‘Please regulate AI:' Artists push for U.S. copyright reforms but tech industry says not so fast; AP, November 18, 2023

 MATT O’BRIEN, AP; ‘Please regulate AI:' Artists push for U.S. copyright reforms but tech industry says not so fast

"Most tech companies cite as precedent Google’s success in beating back legal challenges to its online book library. The U.S. Supreme Court in 2016 let stand lower court rulings that rejected authors’ claim that Google’s digitizing of millions of books and showing snippets of them to the public amounted to copyright infringement.

But that’s a flawed comparison, argued former law professor and bestselling romance author Heidi Bond, who writes under the pen name Courtney Milan. Bond said she agrees that “fair use encompasses the right to learn from books,” but Google Books obtained legitimate copies held by libraries and institutions, whereas many AI developers are scraping works of writing through “outright piracy.”

Perlmutter said this is what the Copyright Office is trying to help sort out.

“Certainly this differs in some respects from the Google situation,” Perlmutter said. “Whether it differs enough to rule out the fair use defense is the question in hand.”"

Figuring Out Fair Use; American Libraries, November 1, 2023

 Carrie Russell , American Libraries; Figuring Out Fair Use: Debunking copyright myths and misconceptions

"To manage copyright effectively in your school, begin by understanding the purpose of the law. Learn basic concepts—exclusive rights, public domain, requirements for protection—and apply all available exceptions to the advantage of your school community. Make informed decisions but accept ambiguity and clear your mind of misinformation. Below I have outlined the top five copyright misconceptions to get you started."

An AI engine scans a book. Is that copyright infringement or fair use?; Columbia Journalism Review, October 26, 2023

 MATHEW INGRAM, Columbia Journalism Review; An AI engine scans a book. Is that copyright infringement or fair use?

"Determining whether LLMs training themselves on copyrighted text qualifies as fair use can be difficult even for experts—not just because AI is complicated, but because the concept of fair use is, too."

Why I let an AI chatbot train on my book; Vox, October 25, 2023

Bryan Walsh, Vox; Why I let an AI chatbot train on my book

"What’s “fair use” for AI?

I think that training a chatbot for nonprofit, educational purposes, with the express permission of the authors of the works on which it’s trained, seems okay. But do novelists like George R.R. Martin or John Grisham have a case against for-profit companies that take their work without that express permission?

The law, unfortunately, is far from clear on this question." 

This AI chatbot was ‘trained’ using my books, but don’t blame me for its incredible stupidity; Los Angeles Times, October 5, 2023

MICHAEL HILTZIK, Los Angeles Times; This AI chatbot was ‘trained’ using my books, but don’t blame me for its incredible stupidity

"Alex Reisner of the Atlantic compiled a handy search tool for the database, which is known as Books3, giving authors the world over an opportunity to hunt for their names and decide how to think about the results."

Scraping or Stealing? A Legal Reckoning Over AI Looms; Hollywood Reporter, August 22, 2023

Winston Cho, The Hollywood Reporter ; Scraping or Stealing? A Legal Reckoning Over AI Looms

"Engineers build AI art generators by feeding AI systems, known as large language models, voluminous databases of images downloaded from the internet without licenses. The artists’ suit revolves around the argument that the practice of feeding these systems copyrighted works constitutes intellectual property theft. A finding of infringement in the case may upend how most AI systems are built in the absence of regulation placing guardrails around the industry. If the AI firms are found to have infringed on any copyrights, they may be forced to destroy datasets that have been trained on copyrighted works. They also face stiff penalties of up to $150,000 for each infringement.

AI companies maintain that their conduct is protected by fair use, which allows for the utilization of copyrighted works without permission as long as that use is transformative. The doctrine permits unlicensed use of copyrighted works under limited circumstances. The factors that determine whether a work qualifies include the purpose of the use, the degree of similarity, and the impact of the derivative work on the market for the original. Central to the artists’ case is winning the argument that the AI systems don’t create works of “transformative use,” defined as when the purpose of the copyrighted work is altered to create something with a new meaning or message."

Prosecraft has infuriated authors by using their books without consent – but what does copyright law say?; The Conversation, August 9, 2023

Dilan Thampapillai Associate Professor, University of New South Wales, UNSW Sydney , The Conversation; Prosecraft has infuriated authors by using their books without consent – but what does copyright law say?

"In amending its laws, Australia legislated that parody or satire could form the basis of a fair dealing exception. A specific transformative use exception was not created. 

So, it is significantly less clear as to whether the use contemplated by Prosecraft or Shaxpir would be considered fair dealing in Australia. 

Australia has either missed a trick or dodged a bullet by failing to include transformative use as a fair dealing exception. It depends where you stand in the ongoing conflict between AI tech and human authors. But Australia’s laws are less AI-friendly than the US.

For the moment, published human authors are banking on the idea that if they can knock out the shadow library, they can hobble the reach of AI tech."

Academic Book About Emojis Can’t Include The Emojis It Talks About Because Of Copyright; Techdirt, August 4, 2023

Mike Masnick, Techdirt ; Academic Book About Emojis Can’t Include The Emojis It Talks About Because Of Copyright

"Sounds interesting enough, but as Goldman highlights with an image from the book, Kiaer was apparently unable to actually show examples of many of the emoji she was discussing due to copyright fears. While companies like Twitter and Google have offered up their own emoji sets under open licenses, not all of them have, and some of the specifics about the variations in how different companies represent different emoji apparently were key to the book...

Now, my first reaction to this is that using the emoji and stickers and whatnot in the book seems like a very clear fair use situation. But… that requires a publisher willing to take up the fight (and an insurance company behind the publisher willing to finance that fight). And, that often doesn’t happen. Publishers are notoriously averse to supporting fair use, because they don’t want to get sued.

But, really, this just ends up highlighting (once again) the absolute ridiculousness of copyright in the modern world. No one in their right mind would think that a book about emoji is somehow harming the market for whatever emoji or stickers the professor wished to include. Yet, due to the nature of copyright, here we are. With an academic book about emoji that can’t even include the emoji being spoken about."

Webb Wright , The Drum; What you need to know about the copyright issues surrounding generative AI; The Drum, August 1, 2023

Webb Wright , The Drum; What you need to know about the copyright issues surrounding generative AI

"“The basic question of whether or not an AI using copyrighted work constitutes copyright infringement is for now an open issue,” says patent attorney Robert McFarlane. Ultimately, McFarlane believes that some uses of generative AI will be deemed to constitute copyright infringement, while others won’t. “These cases that are just starting now are going to try to draw that line,” he says."

Why Carol Burnett Sued Family Guy (& What Happened Next); ScreenRant, July 25, 2023

MATTHEW MOORE, ScreenRant; Why Carol Burnett Sued Family Guy (& What Happened Next)

"Carol Burnett sued Family Guy for portraying her iconic sketch series without permission, wanting to protect her comedy legacy. 

The lawsuit stemmed from an episode where Peter jokes about Burnett working as a janitor, using her famous character the Charwoman. 

The lawsuit was dismissed, with the judge ruling that Family Guy had the right to create parodies, maintaining the reputation of both parties."

AI learned from their work. Now they want compensation.; The Washington Post, July 16, 2023

 Gerrit De Vynck, The Washington Post; AI learned from their work. Now they want compensation.

"Artists say the livelihoods of millions of creative workers are at stake, especially because AI tools are already being used to replace some human-made work. Mass scraping of art, writing and movies from the web for AI training is a practice creators say they never considered or consented to.

But in public appearances and in responses to lawsuits, the AI companies have argued that the use of copyrighted works to train AI falls under fair use — a concept in copyright law that creates an exception if the material is changed in a “transformative” way."

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.)"

Are Samples Copyright Free?; Hot New Hip Hop, June 30, 2023

Jake Skudder, Hot New Hip Hop; Are Samples Copyright Free?

"Conclusion: Navigating The Complex World Of Sampling

In summary, samples are not inherently copyright free. To use a sample legally, one must either clear the sample by obtaining permission from the copyright holder or qualify for fair use. Alternatively, one can opt for royalty-free samples to avoid traditional potential costs. As with all legal matters, it’s always advisable to consult a legal professional to ensure compliance with copyright law when using samples in music production. This will ensure that creativity can continue growing without potential legal traps."

Jeff Koons, sculptor each claim advantage after Warhol copyright decision; Reuters, June 30, 2023

 Blake Brittain, Reuters; Jeff Koons, sculptor each claim advantage after Warhol copyright decision

"Famed pop artist Jeff Koons and artist Michael Hayden both told a Manhattan federal court on Friday that a recent U.S. Supreme Court decision involving Andy Warhol supports their position in a copyright fight over a stone platform that Koons allegedly misused in his work."

Fair use protection against copyright infringement claims just got smaller; Richmond Times-Dispatch, June 24, 2023

John Farmer , Richmond Times-Dispatch; Fair use protection against copyright infringement claims just got smaller

"Now, the borrowing artist must focus on whether the original work and the borrower’s rendition might be used for the same purpose. If the purposes are the same, such as artwork for a company’s blog post, and if the company is for-profit, there is a high risk that the borrowing isn’t fair use."

Mattel once sued over the ‘Barbie Girl’ song — before learning to love it; The Washington Post, June 23, 2023

 Jennifer Hassan, The Washington Post; Mattel once sued over the ‘Barbie Girl’ song — before learning to love it

"“Mattel lost all those cases and got the message,” Tushnet said. “These were important precedents protecting commentary at a time when the internet was just allowing people to reach larger audiences without traditional gatekeepers. Then the ‘Barbie Girl’ case confirmed that traditional, commercial media also had the freedom to parody and comment on well-known trademarks.”"

Reexamining "Fair Use" in the Age of AI; Stanford University Human-Centered Artificial Intelligence (HAI), June 5, 2023

Andrew Myers

,  Stanford University Human-Centered Artificial Intelligence (HAI; Reexamining "Fair Use" in the Age of AI

"Most lay people haven’t given a second thought to the fact that most of the words and images in datasets behind artificial intelligent agents like Chat-GPT and DALL-E are copyrighted, but Peter Henderson thinks about it — a lot. 

“There’s a lot to think about,” says Peter Henderson, a JD/PhD candidate at Stanford University and co-author of the recent paper, Foundation Models and Fair Use, laying out a complicated landscape...

Establishing New Guardrails

Henderson does have some recommendations for coming to grips with this growing concern. The first guardrail is technical. The makers of AI can install fair use filters that try to determine when the generated work — a chapter in the style of J.K. Rowling, for instance, or a song reminiscent of Taylor Swift — is a little too much like the original and begins to infringe on fair use."

What AI can teach us about copyright and fair use; Freethink, May 8, 2023

Brandon Butler , Freethink; What AI can teach us about copyright and fair use

"So what have we learned? Copyright may protect authors in the first instance, but ultimately its role is to further the public good. Copyright regulates competition, but only in specific ways. Fair use is an essential bulwark against copyright literalism in the digital age. And finally, fair use can help technology to unlock free aspects of protected works. I can’t say, yet, whether I welcome our new robot overlords. I’m not even sure if they will be our overlords. But I have certainly appreciated the way that thinking about them has helped to sharpen my own thinking about copyright."

Trademark Infringement Is No Joking Matter: Supreme Court Reevaluates Parody Fair Use Exception and First Amendment’s Place in Trademark Infringement; Lexology, June 12, 2023

Atkinson Andelson Loya Ruud & Romo, Lexology ; Trademark Infringement Is No Joking Matter: Supreme Court Reevaluates Parody Fair Use Exception and First Amendment’s Place in Trademark Infringement

"In a unanimous 9-0 decision, the U.S. Supreme Court ruled that when a junior trademark user uses a parody of a famous trademark as an indicia of source for its own goods, the junior user cannot rely on the First Amendment to shield it from liability for trademark infringement for artistic or so-called “expressive works,” nor the parody exception to trademark dilution claims under the Lanham Act.

The Supreme Court’s June 8, 2023, decision in Jack Daniel’s Properties v. VIP Products vacated an earlier decision by the Ninth Circuit, which had ruled in favor of the junior trademark user that was selling a dog toy—“Bad Spaniels”— that parodied a Jack Daniel’s whiskey bottle. In ruling that the Rogers test, previously used to protect First Amendment interests and “fair use” in the trademark context, is not applicable when an infringer uses such mark as a source identifier—i.e., as a trademark—for its own goods, the Court clarified a significant point of contention in trademark law."

Commentary: Warhol decision’s implications for creators, artists; Minnesota Lawyer, June 16, 2023

 Jack Amaral and Jon Farnsworth, Spencer Fane LLP, Minnesota Lawyer; Commentary: Warhol decision’s implications for creators, artists

"Impact on artists and copyright holders

This decision is a victory for copyright holders. Although copyright infringement and analysis of the Fair Use Doctrine is a case-by-case factual analysis where a judge determines whether fair use is a valid defense based on the four factors above, this decision sends a clear message that commercial uses of copyrighted works might be less likely to be considered fair use. This decision could have a significant impact on photographers, artists, and other creators such as software engineers.

Creators who build off copyrighted works should be aware of this decision and know the potential consequences of building off of other’s work. This decision will likely make it more difficult to show a work is “transformative” while leaving an artist open to liability...

Takeaways for creators and businesses:

• If you have current works that are protected under copyright law, keep your eyes peeled for potentially infringing works. Speak with an experienced intellectual property attorney to see if you may have a valid infringement claim.
• If you build off of other creator’s work to create your own, speak to an intellectual property attorney who will walk you through the four factors of the Fair Use Doctrine and help determine if your work could be considered infringement and open you up to potential liability."