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."

The Biden administration is endangering intellectual property rights; The Dallas Morning News, June 20, 2023

Frank Cullen, The Dallas Morning News; The Biden administration is endangering intellectual property rights

"Simply put, the waiver seeks to solve a problem that doesn’t exist.

What the waiver would do is quash the development of additional COVID-19 countermeasures, from lifesaving antiviral pills to rapid tests even more accurate than the ones we have. Firms currently investing in new COVID-19 tests and treatments will have no reason to continue their work if the IP rights for those products are preemptively nullified.

In the long term, an IP waiver would set a devastating precedent for U.S. innovators working to address crises far beyond COVID-19. Startups and inventors need secure intellectual property rights to raise funding and recoup their steep research and development costs, especially in America’s life sciences industry. New drugs often cost more than $2 billion and can take more than a decade to make it to market."

Judge Backs A&E in ‘Live PD’ Copyright Lawsuit; The Hollywood Reporter, June 19, 2023

 RICK PORTER, The Hollywood Reporter; Judge Backs A&E in ‘Live PD’ Copyright Lawsuit

"Failla wrote in her ruling that while individual elements of a show like Live PD, including live footage from law enforcement and analysis from in-studio hosts, aren’t eligible for copyright protection, “the particular selection and arrangement of the elements as a whole — namely, the mix of live police footage and in-studio commentary; the black screen displaying a message regarding a suspect’s innocence in white text each time the show begins or returns from a break; the red and blue lights to mirror police cars; the use of hosts Dan Abrams and Sgt. [Sean] Larkin, sitting around virtually identical tables with virtually identical mugs; the sequencing of the ‘Missing’ and ‘Crime of the Week’ segments and the guest on the ‘Missing’ segment; the positioning of the hosts; the specific and consistent camera angles used; and the following of specific police departments across weeks — considered together, are sufficiently creative to state a cognizable copyright claim.”"

EU votes for AI copyright disclosure in ‘first of a kind’ act; World Intellectual Property Review; June 15, 2023

Muireann Bolger World Intellectual Property Review; EU votes for AI copyright disclosure in ‘first of a kind’ act

"Transparency rules over copyrighted content used in training data increase risks for foundational AI developers| Landmark AI Act thought to be the first of its kind in the world"

Stan Lee said he was 'heartbroken' that he never copyrighted Marvel characters for himself; Insider, June 16, 2023

 Eammon Jacobs , Insider; Stan Lee said he was 'heartbroken' that he never copyrighted Marvel characters for himself

""I always resented the fact that when I wrote these stories, I never thought, 'Gee, I ought to try and copyright something myself and own it.' It always belonged to the company," said Lee. "So, from a business point of view, that was a mistake. I was heartbroken. There wasn't much I could do about it.""

Disfarmer heir, Little Rock museum argue over copyright; Arkansas Democrat Gazette, June 18, 2023

Bill Bowden , Arkansas Democrat Gazette; Disfarmer heir, Little Rock museum argue over copyright

"According to Stewart, the museum has no claim to the copyright because it has no document showing that the copyright was passed from Disfarmer or his heirs to the museum, or anyone else.

In the June 1 filing, Stewart's attorneys cited 17 U.S.C. § 204: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.""

Generative AI is a minefield for copyright law; The Conversation, June 15, 2023

Robert Mahari JD-PhD Student, Massachusetts Institute of Technology (MIT), Jessica Fjeld
Lecturer on Law, Harvard Law School, Ziv Epstein PhD Student in Media Arts and Sciences, Massachusetts Institute of Technology (MIT), The Conversation; ; Generative AI is a minefield for copyright law 

"While copyright law tends to favor an all-or-nothing approach, scholars at Harvard Law School have proposed new models of joint ownership that allow artists to gain some rights in outputs that resemble their works.

In many ways, generative AI is yet another creative tool that allows a new group of people access to image-making, just like cameras, paintbrushes or Adobe Photoshop. But a key difference is this new set of tools relies explicitly on training data, and therefore creative contributions cannot easily be traced back to a single artist. 

The ways in which existing laws are interpreted or reformed – and whether generative AI is appropriately treated as the tool it is – will have real consequences for the future of creative expression."

The future of open educational resources; Community College Daily, April 27, 2023

James Glapa-Grossklag is dean of educational technology, learning resources and online education at College of the Canyons (California).

Una Daly is director of the Community College Consortium for Open Educational Resources (CCCOER) at Open Education Global, Community College Daily; The future of open educational resources

"The future of OER is that it will not be the next big thing, but rather that OER will be a common way for students to freely access information, a tool in the enrollment management toolkit, and a commitment to equitable outcomes and collaborative teaching."

Elon Musk called copyright a ‘plague on humanity’ and now he’s being sued for $250 million by music publishers who claim Twitter stole their content; Forbes, June 15, 2023

 RACHEL SHIN, Forbes; Elon Musk called copyright a ‘plague on humanity’ and now he’s being sued for $250 million by music publishers who claim Twitter stole their content

"A group of music companies is suing Twitter for over $250 million, claiming the platform has ignored many copyright violation notices. The coalition is composed of 17 music publishers, including such big names as Sony Music Publishing, Universal Music Corp., and Big Machine Music. One problem for Elon Musk in defending the lawsuit is that he’s said he considers copyright a “plague on humanity.”"

From Roald Dahl to Goosebumps, revisions to children’s classics are really about copyright – a legal expert explains; The Conversation, March 7, 2023

Cathay Smith, The Conversation ; From Roald Dahl to Goosebumps, revisions to children’s classics are really about copyright – a legal expert explains

"Over the past decades, authors, copyright owners and publishers have edited and updated children’s books. They have removed racial stereotypes, reflected changing gender and cultural norms and in doing so, maintained their books’ relevance and appeal to the modern reader.

Hugh Lofting’s The Story of Doctor Dolittle (1920), Dr. Seuss’s And To Think That I Saw It On Mulberry Street (1937), Helen Bannerman’s The Story of Little Black Sambo (1899), Mark Twain’s Adventures of Huckleberry Finn (1885) and classic children’s books series such as Hardy Boys and Nancy Drew have all changed to keep up with increasing sensitivities to racial, gender and other social stereotypes...

Copyright law grants its holder the exclusive right to edit a copyrighted children’s book and the right to limit publication of a work. This means that during a book’s copyright term, the copyright holder has the right to make edits that maintain the book’s popularity and commercial viability. 

This is true even when an author no longer owns the copyright to their work. In those situations, the copyright holder generally has the right to make edits to the work even without the author’s consent, as Goosebumps author R.L. Stine recently discovered."

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."

Generative AI is a minefield for copyright law; The Conversation, June 15, 2023

Robert Mahari JD-PhD Student, Massachusetts Institute of Technology (MIT), Jessica Fjeld, Lecturer on Law, Harvard Law School, Ziv Epstein, PhD Student in Media Arts and Sciences, Massachusetts Institute of Technology (MIT), The Conversation; ; Generative AI is a minefield for copyright law

"We’re part of a team of 14 experts across disciplines that just published a paper on generative AI in Science magazine. In it, we explore how advances in AI will affect creative work, aesthetics and the media. One of the key questions that emerged has to do with U.S. copyright laws, and whether they can adequately deal with the unique challenges of generative AI.

Copyright laws were created to promote the arts and creative thinking. But the rise of generative AI has complicated existing notions of authorship."

Rapid advances in AI set to upend intellectual property; Financial Times, June 14, 2023

 Nick Huber, Financial Times; Rapid advances in AI set to upend intellectual property

"Holzgartner, of 2SPL, likens the use of AI in intellectual property to a painting that has only just been started.

“So far, we have a white canvas, with maybe two or three lines drawn on it. We are far away from having a complete picture . . . on how to handle things."

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."

Twitter sued for $250 million by music publishers over ‘massive’ copyright infringement; The Verge, June 14, 2023

Richard Lawler,, The Verge ; Twitter sued for $250 million by music publishers over ‘massive’ copyright infringement

"The National Music Publishers' Association (NMPA) is suing Twitter on behalf of 17 music publishers representing the biggest artists in the business. The lawsuit, filed in federal court in Tennessee, claims the company "fuels its business with countless infringing copies of musical compositions, violating Publishers' and others' exclusive rights under copyright law." 

It also has a list of 1,700 or so songs (included below) that the publishers say have been included in multiple copyright notices to Twitter without the company doing anything about it, asking the court to fine Twitter up to $150,000 for each violation."

Art Basel banana artist prevails in copyright lawsuit; Axios, June 13, 2023

 Deirdra Funcheon, Axios; Art Basel banana artist prevails in copyright lawsuit

"The Art Basel banana did not rip off a similar work, a federal judge in Miami ruled last Friday.

What's happening: Italian artist Maurizio Cattelan famously taped a banana to a wall at Art Basel Miami Beach in 2019, titled "Comedian," which sold for $120,000. 

• He was sued by California artist Joe Morford, creator of a 2001 work, "Banana and Orange," but prevailed in a case alleging copyright infringement.

The bottom line: Cattelan claimed he'd never seen Morford's work and was expanding off his own idea from 2018, when he'd depicted a banana with red duct tape for a cover of New York Magazine.

• In granting Cattelan's motion for summary judgment, Judge Robert N. Scola Jr. pointed to differences between the artworks, including the background and the angle at which the bananas were placed."

Boeing sued over alleged theft of IP, counterfeiting of tools used on NASA projects; CNBC, June 7, 2023

 Michael Sheetz, CNBC; Boeing sued over alleged theft of IP, counterfeiting of tools used on NASA projects

"Wilson’s complaint alleges that its tools — used for NASA projects including the International Space Station and its Space Launch Systems moon rocket — helped Boeing win billions in contract awards and fees from the government. Wilson also alleges that the counterfeit version of the tools that Boeing made led to leaks on the ISS and the SLS — and “put lives at risk,” including the lives of astronauts.

The company brought 10 claims against Boeing, including claims of copyright infringement, misappropriation and theft of trade secrets, and fraud."

Matt Damon, Ben Affleck's production firm slams Donald Trump for misusing video; UPI, June 10, 2023

Adam Schrader , UPI; Matt Damon, Ben Affleck's production firm slams Donald Trump for misusing video

"Matt Damon and Ben Affleck's production company has slammed Donald Trump for violating its copyright after the former president shared a video that misused a monologue from their latest film, "Air."

Trump had shared a campaign video that used more than two minutes of Damon speaking as Sonny Vaccaro, the sports marketing executive behind Nike's Air Jordan shoe line."

If AI invents a new medicine, who gets the patent?; Stat, June 8, 2023

Brittany Trang, Stat; If AI invents a new medicine, who gets the patent?

"Pharmaceutical and biotech companies are increasingly using artificial intelligence to discover and make drugs and therapeutics. Congress on Wednesday asked the question: Does that mean AI can be an inventor on a patent?"

Marvel settles with four artists in superhero copyright fight; Reuters, June 9, 2023

 Blake Brittain, Reuters; Marvel settles with four artists in superhero copyright fight

"The filings said Marvel would drop its lawsuits against Larry Lieber and the estates of Don Heck, Gene Colan and Don Rico with prejudice, which means they cannot be refiled. A Disney spokesperson and an attorney for the artists said they had reached an "amicable resolution."

Marvel did not appear to have settled with the estate of comic book artist Steve Ditko, which is seeking to reclaim his share of copyrights in Spider-Man and Doctor Strange. Both sides asked a Manhattan federal court for pretrial wins in that case last month.

Under the Copyright Act, a creator can terminate a copyright assignment after decades in certain circumstances. Marvel sued the artists, who wrote and illustrated Marvel comics in the 1950s, 60s and 70s, after they sought to terminate and reclaim copyrights related to several superheroes."

A Filmmaker's Guide to Creating Intellectual Property for Film and TV; No Film School, June 8, 2023

 Jason Hellerman, No Film School; A Filmmaker's Guide to Creating Intellectual Property for Film and TV

"What Are the Kinds of IP You Should Be Creating For Hollywood?  

When it comes to creating intellectual property for Hollywood, various types of stories and packages have historically been successful in the entertainment industry.

1. 1. Spec Scripts: Well-written screenplays and scripts are the foundation of many successful films and television shows. Developing compelling stories with engaging characters and interesting dialogue is crucial. 

   2. Book Adaptations: Hollywood often looks to popular books and novels for source material. If you have a unique and captivating story that could be adapted into a screenplay, it could attract attention from producers and studios. Or maybe you can find lesser-known books that you can show to producers that might be easier to get.  

   3. Franchise Concepts: Do you have an idea for a franchise? Hollywood studios are always on the lookout for potential franchises that can span multiple movies or spin-off projects. Developing a rich and expansive world with the potential for sequels or spin-offs can be highly appealing. These could be pitches for huge worlds you could option together or written documents you make to show them a very lucrative avenue you want to be the voice behind.  

   4. Comic Books and Graphic Novels: The success of comic book adaptations in recent years has made this medium particularly attractive to Hollywood. Creating a captivating comic book series or graphic novel with strong characters and a compelling narrative can pique the interest of producers. You could work with an artist and make your own or just have ideas for when you do a general at DC, Marvel, or another spot.  

   5. Video Games: The boundaries between film and video games are becoming increasingly blurred. Developing a unique and immersive video game concept with a captivating storyline and engaging characters could attract interest from both the gaming and entertainment industries. Do you have games you loved that you want to adapt? Then reach out to those companies or have your reps do it for you. Always have a title a company makes to talk about if you get a general with them.  

   6. Short stories: So many writers I know have made the switch to developing and writing their own short stories. These can serve as ideas you try to get published and retain the rights to, and can also be easily shared and adapted.  

   7. True Stories, News Stories, and Biopics: Stories based on true events or the lives of real people often have a strong appeal to audiences. If you come across an untold story or a compelling biography, it could be worth exploring its potential for adaptation. If something is in the news or zeitgeist, it might be in the public domain or you have fair use of it, so you can adapt it or be inspired by something other people have heard of without paying a penny."

Supreme Court’s 2023 Copyright Fair Use Decision is Not a One-Hit Wonder; JD Supra, June 6, 2023

 Mark Avsec, Angela Gott, idia Mowad, JD Supra; Supreme Court’s 2023 Copyright Fair Use Decision is Not a One-Hit Wonder

"The fair use defense to copyright infringement has been remastered by the Supreme Court—at least the first factor. The Supreme Court’s recent decision in Andy Warhol Foundation v. Goldsmith holds that the defense does not apply to commercial copying of an original work if the copy serves the same or highly similar purpose as the original. Despite the Court’s efforts to limit its holding, the decision is far from a one-hit wonder. Now more than ever, artists and others should proceed with caution when creating unauthorized derivative works, especially if they plan to commercialize them."

Tolkien Estate Suing Author for LOTR Rip-Off; Kirkus, June 5, 2023

MICHAEL SCHAUB, Kirkus; Tolkien Estate Suing Author for LOTR Rip-Off

"J.R.R. Tolkien’s estate is suing an author who it claims ripped off the author’s Lord of the Ringsbooks, Bloomberg Law reports.

The Tolkien Trust filed suit against an author named Demetrious Polychron, who wrote a sequel to the author’s famous series called The Fellowship of the King. The title references The Fellowship of the Ring and The Return of the King, respectively the first and third installments of the Lord of the Rings trilogy."

US Supreme Court rules for Jack Daniel's in fight over parody dog toy; Reuters, June 8, 2023

 John Kruzel and Andrew Chung, Reuters; US Supreme Court rules for Jack Daniel's in fight over parody dog toy

"The 9-0 decision authored by liberal Justice Elena Kagan threw out a lower court's ruling that the pun-laden "Bad Spaniels" vinyl chew toy sold by VIP Products LLC is an "expressive work" protected by the U.S. Constitution's First Amendment. Jack Daniel's Properties Inc is owned by Louisville, Kentucky-based Brown-Forman Corp (BFb.N)...

Lower courts had ruled in favor of VIP Products after applying what is called the Rogers test, which has allowed artists to lawfully use another's trademark when doing so has artistic relevance to their work and would not explicitly mislead consumers about its source.

The test was crafted in a 1989 decision by the New York-based 2nd U.S. Circuit Court of Appeals in a case brought by Hollywood legend Ginger Rogers. The actress unsuccessfully sued to block the 1986 film "Ginger and Fred" from director Federico Fellini that referred to her famed dance partnership with actor Fred Astaire."

Why Wally’s Pub could pay up to $30K for playing Bad Company’s 'Feel Like Makin’ Love'; Portsmouth Herald via Seacoastonline, June 7, 2023

 Patrick Cronin, Portsmouth Herald via Seacoastonline; Why Wally’s Pub could pay up to $30K for playing Bad Company’s 'Feel Like Makin’ Love'

"A popular Hampton Beach bar and music venue is being sued for alleged copyright infringement after a cover band performed Bad Company's hit song "Feel Like Makin' Love."

The American Society of Composers, Authors and Publishers (ASCAP) filed the copyright infringement lawsuit against Wally's Pub and its owner Al Fleury this week in federal court.  It alleges the venue at 144 Ashworth Ave. continues to have "unauthorized public performance of its members’ copyrighted musical works."

The lawsuit was one of 13 filed nationwide by the nonprofit that represents more than 920,000 songwriters and music publishers.  Other establishments sued included Widow Fletcher’s in New Port Richey, Florida, and Bleachers Sports Grill in Phoenix, Arizona. 

"Each of the establishments sued today has decided to use music without compensating songwriters," said Stephanie Ruyle, ASCAP executive vice president, and head of licensing. "By filing these actions, ASCAP is standing up for songwriters whose creative work brings great value to all businesses that publicly perform their music.”"

Japan Declares AI Training Data Fair Game and ‘Will Not Enforce Copyright’; PetaPixel, June 5, 2023

 MATT GROWCOOT , PetaPixel; Japan Declares AI Training Data Fair Game and ‘Will Not Enforce Copyright’

"In the first such declaration of its kind, Japan has seemingly asserted that it will not enforce copyrights when it comes to training generative artificial intelligence (AI) programs.

Japan’s minister of education, culture, sports, science, and technology recently said that it is possible to take content from any source and use it for “information analysis.” 

According to a Japanese political website, Liberal Democrat minister Keiko Nagoaka clearly stated at a committee meeting that AI companies can use whatever data they want to train generative AI programs."

Senate aims to navigate conflict between copyright and training AI; Washington Examiner, June 7, 2023

Christopher Hutton, Washington Examiner ; Senate aims to navigate conflict between copyright and training AI

"The Senate is set this week to begin addressing the tension between using images and data to train artificial intelligence and existing copyright law...

The Senate Judiciary Committee is scheduled on Wednesday to host the first of several hearings on AI and intellectual property. This one will deal with "Patents, Innovation, and Competition." The hearing will feature professors from the University of California, Los Angeles and Laura Sheridan, Google's head of patent policy."

US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks; Jurist.org, June 5, 2023

 Rebekah Yeager-Malkin | U. Pittsburgh School of Law, US, Jurist.org; US Supreme Court takes up case dealing with the use of public figures’ names and likenesses in trademarks

"The US Supreme Court announced Monday it will take up the trademark case Vidal v. Elster, to determine whether the application of Section 2(c) of the Lanham Act to political figures violates the First Amendment. 

The case surrounds the trademark application by Steve Elster for the phrase “Trump Too Small,” which Elster attempted to trademark for use on t-shirts. Elster’s application was denied by the US Patents and Trademarks Office and the denial was upheld by the Trademark Trial and Appeal Board for violating Section 2(c) of the Lanham Act, which bars a trademark that “Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent…”"

Generative AI Debate Braces for Post-Warhol Fair Use Impact; Bloomberg Law, May 30, 2023

Isaiah Poritz , Bloomberg Law; Generative AI Debate Braces for Post-Warhol Fair Use Impact

"While the courts may take years to decide whether generative AI models are fair use, the litigation underway is many steps ahead of Congress, which hasn’t yet enacted legislation to regulate the burgeoning technology. In the meantime, some observers see peril for the AI industry.

“Copyright law is the only law that’s already in existence that could bring generative AI systems to their knees,” Pamela Samuelson, a copyright law professor at the University of California Berkeley, said at a lecture on AI last month. “If the court says ingesting is infringement, the whole thing can be destroyed.”

Supreme Court Rules That Andy Warhol Violated a Photographer’s Copyright; Smithsonian Magazine, May 24, 2023

Christopher Parker, Smithsonian Magazine; Supreme Court Rules That Andy Warhol Violated a Photographer’s Copyright

"Reactions to the Supreme Court ruling are mixed. Noah Feldman, a scholar of law at Harvard, writes in Bloomberg that the decision helps artists but harms creativity. 

“The upshot is that little-guy artists win, because they now have more rights than they had before to claim credit for works reused by others,” he writes. “But art as a whole loses, because the decision restricts how artists generate creativity by sampling and remixing existing works.”

Carroll tells the Times that the ruling leaves a lot of room for conflicting interpretations, and the legal battle has only just begun.

“Is it really just about competitive licensing use, or is it more broadly about creating derivative works?” he adds. “I think what you’ll see is lower courts reading it each way, and then eventually this issue is going to find its way back to the Supreme Court.”"

Canvas is half-blank for artists after Warhol's Supreme Court copyright loss; The Denver Gazette, May 20, 2023

John Moore, The Denver Gazette ; Canvas is half-blank for artists after Warhol's Supreme Court copyright loss 

"That’s why, Sink believes, “I don’t think this is going to open any floodgates of artistic repression,” he said. “I feel like that this case falls into its own category because it was a work-for-hire situation.”

The Andy Warhol Foundation issued a statement saying it was important to note that the ruling “did not question the legality of Andy Warhol's creation of the Prince series."

The case is, to put it mildly, “a very complicated, double-edge sword for artists,” Sink said. But two things he’s sure of: 1. “It really is the Wild West out there now” when it comes to these quickly evolving issues. And 2. Warhol (who died in 1987) would be loooooving this."

Registered Trademark Search; Arkansas.gov

 Arkansas.gov; Registered Trademark Search

"The Arkansas Registered Trademark Search is an online tool provided by the Arkansas Secretary of State’s office that allows individuals to search for and view registered trademarks in Arkansas.

Users can search for trademarks by the name of the mark, the owner of the mark, the registration number, or the description of goods or services associated with the mark. The search results provide information on the status of the trademark, including its registration number, registration date, and expiration date."

After the Warhol Decision, Another Major Copyright Case Looms; The New York Times, May 22, 2023

Matt Stevens, The New York Times; After the Warhol Decision, Another Major Copyright Case Looms

"Many thought the latest Supreme Court decision might more clearly delineate what qualifies a work as transformative. But the justices chose instead to focus on how the Warhol portrait had been used, namely to illustrate an article about the musician. The court found that such a use was not distinct enough from the “purpose and character” of Goldsmith’s photo, which had been licensed to Vanity Fair years earlier to help illustrate an article about Prince.

“It was the licensing use, not the creative use, that was at issue,” said Michael W. Carroll, a professor at American University Washington College of Law."

Best of Bloomberg Law: Intellectual Property (Radio); Bloomberg Law, May 22, 2023

Bloomberg Law; Best of Bloomberg Law: Intellectual Property (Radio)

Bloomberg's June Grasso takes a look at some of the most high profile IP cases of the year. Featuring Ed Sheerhan, Jack Daniels and Birken bags

Marvel, artist's estate ask for pre-trial wins in superhero copyright fight; Reuters, May 22, 2023

 Blake Brittain, Reuters; Marvel, artist's estate ask for pre-trial wins in superhero copyright fight

"Walt Disney Co’s Marvel and the estate of artist Steve Ditko both asked a Manhattan federal judge on Friday to hand them a win without waiting for trial in their copyright dispute over rights to superheroes Spider-Man and Doctor Strange."

Danish Supreme Court says newspaper did not violate copyright of Little Mermaid statue; AP, May 17, 2023

AP ; Danish Supreme Court says newspaper did not violate copyright of Little Mermaid statue

"Denmark’s Supreme Court on Wednesday overruled two lower courts, saying a cartoon depicting Copenhagen’s The Little Mermaid statue as a zombie and a photo of it with a face mask did not violate the copyright of the famous bronze...

Copenhagen’s district court and the Eastern High Court found in 2020 and 2022 that the cartoon and the photo were infringements of the Danish Copyright Act, and ordered the newspaper — one of Denmark’s largest — to pay the heirs of Danish sculptor Edvard Eriksen thousands of kroner in compensation.

On Wednesday, the Supreme Court said “that neither the caricature drawing nor the photograph of The Little Mermaid with a mask on, which was brought to Berlingske in connection with newspaper articles, infringed the copyright of the heirs to the sculpture The Little Mermaid...

The heirs are rigorous in enforcing the copyright to the sculpture, which runs until 2029, 70 years after Eriksen’s 1959 death. Several publications have been charged with copyright infringement over the years after publishing pictures of the artwork."

Ed Sheeran co-writer gets tattoo of jury’s copyright verdict; Independent, May 16, 2023

Peony Hirwani, Independent; Ed Sheeran co-writer gets tattoo of jury’s copyright verdict

"Ed Sheeran’s longtime collaborator Amy Wadge has had his “Thinking Out Loud” copyright victory verdict tattooed on her arm...

Now, Sheeran’s co-writer Wagde has had the words “independently created” inked in a typewriter-style typeface on her left arm."

Supreme Court sides against Andy Warhol Foundation in copyright infringement case; NPR, May 18, 2023

 Chloe Veltman, NPR; Supreme Court sides against Andy Warhol Foundation in copyright infringement case

"Soler added the Supreme Court's ruling is likely to have a big impact on cases involving the "sampling" of existing artworks in the future. 

"This supreme court case opens up the floodgates for many copyright infringement lawsuits against many artists," said Soler. "The analysis is going to come down to whether or not it's transformative in nature. Does the new work have a different purpose?"

Wu disagrees about the ruling's importance. "It's a narrow opinion focused primarily on very famous artists and their use of other people's work," Wu said. "I don't think it's a broad reaching opinion.""

U.S. Supreme Court Opinion: ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.; May 18, 2023

U.S. Supreme Court Opinion: ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.

"Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38."