and displays, broadcast programming transmissions by cable and satellite, to name a few. Interested in more information on fair use? Take a look at our Fair Use Index. The complete list of exemptions to copyright protection can be found in Chapter 1 of Title 17 of the United States Code. You can also use works that are in the public domain. Works in the public domain are those that are never protected by copyright (like facts or discoveries) or works whose term of protection has ended either because it expired or the owner did not satisfy a previously required formality. Currently, all pre-1926 U.S. works are in the public domain because copyright protection has expired for those works” (U.S. Copyright Office website).
You might have observed in that description that items considered in the public domain can be usually used without invoking a copyright violation.

Here’s how that comes up regarding generative AI.

The AI makers will at times try to confine their generative AI to being data trained on solely works that are in the public domain and that are also in online stock libraries that they have been licensed to use. All in all, the goal is to only data train on things that there is little or no chance of garnering a copyright infringement upon. If your generative AI-produced item is identical to a public domain item, you presumably are in the clear. If your generative AI-produced item is identical to the online stock library item that was licensed by the AI maker, you are presumably in the clear if you abide by whatever other stipulations the AI maker has imposed about doing such copying (make sure to closely review the licensing agreement of the generative AI app).

You can certainly give a loud cheer that this data-training approach will help matters. It isn’t though an ironclad proviso. I’ll tell you why.

Recall that the definition used above about copyright is that you can be an infringer even if you don’t entirely and precisely copy the copyrighted item. The indication was that if “one copies too much of a protected work” is where you can get into trouble.

Imagine this. You use generative AI that was data-trained on a stock online library as licensed by an AI maker. You generate a cartoonish frog. This was in the stock online library. It is a verbatim copy. The generative AI is showcasing it verbatim to you.

But suppose that someone else has a cartoonish copyrighted frog image and they believe that your frog image infringes. I’m sure you would argue that it is the fault of the stock online library and not yours. You would likely also argue that it is the fault of the AI maker. Sure, you can try that. The odds are that you might still be dragged into the mess.

Let’s make things murkier. The cartoonish copyrighted frog image is slightly different from the one that you produced via the generative AI. The copyright owner asserts it is overly close to their copyrighted froggy image. We are now in the muddied waters of what constitutes copyright infringement. Is it close enough in resemblance or not? Bickering and legal debating would arise. Who is to blame for this alleged almost identical froggy depiction?

Link to the rest at Forbes

PG says the author of the OP brings up some interesting issues, but if PG were advising AI art generation programmers, he would consider suggesting that they create a unique digital hash of each of the images used to prime the AI. He would further advise that a digital hash be created for each AI-generated image the program produces.

If the hashes were identical, the AI would discard the image it had created and produce another. If not, the AI would present the image to the user.

PG is ignorant enough about hashes to not know whether an image hash that is 90% the same as another image hash will be generated for a quite similar image or not.

In PG’s self-concocted hashworld, hashes would exist which could be reliably compared to other hashes to determine whether the two images were too similar to avoid copyright infringement or dissimilar enough to avoid eyeball-initiated copyright complaints.

As a hypothetical thought experiment, PG opines that if two sports photographers were standing shoulder to shoulder shooting the finish of an Olympic 100-meter dash, that the photographer who pressed the shutter button one-tenth (or one-hundredth) of a second before the second photographer standing next to her/him pressed her/his shutter button that the first photographer would have a potential copyright infringement claim against the second photographer because the second photograph violated the copyright of the of the first photographer in her/his photograph.

Groundbreaking Defamation Lawsuit Puts AI’s Legal Liability to the Test

From JD Journal:

In a groundbreaking legal battle, a defamation lawsuit has been filed against OpenAI LLC, thrusting ChatGPT, a popular AI program, into the spotlight of largely untested legal waters. The lawsuit, filed by Mark Walters, a Georgia radio host, alleges that ChatGPT produced a fabricated legal complaint accusing him of embezzling money from a gun rights group despite Walters never having been involved with the organization. This incident is not the first of its kind, as previous instances have highlighted ChatGPT’s propensity for generating falsehoods. In April, an Australian mayor threatened to sue OpenAI after ChatGPT falsely claimed he had been convicted and imprisoned for bribery. In another case, a lawyer in New York faced potential sanctions for submitting legal briefs that referenced fake legal precedents, which were researched using ChatGPT.

Walters’ lawsuit could be the first in a series of cases that examine the issue of legal liability when AI chatbots produce false information. However, legal experts have expressed reservations about its chances of success in court. While acknowledging the limitation of “hallucinations” in ChatGPT’s outputs, OpenAI has included a disclaimer stating that its outputs may not always be reliable.

Walters’ lawyer, John Monroe, emphasized the responsibility of AI developers, stating that although research and development in AI is commendable, it is irresponsible to unleash a system that knowingly disseminates false information about individuals.

The incident leading to the lawsuit involved Fred Riehl, the editor-in-chief of AmmoLand magazine, who requested ChatGPT to summarize the real-life federal court case Second Amendment Foundation v. Ferguson. ChatGPT generated a summary that falsely accused Walters, a pro-gun radio show host, of embezzling money from the foundation. Riehl did not publish the summary and confronted Alan Gottlieb, the foundation’s founder, who confirmed the allegations were false.

According to Eugene Volokh, a First Amendment law professor at UCLA, Walters’ lawsuit may not meet the relevant defamation law standards. Walters did not inform OpenAI that ChatGPT was generating false allegations, and the fact that Riehl did not publish the falsehood may limit the economic damages Walters can prove.

Defamation laws differ across states, and some require plaintiffs to request a retraction before pursuing legal action. Megan Meier, a defamation attorney, pointed out that under Georgia law, plaintiffs are limited to actual economic losses if no retraction is requested at least seven days before the lawsuit. However, Walters’ lawyer stated he was unaware of a retraction request or the legal requirement for one.

. . . .

The question of whether generative AI programs like ChatGPT are protected by Section 230 of the Communications Decency Act, which shields internet platforms from liability for user-generated content, remains unanswered. While many emerging internet firms have benefited from this legal shield, the applicability of Section 230 to AI programs has not yet been tested in courts.

Link to the rest at JD Journal

Music Companies Sue Twitter for More Than $250 Million in Damages Over Alleged Copyright Violations

From The Wall Street Journal:

A group of music publishers representing songwriters from Taylor Swift to Beyoncé is suing Twitter for alleged copyright infringement, arguing that the platform benefits from the use of songs it hasn’t paid for.

Twitter users regularly post videos that include popular music, and artists want to be paid when their work is used that way. The Elon Musk-owned company is one of the only social-media platforms that hasn’t forged licensing arrangements governing the use of music on its service.

The suit, brought by the National Music Publishers’ Association on behalf of 17 music publishers, is the opening salvo in what could be a protracted legal battle between music’s biggest rights holders and the social-media platform. NMPA says it is seeking more than $250 million in damages for hundreds of thousands of alleged infringements that the organization has identified, spanning 1,700 songs.

Google’s YouTube, Meta Platforms’ Facebook and Instagram, Snap and TikTok are among the platforms that pay artists when users post videos that include their songs

“Twitter stands alone as the largest social media platform that has completely refused to license the millions of songs on its service,” said NMPA Chief Executive David Israelite. The artists represented by the suit span some of the biggest names in music including the Rolling Stones, Lady Gaga, Miranda Lambert and Rihanna.

Twitter didn’t immediately comment.

The suit cites a 2021 letter from a then-Twitter policy executive to members of Congress that said the social-media company “unequivocally opposes copyright infringement and has invested in tools to assist rightsholders’ content protection efforts.”

The suit, filed Wednesday in the Middle District of Tennessee, alleges that prior to and after Elon Musk’s $44 billion purchase of Twitter last year, the service has engaged in, facilitated and profited from copyright infringement at the expense of music creators. 

NMPA says that Twitter has broadened its business model from a destination for short text-based messages to compete more aggressively with other social-media sites, becoming a destination now for multimedia content, “with music-infused videos being of particular and paramount importance.”

The platform “breeds massive copyright infringement that harms music creators,” the NMPA’s suit alleges.

Twitter doesn’t recognize the need for licensing agreements, and it is slow to remove infringing content at the request of rights holders, the suit alleges. Oftentimes the platform fails to take down videos rights holders have flagged, it alleges.

Twitter in the past has taken the position that it complied with federal copyright law and had processes in place to respond to take down claims regarding musical content by rights holders, according to former employees.

Link to the rest at The Wall Street Journal

Japanese government issues statement on AI and copyright regulation

From GameReactor:

Japan’s Agency for Cultural Affairs, an agency under the country’s Ministry of Education, Culture, Sports, Science and Technology, has issued a statement setting out new guidelines on the use of artificial intelligence and its purposes during a seminar on AI art and copyright.

The document states that AI may be used for educational, research and non-commercial purposes freely, but not if there is an economic benefit or commercial purpose. AI-generated art that uses another artist’s work and is used for commercial purposes, or not for personal use, may be considered copyright infringement, and the copyright holder can sue for copyright infringement.

This also applies to AI that learn/copies an artist’s style, without the artist’s permission the copyright holder can claim damages or an injunction as copyright infringement, or even be subject to criminal penalties.

Although it initially appeared that Japan was going to establish much more flexible legislation than Europe with regard to the use of artificial intelligence, it seems that they have reconsidered their options and the risk to creators and artists.

Link to the rest at GameReactor

Five key takeaways from the House Judiciary Committee hearing on AI and copyright law

From Verdict:

In light of several high-profile lawsuits in recent months, countries’ legislative frameworks are finally beginning to grapple with the challenges thrown up by copyright law and generative artificial intelligence (AI).

In January 2023, Getty Images announced a lawsuit against Stability AI in London’s High Court of Justice, alleging that the Stable Diffusion image generator infringed Getty’s copyrighted photographs and trademarks.

And, in February, the award-winning visual artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed a class action complaint in a US District Court in California against defendants Stability AI, Midjourney and DeviantArt, alleging that their works were used without permission as part of the companies’ AI training set.

Earlier, in November 2022, a group of anonymous programmers filed a class action lawsuit against GitHub, a Microsoft subsidiary, and OpenAI, alleging unauthorised and unlicensed use of the programmers’ software code to develop the defendants’ AI machines, Codex and Copilot.

Recognising a need for action, the House Judiciary Committee in the US has held a hearing, examining the intersection of generative AI and copyright law. The hearing, which took place on 17 May 2023, followed the Senate hearing on AI oversight the previous day, in which OpenAI CEO Sam Altman took the stand. What were the five key takeaways from the witness testimony?

Sy Damle, Latham & Watkins LLP and former General Counsel of the US Copyright Office, argued that “the use of a copyrighted work to learn unprotectable facts and use those facts to create products that do not themselves infringe copyright is quintessential fair use”, and that the training of AI models generally adheres to this principle.

He spoke against the view that generative AI’s ability to replicate artistic styles undermines any fair use defence, saying, “This concern has nothing to do with copyright, which does not, and has never, granted monopolies over artistic or musical styles.”

2. Implementing a statutory or collective licencing regime would be a project “many orders of magnitude larger than any similar scheme in the history of American law”.

Sy Damle argued that it would be a bad policy to introduce statutory or collective licencing under which any use of copyrighted content to train an AI model would automatically trigger a payment obligation. This is because it would prevent case-by-case evaluation, eliminating the fair use doctrine.

Moreover, he observed that implementing such a regime would be overwhelmingly complex. A statutory licencing scheme would need to cover every publicly accessible work on the Internet – a body of work which likely numbers in the tens of billions. There are also an uncountable number of “orphan works” without identifiable owners, which would lead to massive volumes of unmatched royalties. 

3. AI systems could generate outputs that potentially infringe on artists’ copyrights and right of publicity in various ways.

Chris Callison-Burch, Associate Professor of Computer and Information Science at the University of Pennsylvania and Visiting Research Scientist at the Allen Institute for Artificial Intelligence, pointed out that outputs of generative AI can violate copyright laws. For example, via memorisation of datasets, AI systems can output identical copies of copyrighted materials.

However, he observed that Google and other companies are developing strategies to prevent sophisticated prompting by the user that would elicit the underlying training data.

Text-to-image generation systems also have the ability to produce images with copyrightable characters in their dataset – a problem that may be hard for AI developers to avoid without a registry of copyrighted or trademarked characters.

He suggested that other uses of generative AI may violate “right-of-publicity” rather than copyright law. For example, there is the case of the AI-generated song called “Heart on My Sleeve””, designed to sound like the artists Drake and The Weeknd. There is also the issue of “substantial similarity” where outputs of generative AI systems look very similar to some of their training data.

Callison-Burch pointed out that there are several technical mechanisms that are being designed by industry to let copyright holders opt out. The first is an industry standard protocol that allows for websites to specify which parts should be indexed by web crawlers, and which part should be excluded. The protocol is implemented by placing a file called robots.txt on the website that hosts the copyrighted materials.

Organisations that collect training data, like Common Crawl and LAION, follow this protocol and exclude files that have been listed in robots.txt as “do not crawl”. There are also emerging industry efforts to allow artists and other copyright holders to opt out of future training.

Link to the rest at Verdict

Creative Machines? The Riddle of AI and Copyright Authorship and Ownership

From Lexology:

The AI Explosion

It’s probably no exaggeration to say artificial intelligence (AI) exploded into the public consciousness in late 2022 and early 2023.

ChatGPT, the AI chatbot from OpenAI, reached an astonishing 100 million monthly active users in January 2023, just two months after its launch, beating out TikTok (nine months) and Instagram (two and half years) in the time taken to reach that figure.

Not as fast, perhaps, but since their public release in 2022, both Midjourney, Stable Diffusion, Stability AI, and DALL-E 2, from OpenAI, have attracted millions of users.

Now capable of producing stunning artwork in seconds, generative AI technology has been used to produce millions of images, music, lyrics, and articles.

The meteoric rise of AI has given new life to the age-old question of whether machines will eventually replace humans, this time in the art and creative spheres, and prompted dozens of lawsuits from those humans battling to establish clear guidelines about copyright.

Artists have sued over alleged use of their work by programmers to train their AI algorithm raising the rather philosophical question of whether a machine is capable of creating art?

The answer has far-reaching real life consequences, particularly in the field of copyright.

Artists, AI and copyright

The generally accepted principle is that copyright laws aim to both encourage authors and artists to create novel works and to ensure that having done so, they are able to receive fair compensation for their efforts.

Which raises the question of whether work created by AI, which is not (yet) sentient and requires no reward or compensation for creating works of art, be afforded the same copyright protections?

For the time being, the legal world has generally replied in the negative, maintaining that only work created by human authors can be protected by copyright:-

  • The United States Copyright Office, in denying copyright registration to the graphic novel Zarya of the Dawn generated with Midjourney technology, affirmed that copyright does not protect works created by non-human authors;
  • In the landmark Infopaq case (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), the European Court of Justice ruled that copyright only applies to original works reflecting the “(human) author’s own intellectual creation”;
  • In Australia, the Federal Court of Australia ruled that phone directories authored by computers are not protected by copyright, notwithstanding the presence of some input from human editors.

Some countries, however, have decided to address this issue by attributing authorship and thus copyright of computer-generated work to the humans who programmed AI to generate the work. This interpretation was pioneered in the UK under section 9(3) of the Copyright, Designs and Patents Act 1988 (the “CDPA”), which states that:

In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”

In section 178 of the CPDA, computer generated works are defined as works “generated by computer in circumstances such that there is no human author of the work”, thus acknowledging the possibility of work without human authors.

In passing the bill, the late Lord Young of Graffham, then the Secretary for Trade and Industry, commented “We believe this to be the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence…the far-sighted incorporation of computer-generated works in our copyright system will allow investment in artificial intelligence systems, in the future, to be made with confidence.”.

This piece of legislation demonstrated remarkable foresight on the part of UK lawmakers, considering the CPDA was drafted in 1987, when computers were just starting to become available to the general public.

Similar provisions soon found their way to the law books of jurisdictions strongly influenced by the UK legal system, such as Hong Kong, India and New Zealand.  For example, section 11(3) of the Copyright Ordinance (Cap. 528) of Hong Kong provides that:-

 “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

On the face of it, these provisions, which will be referred to as the “Arrangement Model” in this article, seem to provide a simple and elegant solution to the conundrum posed by generative AI technology. Whoever does the work in “preparing” an AI to create a work is the author and copyright owner.

It also seems to match the “sweat of the brow” intellectual property doctrine, which states whoever has the skill and puts in the time and effort to create the work deserves protection.

However, I would argue the Arrangement Model does not adequately reflect how modern generative AI operates and creates massive legal uncertainty.

This article will explore the major shortcomings of the Arrangement Model in attributing copyright to AI-generated works.

Prompts, algorithms and iteration

Broadly speaking, modern AI operates via “machine learning”.

It doesn’t rely on direct instructions carefully written into a program by a programmer, which provides precise steps for the machine to follow to complete the task.

Instead, the machine combines large amounts of raw data with iterative and intelligent algorithms to discern patterns in the data from which it can learn to complete the task without any direct input from a programmer.

The output can be improved by feeding prompts to the machine that “learns” by further refining its data analysis to find more complex and efficient patterns without the developers’ intervention or input.

This leads to the first problem under the Arrangement Model.

How to identify the person who “makes the necessary arrangements for the creation.

Let’s say a user asks the machine to create a picture of a cat with an apple. They would type in a text prompt such as “Create a picture of a cat holding an apple.”

The machine would then search, usually online, for any references or pictures of cats, apples and of cats holding apples. It would then use the algorithms programmed into it to analyse the data, discern patterns and reproduce its own version of a picture.

Further prompts from the user, for example, “create the picture in the style of Van Gogh” would lead the machine to run further data analysis on references to the artist Van Gogh, discern patterns in the painting style then attempt to reproduce those techniques in its own picture.

All of this complicates answering the question of who made the necessary arrangements.

Is it the user who wrote the prompts? Is it the programmers who wrote the algorithms the computer used? Or is it the artists of the original pictures used by the machine in its data analysis?

Arguably it’s “all of the above.”

  • The artwork would not be generated but for the text prompts entered by the user;
  • The artwork cannot be generated if the developers/programmers had not written the algorithms;
  • The artwork cannot be generated if no original pictures are available for the AI to reference and learn from.

It could be argued all of the above, or at least the users and developers, could be joint authors or co-authors, but the present conception of “joint authors” and “co-authors” in copyright laws all pre-suppose a certain degree of collaboration or common design, which is clearly absent in most cases involving generative AI works.

In most cases, developers of AI systems do not collaborate with users in any specific work. They may not have any idea what the users are generating using the AI tools they developed.

That AI programmes can operate autonomously without the developers’ input is the exact purpose of developing AI technology in the first place. So either the definition of joint authorship or co-authorship will need to be changed, or the concept of joint authorship/co-authorship simply does not apply.

Algorithms, not creativity

A related problem with the Arrangement Model is it may attribute authorship to people who have no creative input or even creative intent at all. Notably, the provision of “mak(ing) the necessary arrangements for the creation” does not specify that the arrangements must be creative.

The role of developers in AI is largely about writing algorithms and providing data the machine can learn from using those algorithms. In most cases, developers are not responsible for generating the final work.

Since developers have no creative input in the end product and may not even have any intention to create any kind of artwork, it is arguable that attributing authorship to them runs contrary to the basic premise of copyright laws. A comparable analogy would be that camera manufacturers do not claim copyright ownership over photographs taken by people using their cameras.

Link to the rest at Lexology

Reactions to ‘Artificial Intelligence’: Scribd Alters Its Terms

From Publishing Perspectives:

In a statement issued from San Francisco today (May 9), the subscription service Scribd has “clarified how its data may be used in an update to its terms of service.”

This update, according to the company, “emphasizes that Scribd’s users, subscribers, and partner companies may not utilize the company’s data for monetization or to train large-language models without Scribd’s explicit consent.

“Additionally, Scribd confirmed that it has not allowed any companies that train large-language models to use full content provided by its publishing partners, which is only available through its digital subscription service.”

This is just the latest, of course, in quickening reactions and evaluations of “artificial intelligence” in the publishing and content realm, several points about which were addressed on Monday (May 8) in the Association of American Publishers’ annual general meeting.

During that live event, AAP president and CEO Maria A. Pallante laid out a gratifyingly comprehensive overview of issues that the US and international publishing industry needs to consider amid the popular giddiness and occasional doomsday chatter around systems such as ChatGPT introduced by OpenAI.

Among the most pressing questions Pallante poses—each having bearing on Scribd’s unusually broad, sector-crossing offerings. From Pallante’s message to the United States’ publishers:

  • “Consider academic publishing. Each year more than two million articles are published in more than 26,000 research journals following peer review and curation that is painstaking, but essential to ensure integrity and confidence and research results. How can AI tools help with this mission? What threats does it pose?
  • “Consider education publishing. There’s an old saying that people are entitled to their own opinions, but not to their own facts. What are “facts” in the context of AI? A percentage of truth? How will learning be amplified or cheating be contained?
  • “Consider trade publishing. Do we as a society want AI-generated works flooding the Internet, potentially depressing the value of human authorship? If we can’t contain AI-generated works, what should be the ethics about disclosing their provenance?”

. . . .

Trip Adler, the co-founding CEO of Scribd, today is quoted in the company’s statement, saying, “Our library is home to hundreds of millions of amazing, human-authored pieces of content, making it one of the most valuable and sought-after data resources.

“Our library’s quality sets us apart, and to safeguard its content, we have outlined use cases in our terms of service that control how and when other companies can use our data.”

The company’s announcement says that Scribd “will continue to prioritize the interests of publishers that participate in its subscription service, its base of creators who upload their own content to the platform, and the entire Scribd community. This is in addition to some of the existing measures already in place such as BookID, Scribd’s automated approach to protecting copyrighted materials.”

Link to the rest at Publishing Perspectives

Miller High Life Cans Destroyed in Europe Over ‘Champagne of Beers’ Logo

From The Wall Street Journal:

The champagne of beers is no match for French authorities. 

More than 2,300 cans of Miller High Life were dumped and destroyed in Europe this week for bearing the logo “the Champagne of Beers.”

The bubbly brew was on its way to Germany when it was seized in February by Belgian customs in the port of Antwerp, customs officials said. 

Comité Champagne, a trade organization that oversees which bubbly can call itself Champagne, was told about the beer and “requested the destruction of these illicit goods,” a statement by Belgian customs authorities and Comité Champagne said. 

Only sparkling wines made in France’s Champagne region can use the name on their labels, according to French laws.

Photos released by Comité Champagne showed workers cracking open cans of Miller High Life and pouring the golden-hued lager into plastic tubs. Another photo showed a crushed pile of empty cans.

Molson Coors Beverage Co., the company behind the brand, said it doesn’t import Miller High Life to the European Union and doesn’t know how the cans got there or why they were heading to Germany.

. . . .

Comité Champagne and Belgian custom officials didn’t say who in Germany was expecting the beer but said they “did not contest the decision” to have them destroyed.

Miller High Life was launched in 1903, the company said. Three years later, it gave the lager the moniker “the Champagne of Bottle Beer.” In 1969 it was shortened to “the Champagne of Beers,” which is still stamped on cans and glass-bottle labels.

European countries have strict rules about labeling where foods and beverages come from.

Last month, Toblerone said it would drop a picture of a Swiss mountain from its logo to comply with Swiss law after moving some chocolate production outside the country.

Link to the rest at The Wall Street Journal

PG says the French know the value of intellectual property.

Business Musings: AI, Copyright, And Writers

From Kristine Kathryn Rusch:

Here we are—the mess of the mess of the mess. Right now, we’re in one of those technological befuddling moments, where the technology is ahead of the law.

What that means, exactly, is this: We’re not sure what the technology can do, so we don’t know if what it’s doing is legal, in a whole variety of ways.

The law is both a scalpel and a cudgel. If we use the law one way, it becomes a cudgel that smashes behavior and does its best to prevent the behavior from ever occurring again. Look at the laws against homicide in your state. Those laws are not scalpels. Those laws are cudgels, deliberately. As civilized humans, we don’t want other humans to commit murder for any reason. End of story.

(Please don’t write to me about exceptions. I know. I write entire novels about them.)

There are many times, however, that we need the law to be a scalpel. We need it to delicately carve good behavior from bad. We also don’t want it to accidentally smash something good to smithereens.

Just today, Dean and I were walking home in a wind tunnel created by the buildings near ours. The wind was bad anyway, but in that little area, it was extreme, like usual. Dean mentioned that there are entire computer programs that could explain why.

Those programs are often used now to examine how the wind works around bridges and tall buildings in relation to other tall buildings. In the past, those calculations were done by engineers and often by hand. One mathematical error and even brand-new bridges and buildings collapse.

. . . .

Now, though, tech allows us to prevent all kinds of wide-ranging disasters because of computer modeling.

In some ways, generative artificial intelligence in art, audio, and writing is nothing more than computer modeling. The artificial intelligence isn’t intelligence at all, at least as we know it. It’s an algorithm trained to respond in a particular way to a variety of inputs.

The inputs make the AI program reactive, not creative. My post last week titled “AI And Mediocre Work” dealt with a lot of this, but a comment by Matt Weber capsulized it with a quote from Oliver Sacks, in his book, An Anthropologist on Mars:

Creativity, as usually understood, entails not only a “what,” a talent, but a “who” — strong personal characteristics, a strong identity, personal sensibility, a personal style, which flow into the talent, interfuse it, give it personal body and form. Creativity in this sense involves the power to originate, to break away from the existing way of looking at things, to move freely in the realm of the imagination, to create and recreate worlds fully in one’s mind — while supervising all this with a critical inner eye.

These generative AI programs are useful for a variety of things, some of them mentioned in the comments on the last post, others mentioned in analysis about the programs that you can find most anywhere. What they are not is creative.

Let’s set that aside, though. We will all end up using these programs for one task or another.

What started this little miniseries of blogs was, in fact, my desire to start using AI audio. It had gotten to a level that I feel comfortable putting not only the blog posts into audio, but some of the nonfiction books as well. If you want to find out what I’m thinking about the various audio opportunities for my own work, please look at this post.

Up until that point, a lot of my readers thought I was opposed to using generative AI. I’m not. I have already used several different programs for minor things, and I’m going to use others for relatively major things.

I’m just as interested in the AI art programs as I am in the AI audio programs. I’ve used some mapping programs to help artists visualize the layout of my various worlds. I’m using the free programs, so the tools are often wrong in a variety of ways. I have to use words and bad maps to get my point across. But that’s okay.

I like some of the art I’m seeing from the various programs, and that art would be good enough to use on, say, short story ebook covers, where we don’t want to spend a lot of money. (If any.)

We’re not doing that yet, though, and there’s a really good reason.


The copyright issues on much of the AI usage are a complete mess and that, in my opinion, makes them dangerous to use in any commercial manner.

I don’t use the word “dangerous” lightly. Copyright issues could mean something as simple as removing the item from sale to hundreds of thousand paid in statutory damages.

The problem is that we don’t know what’s happening yet, and because we don’t know, we have to be really careful.

Some of the copyright issues can be resolved with a contract. The Terms of Service on these sites are contracts that you agree to, either by affirmatively clicking I accept or by using the site or by paying money for the service.

The problem with Terms of Service is that they can change on a whim. In its paper on artificial intelligence and copyright published in February, the Congressional Research Service made the passing comment about OpenAI, the developer of ChatGPT and DALL-E.

OpenAI’s current Terms of Use, for example, appear to assign any copyright to the user: “OpenAI hereby assigns to you all its right, title and interest in and to Output.” A previous version of these terms, by contrast, purported to give OpenAI such rights.

As I said, these terms can change drastically. It’s up to the user to check the terms constantly.

Contracts can supercede copyright if done properly, but doing the contracts properly means understanding the law.

And the law is just plain unclear. The article that I quoted above, from the Congressional Research Service, has a good overview of where the law stands right now in the U.S., and provides links.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG says AI is going to continue developing very quickly with or without changes in the copyright laws.

Yes, there undoubtedly will be changes in copyright laws, but legislators move at a snail’s pace compared with software engineers and designers. AI is a huge breakthrough and it will take some time for humans to coalesce around where lines are to be drawn between permitted and not permitted uses of AI.

There are certainly going to be some copyright infringement lawsuits and judges (who are anything but technically-oriented, but generally possess a respectable level of general intelligence) will make different and sometimes conflicting decisions for awhile.

Legislatures gonna legislate. Some will do better than others, but the first laws are going to be rough around the edges.

Wherever there are meaningful copyright laws, copyright attorneys are already thinking hard about AI and there will certainly be some lawsuits. That said, on the internet, there are plenty of places that are effectively beyond the reach of western copyright legislation. (China, Russia and a variety of island kingdoms come to mind.)

It’s going to be a legal Wild West for awhile. PG has already read articles about the various ways attorneys can use AI in litigation and contract drafting. He expects to read a lot more.


You should check out the comments to this post. Two valued and prolific TPV commenters elaborate on their forecasts and expectations regarding AI and courteously disagree with some of the thoughts the other has posted.

IPA welcomes Internet Archive Judgement.

From The New Publishing Standard:

IPA Secretary General José Borghino said:

“Given the enormous significance of this case to the global publishing industry, the IPA is deeply heartened by the comprehensive judgement of the US Court. Its firm backing of basic copyright principles is particularly comforting. IPA affirmed these principles in our Amicus brief to the Court, along with additional concerns about the United States’ international treaty obligations to uphold copyright protections on the Internet.”

The IPA statement further includes remarks from the President and CEO of the Association of American Publishers, Maria A. Pallante, who said:

“The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent. In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

Link to the rest at The New Publishing Standard

Let it be noted that this is one set of statements from Big Publishing that PG agrees with.

AI and art: how recent court cases are stretching copyright principles

From The Art Newspaper:

The tension between the opportunities presented by new technology and the need for artists to be able to control the use of their own works and derive revenue from them is all too familiar. Inevitably, cases and/or legislation will draw an artificial line between what is fair and what is not.

The last few months have seen a number of court cases filed around the use of artwork images by tech companies in order to “train” their artificial intelligence (AI) tools. These companies scrape images off the internet and use them to program their AI with different themes, moods and styles. The main target of these lawsuits is Stability AI’s image generator tool Stable Diffusion. Getty Images is suing Stability in both the USA and the UK for the alleged use of millions of pictures from Getty’s library to train Stable Diffusion. In the USA, Getty is reportedly claiming damages of $2 trillion!

The issues with AI and copyright law are manifold: first and foremost, the issue of how and from what the AI tool learns, raises questions as to whether the learning process (never mind the output) is infringing copyright. The cases against Stability are the simplest example of this: the allegation made by Getty is that their copyright images were simply copied in the process of training the Stable Diffusion tool, and this copying (assuming it was unlicensed) would infringe any copyright subsisting in the images. It’s hard to see how Stability can defend this, as any programming process will involve reproduction of the source material, even if the copy is only stored very briefly. In the US, issues of “fair use” may well be relevant to Stability case, but this is less applicable to the UK.

It’s a much more nuanced issue as to whether the output that AI tools produce are themselves infringing works. In practice, this is likely to involve an assessment of whether any part of an original image was copied, and if that part was “substantial”. There are claims that Stable Diffusion has been used to generate images in the style of named artists (even if their actual work wasn’t reproduced), which further complicates the infringement analysis.

The Stability cases will be watched carefully in order to extract some judicial certainty about these issues. But, with appeals, it could be many years before the courts catch up with today’s technology, let alone tomorrow’s

It’s a familiar tension between the opportunities presented by new technology and the need for artists to be able to control the use of their work and derive revenue from them. Inevitably, cases and/or legislation will draw an artificial line between what is fair and not.

Moves are afoot to legislate on the issue of infringement. In the UK, the Government recently proposed expanding an exception to infringement rules that currently exists for data mining for non-commercial research purposes, to allow this for any purpose, thus permitting training of AI tools without infringing.There is doubt whether this will proceed, but the EU is pressing ahead with a similar exception that would apply unless the rights owner has expressly reserved its rights, a compromise solution that throws up yet more issues for both sides of the debate to argue about.

The other side of the coin is the protection of AI-generated works themselves. Can AI-generated works be “original” in order to themselves be covered by copyright? In the context of an AI tool that learns styles and images, that may be a very difficult question to answer and again may involve a very granular case by case analysis.

And if copyright does exist in the art created, who owns it? The UK copyright legislation states that it is the author or creator of an original work who owns the copyright in it. That author then has the right to reproduce that work or allow others to do so by virtue of assignment of the copyright altogether or a by a licence. However, what if the digital asset is not produced by a human but was produced by Artificial Intelligence? Who owns the copyright in something created by a machine where there is no “artistic endeavour” or “labour, skill and judgment” of the artist? A good example are the CryptoPunks characters, which are randomly generated computer images, each one differing from the previous, but all with a common 8-bit format. Who owns the copyright in these computer generated images?

Link to the rest at The Art Newspaper

Some AI Artworks Now Eligible for Copyright

From Hyperallergic:

The United States Copyright Office recently produced a statement of policy indicating that some artworks generated using artificial intelligence are now eligible for copyright registration on a case-by-case basis. This should go well!

Effective March 16, the Copyright Office’s statement of policy indicates that copyright applicants are permitted to submit AI-assisted works (across literature and visual arts) for protection under copyright law, and that the works will be evaluated for evidence of “human authorship.” The Office made a comparison between AI art and photography, citing the 1884 Supreme Court decision to extend copyright protections to photographs against the will of the Congress in Burrow-Giles Lithography Co. v. Sarony.

The Supreme Court decided that a photograph is not just a mechanical process, but an authored work based on the photographer’s decisions in curating the backdrop and subject’s clothing.

In the realm of generative works, the Office asks applicants if the included AI elements are the result of “mechanical reproduction” or of an author’s “own original mental conception, to which [the author] gave visible form.”  To mark the difference, the policy distinguishes between human artists developing AI work strictly through submitting prompts as instructions, and human artists selecting from and reimagining AI generations in a “sufficiently creative way.” However, the policy states that in the latter case, only the “human-authored” elements of the work would be copyrighted independent of the AI contributions.

The Office cites the example of a 2018 work generated autonomously by an unattended computer algorithm that was submitted for copyright protection and ultimately rejected as it was developed “without any creative contribution from a human actor.” On the other hand, a graphic novel with human-written text and Midjourney-generated imagery was granted copyright protection as a whole, but the individual images were omitted from the approval as they were not considered works of human authorship.

Link to the rest at Hyperallergic

In a Swift Decision, Judge Eviscerates Internet Archive’s Scanning and Lending Program

From Publisher’s Weekly:

In an emphatic 47-page opinion, federal judge John G. Koeltl found the Internet Archive infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as CDL (controlled digital lending). And after three years of contentious legal wrangling, the case wasn’t even close.

“At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. “But no case or legal principle supports that notion. Every authority points in the other direction.”

The ruling comes just days after a March 20 hearing, during which the judge sounded deeply skeptical of the Internet Archive’s case. At the 90-minute hearing, Elizabeth McNamara, arguing for the plaintiff publishers, told the court that the concept of controlled digital was “built on a fallacy” and that the Internet Archive’s scanning and lending of library books was copyright infringement on a massive scale. Arguing for the Internet Archive, Joseph Gratz countered that CDL is a carefully considered practice and that “lending books by more efficient technological means” was “transformative” and therefore protected by fair use.

. . . .

But after three years of litigation Koeltl easily found for the publishers, holding that the Internet Archive’s scanning and lending clearly constituted a prima facie case of copyright infringement and that the Internet Archive’s fair use defense failed on the facts and the law.

All four factors of the fair use test, Koeltl ruled, strongly favored the publishers.

“The crux of IA’s first factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book,” Koeltl writes. “But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works. IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price. The first fair use factor strongly favors the Publishers.”

Specifically, Koeltl strongly rejected what is essentially the most important argument for fair use under the first factor (which deals with the nature of the use, commercial, nonprofit, education, etc.)—that the Internet Archive’s program is “transformative.”

“There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit,” the judge found. “IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. IA’s e-books do not ‘add something new, with a further purpose or different character, altering the with new expression, meaning or message.’ IA simply scans the Works in Suit to become e-books and lends them to users of its website for free.”

Furthermore, Koeltl also dispatched with what he called the Internet Archive’s “first sale argument under the guise of fair use” as part of his first factor analysis.

. . . .

“In ReDigi, the Court of Appeals plainly held that the first sale doctrine…does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts,” Koeltl held, citing the landmark 2018 appeals court decision which held there was no resale right for digital works under section 109 of the Copyright Act because, unlike physical works, the digital market necessarily involves unauthorized copies. “Although [the first sale doctrine] entitles IA and its Partner Libraries to resell or lend their lawfully acquired print copies, unauthorized reproduction, which is at the heart of IA’s online library, is not protected.”

After a cursory review of the second and third fair use factors (the nature of the works used, and the amount of the works used), which also tilted strongly to the publishers, Koeltl turned to the all important fourth factor: market impact. And despite the IA’s claims that the plaintiff publishers were not financially harmed by the Internet Archive’s controlled digital lending activities, those claims, Koeltl held, failed on both the facts and the law.

“In this case, there is a ‘thriving e-book licensing market’ for libraries,” Koeltl writes (pointing out that in 2020 OverDrive counted more than 430 million checkouts; that Penguin Random House’s library e-book licenses generate $59 million annually; and that, from 2015-2020, HarperCollins earned $46.91 million). “IA supplants the Publishers’ place in this market. IA offers users complete e-book editions of the Works in Suit without IA’s having paid the Publishers a fee to license those e-books, and it gives libraries an alternative to buying e-book licenses from the Publishers.”

Koeltl dismissed expert testimony suggesting that publishers’ bottom lines were unharmed by the Internet Archive’s online library, holding that as a matter of law it “deprives the Publishers of revenues to which they are entitled as the copyright holders,” because libraries would be incentivized “to offer IA’s bootleg e-books” rather than to “pay for authorized e-book licenses.”

And crucially, the judge brushed aside the Internet Archive’s “public benefit” argument with a single paragraph. “IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet,’ Koeltl writes. “But these alleged benefits cannot outweigh the market harm to the Publishers.”

. . . .

The victorious publishers and their supporters offered a different, blunt assessment of Koeltl’s decision.

“IA tried to justify its illegal creation and distribution of e-books under a legally absurd theory of fair use. Judge Koeltl saw through their rhetoric and false comparisons,” said Authors Guild CEO Mary Rasenberger.

“The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent,” said Maria A. Pallante, President and CEO of the Association of American Publishers. “In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful e-book licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

Link to the rest at Publisher’s Weekly

PG says that when a decision comes within a few days following the end of a trial in Federal Court, you can conclude that it was a slam-dunk case.

At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program

From Publisher’s Weekly:

After nearly three years of legal wrangling, the Internet Archive’s scanning and lending program finally got its day in court on Monday, March 20. And if Judge John G. Koeltl’s questions are any indication, the Internet Archive is facing an uphill battle.

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

“To say that this case is about the ability of a library to lend a book that it owns ignores whether the library has a right to copy wholesale the book,” Koeltl offered at one point during an extended exchange with IA attorney Joseph Gratz. “Does a library have the right to lend a book that it owns? Of course,” the judge conceded. But the question at the heart of this case, he added, is “whether a library has the right to make a digital copy of a book that it owns and then lend that digital copy, which it has made without a license and without permission” to patrons. “To formulate the issue in this case as simply ‘does the library have a right to lend a book that it owns’ belies the issue in the case,” Koeltl said.

In its motion for summary judgment, lawyers for the publishers argue that the Internet Archive is guilty of illegally digitizing tens of thousands of in-copyright print books and making them available to readers worldwide. “No case has held or even suggested that IA’s conduct is a lawful fair use,” the publishers argued.

In its motion for summary judgment, the Internet Archive counters that its efforts to scan legally acquired physical books and lend the scanned editions in lieu of the print under conditions that mimic physical lending is protected by fair use. “The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world,” the IA brief states. “Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”

Opening the day’s hearing, Elizabeth McNamara, arguing for the publishers, reiterated the plaintiff’s position that the Internet Archive’s scanning and lending program has no basis in law. “In short, CDL is built on a fallacy,” McNamara told the court. “No laws support this mass duplication and digitization of millions of books to distribute the entire world for the identical purpose that they were originally published, to be read. And for good reason—if this conduct was sanctioned, it would destroy the rights and controls of copyright holders.”

Disputing the defendant’s contention that there is no evidence of any net loss to the publishers from the IA’s program, McNamara argued that the existence of a “thriving” licensed access library e-book market, and potential lost license fees, was sufficient to show harm. “Because you don’t like the price or you don’t like the terms the answer to that is not that you steal,” McNamara told the court. “That is basically the IA’s answer, that we don’t like that market, we don’t want to pay it, it’s not in our interest to pay it and so we’re entitled to just duplicate your work without authorization and distribute it to the world. Well, that isn’t the way the law works and it’s not the way we work in markets.”

Arguing for the Internet Archive, Gratz maintained that the scanning and lending of library books under CDL rules is a lawful extension of the library’s traditional mission and that the IA’s creation of digital copies is “transformative” because the digital copy at issue is merely “incidental” to the loaning of a lawfully acquired corresponding physical book.

“Lending books by more efficient technological means does not offend the purposes of copyright,” Gratz argued. “Instead, it more effectively furthers those aims.”

Gratz also argued that there is “no evidence of harm such that taking away CDL from a library will harm those libraries and their patrons with no countervailing economic benefits to the publishers,” maintaining that the publishers did not lose “one dime” to the IA’s scanning and lending program.

But Koeltl peppered Gratz with questions throughout the hearing, appearing deeply skeptical that the Internet Archive’s fair use case was properly supported by case law, and unconvinced that the publishers’ market for library e-books was not impacted by libraries choosing to scan print books under CDL protocols.

“A library whether they hold a physical copy or not, has the ability to license an e-book from a publisher. Rather than pay that licensing fee to the publisher some libraries choose to make their own copy and to lend that copy. Why isn’t it self-evident that that deprives the publisher of the fees that the publisher could otherwise obtain from licensing an e-book to that library?” Koeltl asked.

“It is because with respect to the copies at issue in the CDL situation the question is not between OverDrive and nothing. The question is between physically lending a book to a particular patron, for which no payment would be due to a publisher, or digitally lending that book to the patron,” Gratz replied, adding that to find harm “there would need to be a reason to think that the publishers were worse off than the situation in which in which the fair use did not occur at all.” In fact, library e-book lending has grown throughout the existence of the IA’s scanning program, and actually surged during the height of the pandemic.

Koeltl sounded largely unmoved, however. And in her closing rebuttal, McNamara reiterated the publishers’ claim that “if CDL were given a green light” it would have a “a significant impact” not only on the library e-book market but on the consumer e-book market as well.

Link to the rest at Publisher’s Weekly

PG says that you can’t conclusively discern from questions a judge or group of judges ask the attorneys during a summary judgement or other hearing similar to that described in the OP that the court will rule one way or another.

Judges differ in the manner in which they deal with counsel during arguments concerning a motion or during the trial of a case. They can be playing devil’s advocate to probe each side’s reasoning and their charicization of various statlues or court cases they’re relying upon to support their contentions.

That said, based upon the OP’s description of what went on, PG doesn’t give the Internet Archive much of a chance of prevailing in this judge’s court.

Publishers, Internet Archive Set for Key Hearing Today

From Publisher’s Weekly:

After nearly three years of legal wrangling, a federal judge today will hear cross motions for summary judgment in a closely watched lawsuit challenging the legality of the Internet Archive’s program to scan and lend print library books.

First filed in New York on June 1, 2020, by four major publishers (Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House) and the Association of American Publishers, the copyright infringement lawsuit alleges that the Internet Archive’s scanning and lending of library books under an untested legal theory known as “controlled digital lending” is piracy on an industrial scale. The Internet Archive counters that it’s activities are legal, protected by fair use, and that the publishers’ action fundamentally threatens the core mission of libraries to own and lend collections in the digital age.

The wheels of the lawsuit first began to turn in late March 2020, in the early days of Covid-19 pandemic, when, with libraries and schools shuttered, the Internet Archive unilaterally launched the National Emergency Library, a program that temporarily removed controls on the scanned titles in the IA’s Open Library, making them available for multiple user borrowing. The move sparked outrage from author and publisher groups.

The suit, however, is about about more than the National Emergency Library (which shuttered in early June 2020, in the wake of the litigation). Rather, the suit challenges the legitimacy of controlled digital lending and the fundamental legality of scanning and lending library books without permission.

Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.

. . . .

[L]awyers tell PW the case very likely will be decided at the summary judgment stage, as there are few factual disputes at issue in the case. Barring a surprise settlement, however, the case is likely far from over, as the outcome of today’s hearing, whichever way it goes, would likely be appealed.

Link to the rest at Publisher’s Weekly

Copyright: The ‘Protect the Creative Economy Coalition’

From Publishing Perspectives:

In the United States, a coming-together of the Washington-based Association of American Publishers and various copyright-engaged businesses including the Authors Guild—the US market’s leading author-advocacy organization—has created the “Protect the Creative Economy Coalition” as a response to “efforts designed to weaken intellectual property protections and damage digital markets.”

Representing not only major creative industries but also small and independent business owners’ interests, media messaging about the program specifies that its “immediate priority is combating a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses.”

Of course, these often inchoate localized efforts “directly conflict with the federal copyright act,” as the AAP indicates, “including the responsibilities of federal lawmakers to determine the nation’s intellectual property laws.”  

And an in an age of performative office-holders, many of whom have no experience or interest in genuine governance, it’s easy to overlook the potential gravity of such wild-eyed forays. However, “The problem is not theoretical,” says AAP president and CEO Maria A. Pallante in her comment on the establishment of the Protect the Creative Economy Coalition.

“The state bills would subject authors and publishing houses of all sizes to serious liabilities and financial penalties for exercising the very rights that the United States Copyright Act so clearly affords them—the definition of a constitutional conflict.  

“Moreover, they would forge a concerning precedent for downstream appropriation of intellectual property investments by actors well beyond the states, especially as to already precarious digital copies.

“We stand by our time-tested copyright system, and we are deeply dubious of assertions that devaluing the nation’s creative output is in the public interest.”

. . . .

Our international readership at Publishing Perspectives might recall one specific struggle of this kind for publishers when the state of Maryland tried to put into place a law requiring publishers to offer its state libraries “reasonable terms” established by the state itself, a direct contradiction to the federal priority of the United States Copyright Act. By June of last year, the state’s federal district court had issued the equivalent of a legal smackdown of Maryland’s scheme, followed swiftly by the governor of New York’s veto of a very similar bill being tested in that state’s capital.

In its media messaging provided to Publishing Perspectives on Wednesday (March 15), the coalition refers to the dogged, almost incoherent energy with which such right-wing efforts are repeated in various jurisdictions–an energy not unlike that which underlies the jagged anger of book bans and the more than 60 completely unsuccessful efforts made in courts nationwide to overturn the results of the 2020 presidential elections.

“Inexplicably,” the AAP writes for the coalition, “proponents continue to push their bills after a similar effort in Maryland was declared unconstitutional by a federal court in 2022. Bills in both New York and Virginia were also rejected, although not without ongoing, illogical, and reckless claims by the proponents. In an especially ludicrous example in Connecticut, a proponent equated the nation’s literary works with ‘floor wax and road salt.’”

. . . .

Mary Rasenberger, CEO of the Authors Guild: “These bills are unconstitutional and for good reason. They target the federal copyright system that authors depend on to earning a living.

“And they’re doing this at a time when the writing profession is already facing existential threats. Writers’ incomes have become precariously low, forcing talented writers to leave the profession; as a culture, we lose their books and their important insights. By forcing pricing limits and other restrictions on not just publishers but thousands of self-published authors, the bills exhibit total disregard of the reality that authors in the commercial marketplace have to earn enough money to stay in the profession.

“The Authors Guild is fully committed to libraries having access to all books and in all formats to meet their communities’ needs. We regularly lobby for increases in library funding. It is unfair to put the cost of libraries’ needs on authors.”

Andrea Fleck-Nesbit, CEO of the Independent Book Publishers Association: “For independent publishers and self-published authors, these [state] bills are especially harmful.

“The legislation would undermine the intellectual property of authors and publishers by manipulating fair market compensation for their creative work. It also places an outsized and unsustainable financial burden on small business owners.

“The bills would lead to a patchwork of differing rules across the country creating mass confusion, disrupting access, and undermining future investments. This is the reason why copyright is under the purview of federal law in the first place.” 

Keith Kupferschmid, CEO of the Copyright Alliance: “Several states are considering misguided ebook bills that would require publishers to license their works to libraries on terms determined by the states.

“Such legislation would strip authors and publishers of their exclusive right under the copyright act to decide whether, when, and to whom to distribute their copyrighted works.

“It has already been well established in several states that not only are the ebook bills unconstitutional, they also are contradictory to the economic philosophy and purpose behind copyright, which encourages the advancement of authors, artists, photographers, and all creators by providing them with an incentive to create new works for the public to enjoy and to control how they are distributed and monetized.”

Link to the rest at Publishing Perspectives

PG has no doubt that traditional publishers overcharge public libraries for ebook lending rights, but this not something state legislatures can do anything about. While a number of states have their own copyright laws, those laws only protect against copying in that state and are generally ignored by most IP lawyers.

Additionally, the book business (and especially the ebook business) falls into the sphere of interstate commerce which is exclusively reserved for federal legislation. When you drive your automobile from California to New York, you don’t need to buy a new license plate for every state you pass through.

Meaningful copyright laws are exclusively on the federal level and, from that platform, are reciprocated in a number of other nations via a number of international copyright treaties. A Google search for “The Berne Convention” will give you all the information you are likely to care about concerning international copyright treaties.

Licensor Beware: Copyright Protections in Peril

From IP Watchdog:

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.

Warhol v. Goldsmith

In 1984, Vanity Fair commissioned Andy Warhol to create art depicting Prince for the cover of the magazine and obtained a license from Goldsmith for the express right to use Goldsmith’s photo of Prince as “an artist reference for an illustration to be published in Vanity Fair November 1984 issue.” Warhol proceeded to create 12 silkscreen paintings, two screen prints on paper, and two drawings based on Goldsmith’s photo of Prince.

The Andy Warhol Foundation (AWF) retains ownership of the copyright to the works based on the Goldsmith photo, which it licensed after Prince’s death in 2016 to Vanity Fair and Conde Nast. Goldsmith sued AWF for copyright infringement claiming that the license did not authorize Warhol to create more than one work and that Goldsmith did not receive any additional compensation. AWF argued that Warhol’s other uses of Goldsmith’s photo were transformative and protected by fair use.

Section 107 of the Copyright Act lists the following factors to determine what is fair use:

  1. The purpose and character of the use.
  2. The nature of the copyrighted work.
  3. The amount of the original work used.
  4. The effect on the market for the original work.

When considering the first factor, courts consistently hold that transformative uses of a copyrighted work are fair use. See e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). To determine if a work is “transformative,” the court must conclude whether the new work “merely supersedes the objects of the original creation,” or whether the new work transfers and alters the original with new expression, meaning, or message. If a new work is sufficiently transformative, and thus fair use of a copyrightable work, then the new work can be licensed, sold, or used without a license from the original creator.

Fair use originated as an “equitable rule of reason” allowing courts to avoid rigid application of the copyright law stifling creativity. In Google v. Oracle, the Supreme Court ruled that Google’s use of 11,500 lines of code from Java SE (Java is owned by Oracle) when developing Google’s Android operating system was sufficiently transformative (although the court did not determine whether Application Program Interfaces (APIs) were copyrightable). Justice Stephen Breyer’s majority opinion distinguishes between implementing code and declaring code, with implementing code requiring more skill and creativity than declaring code. The Court held that Google’s direct copying of only “what was needed to allow users to put their accrued talents to work in a new and transformative program,” was a transformative use.

Implications for Licensors

The Warhol case highlights the uncertainty of contract remedies given Warhol’s patent violation and expansion of the license from Goldsmith because the contract restricted Warhol’s use of Goldsmith’s photo for a one-time purpose. A logical extension of the Warhol and Google decisions calls into question what protection copyright truly offers if a licensee can rearrange the protected work and claim that the new work is transformative.

License agreements typically have a limitation of liability clause. Theses clauses include exceptions to the cap on liability if licensee breaches the terms of the agreement or if the licensee’s use of the data infringes on the licensor’s intellectual property rights, including copyrights. Licensors’ business models rely on these exceptions to the limitation of liability to shift risk to the licensee; however, if the use is transformative, then the licensee did not violate the licensors’ intellectual property rights. The licensor could bring a breach of contract claim against the licensee alleging that even if the new work is transformative and doesn’t violate the licensor’s copyright, the licensee’s new work violates the terms of the agreement which only permitted use for an internal business purpose.

However, a split between federal appeals courts concerning whether the Copyright Act broadly preempts state law claims, including breach of contract claims, further complicates contract protections. While all federal appeals circuits apply the same preemption test – examining whether a breach of contract claim includes an “extra element” that makes it “qualitatively different” from a copyright infringement claim – the circuits disagree as to whether the existence of a contractual promise itself is an “extra element” sufficient to avoid copyright preemption. ML Genius Media Group v. Google LLC, No. 20-3113, (2d Cir. Mar. 10, 2022), compare with Utopia Providers Sys., Inc. v. Pro-Med Clinical Sys., LLC, 596 F.3d 1313, 1327 (11th Cir. 2010).

Thus, if the Supreme Court rules in Warhol’s favor, a licensor would have no remedy against a licensee for a copyright infringement claim if the use is deemed transformative and such licensor would likely have no remedy for a breach of contract claim because such claim is not qualitatively different and therefore is preempted by the Copyright Act.

Link to the rest at IP Watchdog

PG usually removes links in the items he posts. He’s not doing so with this post for visitors who may want to dive deeper into the matter.

It’s rare for the US Supreme Court to accept a dispute involving Intellectual Property law – copyrights, patents, etc., so, in the narrow sphere of IP lawyers, this decision is anxiously anticipated. Regardless of how the decision goes, it’s going to upset the apple carts of more than a few somebodies.

15 Things You Need to Know About the Copyright Office’s New Small Claims Court

From Copyright Alliance:

With the U.S. Copyright Office’s new small claims court—the Copyright Claims Board (CCB)—launching on June 16, we thought we’d pass along some of the most important information that copyright owners and users should know about this new tribunal.

1. The CCB can hear three types of claims.

The CCB can hear three types of claims by copyright owners and users:

  • infringement claims;
  • claims for declarations of non-infringement. This type of claim might be brought when a copyright owner has alleged that someone is infringing their work and either has threatened to take action to enforce their rights (such as in a cease-and-desist letter) or has sent a DMCA takedown notice. The alleged infringer can bring a claim before the CCB to request that the CCB issue a declaration stating that the activity they are engaged in does not infringe the copyright owner’s exclusive rights;
  • claims under section 512(f) of the Copyright Act for misrepresentations in a DMCA notice or counternotice. Users who received a DMCA takedown notice from a copyright owner can challenge that notice if they believe the copyright owner knowingly misrepresented that the material or activity is infringing in the notice. Similarly, a copyright owner who sent a DMCA takedown notice and then received a counternotice from the user may challenge that counternotice if they believe the user knowingly misrepresented that material or activity was removed or disabled by mistake or misidentification.

These are the only types of claims that can be brought. Ownership disputes, termination claims, trademark claims, etc., cannot be heard by the CCB. Also, the CCB cannot hear any claim or counterclaim that has been finally decided by or is pending before a federal court—unless that court has granted a stay to permit that claim or counterclaim to proceed before the CCB.

2. The CCB cannot hear claims against certain parties (under certain circumstances).

The CCB cannot hear any claim or counterclaim by or against a federal or state governmental entity. The CCB also cannot hear any claim against someone who does not reside in the United States. However, the CCB can hear a counterclaim against a foreign resident when that foreign resident has first brought a CCB claim themselves. Lastly, the CCB cannot hear any claims against an online service provider (OSP) that is referring, linking, or storing alleged infringing material on behalf of a user (as those terms are defined in the DMCA, found in 17 USC 512(b)(c) and (d)) unless the OSP has been notified of the infringement through a properly submitted takedown notice under the DMCA but fails to expeditiously remove or disable access to the material identified in the notice.

3. Participation in the CCB is voluntary.

The U.S. Constitution requires that participation in the CCB be voluntary. Thus, the person being sued (referred to as the “respondent”) can “opt out” of the proceeding. A respondent has 60 days from the date notice is served on them to opt out of a proceeding. In special circumstances, the CCB may extend the 60-day period. The opt-out form can be found here. If the respondent opts out of the CCB proceeding, the proceeding is immediately terminated. (Although the person who brings the CCB claim (referred to as the “claimant”) is still free to bring their claim as a lawsuit in federal court.) The CCB process is also voluntary for claimants. A claimant is not required to use the CCB to decide their infringement, non-infringement, or section 512(f) misrepresentation case. Parties can use other alternatives, such as bringing their claim in federal court or before a mediator.

4. A party can bring or defend a case without the need to hire an attorney.

The CCB process is intended to be much simpler and more streamlined than federal court that it will be unnecessary for the parties to hire attorneys to represent them. A party can hire an attorney if they wish, but the use of an attorney is completely optional. Interestingly, at the time this blog was drafted, attorneys were being used by claimants in a little less than half of the infringement cases. If a party feels the need for legal representation, they may also retain law school clinic students that are supervised by a licensed attorney so long as the student-representative has the client’s written consent to represent the party and has completed: (i) their first year at an American Bar Association accredited law school; (ii) training in copyright law as determined by their supervising attorney; and (iii) a review of the CCB regulations and the Copyright Alternative in Small-Claims Enforcement (CASE) Act statutory text. The CCB will provide a directory on its website of law school clinics and pro bono legal services organizations that have expressed interest in providing pro bono law student representation before the CCB.

5. The damages that the CCB can award a prevailing party are capped.

In a copyright infringement case filed in federal court, a successful plaintiff may be awarded up to $150,000 in statutory damages per work infringed. In contrast, when an infringement claim, or counterclaim, is brought before the CCB a successful claimant or counterclaimant may be awarded up to $15,000 in statutory damages per work infringed—which is 10% of the maximum damages available in federal court. Also, the total amount of damages that can be awarded in each case before the CCB is limited to $30,000, as compared to federal court, which has no limit.

6. Statutory damages are available for copyrighted works that are not timely registered.

In infringement cases before a federal court, statutory damages can only be awarded where the copyright owner has timely registered their works. Under U.S. copyright law, a copyrighted work is “timely” registered if it is registered with the U.S. Copyright Office either before the infringement starts or within three months after first publication of the work, if the infringement began after the work was first published. But in infringement cases before the CCB, statutory damages are available regardless of whether the work was timely registered. Whether the work is timely registered will impact the upper cap on damages, as the cap is significant lower for works that are not timely registered. For works not timely registered, statutory damages are limited to $7,500 per copyrighted work infringed and a total of $15,000 for all works infringed in a case that were not timely registered. This means that in a case involving only infringement claims in which all the works at issue were not timely registered, the CCB can award a no more than $15,000 for the entire case, as compared to $30,000 where all the works were timely registered.

Link to the rest at Copyright Alliance

U.S. Copyright Office tells Judge that AI Artwork isn’t Protectable

From PetaPixel:

The Copyright Office is attempting to get a lawsuit brought against them by Stephen Thaler dismissed. Thaler wants his Creative Machine system, known as DAUBUS, to be named as the copyright holder for the artwork A Recent Entrance to Paradise.

Thaler’s application to the Copyright Office was rejected, so he has brought his case to a federal judge demanding that the Office overturns its decision.

The Copyright Office says that it “turns on a single question: Did the Office act reasonably and consistently with the law when it refused to extend copyright protection to a visual work the plaintiff represented was created without any human involvement? The answer is yes.”

The Copyright Office says it applied the correct legal criteria to Thaler’s case and rejects his arguments.

“The Office confirmed that copyright protection does not extend to non-human authors,” says the defendants.

This decision was made “based on the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship.”

The Copyright Office says that its own guidelines specify human authorship as a requirement for protection and that “the Office will refuse to register a claim if it determines that a human being did not create the work.”

The Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

. . . .

The Copyright Office also accuses Thaler of making changes to his original claim that he had no involvement with the creation of the artwork.

The Office says Thaler changed his story to claim that he “‘provided instructions and directed his AI to create the work,’ that ‘the AI is entirely controlled by Dr. Thaler,’ or that ‘the AI only operates at Dr. Thaler’s direction.’”

Link to the rest at PetaPixel

Sounds about right to PG.

Trademark Registration: 100% THAT BITCH

From PatentlyO:

In a new precedential opinion, the TTAB (The Trademark Trial and Appeal Board) has sided with the musical artist Lizzo — agreeing to register her mark “100% THAT BITCH” for use on apparel.  The Trademark Examining Attorney had refused registration on “failure-to-function” — concluding that the phrase was a commonplace expression used to express a well-recognized sentiment.

. . . .

The phrase comes from Lizzo’s 2017 song Truth Hurts (remade in 2019) that has become a viral sleeper hit.  The original line in the song is “I just took a DNA test, turns out I’m 100% that bitch.” But Lizzo herself did not create the phrase. Rather, Lizzo apparently saw a social media meme about being 100% that bitch and then added it to her song.  The examining attorney concluded that “evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer’s song does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.”

On appeal, the TTAB reversed the refusal.  Unlike patents and copyrights, trademark law is not designed to reward the creative endeavor of invention or authorship.  Rather, trademark is designed as a consume-protection and market-function tool and so focuses on consumer perception.  Here, the evidence suggests that the mark is being used in an ornamental fashion (rather than as simply words) and that ordinary consumers associate the mark with Lizzo.  Even though she didn’t create the words – she is the one who made them popular and transformed the “lesser known phrase to more memorable status.”  On those grounds, the TTAB concluded that the mark is registrable and thus reversed the denial.

A few years ago the mark would have also been rejected as scandalous, but that issue has been off the table since the Supreme Court’s FUCT decision.

Link to the rest at PatentlyO and thanks to C. for the tip.

PG usually avoids terms that might offend visitors to TPV, but there was no alternative in this case considering the copyrighted term.

As the OP makes clear, there is a distinction between copyright and trademark laws although they are sometimes regarded as similar by those prudent enough at a young age to avoid law school.

AI Generated Art for a Comic Book. Human Artists Are Having a Fit.

From The Wall Street Journal:

Kris Kashtanova says doing the art for the graphic novel “Zarya of the Dawn” was like conjuring it up with a spell.

“New York Skyline forest punk,” the author typed into an artificial intelligence program that turns written prompts into pictures. Then came the tinkering with the wording to get the right effect. “Crepuscular rays. Epic scene.”

The 18-page book follows the travels of a young character who awakes alone and confused in an abandoned, futuristic world, and who looks a lot like Zendaya, the actress from “Euphoria” and the recent “Spider-Man” movies. The images were composed on Midjourney, one of a batch of services that create new images based on artwork and photos already online. Last year, “Zarya of the Dawn,” which credited the software as a co-author on the title page, became the first work of its kind to get a copyright from the Library of Congress.

But now the copyright is under review, posing a big question: Who really owns these AI-generated, mashup images?

Text-based AI programs such as OpenAI’s ChatGPT are already causing a ruckus in the education world, with teachers worrying that students might pass off AI-generated essays as their own. Christian Terwiesch, a professor at the Wharton business school, recently published a paper concluding that the software would have received a B to B- on one of his M.B.A. courses—better than some of his real-life students.

Now creative types are on edge over how AI might upend their livelihoods. Several artists have begun legal action against Midjourney and other AI services, saying their images were included in reference databases without their permission. Some think it’s too easy a shortcut. Movie director Guillermo del Toro recently described AI-generated animation as “an insult to life.”

For “Zarya of the Dawn,” Mx. Kashtanova, who uses a gender-neutral honorific and pronoun, says they were upfront about using the technology. Mx. Kashtanova touched up the images generated by Midjourney and provided the comic’s text, and isn’t too concerned about what happens as the case at the Library of Congress’s Copyright Office continues.

“Like, no one is going to die,” they say, adding that they applied for the copyright with plans to donate money from licensing fees to a New York nonprofit, Backpacks for the Street, where they volunteer. Midjourney, which didn’t respond to a request for comment, is paying for the legal fees to help make the case to retain copyright. The Copyright Office says it doesn’t comment on pending cases.

The case is turning into a barometer for how AI art is treated in the eyes of the law.

“Think about photography,” says Van Lindberg, an intellectual property lawyer at Taylor English Duma LLP in San Antonio, who is representing Mx. Kashtanova, along with legal group Open Advisory Services. In the past, when photographers still used film, they spent much of their energy carefully composing the right shot. In the digital age, it’s more common to take lots of pictures and select the best—which is similar to what artists are doing with AI programs, he says.

“We’re starting to use our intelligence for curation as opposed to some other aspects of creative work,” he says. “Is that enough to sustain copyright? I believe it will ultimately be found that it is, but it’s an open question.”

The question is becoming more urgent as the technology improves.

Jason M. Allen stirred up a hornet’s nest of controversy online last year when he beat a host of artists to win first prize for digital art at the Colorado State Fair. He experimented with hundreds of different prompts on Midjourney to come up with his work, “Théâtre D’Opéra Spatial.” The judges hadn’t realized what the software was.

Software engineer Stephen Thaler this month took the Copyright Office to court in Washington, D.C., after it rebuffed his application for “A Recent Entrance to Paradise,” which he generated with his own program to represent a near-death experience. He argues that as the program’s creator, the image rights belong to him. The Copyright Office ruled that it wouldn’t knowingly register a work solely created by AI.

“Whether it’s music or movies or art or text, you can now go to dozens of openly available AI systems online like DALL-E or ChatGPT and they will make art that passes all traditional tests for whether something’s protectable,” says Ryan Abbott, an attorney at Brown Neri Smith & Khan LLP, who is representing Dr. Thaler.

In the U.S., someone seeking copyright needs to show only that it contains “a modicum of creativity,” as the Supreme Court has said. Mx. Kashtanova thinks “Zarya of the Dawn” easily passes the threshold.

One of the opening scenes shows the lead character holding a mysterious postcard from someone called Rusty, a moody scene that helps set up the rest of the story as Zarya sets out to find a way home.

Mx. Kashtanova describes going through hundreds of prompts to capture the right atmosphere, trying phrases such as “cellular wisdom” and “alien forest” until Midjourney delivered the goods.

They repeated the process as the story progressed, often typing in “Zendaya” to keep Zarya’s appearance consistent.

AI developers often say the idea is to give human imagination a helping hand. 

Link to the rest at The Wall Street Journal

PG will repeat that AI is simply a sophisticated tool that allows individuals to create images more easily and quickly than they would likely be able to do without AI.

Is there a serious professional artist that thinks using Photoshop and related tools like Procreate, Astropad Studio and any other software tools shouldn’t be permitted for creative artists to use because they’re not mixing their own paints and using a camelhair brush to create their work on a canvas?

PG remembers a pair of statements from a long time ago regarding paleontology and various early hominins.

Man, the tool-maker

Tools, the man-maker

PG notes that these statements predate any sort of political correct speech and he acknowledges that man and woman could be used interchangeably and the statements would still be true.

PG suggests that AI tools are yet another man-maker that will accelerate the imaginations and creatively artistic talents of humanity as a whole.

Me, Myself, and (A)I: Copyright Office to Focus on AI Authorship

From Lexology:

According to a recent interview in December 2022, the U.S. Copyright Office (the “Office”) signaled that it would focus in 2023 on “legal grey areas” surrounding copyrightability of works generated in conjunction with artificial intelligence (“AI”) tools. While the agency is standing by its conclusion that copyright cannot be registered for a work created exclusively by an AI, according to Shira Perlmutter, the Register of Copyrights and director of the Office, the Office is considering the issue of copyright registration for works co-created by humans and AI. The focus is timely given recent monumental leaps in natural language processing and image, text, and code generative AI.

The ‘Human Authorship Requirement’

In 2018, a computer scientist named Stephen Thaler submitted an application to the Office to register a copyright in artwork entitled A Recent Entrance to Paradise (the “Work”). The application identified the “Creativity Machine” as the sole author of the Work, with Thaler listed as a co-claimant. In the application, Thaler noted for the Office that: (1) the Work was automatically created by a computer algorithm running on a machine; and (2) he was seeking to register the computer-generated work as a work-for-hire to Thaler as the owner of the Creativity Machine.

The Work was generated in 2012 by “Device for the Autonomous Bootstrapping of Unified Science,” or DABUS, an AI system developed by Thaler. In an August 2019 letter, the Office refused to register the copyright, finding that DABUS lacked the “human authorship necessary to support a copyright claim.” Thaler submitted requests for reconsideration in September 2019, May 2020, and February 2022, suggesting that “the Office’s human authorship requirement is unconstitutional and unsupported by case law,” which the Office rejected for lack of “traditional human authorship.” In the 2020 determination, the Office again concluded that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” The Office also noted that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.”

In stating its conclusion in its 2022 denial of reconsideration and affirming the initial refusal to register the copyright claim in the Work, the Office affirmed the prevailing legal rule for a century that copyright law protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” U.S. Copyright Office, Compendium (Third) of U.S. Copyright Office Practices § 306 (quoting Trade-Mark Cases (1879)). Additionally, the Office noted (as a corollary) that it does not register works produced by a machine or mere mechanical process that operates without any creative input or intervention from a human author. Accordingly, Thaler had to either: (1) provide evidence that the Work was a product of human authorship; or (2) provide an argument convincing the Office to depart from the prevailing legal rule, and the Office noted that Thaler accomplished neither. Given the concerns that IP policy is lagging behind technology, the Office “is exploring open questions on copyright registration for works created by humans in conjunction with AI.”

Beyond the Thaler Determination: The Next Frontier of Co-Creation

In 2022, OpenAI released the AI text generator ChatGPT and the AI image generator DALL-E 2. ChatGPT is a natural language processing tool that allows users to have human-like conversations, receive assistance with tasks such as composing code, essays, and emails, and automate otherwise mundane operations. DALL-E 2 is a language model that creates images from user-submitted text captions for a wide range of concepts expressible in natural language. These tools and other generative AI tools made available by OpenAI’s competitors have raised questions about the protectability of works created by humans in conjunction with AI.

In the December 2022 interview, Director Perlmutter, noting that the Office applied existing case law holding that human authorship is a prerequisite for copyright protection in the Thaler determinations, states that the more challenging issues will involve a component of human creativity. Once the human element is involved, the question becomes whether it rises to the level of authorship under existing case law. A complication is that the Office must rely solely on the facts presented in an application for copyright registration as it currently has no way to verify whether an AI system has been appropriately credited in a copyright application.

Recently, the Office began proceedings to cancel a copyright registration it initially issued to Kristina Kashtanova for her AI-assisted graphic novel “Zarya of the Dawn.” The novel includes AI-generated images which Kashtanova created using Midjourney, an AI software platform that generates image outputs based on text inputs. The Office commenced its move to cancel the registration after public disclosures that the novel was in part composed of AI-generated images that were not disclosed in the copyright application. The Office can move to cancel a registration if the authorship is insufficiently creative or the work does not contain authorship subject to copyright on the grounds that the registration is invalid under the applicable law and regulations, 37 C.F.R. § 201.7.

In addition to the question of copyrightability, other emerging AI-related questions that the Office and the Courts are likely to increasingly face include: (1) what level of creative input must exist for an AI-generated work to constitute human “authorship” to support a copyright claim; and (2) should AI-created works that are derived from analyzing existing works (such as those used for training data) or styles require a license from the original author to avoid a claim of copyright infringement, and to what extent do principles of fair use apply?

Link to the rest at Lexology

PG notes that the authors of the OP are associated with the Intellectual Property Group at Davis Wright Tremaine LLP, a large law firm with offices in Seattle and a great many other locations.

The Patent Law Origins of Science Fiction

From Patently-O:

Are inventions described in works of science fiction patentable? The answer is usually no, and for good reason. Some of the most beloved fixtures of the genre—time machines, faster-than-light space travel, teleportation, downloading memories, copying a consciousness, etcetera—are impossible or not yet possible when described by the author. This sort of science fiction is not patentable because it cannot logically be enabled or have credible utility when the patent is filed.

For similar reasons, science fiction is rarely cited as prior art against later patent filings. Science fiction can qualify as prior art under § 102(a) as a “printed publication” or as “otherwise available to the public.” It can be especially useful as “obviousness” prior art because, to quote the Federal Circuit, a “reference that does not provide an enabling disclosure for a particular claim limitation may nonetheless furnish the motivation to combine, and be combined with, another reference in which that limitation is enabled.” Raytheon Techs. Corp. v. General Electric Company, 993 F.3d 1374 (2021). However, science fiction is unlikely to be cited during examination. Examiners lack the time and energy to search for on-point science fiction where there is so much more (and better catalogued) prior art among patents and scientific publications. Applicants, for their part, are not required to disclose prior art that is not material to patentability or that is cumulative of other prior art they’ve already provided. 

It may surprise you, then, to learn that the genre of science fiction is deeply indebted to patent law and patent theory. In our new paper, The Patent Law Origins of Science Fiction, available at, we show that science fiction as a literary form was originally premised on the idea that works of science fiction are like patents. They disclose useful technical information that can give readers a “stimulus” to perfect the invention and figure out how to make it work.

The person responsible for this comparison was the so-called “father” of science fiction, Hugo Gernsback. He started the first exclusively-science fiction magazine, called Amazing Stories, in 1926. The Hugo awards, given to the best works of science fiction and fantasy writing, are named after him.

Gernsback was also an inventor and serious scientific thinker in his own right. He died with over thirty patents to his name. In the early 1900s, he started a radio and electronics equipment company in New York. To support his business, he initially published catalogs for mail-order electrical components, but the catalogs soon morphed into full-sized magazines with titles like “Modern Electrics, marketed to inventors and amateur “tinkerers.”

. . . .

At first, Gernsback started publishing science fiction stories—which he then called “scientifiction”—to fill space in his electrical magazines. These stories were sometimes little more than a few paragraphs of exposition about some speculative new device that might be used in the future, plugged into a generic adventure plot. For example, one story featured a genius from the future using (what we now call) “radar” to track down a Martian who had kidnapped the protagonist’s love interest in a Space Flyer. Despite the fictional elements, science and scientific plausibility were still all-important. Gernsback was fond of saying the recipe for good scientifiction was 25% science and 75% literature.

Readers loved it, and Amazing Stories was born. Gernsback knew he was on to something, and he frequently published editorials expounding on the virtues of scientifiction. These editorials, along with his unpublished manuscripts, reveal Gernsback’s theory that a good science fiction story is like a patent, but a much more “palatable” read. Although he did not articulate it in precisely the same terms, Gernsback’s justification for scientifiction echoes the language of patent law’s disclosure theory. Scientifiction, he wrote, provides both knowledge and “stimulus.”[2] It inspires “seriously-minded” readers to learn about science and technology, and it supplies the “inventor or inventor-to-be who reads the story” with “an incentive” to “realiz[e] the author’s ambition” by perfecting the author’s science fictional inventions in the real world. Gernsback often drew the analogy to patents quite explicitly. The science fiction author, in his framework, was “an original inventor,” like the named inventor on a patent. The readers who got the author’s invention to work were like “manufacturers” who buy patents and commercialize the inventions therein “with but a few changes.” They were just there to profit from the author’s grand ambitions.

Over time, Gernsback developed a crazy idea. If science fiction authors are “inventors” who inspire others to reduce their inventions to practice, then shouldn’t science fiction authors be able to get patents for their prescient descriptions of future inventions? And shouldn’t science fiction serve as prior art against other peoples’ patents? In 1952, just after Congress had modernized the Patent Act, Gernsback made these ideas public. In a speech he gave to the World Science Fiction Convention in Chicago, he proposed that Congress should reform patent law (again) to give science fiction authors the ability to apply for “Provisional Patents.”

. . . .

His Provisional Patents would have given science fiction authors thirty extra years in which to demonstrate their science fictional inventions worked. If they could do so, the Provisional Patent would be converted into a normal patent, presumably in force for the full patent term (which at that time meant 17 years). Otherwise, it would be abandoned. This proposal was not adopted and, we presume, was never seriously considered.

In the same speech, Gernsback also proposed that authors and publishers should start identifying works of science fiction that contained “new and feasible” inventions, so that they could send these selected works to the patent office. Gernsback’s hope was that the patent office would be deluged with science fiction and have no choice but to start reviewing and citing science fiction more often as prior art. This idea had more grounding in current law than Gernsback’s Provisional Patents, but it was not adopted either. Mechanisms for getting prior art to the patent office have certainly improved since Gernsback’s time. But we still don’t send the patent office curated collections of science fiction.

Gernsback’s ideas were iconoclastic, and his proposal to make Provisional Patents available for inventions that are not yet reduced to practice is deeply troubling from a policy perspective. Science fiction authors who make reasonably accurate predictions about future technological developments would gain the ability to sue the very people who figure out how to make those technologies. Imagine the effect on the computer industry if a science fiction author had been able to reserve the right to patent a supercomputer in the early 1920s, and then converted this into a full patent in the 1950s…

But taking Gernsback’s ideas seriously generates some surprising insights. Science fiction—of the type that Gernsback and “hard sf” writers like Jules Verne and Isaac Asimov wrote—has more in common with patents than it might seem. Publishing a work of science fiction confers no exclusive rights on the inventions it contains. But, like patents, works of science fiction are documents that disclose potentially useful information about science and technology. Like patents, science fiction stories can describe inventions that have not literally been reduced to practice; they can leave many details to skilled artisans to figure out. Both science fiction readers and patent examiners are also supposed to suspend disbelief, presuming the inventions described on the page are based on plausible scientific principles. See, e.g. In re Cortright, 165 F.3d 1353 (1999). If we think patents are an important part of the innovation ecosystem because they disseminate useful technological teachings and insights, then science fiction might be too.

How often science fiction influences innovation is an extremely interesting question. Ironically, the patent record itself is a great source of data with which to test Gernsback’s theories. In fact, one of Gernsback’s more questionable assumptions was that profit-hungry readers are “continuously” filing patents on inventions they learned about in science fiction. They remember the idea, “lard it with a few of [their] own, patent it and start a new billion dollar industry on it.” Regardless of whether that is true, if someone is inspired by science fiction to make an invention in the real world, then we should sometimes see evidence of this in the patent record.

. . . .

Formal prior art citations to science fiction are rare for the reasons we said above. But we can find circumstantial evidence of science fiction’s influence by searching patents. For example, specifications sometimes reference science fiction in the body, even if they don’t formally cite to science fiction as prior art. Search the patent record for “Asimov, “Three Laws of Robotics,” or “Star Trek,” and you’ll see what we mean. We can also find more direct evidence of influence—situations where inventors expressly state that they got their inspiration from science fiction. For this, though, we usually have to look outside the patent record. Inventors’ autobiographies, interviews, speeches, and marketing efforts can reveal clues. For example, Neil Stephenson’s 1992 book Snow Crash features a virtual world called the Metaverse. Facebook and other tech companies are making their own virtual worlds and calling them by the same name. That, along with direct statements from employees that Stephenson is “our inspiration,” helps support that there was some degree of influence. Steven Levy, Neal Stephenson Named the Metaverse. Now, He’s Building It, Wired (Sept. 16, 2022).

This is surely sometimes independent invention, the result of multiple inventors responding to the same technological developments and contemporary trends. Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012). But sometimes it is not. Despite all the legal and practical barriers, science fiction appears in the patent record. It was important enough to play some small part in the journey that culminated in the invention. At the end of the day, there is only one explanation for this: Some inventors read science fiction, and some science fiction matters to those people. Its ideas inspire them in ways that traditional sources (including patents) do not. Gernsback put it best. Science fiction “fires the reader’s imagination more perhaps than anything else of which we know,” leaving readers “deeply thrilled[,]” as their “imagination is fired to the nth degree[.]” Few people would ever say that about reading patents.

Even if science fiction does not directly influence someone to make the precise inventions it discloses, it can impact peoples’ career choices, inspiring them to go into science or pursue a general line of inquiry. It can inspire them to go to space. Kristen Houser, Science fiction doesn’t predict the future. It inspires it, BigThink (Oct. 23, 2021). Arthur C. Clarke went so far as to say that “by writing about space flight we have brought its realization nearer by decades.” In Clarke’s view, science fiction both imparted useful technical information and acclimated readers to the possibility of space flight, priming them to support and accept the novel technology when it arrived.

Link to the rest at Patently-O and thanks to C. for the tip.

Getty Images is suing the creators of AI art tool Stable Diffusion for scraping its content

From The Verge:

Getty Images is suing Stability AI, creators of popular AI art tool Stable Diffusion, over alleged copyright violation.

In a press statement shared with The Verge, the stock photo company said it believes that Stability AI “unlawfully copied and processed millions of images protected by copyright” to train its software and that Getty Images has “commenced legal proceedings in the High Court of Justice in London” against the firm.

Getty Images CEO Craig Peters told The Verge in an interview that the company has issued Stability AI with a “letter before action” — a formal notification of impending litigation in the UK. (The company did not say whether legal proceedings would take place in the US, too.)

“The driver of that [letter] is Stability AI’s use of intellectual property of others — absent permission or consideration — to build a commercial offering of their own financial benefit,” said Peters. “We don’t believe this specific deployment of Stability’s commercial offering is covered by fair dealing in the UK or fair use in the US. The company made no outreach to Getty Images to utilize our or our contributors’ material so we’re taking an action to protect our and our contributors’ intellectual property rights.”

When contacted by The Verge, a press representative for Stability AI, Angela Pontarolo, said the “Stability AI team has not received information about this lawsuit, so we cannot comment.”

The lawsuit marks an escalation in the developing legal battle between AI firms and content creators for credit, profit, and the future direction of the creative industries. AI art tools like Stable Diffusion rely on human-created images for training data, which companies scrape from the web, often without their creators’ knowledge or consent. AI firms claim this practice is covered by laws like the US fair use doctrine, but many rights holders disagree and say it constitutes copyright violation. Legal experts are divided on the issue but agree that such questions will have to be decided for certain in the courts. (This past weekend, a trio of artists launched the first major lawsuit against AI firms, including Stability AI itself.)

Getty Images CEO Peters compares the current legal landscape in the generative AI scene to the early days of digital music, where companies like Napster offered popular but illegal services before new deals were struck with license holders like music labels.

“We think similarly these generative models need to address the intellectual property rights of others, that’s the crux of it,” said Peters. “And we’re taking this action to get clarity.” 

Although the creators of some AI image tools (like OpenAI) refuse to disclose the data used to create their models, Stable Diffusion’s training dataset is open source. An independent analysis of the dataset found that Getty Images and other stock image sites constitute a large portion of its contents, and evidence of Getty Images’ presence can be seen in the AI software’s tendency to recreate the company’s watermark.

Although companies like Stability AI deny any legal or ethical hazard in creating their systems, they have still begun making concessions to content creators. Stability AI says artists will be able to opt-out of the next version of Stable Diffusion, for example. In a recent tweet about the company’s training datasets, Stability AI CEO Emad Mostaque said “I believe they are ethically, morally and legally sourced and used,” before adding: “Some folks disagree so we are doing opt out and alternate datasets/models that are fully cc.”

The full details of Getty Images’ lawsuit have not yet been made public, but Peters said that charges include copyright violation and violation of the site’s terms of service (in particular, web scraping). Andres Guadamuz, an academic specializing in AI and intellectual property law at the UK’s University of Sussex, told The Verge it seemed like the case would have “more merit” than other existing AI lawsuits, but that “the devil will be in the details.”

Link to the rest at The Verge

PG’s understanding is that AI art generators don’t keep any copies of the images they use. His understanding is that an image is quickly analyzed and a mathematical hash is created.

If PG’s understanding is correct, Stability AI used an Open Source dataset and, perhaps, kept a copy of the original photos/artwork on its servers afterwards.

If this is the case, PG thinks it was stupidity on the part of management at Stability AI to keep a copy after creating hashes from it. While he thinks it would still qualify as fair use under US patent law, keeping a literal copy of the photos after processing them strengthens Getty’s case.

Getty is suing in the UK because Stability AI is located there, so PG’s comments, based on his understanding of US copyright laws may not cover differences between UK and US laws governing this matter. He will note that both the UK and US have entered into the two major international copyright agreements – The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, and The Berne Convention for the Protection of Literary and Artistic Works (Berne), in 1882.

Getty is also aggressive in suing for improper use of photos in their collection, even if the photos are in the public domain and, thus, not protected by copyright. See here for one relatively recent example. And here for another take on the same facts.

PG is going to be following this lawsuit as it progresses and would welcome hearing from visitors to TPV if they find any interesting pieces discussing the dispute – Contact PG at the top of TPV will let you send him an email.

“Controlled Digital Lending”: Could Canadian Universities Find Themselves Out on a Limb?

From Hugh Stephens Blog:

In my year end blog post looking back at significant developments for copyright and creators in 2022 and looking forward to topics that will be at the top of the agenda in 2023, I identified questions over the legality of a contrived and unproven concept, so-called “Controlled Digital Lending” (CDL), as one of the big issues likely to be clarified this year.

Back in June 2020, four major publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House), all members of the American Association of Publishers (AAP) filed suit against the Internet Archive for “Systematic Mass Scanning and Distribution of Literary Works”. The Internet Archive (IA), an organization that brands itself as “a non-profit library of millions of free books, movies, software, music, websites, and more”, provides a number of services including archiving the internet through its “Wayback Machine”, archiving television programs and audio recordings, and digitizing documents and books, both those in the public domain and others still protected by copyright.  Although registered as a US non-profit, it was founded and still led by Brewster Kahle, a multimillionaire entrepreneur and digital “guru”.

The publishers’ lawsuit was provoked by the IA’s decision to create a self-described “National Emergency Library” in March 2020, during the peak of the COVID pandemic. The Emergency Library expanded the untested theory of Controlled Digital Lending (CDL), championed by the Archive, by eliminating even the pretence of limits on the numbers of digital copies of books that could be borrowed, in effect eliminating all wait times. As I noted in an earlier blog post (“Are Authors the Enemies of Authors and Publishers?”), COVID was the pretext used by the Archive for pushing the envelope on CDL. Under the IA’s interpretation of CDL, a digital scan of a book can be substituted for the original work by a lending library as long as the library holds the requisite number of physical copies. As is the case with legitimate lending of licensed e-books, there is no need for the borrower to physically collect the work; it is all done digitally including terminating the loan once the book is due.

The issue of scanning a book without authorization in order to provide a substitutable digital version is clearly at odds with the law, especially when it comes to US case law which has been very clear and consistent on this point. As authors and publishers point out, it is a form of copying that destroys the licensing market for e-books. Despite this obvious fact, this has not stopped advocates, like the Internet Archive, from claiming that the practice is somehow fair use under US law. Until COVID hit, the Archive purported to follow what it characterized as normal lending rules by allowing only as many digital copies into circulation as it physically held in its inventory, with a digital copy having to be “returned” before a new copy could be loaned out. However, in reality it exercised no actual controls, simply asserting that it was following the correct “own to loan” ratio. Then, with the arrival of COVID, the Archive dropped all pretence of controls and announced that it was suspending the normal practice of maintaining a wait list and would allow unlimited digital copies to go into circulation.

While a few initially misguidedly lauded the Archive for taking measures to assist consumers who were self-isolating because of the pandemic, it didn’t take long for authors and publishers to push back, pointing out that this unilateral move was a case of giving away someone else’s property without consultation or permission. Although the possibility of litigation had been simmering for some time, the IA’s declaration of the “National Emergency Library” was the precipitating event leading to the filing of suit by the publishers. The IA then ended the Emergency Library program prematurely and Kahle appealed to the publishers to settle the dispute in the boardroom rather than the courtroom. The hypocrisy of this appeal was not lost on authors and publishers who had been trying for years to engage the Archive in meaningful discussions. Both sides moved for summary judgment, and those motions are currently pending in front of the judge.

Link to the rest at Hugh Stephens Blog and thanks to R. and others for the tip.

PG recalls this type of “controlled digital lending” theory having appeared in various guises on past occasions.

As the OP suggests, it won’t work.

Fundamental copyright law requires the author’s approval before anyone can make a copy of the author’s creation, be it words or paintings or anything else.

When a library purchases a physical book and lends it to someone, the library has entrusted its copy to one of its patrons. If the patron doesn’t return the book or loses it or if the patron’s dog eats the book, if the library wishes to allow other patrons to borrow the book, the library’s only legal option is to purchase another physical book from the author or publisher or locate a helpful friend of the library who has purchased a copy of the book and ask if the helpful friend will donate her/his/their physical copy of the book to the library.

Every digital lending scheme PG has examined involves making a copy of the book each time someone wishes to read it. If the library scans one of its physical books, it’s making a copy without permission. It doesn’t matter whether the library destroys the physical book after scanning it. The library has still made a copy.

If a library acquires an ebook, absent permission from the owner of the ebook’s copyright, the library can’t make a digital loan to a patron via an electronic copy while still maintaining a copy of the ebook on the library’s computer system or anywhere else.

Just because electronic copying is very simple to do and happens trillions of times per day on computers around the world doesn’t mean that making an electronic copy of a bunch of organized electrons that are protected by copyright law is not a violation of copyright law.

Please note that that the copyright law includes an exclusion for Fair Use of the copyrighted material. Fair Use does not constitute a violation of copyright law.

Here’s a reasonable general definition of Fair Use from The Stanford Libraries:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

Of course, as with all laws, Fair Use contains more than a few gray areas. However, making a complete copy of a creative work and lending, selling, etc., the copy to one or more others is not protected under the Fair Use exception to general copyright law.

(Personal note – PG believes all of his excerpts of copyright-protected material in TPV constitute fair use. He asks himself if that is the case for at least one or more items he posts each week. His judgement has been questioned on only one occasion, many years ago, but the questioner stopped complaining after PG sent his analysis of fair use for the challenged post.)

Something is afoot with copyright this Public Domain Day

PG Note: The OP was published on January 1, 2023

From The Guardian:

On New Year’s Day, copyright in the US expires on a new clutch of artistic works. But shady legal shenanigans mean it’s a little overdue…

Here’s a reason to be cheerful this morning: it’s Public Domain Day, ie the day on which a new batch of hitherto copyrighted works comes out of copyright and enters the US public domain – the zone that consists of all the creative work to which no exclusive intellectual property rights apply. For those readers who do not reside in the US, there is perhaps another reason for celebrating today, because copyright terms are longer in the US than they are in other parts of the world, including the EU and the UK. And therein lies a story about intellectual property laws and the power of political lobbying in a so-called liberal democracy.

Among the works liberated for the delight of American citizens this morning are: Virginia Woolf’s To the Lighthouse; the final Sherlock Holmes stories by Arthur Conan Doyle; Fritz Lang’s seminal science-fiction film Metropolis; Alfred Hitchcock’s first thriller; and compositions by Louis Armstrong and Fats Waller. The interesting thing is that these were originally supposed to enter the public domain in 2003, but as Jennifer Jenkins, director of Duke University’s Center for the Study of the Public Domain puts it, “before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years”.

The mechanism by which this legal heist was implemented was the 1998 Copyright Term Extension Act (AKA “The Sonny Bono Act” or “The Mickey Mouse Protection Act” depending on your satirical tastes). In passing it, American legislators were simply continuing business as usual in the intellectual property business. The story began in 1790, when Congress enacted the first copyright law, which provided protection for authors for 14 years (plus a further 14 if the author requested it). The term was gradually lengthened in small increments by Congress until 1976, when it was extended by 19 years to 75 years and then in 1998 by the Sonny Bono Act. So, as the legal scholar Lawrence Lessig puts it, “in the 20 years after the Sonny Bono Act, while 1m patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term”.

You don’t have to be Sherlock Holmes to figure out how this happened. (Hint: an inspection of campaign contributions to US legislators in the relevant years may be illuminating. And of course there was also the fear that Mickey Mouse might make his escape into the public domain.) But the end result is that American citizens have had to wait two decades to be free to adapt and reuse works to which we Europeans have had easy access.

As it happens, Sherlock Holmes has a topical relevance, because today the US copyright on the last two Sherlock Holmes stories by Arthur Conan Doyle – from The Case-Book of Sherlock Holmes – expires. This must be depressing news for the Conan Doyle Estate Ltd, which has been almost as assiduous an enforcer of intellectual property rights as was James Joyce’s grandson, Stephen Joyce, in the years when Ulysses was in copyright.

As Jenkins tells the story, the estate’s claim was that the characters of Holmes and Dr Watson remained protected by copyright even if the books themselves had escaped to the public domain. This was eventually challenged by Leslie Klinger, a lawyer and Sherlock Holmes scholar of some renown. The case went through a series of American courts until 2014, when it finally ran into the immovable object known as Judge Richard Posner of the seventh circuit.

“The Doyle estate’s business strategy,” Posner ruled in a characteristically acerbic judgment, “is plain: charge a modest licence fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice – a form of extortion … It’s time the estate, in its own self-interest, changed its business model.”

Link to the rest at The Guardian

A treasure trove of Hollywood intellectual property is heading for the public domain

From The Economist:

A.A. Milne, who created Pooh in 1926, might not have approved of “Winnie-the-Pooh: Blood and Honey”, a low-budget slasher film due out in February. But no approval from his estate was needed. In January 2022 the copyright on “Winnie-the-Pooh” expired in America and the work entered the public domain. Since then the bear has also featured in a mobile-phone advertisement as “Winnie-the-Screwed”, complaining to Rabbit that his mobile bill is too high.

Every year a new haul of creative work leaves copyright and becomes free for anyone to adapt and exploit. In America, where copyright for older works is usually 95 years, recent entries to the public domain include Ernest Hemingway’s “The Sun Also Rises” and F. Scott Fitzgerald’s “The Great Gatsby”.

But a new era in copyright is now dawning. As the limit begins to expire for works created in the late 1920s, the public domain is starting to receive not only works of literature, art or music, but video, too. Hollywood’s intellectual property, some of it still wildly valuable, is increasingly up for grabs.

In January “The Jazz Singer”, one of the first successful “talkies”, will go out of copyright. Warner Bros, which released the film in 1927, is unlikely to worry much about losing the rights to what is today a historical curiosity. But a year later “Steamboat Willie”, the first film featuring Mickey Mouse, who sits at the centre of Disney’s merchandise business which brings in more than $5bn a year, will be there for the taking. In the 2030s Disney films including “Snow White”, “Bambi” and “Fantasia” will slip out of copyright. So will some of the comic-book heroes who are among the most successful performers at the modern box office. The latest Batman movie took more than $770m at the box office; Warner has two sequels planned. Yet from 2035, anyone will have the right to make one.

For Hollywood executives 95 years may feel all too fleeting, but copyright terms used to be much shorter. The first modern copyright law in the English-speaking world, published in 1710, gave rights-holders in England up to 28 years’ ownership of their work. America followed suit with its first federal copyright law in 1790. By 1909 the term was 56 years. This held until the 1970s. Then, just as Hollywood’s treasures were about to become public property, Congress stepped in to lengthen the term to 75 years. In 1998, as Domesday approached once more, Congress passed the “Mickey Mouse Protection Act”, as it was mockingly known, extending the copyright term to 95 years.

Many expected a further extension. None has materialised. The reason, in a number of ways, is the internet. First, it has turned voters into copyright liberals. In the 1990s the subject of copyright was of interest only to “educators, historians and librarians”, says Mitch Stoltz of the Electronic Frontier Foundation, a free-speech pressure group. With the advent of the internet, people saw how easily information could be copied, and how copyright rules curtailed their ability to share music or images, or to post on social media.

The internet also changed the balance of lobbying power. Publishers, record labels and film studios had always pushed for lengthy copyright terms; no commercial interest had reason to push hard against them. That is, until the arrival of companies such as Google and YouTube, which make their money by sharing other people’s content. Google won legal battles over its use of copyrighted pictures in its image search. Record labels sued YouTube for hosting clips featuring their music, before the labels decided to settle.

Link to the rest at The Economist

Protection of intellectual property in the United States originated in the British system of protecting intellectual property, beginning with the introduction of the printing press to England in the late fifteenth century. This invention allowed the owner of a printing press to create a great many copies of an original written work. British law was about protecting printers for quite a long period of time.

In 1710 Parliament enacted the Statute of Anne. The 1710 act established the principles of authors’ ownership of copyright and a fixed term of protection of copyrighted works (14 years, and renewable for 14 more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a “public domain” for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use.

This relatively recent history undoubtedly had an impact on those who drafted the United States Constitution, adopted in 1787.

The United States Constitution gives Congress the right to pass copyright and patent legislation:

Article I  Legislative Branch

Clause 8 Intellectual Property

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The United States Congress first gave life to this provision of the Constitution with The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies. This first copyright act was modeled on the Statute of Anne.

PG notes a couple of items in the Constitution.

1. The purpose of the clause is to promote the progress of science and useful arts.

This concept is easy to understand. The drafters of the Constitution saw value in encouraging the creation of intellectual property. New discoveries, devices and writing were not only a cultural benefit to the country and populace, they also provided an economic benefit by allowing creators to earn money from their creations – encouraging both new and more efficient industries and spreading knowledge among the general populace.

2. The method for promoting such creativity is to allow creators to commercially exploit their discoveries and creations on an exclusive basis for a limited period of time. They could do this by being the sole source for the invention or creation or by permitting as many others as the inventor thought wise to make commercial use of the creation. Generally speaking, the creator obtained compensation, usually financial, in exchange for his/her/their grant of rights to others.

Filing for patent or copyright creates a public document, either a description of the invention sufficient for others to understand the details of the invention and its unique character or, in the case of copyright, a copyright, a complete copy of the writing receiving protection.

Such filings were made available for examination by the general public by the government bureau where they were filed/registered. This allowed other interested parties to increase their knowledge and, potentially, to benefit the public by encouraging even more research and discovery sparked by the patent description. The difference between a new creation similar to a protected work and one that was derived from the protected creation sometimes results in gray areas.

Today, of course, you can see copyright and patent filings online, either at not cost through a clunky government website or from private information providers who charge a stiff fee for their services.

Here’s what the US Patent & Copyright Office has to say about derivative works in its Circular 14: Copyright in Derivative Works and Compilations:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a
preexisting “work” and add new original copyrightable authorship to that work.
The derivative work right is often referred to as the adaptation right. The following are examples of the many different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another language
• A revision of a previously published book
• A sculpture based on a drawing
• A drawing based on a photograph
• A lithograph based on a painting
• A drama about John Doe based on the letters and journal entries of John Doe
• A musical arrangement of a preexisting musical work
• A new version of an existing computer program
• An adaptation of a dramatic work
• A revision of a website

At least in the United States and, likely, in other nations that provide robust protection of creative works (not all do this), there is an ongoing tension between protecting new creations in order to encourage others and allowing other creators to build upon and extend the original creation/discovery.

During the last 30-50 years, the heirs and/or successors in interest of the original creators/inventors have persuaded Congress to extend patent and copyright terms for a longer and longer period of time. The Walt Disney Company has been in the forefront of many such lobbying efforts.

For PG, this is an indication that the purpose of the patent and copyright laws – to encourage original creativity in a wide range of fields, which is often an individual or small group effort, has been diluted into a corporate right to ongoing exclusive exploitation of the work of one or more dead individuals.

If PG were king for a day, he might consider going back to earlier copyright protection terms – 14 years after initial publication plus an additional 14 years upon filing of an application for copyright extension. He’s not tied to the specific term of 14 years, but he is inclined not to have copyright protection be calculated based upon the year the author died.

For PG, the fundamental bargain the government offers is: Exclusive use for commercial purposes for a limited period of time in exchange for a public filing of the creation so others can study it, learn from it and build upon it after the period of exclusivity ends.

Are tattoos protected by copyright?

From Copyright Alliance:

Yes, tattoos can be protected by copyright.

Copyright can protect pictorial and graphic works so long as they are fixed in a physical object and display originality. Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by production of scars“—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently original. In the context of copyright, originality doesn’t necessarily mean “novel.” Instead, it requires that the expression be original to the author (i.e. it cannot be copied from someone else), and it must possess at least a minimal amount of creativity.

This issue becomes complicated in the context of video game depictions of tattoos. In 2012, Christopher Escobedo, a tattoo artist based in Arizona, sued THQ, Inc., the makers of the video game UFC Undisputed 2010, for its depiction of a tattoo that Escobedo designed and tattooed on the torso of Carlos Condit—who was at the time the “interim Ultimate Fighting Championship (“UFC”) Welterweight Champion.” The case was ultimately settled out of court.

In 2016, tattoo company Solid Oak Sketches sued Take-Two Interactive for copyright infringement based on the company’s depiction of Lebron James’ tattoos in the game and cover art for the game. In March 2020, a federal judge ruled that Take-Two Interactive could not be sued for copyright infringement over the use of Lebron James’ and other players’ tattoos in its NBA 2K video game. The court reasoned that because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness. In addition, the court found the use to be de minimis and transformative fair use.

Link to the rest at Copyright Alliance

Why This Poet Declared War on Her Own Book

From The Walrus:

THEY KILL THE WOMEN and the children first. This is the most cost-effective decision. The captain knows by heart the commodity value of a child, knows the women will be worth less than the men at the auction block. So he picks the obvious choices: he orders the crew to push them, the women and the children, through the cabin windows and into the Atlantic.

It’s September 1781, and having departed the Guinea Coast for a sugar port in Jamaica, the Zong is overloaded with enslaved Africans. Because the captain lacks navigational and command experience, the voyage will take eighteen weeks instead of the usual six; the ship will run low on drinking water; slaves and crew members will take ill and die; the captain will become desperate. Soon enough, he will compensate for his mediocrity with quick and murderous calculations. Over the course of ten days, to conserve resources, he and his crew will sacrifice Africans to the sea—according to some sources, it may have been as many as 150. When the ship docks in Jamaica, the captain will file an insurance claim for the loss of his “cargo.”

Here is how a massacre enters history: as a story of property destruction.

In 2008, the Toronto-based writer M. NourbeSe Philip published a dizzying, fragmented book-length poem entitled Zong!: As Told to the Author by Setaey Adamu Boateng, a seven-year archival project that bears witness to those atrocities and attempts, as the author says, to “defend the dead.” She composed and rearranged the text using words sourced exclusively from the two-page legal case report of the insurance claim she tracked down in the University of Toronto’s law library. In time, Zong! became a widely studied work of contemporary literature, performed dozens of times in at least nine countries and excerpted in arts galleries globally. Critics have described it as a masterpiece.

In early 2016, Philip received an enthusiastic email from a woman called Renata Morresi, a translator and poet who teaches American literature at the University of Padua in Italy. Morresi wanted to translate Zong! into Italian. Her academic research focused on, among other subjects, “slavery and its ‘unconventional’ representations,” and she had been recently awarded Italy’s national prize for translation. She thought Zong! could be valuable to Italians who were striving to make sense of their own contemporary crisis. That year alone, CNN reported, an estimated ninety migrants from North Africa and other Arab countries were drowning every week in the Mediterranean in their bid to escape violence, poverty, persecution, and war. Morresi did not, at the time, have a publisher for the translation or a contract or anything in the way of a plan, and Philip felt the emails gave the enterprise the feel of an unserious project. She advised Morresi to contact Wesleyan University Press, the book’s American publisher, which owned rights to Zong!

“I don’t know whether you speak Italian,” Morresi wrote to Philip, “but if you feel like we can discuss the drafts (it would certainly be an invaluable help for me).”

The next time Philip heard from anyone about the Italian translation of Zong! was five years later, when a small Italian publisher called Benway Series emailed the proofs with an invitation to the book’s online launch. It came as a surprise. Neither Morresi nor Wesleyan had informed her that a formal agreement was signed and subsidiary rights to her book transferred. By then, two other translators had joined the project. The translation was supported by the Canada Council for the Arts, a public funder that serves Canadian artists and arts organizations, but the $13,350 it paid Benway Series had likewise changed hands without the artist’s knowledge. (Part of the CCA’s literary translation program serves international publishers.)

The lack of transparency confused her: it’s professional practice to involve the poet in any translation work. She emailed Suzanna Tamminen, the director and editor-in-chief at WUP, to confirm a contract had been signed, before congratulating the translators on their hard work. “I am honoured,” she wrote to Benway. “It is so important that this work reach European countries, many of which are the ground zero of the trauma that is ongoing.”

And then she saw what they had done to her book.

LITERARY TRANSLATION is an unforgiving balancing act. The Italian saying “traduttoretraditore”—or, “translator, traitor”—captures how any translation is destined to obfuscate the true meaning of the original, sealing the fate of what Miguel de Cervantes in the seventeenth century called a work’s “original luster.” The consequence is both reader and author are betrayed. Vladimir Nabokov famously translated his own novels into Russian to avoid seeing them “degraded and botched by vulgar paraphrases.” He was deeply contemptuous of Constance Garnett, a translator who basically brought Russian literature to the English-speaking world, because by favouring readability, she often elided an author’s idiosyncrasies. If translators seem inclined to fatalism, in other words, it’s because they’re tortured by the idea that their aptitude will be measured by how invisible they can make themselves.

The translator’s presence in Zong!, though, was not quite the object of Philip’s distress; Philip is not a Nabokovian purist. Translators have worked on her books before, with her approval. The problem was of another nature. Among the myriad reasons Zong! has become such a widely studied work are its disjunctive, distinctive visual qualities—a kinetic form charged with spiritual intent. The poetry sweeps across 180 pages in the manner of vocal jazz or a disordered musical constellation. As if carried off by waves, words float away from each other, swirl around, casting off letters like articles of clothing; syllables gurgle or stutter, refuse meaning. Isolated phrases, seemingly at random, tilt into cursive or italics. Submerged at the bottom of each page are imagined African names for the drowned, whose deaths were originally recorded as “negroe man” or “negroe woman.”

It had taken Philip years to find this form. It wasn’t until after a 2006 sojourn to Ghana, the departure point of the slave ship, that the book’s organizational principle began to slowly reveal itself. That principle became associated with a figure she called Setaey Adamu Boateng, who represented the ancestral voices she believed were speaking through the pattern she was painstakingly creating on the page. “Every word or word cluster,” she wrote in the book’s closing essay, “is seeking a space directly above within which to fit itself.” Those spaces are critical for Philip, because they are intended to represent the very air the enslaved were denied as they sank. “The text is attempting to revivify and recuperate what was lost in those last breaths,” Philip told me. “That, for me, is nonnegotiable.”

When Benway Series sent her the proofs in June 2021, the first thing Philip noticed was that this nonnegotiable rule had been broken. The PDF on her computer screen felt cluttered and claustrophobic. The Italian phrases often nearly grazed the lines beneath them. The formal protocols she had painstakingly established to turn Zong! into what she called a “mourning song” had not been respected. Morresi had attempted to capture the poetry’s pictorial shape, but the translator not only missed the logic behind why the text had been arranged that way, she also failed to consider how that arrangement might need to change when adapted into a foreign language. “What I am committed to is that it’s a dynamic action,” said Philip, referring to Zong! ’s form. “The words have to be positioned in such a way that they breathe.”

When Philip raised these concerns in an email to Benway Series, she was rebuffed. Morresi, wrote the book’s editors, was “extremely skilled and multi-award-winning,” and a first draft of the translation had been anonymously peer reviewed “in very positive terms.” WUP’s head emailed to say it wasn’t part of the normal process to send authors permission updates about their books, and that, anyway, “expanding the critical discourse on the book in this way helps to ensure [it] remains on reading lists for years to come.” Morresi emailed to note that any differences between the source text and its translation were attributable to Italian’s cumbersome morphology: the words inevitably run longer, which made it difficult to adhere to Philip’s unique spacing rules. She would have reached out directly to ask questions, Morresi said, but she assumed Philip wasn’t interested, and she didn’t want to disturb her.

. . . .

After weeks of fruitless discussions, as it became obvious Philip would not consent to the translation, Benway Series went ahead with publication. In late August 2021, when Philip received word that the press was preparing to distribute the book, she demanded the publisher destroy it and scrub all mention of the title from their website. WUP’s Tamminen, now swayed by Philip’s concerns, supported the request. Benway Series refused. In an email signed by two editors, the press argued they had done everything according to the letter of the law. Philip went public on social media and drew the support of more than 1,200 people—among them, poets, editors, scholars, publishers, translators, and readers—who petitioned to have the “flawed” translation recalled and destroyed.

Benway posted a rebuttal on its website, in Italian, that described Philip’s demands as reminiscent “of authoritarian and fundamentalist regimes around the world” and said her accusations of racism were “offensive, not so much to us . . . as much as for all the victims of that gruesome violence.”

It seemed to Philip that Benway Series expected her to be grateful for their attention, that the virtuousness of a small Italian press ought to be celebrated rather than contested. But she couldn’t understand why nobody there thought to contact her about the translation. “Even if there weren’t those underpinning spiritual, historical reasons why the structure of Zong! is important,” she said, “as an artist and as a poet, surely my work must be respected.”

. . . .

Moral rights stem from the Berne Convention, the leading international copyright treaty which states that even if an artist cedes economic rights to their work, they retain the legal grounds to “object to any distortion, mutilation or other modification” done to that work. One option, therefore, might have seen Philip file a lawsuit against Benway Series in Canada and, if she won, go to an Italian court to help enforce it. Neither of these actions would have been easy to pull off.

While Italy appears to provide substantial legal protections to writers and artists, there’s very little Canadian case law on the subject, even though the Snow ruling raised the bar for moral rights infringement. “What it did was set a precedent that in order to win in a case of moral rights, you had to prove that it damaged the honour and reputation of the artist,” said Martha Rans, a Vancouver-based lawyer who specializes in copyright law. But there’s a caveat: you need a reputation big enough that any damage to it can be quantified. “It becomes very difficult to mount a case,” said Rans, “because Canada doesn’t have a lot of what might be considered high-profile artists.”

Link to the rest at The Walrus

PG notes that he was unable to find anything in the OP which indicated that Ms. Philip registered her book in any nation’s copyright office.

The publisher of the original book, Wesleyan University Press, is mentioned only in passing in the OP.

For those not familiar with the institution, Wesleyan University is a very expensive private institution located in Middletown, Connecticut. Wesleyan is one of a small group of similar institutions that are sometimes called the “Little Ivies.”

PG wonders if Wesleyan Press actually granted translation rights to the Italian press or not. Small university presses don’t usually have piles of money sitting around, but, if it did not grant a license for an Italian translation of the book in question, one might think that it might think about raising a fuss about the Italian translation.

Here’s a fuzzy copy of the copyright page for the book.

Observant readers will note that Ms. Philip is listed as the owner of the copyright.

Here’s a list of various organizations that helped fund the creation of Zong.

There are a lot of wealthy organizations mentioned in these acknowledgements. The OP didn’t mention whether Ms. Philip sought the help of Wesleyan University or any of her funding organizations for help in this copyright dispute.

Perhaps he missed the copyright registration sentence in the OP, but, suffice to say, as a general proposition, registering a copyright with any western nation’s copyright office increases the options for enforcing the copyright in many other western nations, most certainly including Italy.

See here for a layperson’s explanation of the benefits of registering a copyright in the United States.


This whole situation seemed weird, so PG dug deeper and searched the United States Copyright Office for Zong.

Here’s what he found:

Registration Number / Date:
TX0007043340 / 2008-10-09

Copyright Claimant: Wesleyan University Press, Transfer: Written Contract.

What is a “Copyright Claimant”?

The US Copyright Office helpfully provides a definition:

Please identify all known copyright claimant(s) in this work. The author may always be named as a claimant, even if the author has transferred rights in the work to another person or entity.

The claimant may also be a person or entity that has obtained ownership of the copyright in the work. But to be named as a claimant, a person or organization must own all rights in the work; ownership of only some of the rights is not sufficient. In addition, a claimant must own the copyright in all of the authorship covered by this registration.

PG then searched Canada’s online copyright records (which are, on the whole, easier to access and understand than those in the US copyright office). PG was not able to find any copyright application for Ms. Philips or her book.

Under various copyright conventions and treaties, a registration of a copyright in one signatory nation is automatically recognized on the registration date in all the other signatories to the convention and/or treaty.

Thus, a registration in the US in 2008 would effectively offer backdated protection in all the other countries bound by the convention/treaty. PG is happy to be proven wrong, but he would think that a registration for Zong by Ms. Philips in Italy would be deemed to have been filed in 2008, the date of registration in the US should she wish to push for a shutdown of the illegal translation of her book.

Circling back around to Wesleyan University Press, it appears in that organization’s copyright registration for Zong that Ms. Philips may have signed over her rights under her copyright to the book to Wesleyan University Press.

However, the copyright page of the book shows Ms. Philips as the copyright owner.

PG isn’t certain if the book’s copyright attribution of the copyright to Ms. Philips was simply recognizing her as the author, but that’s not what the copyright page says.

Wesleyan Press, on the other hand, may have screwed up the copyright filing. Small university presses are not generally known as centers of copyright knowledge.

In PG’s mind, it’s possible that somebody at Wesleyan Press who registers a copyright once every 2-3 months max, may have registered the copyright for Zong “the way we’ve always done it,” and failed to change the Presses boilerplate to register the copyright in Ms. Phillips name as is implied by the book’s copyright page.

If any visitor to TPV has actually read down to the end of this quite lengthy post and has any knowledge concerning what actually happened with Ms. Philips and Wesleyan University Press, PG would appreciate any comments to clarify this apparent mess.

Maria Pallante, Copyright Crusader

From Publishers Weekly:

Maria Pallante took over as president and CEO of the Association of American Publishers in January 2017. In selecting Pallante, a former U.S. Register of Copyrights, the AAP pointed to her strong background in IP law and policy. Copyright protection has long been one of the main priorities of the AAP, and in a time when copyright issues have become more contentious, copyright protection is job one for the organization. Thus, in June 2020, the AAP coordinated a copyright infringement lawsuit by four publishers against the Internet Archive.

. . . .

For some time now, the AAP has made protection of copyright its top priority. Can you tell me how that decision was reached?

Copyright has been our top priority for more than five decades because it is the legal foundation of the publishing industry, but you are right that we’ve been unusually busy of late. That’s because the Internet Archive and its affiliate Library Futures have aimed a series of torpedoes at the Copyright Act, efforts that would irrevocably weaken the ability of authors to license their works, if not create them in the first place. Our board has prioritized these threats and takes them seriously, as should anyone who cares about the future of books.

When e-books first emerged, many publishers were concerned that their “frictionless” ease of use through libraries would lead to a decline in the sales of both print and e-books. That talk faded, but it seems to be a concern once again, with publishers seeing it as a reason e-book sales have not grown. Is that something that’s being talked about?

This is a fair observation, because e-book sales are definitely declining and e-borrowing is definitely exploding. Logically, the more seamless it becomes to download a digital copy for free without waiting, the more publishers will worry about the balance between their respective markets. They have a responsibility to their authors and their own sustainability to do so.

In a recent e-book study, the Federation of European Publishers proved the correlation between frictionless borrowing and consumer decline, and I don’t think anyone was surprised by that conclusion. But for copyright businesses, friction is an established calculation that goes far beyond libraries. It’s the reason we experience a constantly changing menu of streaming, subscription, and download services for music, movies, and video games, with continual adjustments to pricing, release dates, and wait times. These terms can be mystifying, indeed frustrating, from the outside, but they are designed to promote creative works within fiercely competitive environments.

I do think publishers have worked hard to provide e-books to libraries at the same time as consumer releases, because librarians are respected partners in a book’s success. As OverDrive reports, libraries achieved all-time records for digital loans in 2021 while lowering the average cost per title borrowed. Indeed, most licenses permit libraries to transmit e-books to patrons dozens of times under terms that are, all told, a fraction per-use of what consumers pay for restricted access, meaning no redistribution.

One thing I can say with confidence is that technology is constantly evolving, and therefore authors, publishers, and libraries, as well as booksellers, will continue to negotiate their respective agreements and budgets. Copyright markets don’t work very well if they’re stuck in time, which is why we no longer have eight-track cartridges in our cars.

What is your view of controlled digital lending, or CDL?

CDL is a baseless justification for infringement and antithetical to both copyright law and common sense. It was hobbled together by a small group of individuals with close ties to the Internet Archive, and for that reason it will always be associated with that defendant’s conduct. The law is clear that formats are distinguishable, meaning that no one—not a private person, public library, or pirate—may distribute digital bootlegs of tangible copies, whether they are ripping hardcover books, vinyl albums, or compact discs. It doesn’t matter if the defendant claims to manage a virtual bookshelf or maintains the physical copies, as made clear by cases in the music and movie space. Courts have decried such format shifting because it exceeds the first-sale doctrine and forces authors to subsidize activity that they did not license and cannot contain.

What I will say as a former policymaker is that there are important instances in which libraries and museums should be able to make copies of works in or for their collections—for example, to capture, preserve, or loan at-risk material. But activity like this does not require a new theory and moniker: it will already be governed by fair use and/or the detailed library exceptions in the Copyright Act. Neither Congress nor the courts has ever sanctioned a practice like CDL, because it strips authors of the benefit of their intellectual property, while permitting aggressors to prosper in their stead.

Link to the rest at Publishers Weekly

The court of art criticism is in session

From SCOTUSblog:

Today, the court’s attention will be on the often glamorous worlds of Pop Art, rock photography, and glossy magazines. It will veer into “Lord of the Rings,” “Jaws,” “Mork and Mindy,” and “The Jeffersons.” And one of the lawyers participating today will try to bury a beloved television producer and social activist. But I’m getting a little ahead of myself.

. . . .

And then it is on to the argument in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, a copyright dispute over a photograph of the musician Prince. Rock photographer Lynn Goldsmith, who took the photo of a vulnerable and sensitive-looking Prince in 1981, when he was still an up-and-coming musical artist, is in the second row of the public gallery today.

When Prince shot to stardom by 1984 with his “Purple Rain” album, Vanity Fair licensed Goldsmith’s photo for use as an artist’s reference for an illustration to accompany a profile of Prince. The artist they engaged was Andy Warhol, famous for his paintings of Campbell’s Soup cans and celebrities such as Marilyn Monroe.

Warhol cropped and silkscreened Goldsmith’s photo into a series of 16 images of Prince, now known as the Prince series. One of those — “Purple Prince” — ran with the Vanity Fair article. Another, “Orange Prince,” ran on the cover of a commemorative magazine that publisher Condé Nast issued after Prince’s death in 2016.

Left: A 2016 Vanity Fair cover featuring Andy Warhol’s image of Prince. Right: Lynn Goldsmith’s 1981 photograph of Prince, which was a basis for Warhol’s image. (Source: court documents)

Goldsmith objected to the 2016 use as a violation of her copyright, though the New York City-based Andy Warhol Foundation filed suit pre-emptively to seek a declaration that the entire Prince series was a fair use under copyright law because, according to the foundation, Warhol’s images transformed Goldsmith’s photo into a new work with a different meaning or message.

Roman Martinez, representing the foundation, tells the court that “the stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from the Prince series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”

Goldsmith is shaking her head as Martinez speaks. Throughout the argument, she will visibly show her disagreement or nod in agreement with various points made by the lawyers and justices. Elsewhere in the courtroom are several representatives of the foundation—President Joel Wachs, Chair Paul Wa, and Chief Financial Officer and Treasurer KC Maurer. I can’t see whether they are shaking their heads or not.

Link to the rest at SCOTUSblog

Why ideas are worthless in copyright terms

From Arts Hub:

Consider this scenario… let’s call it Situation A. An artist applies for a large commission with a high profile arts institution. Their application includes detailed plans of their proposed project. Yet after receiving news their application was unsuccessful, they realise another applicant has been engaged by the same institution to deliver a project with similarities to their proposal.

Then there’s this circumstance – let’s call it Situation B. An emerging artist opens a dialogue with an esteemed curator about their work. Their discussions, which take place over a number of months, include the artist divulging plans for future artistic projects. After conducting these seemingly trustworthy talks over time, the artist sees that one of the curator’s forthcoming exhibitions has used the artist’s independently conceived ideas as the basis for that show.

What kind of action can these artists take to highlight these injustices and secure compensation for their losses?

The unfortunate news is that in legal terms, neither artist in those situations is likely to be compensated for these breaches of trust, nor would they gain rights to be acknowledged as the original creators of the works.

Basic rules of thumb in IP for artists

The IP outcomes in these scenarios come down to the fact that the laws in this area only cover the creator’s work – they do not cover their ideas.

Aditya Vasudevan is a solicitor with Arts Law, and during his time advising artists in areas of IP law, he has seen a host of different cases where the lines between ideas and artworks have been difficult to discern.

However, when it comes to protecting yourself against any kind of IP infringement there are some basic precautions creatives can take to help lessen their risks.

Number 1: Realise that ideas are worthless

Vasudevan says that fundamentally, artists must realise that in copyright terms, their creative ideas are worthless until those ideas form part of a tangible piece of work – whether that be as a drawing, a painting, a script, a musical score or a work of literature (for example).

‘Copyright law doesn’t protect ideas, concepts or facts. It only protects your specific creative expression of those things in a material form,’ he explained.

‘For example, copyright wouldn’t protect the idea of painting a particular beach at sunset, but it would protect your specific painting of that beach.’

Number 2. Documentation can help you  

The Arts Law solicitor also said that if and when artists decide to take legal action related to breaches of IP in their work, showing documentary evidence of its creation and distribution may help your case.

‘When you create an original work like a painting or sculpture, copyright protects that work automatically. You do not need to register it, but proof is important when it comes to legal processes,’ he explained.

Vasudevan suggested that in a legal case, the judge may look at evidence to show that you created the work, when you created it, how far you got in the process, and who it was shared with.

‘So, a detailed draft sketch for a painting you have named and dated could be enough to protect your idea, because you have fixed that idea in a material form,’ he advised.

Vasudevan also explained that if artists can show evidence of who their work had been shared with prior to the IP infringement, this could help strengthen their case.

Especially in the early stages, keeping records of who you have shared your work with is a good idea.

Aditya Vasudevan, Arts Law solicitor.

‘If someone copies a substantial part of your draft sketch in their painting, evidence that you have shared your sketch with them may help you make a copyright infringement claim.’

Link to the rest at Arts Hub, and thanks to C. for the tip.

PG says that although there are some differences in the copyright laws in the UK and the US, the US laws have definitely influenced by Britain’s laws together with various international copyright conventions and treaties to which both the UK and the US are parties.

The United States Constitution provides the basis for the copyright laws that would later be enacted.

The Constitutional Convention convened in May of 1787. The final document was ratified in September 1787 and the delegates left for home. However, the Constitution required ratification by at least nine of the thirteen states before it became binding on all. Ratification took some time.

Delaware was the first state to ratify the Constitution in December, 1787. In June of 1788, New Hampshire was the 9th state to ratify the Constitution, which made it binding on all thirteen states by the terms of the document. In July, New York became the 11th state to ratify.

Beginning in December of 1988 and ending on January 10, 1789, the first Presidential Election was held. In February, 1789, the electors selected George Washington to be the first President of the United States.

In April, 1790, the Senate and House of Representatives convened for the first time.

Rhode Island was the 13th and final state to ratify the Constitution in May, 1790.

Article I of the Constitution establishes the Legislative Branch of the US government.
Section 8 of Article I (Enumerated Powers), Clause 8 (Intellectual Property) states:

Congress shall have the Power . . .

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

On May 31, 1790, the first copyright law was enacted by Congress under the Constitution. The new law was relatively limited in scope, protecting books, maps, and charts for only 14 years. These works were registered in the United States District Courts.

Suffice to say, the copyright law has been amended a number of times since it was first enacted. For example, generally, copyright protects a creative work for the life of the creator/author plus 70 years.

This lengthy period of protection is regarded by a sizeable group of copyright aficionados, including PG, as too long a period of time. Yes, it is a “limited time,” but so is one million years.

Shopify settles textbook publishers’ lawsuit over alleged piracy

From Reuters:

Shopify Inc has settled allegations by a group of major educational publishers that the Canadian e-commerce company enables piracy on its platform, according to a Tuesday filing in Virginia federal court.

The joint filing said Shopify had resolved the dispute with Macmillan Learning, Cengage Learning, Elsevier, McGraw Hill, and Pearson Education and asked the court to dismiss the case with prejudice, which means it cannot be refiled.

. . . .

The publishers sued Shopify last year, accusing it of ignoring repeat notices that its users sell pirated digital versions of their textbooks and other materials. The lawsuit said Shopify’s “blind eye” to piracy allows for copyright and trademark infringement on a “massive scale.”

The publishers asked the court for statutory damages of up to $150,000 per infringed copyright and $2 million for each counterfeited trademark, and listed more than 3,400 copyrights that were allegedly violated.

. . . .

Shopify responded in January that it addresses infringement notices “promptly and appropriately” and accused the publishers of trying to expand the “universe of actors subject to copyright damages.”

The company said the publishers sued because they failed to convince Congress to change the Digital Millennium Copyright Act, which protects internet hosts like Shopify from court claims if they take reasonable measures to address user infringement.

Link to the rest at Reuters

Why Getty Banned AI Images (For Now)

From Plagiarism Today:

Yesterday, Getty Images and iStock have announced that they are following in the footsteps of other art sites, including NewGrounds and Inkblot, in banning artwork generated by artificial intelligence (AI) from their service.

According to Getty’s announcement, “There are open questions with respect to the copyright of outputs from these models….” They further add that the move is to protect their customers from potential legal issues down the road.

Getty noted that this ban does not prevent the submission of 3D renders nor does it prevent the use of any digital editing tool, such as Photoshop or Illustrator.

It’s easy to look at this as another example of a battle line being draw with regards to AI-generated art. However, it’s a bit more complicated than that.

As divisive as AI-generated art is, the Getty ban is very different from the ones we discussed earlier this month. The reason is that Getty works different from sites like NewGrounds and their lack of comfort with AI stems almost entirely from legal concerns, not quantity or quality concerns.

To that end, it’s worth looking at why Getty, most likely, chose to ban AI images and how that could impact AI art moving forward.

Why Getty is Different

Sites like Newgrounds and Inkblot accept user-submitted content and host it on their servers. Because of this, they enjoy a great deal of protection under the Digital Millennium Copyright act (DMCA) should some of that content turn out to be infringing.

In short, under the DMCA, as long as they retain a DMCA agent and remove allegedly infringing content when properly notified, they will be protected under the law. 

However, Getty is in a different position. First off, they have editorial control over the images and then license those images to customers. This greatly increases their legal exposure as they could face repercussions both from directly from artists and their customers.

After all, part of Getty’s service they provide is that they promise customers that they hold the rights to the images they are licensing and, because of that, customers won’t face legal consequences for using Getty-licensed works.

But, with AI, that becomes a problem. All AI systems are trained on earlier works, and how much of those earlier works make into the images that it outputs depends entirely on the AI and the prompt it was given.

The fear is that the AI could “generate” art that is so similar to some of the work it was trained on that it could represent a copyright infringement. However, there’s simply no way for the human creator of the AI work, let alone Getty, to know if that’s a possibility with a given image.

As such, Getty has decided to avoid the issue altogether for now, banning AI art from its service.

Not Just Copyright

Though copyright gets the lion’s share of attention when it comes to legal issues AI art faces, there are other potential problems too.

For example, AI can be used to create images of real people in very unreal situations. We saw this recently with an AI app that swapped the face of actors in porn films with other people, creating the illusion that a different person was in the footage.

Though the AI that performed that was shuttered, there’s no reason other tools couldn’t do the exact same thing.

However, it isn’t just pornography. AI can generate images of individuals in a variety of compromising situations that never happened such as getting arrested, supporting/speaking hate speech and so forth.

All this raises issues of defamation. This is especially difficult for Getty, as many of their customers are news agencies, seeking photographs to accompany their reporting.

Getty is in the business of licensing images that are free of legal issues. In short, they’re selling legal certainty. AI images are the antithesis of that, generating not just countless images, but an equal number of legal unknowns that Getty is not prepared to take a chance on at this time.

Link to the rest at Plagiarism Today

The OP continues, noting that at least one other image-posting/licensing site has prohibited AI generated images.

PG suggests that litigation concerning copyright and ai images is almost certain to happen at some point in the not-too-distant future. If he had to guess about an early plaintiff, he would name Walt Disney, which has made and continues to make a huge amount of money from its cartoon characters.

If anyone sees/hears about an ai copyright case, PG would appreciate an alert through the Contact PG link at the top of the blog.

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

From The Illusion of More:

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

. . . .

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?
The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Link to the rest at The Illusion of More and thanks to C. for the tip.