Copyright Board Upholds Latest Refusal to Register AI Generated Art; The Fashion Law (TFL), December 12, 2023

TFL ; Copyright Board Upholds Latest Refusal to Register AI Generated Art

"The Office primarily refused to register the work on the basis that it “lacks the human authorship necessary to support a copyright claim.” Specifically, the Office stated that despite Sahni’s claim that the work includes some human creative input, the work is not registrable, as “this human authorship cannot be distinguished or separated from the final work produced by the computer program.” 

Following an initial request for reconsideration, in which Sahni argued that “the human authorship requirement does not and cannot mean a work must be created entirely by a human author,” the Copyright Office again concluded that the work could not be registered, as it “is a derivative work that does not contain enough original human authorship to support a registration.” The Office found that “the new aspects of the [SURYAST] work were generated by ‘the RAGHAV app, and not Mr. Sahni – or any other human author,'” making it so that the “derivative authorship was not the result of human creativity or authorship” and therefore, not registrable."

International Copyright Issues and Artificial Intelligence; U.S. Copyright Office, Wednesday, July 26, 2023 11 AM - 1 PM EDT

U.S. Copyright Office; International Copyright Issues and Artificial Intelligence

The United States is not alone in facing challenging questions about generative artificial intelligence and its implications for copyright law and policy. On July 26, 2023, join the Copyright Office for a discussion on global perspectives on copyright and AI. Leading international experts will discuss how other countries are approaching copyright questions including authorship, training, and exceptions and limitations. They will provide an overview of legislative developments in other regions and highlight possible areas of convergence and divergence.

This webinar is a part of the Copyright Office’s initiative to examine copyright law and policy issues raised by AI technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. For more on copyright and AI, visit copyright.gov/ai.

Time: July 26, 2023, 11:00 a.m.- 1:00 p.m.

Speakers:

• Jane Ginsburg, Columbia Law School
• Andres Guadamuz, University of Sussex
• Bernt Hugenholtz, University of Amsterdam
• Matthew Sag, Emory University School of Law
• Luca Schirru, KU Leuven
• Marcus von Welser, Vossius
• Raquel Xalabarder Plantada, Universitat Oberta de Catalunya
• Shlomit Yanisky-Ravid, Ono Academic College
• Peter Yu, Texas A&M University School of Law"

The Library of Congress marks a year of helping solve copyright disputes; Federal News Network, July 14, 2023

 Tom Temin, Federal News Network; The Library of Congress marks a year of helping solve copyright disputes

"The Copyright Office’s equivalent of small claims court has helped hundreds of people solve disputes in its first year. The three-member Copyright Claims Board will help in cases worth up to $30,000. For a progress report,  Federal Drive with Tom Temin spoke with Claims Board member Brad Newberg."

Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say.; The Scholarly Kitchen, July 5, 2023

RICK ANDERSON, The Scholarly Kitchen; Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say.

"Let’s be clear about what the problem is here. It’s not that patrons who use library-provided copies of copyrighted works in a manner beyond the scope of “private study, scholarship, or research” are in legal danger if their use falls within the full range of the fair use provisions in section 107. Again, the language of section 108 makes it very clear that owners of such copies are entirely within their rights to make full (fair) use of them, regardless of what the copyright warning notice prescribed by the Copyright Office says. The problem is that the Copyright Office, under color of authority ostensibly assigned to it by statute, requires libraries to misinform patrons about their rights. Although library patrons are in reality free to make full fair use of copies we provide them (or copies they make on our premises), we must tell them – every time they make or request a copy from us – that they have only a small subset of those rights.

How much does this disinformation end up constraining patrons’ exercise of their full rights under the law? It’s impossible to know, of course. But as a profession that sees itself at the vanguard of the fight against both mis- and disinformation, it certainly should rankle us that we’ve been drafted into a disinformation campaign that affects so many information seekers so directly.

It should rankle us even more that the U.S. Copyright Office, the very entity that has created this issue and is uniquely empowered to fix it, seems to have no interest in doing so. I hope my library colleagues (and everyone else who cares about libraries and archives, and about fair use) will join me in calling on the Copyright Office to change the language of its prescribed copyright warning notice, bringing it into full conformity with what the law actually says. (I’ve created an online petition for this purpose, and encourage all interested to sign it.)"

International Copyright Issues and Artificial Intelligence; U.S. Copyright Office, Webinar: Wednesday, July 26, 2023, 11:00 a.m.–1:00 p.m. eastern time

 U.S. Copyright Office; International Copyright Issues and Artificial Intelligence Webinar

"The United States is not alone in facing challenging questions about artificial intelligence and its implications for copyright law and policy. On July 26, 2023, join the Copyright Office for a discussion on global perspectives on copyright and AI. Leading international experts will discuss how other countries are approaching copyright questions such as authorship, training, exceptions and limitations, and infringement. They will provide an overview of legislative developments in other regions and highlight possible areas of convergence and divergence involving generative AI.

This webinar is a part of the Copyright Office’s initiative to examine copyright law and policy issues raised by AI technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. For more on copyright and AI, visit copyright.gov/ai.

Time: July 26, 2023, 11:00 a.m.–1:00 p.m. eastern time

Speakers:

• Jane Ginsburg, Columbia Law School
• Andres Guadamuz, University of Sussex
• Bernt Hugenholtz, University of Amsterdam
• Matthew Sag, Emory University School of Law
• Luca Schirru, KU Leuven
• Marcus von Welser, Vossius
• Raquel Xalabarder Plantada, Universitat Oberta de Catalunya
• Shlomit Yanisky-Ravid, Ono Academic College
• Peter Yu, Texas A&M University School of Law"

Using AI to Create a Work – Copyright Protection and Infringement; JD Supra, June 27, 2023

Amy Goldsmith, Janet Linn, Tarter Krinsky & Drogin LLP, JD Supra; Using AI to Create a Work – Copyright Protection and Infringement

"Requirements For Past and Current Copyright Applications

Applicants are now required to disclose in their applications any AI-generated content and provide a brief explanation of the human author’s contribution. Any AI-generated content that is more than a tiny portion of the work must be explicitly excluded.

Pending applications must be corrected to conform to the new regulations. Applicants will need to contact the Copyright Office’s Public Information Office should a pending application not adequately disclose any AI-generated content.

For works already registered containing AI-generated material, a supplementary registration will be required describing the original material created by the human author and disclaiming the AI-generated material. Works with sufficient human authorship will be issued a supplementary registration certificate with a disclaimer of the AI-generated content."

The Copyright Claims Board Celebrates Its First Year; Library of Congress Blogs, Copyright Creativity At Work, June 26, 2023

Holland Gormley,  Library of Congress Blogs, Copyright Creativity At Work; The Copyright Claims Board Celebrates Its First Year

"This month marks a full year since the Copyright Claims Board (CCB) became available to the public, providing an efficient, streamlined way to resolve copyright claims involving damages of up to $30,000. Over the past twelve months, the CCB has delivered on the Copyright Office’s Copyright for All goal to expand access to justice and to make the copyright system as understandable and accessible to as many members of the public as possible. Let’s break down some of our milestones and review how we have created a truly accessible copyright tribunal."

Webinar: Registration Guidance for Works Containing AI-generated Content; U.S. Copyright Office, Wednesday, June 28, 2023 2 PM EDT

 U.S. Copyright Office; Webinar: Registration Guidance for Works Containing AI-generated Content

"Breakthroughs in generative AI technology have prompted growing curiosity about the registrability of works containing AI-generated material. On June 28, 2023, join the Copyright Office to learn about how the Office evaluates applications to register these types of works. Experts will walk attendees through the Office’s March 2023 Registration Guidance: Works Containing Material Generated by Artificial Intelligence and answer some frequently asked questions. At the end of the presentation, attendees will have an opportunity to submit questions to the Office’s experts.

Time: June 28, 2023, 2pm ET

Speakers:

• Rob Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice
• Erik Bertin, Deputy Director of Registration Policy and Practice"

Can you copyright the content you make with generative AI?; Descript via Fast Company, June 14, 2023

BRANDON COPPLE—DESCRIPT via Fast Company; Can you copyright the content you make with generative AI?

"So if you’re using generative AI tools to create any part of your content— the cover art for your podcast, the background for your video, anything— the best thing you can do is to be sure you’re employing as much human creativity in the process as possible. This might mean writing prompts with as much detail as possible—well beyond just suggesting ideas. You’ll want to be able to show you had a specific expression of your ideas in mind, and you just used the AI as a tool to generate it...

Of course, the line between what is merely an idea and what’s a specific expression of that idea is subjective, so it may be difficult to know whether what you have added rises to the level of something protectable. We can probably expect things to remain fairly murky, at least for a while. 

For now, Lisa warns that it is important to be aware that even highly detailed involvement in the process may not be sufficient to make the output protectible, as the Copyright Office has seemingly set a very high bar. So there may not be much you can to do prevent others from copying AI-generated output. That’s a key consideration when you’re deciding where and how to use generative AI in your creative process.

A final note: as Lisa points out, the Copyright Office did indicate that if someone sufficiently modifies generated output, that could be protectable. So, if you’re using generative AI as a starting point—e.g., using ChatGPT to create a rough draft and then rewriting it for your own voice—be sure you document the changes you made before you try to file for copyright protection, and then explain it in the application."

A terrible decision on AI-made images hurts creators; The Washington Post, April 27, 2023

Edward Lee, The Washington Post; A terrible decision on AI-made images hurts creators

"The Copyright Office’s position is wrong. It misunderstands authorship and ignores the copyright clause’s goal of promoting “progress” by offering authors incentives to create new works, including with new technologies.

Its decision also misunderstands the creative process."

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence; Federal Register, March 16, 2023

Federal Register; Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence

"SUMMARY:

The Copyright Office issues this statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence technology."

Copyright Report Says AI-Assisted Works Can Be Protected – But Only If A Human Was Still In Charge; Billboard, March 15, 2023

BILL DONAHUE, Billboard; Copyright Report Says AI-Assisted Works Can Be Protected – But Only If A Human Was Still In Charge

"A new policy report from the U.S. Copyright Office says that songs and other artistic works created with the assistance of artificial intelligence can sometimes be eligible for copyright registration, but only if the ultimate author remains a human being.

The report, released by the federal agency on Wednesday (March 15), comes amid growing interest in the future role that could be played in the creation of music by so-called generative AI tools — similar to the much-discussed ChatGPT...

Under the rules laid out in the report, the Copyright Office said that anyone submitting such works must disclose which elements were created by AI and which were created by a human. The agency said that any AI-inclusive work that was previously registered without such a disclosure must be updated — and that failure to do so could result in the cancellation of the copyright registration.

Though aimed at providing guidance, Wednesday’s report avoided hard-and-fast rules. It stressed that analyzing copyright protection for AI-assisted works would be “necessarily a case-by-case inquiry,” and that the final outcome would always depend on individual circumstances, including “how the AI tool operates” and “how it was used to create the final work.”

And the report didn’t even touch on a potentially thornier legal question: whether the creators of AI platforms infringe the copyrights of the vast number of earlier works that are used to “train” the platforms to spit out new works."

Artificial Intelligence Meets Its Worst Enemy: the U.S. Copyright Office; The New Republic, March 3, 2023

Matt Ford,  The New Republic; Artificial Intelligence Meets Its Worst Enemy: the U.S. Copyright Office

"What Silicon Valley calls “artificial intelligence” at the moment is something more like the computer aboard the USS Enterprise, which can respond to voice prompts and answer a wide range of queries instantaneously. Where is the nearest solar system? How many Klingon warships are pursuing us? How many life-forms are on the planet below? These answers can come much more quickly than any human could give, but they also do not reflect creativity or imagination in any meaningful sense...

Randomized and uncontrolled generation renders the result ineligible for copyright, the office said. While it noted that Kashtanova said she went to great lengths to enter prompts specific enough to produce her desired result, that input was not the same as actual creative work. The office compared her to a patron who commissioned a piece of artwork from a client based on specific instructions. If she had given the same instructions to a human artist that she gave to Midjourney, the office noted, Kashtanova herself would not be able to claim the copyright of the piece that the artist ultimately produced.

That explanation is a laudably insightful understanding of labor and creation by the Copyright Office. It may be even more apt than the government realized. A “generative A.I.,” after all, is only as good as the material it is “trained” on—the corpus of raw text or images that the algorithm then uses to produce simulacra of new text and images."

AI-created images lose U.S. copyrights in test for new technology; Reuters, February 22, 2023

Blake Brittain, Reuters; AI-created images lose U.S. copyrights in test for new technology

"Images in a graphic novel that were created using the artificial-intelligence system Midjourney should not have been granted copyright protection, the U.S. Copyright Office said in a letter seen by Reuters.

"Zarya of the Dawn" author Kris Kashtanova is entitled to a copyright for the parts of the book Kashtanova wrote and arranged, but not for the images produced by Midjourney, the office said in its letter, dated Tuesday."

Who Owns Bob Woodward's Trump Interview Recordings?; Law360, February 1, 2023

 Hannah Albaraz, Law360 ; Who Owns Bob Woodward's Trump Interview Recordings?

""Best practice," Reid said, "is to get a release or transfer [of] rights at the outset. The complaint suggests this didn't happen."

Reid, who co-chairs UNC Chapel Hill's Center for Media Law and Policy, said the complaint doesn't paint a full picture of what exactly the parties agreed to before the interviews. She said she is interested to see how Woodward and his publishers respond to Trump's claim seeking declaratory relief regarding ownership of copyrights.

Trump's complaint cites no legal precedent, but it does reference the Compendium of U.S. Copyright Office Practices, which states that if an interviewer or an interviewee seeks to register a copyright for an interview, the individual must have the other person transfer over his or her ownership rights.

The complaint doesn't suggest that either Woodward or Trump did so.

It may be that the U.S. Copyright Office would consider both Trump and Woodward the owners of their respective parts of the interview, and if so, a court may find that Woodward owes Trump some portion of the proceeds from the audiobook.

However, there is at least one case dealing with the ownership of interviews in which a court has held that the interviewer is the copyright owner of an interview."

Into the Sparkly Heart of Zazzle’s Font War; Slate, January 24, 2023

HEATHER TAL MURPHY, Slate; Into the Sparkly Heart of Zazzle’s Font War

"In filings pushing to dismiss the suit, Zazzle blasted back that a font cannot be protected by copyright in the United States. Multiple lawyers verified this. Indeed, from a copyright standpoint, it’s irrelevant how beloved a font is, says Tyler Ochoa, a professor specializing in copyright law at Santa Clara University’s School of Law...

But here is where the case relates to the emerging debate around artificial intelligence. Laatz also argues that the company stole the Blooming Elegant Trio font software. Whenever we select a font, whether in Google Docs or Instagram stories, the application is relying on software to indicate not only what each letter looks like, but how those letters should relate to one another. Many designers draw each letter in a font-making tool and then allow that tool to generate the software for them, said Stacy Terry, a font designer in New Orleans. Still, as easy as that may sound, it took Terry six months of fine-tuning to create her first font.

“The output of an A.I. is not copyrightable,” said Mr. Ochoa, unless human creativity is combined with AI. Similarly here, you can protect font software by copyright, he said, but only if more than a minimal amount of human creativity, such as coding, played a role in producing it. So how do you define human creativity?

The answer, in this case, highlights the stark difference between the way the law and fellow creatives dole out credit to the imagination. Proving that Laatz played a key role will likely come down to proving that she wrote code by hand, said Christopher Sprigman, a professor at NYU Law and author of the book The Knockoff Economy: How Imitation Sparks Innovation. He points to an exchange that Zazzle lawyers included between Laatz and the United States Copyright Office in their motion to dismiss the case. The examiner asked her to clarify whether the program was “hand-coded by a human author,” because it could not be registered if it was generated by a font program. Laatz says she hand-coded the designs and instructions in the font data, but Zazzle’s lawyer cast doubt on this."

A Scientist Has Filed Suit Against the U.S. Copyright Office, Arguing His A.I.-Generated Art Should Be Granted Protections; Artnet News, January 12, 2023

Min Chen, Artnet News; A Scientist Has Filed Suit Against the U.S. Copyright Office, Arguing His A.I.-Generated Art Should Be Granted Protections

"A computer scientist has filed suit against the U.S. Copyright Office, asking a Washington D.C. federal court to overturn the office’s refusal to grant copyright protection to an artwork created by an A.I. system he built.

The work at the center of the suit is titled A Recent Entrance to Paradise, which was generated in 2012 by DABUS, an A.I. system developed by Stephen Thaler, the founder of Imagination Engines Incorporated, an advanced artificial neural network technology company.

In November 2018, Thaler applied to register the piece with the copyright office, listing DABUS as the author of the work and stating that it was “created autonomously by machine.” The office refused the application, responding, “We cannot register this work because it lacks the human authorship necessary to support a copyright claim.”"

What You Need to Know about Small Claims and the Copyright Claims Board; U.S. Copyright Office, January 12, 2023 2 PM EST

U.S. Copyright Office; What You Need to Know about Small Claims and the Copyright Claims Board

"You may have heard about the Copyright Claims Board, or CCB for short. But what is the CCB? Who can use it? In this fifty-minute session, learn the basics about what anyone should know before filing or participating in a CCB proceeding. Attendees will learn about the types of claims the CCB can hear, legal resources to be aware of, and why respondents might want to consider participating in the United States’ first intellectual property small claims tribunal.

Date: January 12, 2:00 p.m. eastern time

Speakers

• Maya Burchette, Attorney-Advisor, Copyright Claims Board 
• Dan Booth, Attorney-Advisor, Copyright Claims Board
• 
  

* * *

About the CCB: The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 established the Copyright Claims Board (CCB), a tribunal located in the Copyright Office and available as a voluntary alternative to federal court. The CCB is an efficient, streamlined way to resolve copyright disputes involving claims seeking damages of up to $30,000 and is designed to be less expensive than bringing a case in a federal court."

Register Here

USPTO and Copyright Office Announce Joint Study and Request for Comment on the Impact of NFTs on Intellectual Property Rights; Ropes & Gray, December 23, 2023

Ropes & Gray; USPTO and Copyright Office Announce Joint Study and Request for Comment on the Impact of NFTs on Intellectual Property Rights

"An NFT is a unit of data stored on a blockchain that offers a unique certificate of ownership of a digital asset. They frequently represent real-world assets like art, music, and videos protected by intellectual property rights.

The interplay between NFTs and intellectual property rights has been the subject of a flurry of lawsuits over the last few years. Nike is embroiled in litigation with StockX in the Southern District of New York (S.D.N.Y) based on allegations that StockX created NFTs displaying Nike’s trademarks without authorization. Another S.D.N.Y. court recently denied an artist’s motion to dismiss trademark infringement, dilution, and cybersquatting claims brought by fashion brand Hermès over the creation of NFTs that depict the company’s Birkin bags and are branded as “MetaBirkins.” In November 2021, production company Miramax brought copyright and trademark infringement allegations against director Quentin Tarantino in the Central District of California over Tarantino’s alleged plans to auction off “exclusive scenes” from the 1994 movie Pulp Fiction in the form of NFTs. In another California lawsuit, rapper Lil Yachty claims that two music companies used his name and likeness without his permission to raise $6.5 million in venture capital funds for a line of NFTs. Yuga Labs, the creators of the popular Bored Ape Yacht Club (BAYC) NFTs, brought trademark infringement allegations in the Central District of California against another NFT creator for creating and selling a line of NFTs using BAYC imagery.

In June, the top two members of the Senate’s intellectual property subcommittee, Sens. Patrick Leahy, D-Vt., and Thom Tillis, R-N.C., called for the USPTO and Copyright Office to study NFTs and their impact on intellectual property rights in light of their growing popularity. “NFTs can be found in nearly all spheres — from academia to entertainment to medicine, art and beyond,” the letter states. “Thus, it is imperative that we understand how NFTs fit into the world of intellectual property rights — as said rights stand today and as they may evolve as we move into the future.”"

United States: Art And Artificial Intelligence Collide With Copyright Law; Mondaq, December 29, 2022

Marc D. Ostrow and  Carlianna Dengel, Romano Law , Mondaq; United States: Art And Artificial Intelligence Collide With Copyright Law

"US Copyright law protects "original works of authorship." And at least since the famous "Monkey Selfie" case, the Copyright Office's Compendium of Office Practices III states at section 313.2, "[t]o qualify as a work of 'authorship' the work must be created by a human being." The first example cited in this section as a work that will not be granted a copyright registration is a "photograph taken by a monkey."

This principle has been applied to AI-generated works in both the patent and copyright arenas. Stephen Thaler, the creator of the AI platform, DABUS, an acronym for Device for the Autonomous Bootstrapping of Unified Sentience, had previously applied for patent protection for a DABUS-created invention. The USPTO denied Thaler's application and he appealed that denial as far as the US Court of Appeals for the Federal Circuit. In October, that court rejected on the grounds that an inventor must be an individual.

Dr. Thaler had also applied for a copyright registration for artwork created by his computer program, "Creativity Machine." His 2018 application was rejected, and Thaler appealed that refusal to the Copyright Review Board (CRB). In a lengthy letter to Dr. Thaler's counsel dated February 14, 2022 and signed by the Register of Copyrights, the CRB, citing the Compendium III and prior Supreme Court precedent, affirmed the refusal to register the work on the basis that the "author" of the work is not human.

Given the proliferation of open-source AI platforms to generate all manner of creative works, including visual art, poetry and songs and the exponentially increasing number of AI-created works, copyright law may need to be more flexible as to what AI-generated (or partially generated) works may be registered and by whom. Other thorny issues that will need to be addressed either by legislation, regulation or litigation are the use of copyright or trademark protected works to train AI applications or the incorporation of such works into AI-generated creations."