MATTHEW HERSH - Copyright Blog

A mishmash of things today:

1. CTA9 handed down an unpublished decision on volitional conduct last week. It’s a familiar pattern: real estate photographers license photos for use in Zillow listings; agents keep the photos up even after the property has sold; photographers sue Zillow for direct infringement. In VHT v. Zillow, the CTA said that if there was any volitional conduct here, it was on the part of the agents and not Zillow. The plaintiff in this new case, a real estate photographer and well-known troll, tried to distinguish because Zillow was now a listed real estate broker in Texas. No dice. For one, Zillow didn’t become listed in Texas until after the property at issue was sold. Second, it didn’t matter anyway. Sure, Texas imposes trade rules that bar the display of photos of off-market properties. But that had nothing to do with whether its conduct was volitional. Zillow could be sued for secondary liability or not at all.

2. Yesterday for IP Law Daily I wrote about Jean Royère SAS v. Edition Modern, a case involving knockoffs of furniture designs from one of France’s most celebrated designers. You don’t see a lot of cases in the Ninth Circuit where a court grants summary judgment in plaintiff’s favor based not only on extrinsic but also on intrinsic factors, but the knockoffs were so obvious and deliberate here it was a foregone conclusion. The court also had no trouble finding that the furniture designs were not merely utilitarian articles. “If the sculptural features of each work were used in another non-utilitarian medium—if, for example, the Ours Polaire sofa were made of fine glass such that one could not sit on it—they could nonetheless exist as sculptural works of art,” the court noted. “That many of the works have, in fact, been displayed at art museums confirms this.”

3. Sarah Silverman is back. She and several other writers sued Meta and OpenAI for infringement over the summer. The lawsuit claimed infringement on the front end (copying and scraping their content) and on the back end (creating derivative works). Last month, the Northern District of California dismissed the derivative infringement claim as “nonsensical” because the authors failed to allege any actual similarity between their works and any particular program output. This Monday, Silverman came back with an amended complaint that joins a host of other authors to the cause, including Michael Chabon, Ta-Nehisi Coates, Junot Díaz, Andrew and Sean Greer. But it also appears that they have given up the ghost on the dismissed derivative works claims—the new complaint includes only a direct infringement claim. The new complaint is available on Pacer at this link)

Yesterday in IP Law Daily I wrote about the Copyright Office Board of Review’s decision to deny registration of a piece of art generated by AI. Based on everything the Office and the courts have told us this year—the Office’s February refusal to register a work created by Midjourney, its March guidance on registration of AI works, its September refusal to register an AI work that had previously won an art contest at a state fair, and of course Judge Howell’s affirmance of the Office’s earlier refusal to register an AI-generated work by Stephen Thaler—this one was a foregone conclusion. The artist feed into his AI program one of his photos, fed in Van Gogh’s famous Starry Night, and entered a single variable to dictate the strength of the resulting style. The computer did the rest. No human authorship here, the Board rightly concluded.

To me the most interesting part of the story is that we now have a very direct—maybe our first?—international split of conflict over registration of AI works. The author in this case, Ankit Sahni, used an artificial intelligence program entitled RAGHAV to create his work. (The name, an acronym for robust artificially intelligent graphics and art visualizer, is a nod to its creator, Raghav Gupta). But this is not the first country that he has tried to obtain registration for the same work. And in at least two countries—India and Canada—he has succeeded. But the United States is holding firm.

I’d love to read an article about how this happened and what’s different about the registration system in those countries than here. Or maybe he pulled the wool over their eyes?

My full article for the IP Law Daily is here.

Yesterday in IP Law Daily I wrote about a new copyright infringement lawsuit against Altice, the New York-based cable and internet service provider (you might know it as Cablevision). It’s your typical entertainment company v. ISP lawsuit—there must have been dozens of these by now, mostly winners—claiming that the ISP turned up its nose at demands that it terminate subscribers who regularly use BitTorrent to share music or videos.

What’s interesting is this action now aligns basically the entire U.S. music industry against Altice. Last year music publisher BMG Rights Management, label UMG Recordings, and indie Concord Music Group—they’re always involved in these suits—filed a similar complaint. (The court denied Altice’s motion to dismiss this past May and discover is now underway.) This new complaint brings in labels Sony Music Entertainment and Warner Records along with music publishers Warner Chappel and Sony Music Publishing. By my count, Universal Music Publishing Group is the only major on the sideline at this point (anyone know why?).

The complaint is tightly written—typical of Oppenheim and Zebrak, the fast-growing firm behind a lot of music and author cases these days. I was fortunate to get to know Matt and Scott in my young pup days at Jenner & Block.

By the way, how is that we’re still waiting on the Fourth Circuit to hand down its appeal of the billion-dollar jury verdict against Cox Communications that was handed down in 2019?? Oral argument was held in March 2022, but no word yet from the court of appeals. Maybe someone out there knows.

Copyright Blog, December 11, 2023 -- What does Learned Hand Have to Do With a TV Show About Strip Clubs? Read on

Every copyright acolyte knows Nichols v. Universal Pictures Corp., the classic 1930 opinion by Learned Hand. Plaintiff writes a play about a Jewish man who secretly marries an Irish Catholic woman; the family objects and drama ensues. Defendant writes a play about a star-crossed love affair between an Irish man and a Jewish woman; the family objects and drama ensues. In any written literary work, Hand famously wrote, "a great number of patterns of increasing generality will fit equally well ... but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ideas." That was the case here. "The only matter common to the two," Hand wrote, "is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation." Not enough to constitute infringement.

Fast forward nearly 100 years later, and the same themes constantly reappear. Friday in IP Law Daily I wrote about Gilbert-Daniels v. Lions Gate Entertainment Corp., the latest to grapple with the issue. Nicole Gilbert-Daniel writes Soul Kitten’s Cabaret, a play that tells the story of Black dancers at a Detroit strip club that is facing takeover attempts by an antagonist outsider. Starz puts on P-Valley, a serial that follows the lives of Black dancers at a strip club in the Mississippi Delta that, too, is facing takeover attempts. (If you haven't seen the show, by the way, you should. “Between the storylines about domestic abuse and a secret casino project,” NPR reported after its first season, “we see takes on colorism, closeted gay men and the struggle to survive when you're poor, Black and outside polite society in the South.”)

Infringement? Judge Steven Wilson of the Los Angeles bench -- has he been writing copyright opinions forever? -- easily said "no." The plots were similar only at a high level of generality. (Case in point: the antagonist in the play wanted to take over the club because he was homophobic and hated the gay owner. The antagonist in the TV show just wanted money.) Both featured a theme of good versus bad, but the play used religious themes to express the theme - the show did not. There was no overlapping dialogue other than short and bland phrases. And so on. No reasonable jury could find substantial similarity between the works, the court concluded.

Credit Judge Wilson for his patience here. The claim was a loser, but hardly frivolous. So he wrote 45 single space pages breaking down the two works by plot, theme characters, tone, pace, and all the other traditional comparison points before reaching his decision. At times he had to dispose of some fairly pretty far-fetched arguments. For example, at one point the playwright argued that a character in the TV show was borrowed from a character in the play because, at least in part, both were physically attractive. "If the idea of a beautiful lead could be copyrighted,” he wryly noted, “Hollywood would have shut down long ago."

(This is one of many reasons why I would never make it in Hollywood, but I digress.)

Full link to my article here.

Copyright Blog, December 8, 2023 -- A Case About Blood Alcohol Testing Kiosks Sheds Light on the "Elusive Boundary Line Between Idea and Expression

Yesterday in IP Law Daily I wrote about SnagPod, LLC v. Precision Kiosk Technologies, Inc., a case that dives headfirst into “the elusive boundary line between idea and expression, between process and non-functional expression." (The case was decided originally two months ago, but this week the court rejected reconsideration and made it final.)

To summarize quickly: A company makes a kiosk enabling rapid blood alcohol testing (it's a monitoring tool for probation officers). Another company comes along and makes a kiosk doing the same thing. The first company sues. It's not a patent case, and the company isn't claiming theft of its software code. Instead, the company claims that the competitor ripped off the structure and sequence of its user interface. Users of the original product had to pass through a series of pages entitled that welcome the user, ask them for personal info, have them take a photo and submit fingerprints, have him do the test, and so on. The competitors' product, the company claimed, showed essentially the same pages in the same sequence. Copyright infringement?

Not infringement, said the court. Indeed, no copyright protection at all for the structure and sequence of the pages. Given the function of the kiosk, there's only so many ways those pages could have been put together. And in the software context, the court noted, this means that “elements of a program dictated by practical realities" can't be protected by copyright. If the court granted copyright protection to the Michigan company for those elements of the product for which it sought protection, the court noted, it would gain a monopoly on breathalyzer kiosks. That's a matter for patent law, not copyright.

Full link to my article here.

Copyright Blog, December 7, 2023 -- Production Team Behind 'Monday Night Football' Theme Takes on an Eclectic Indie Label in LA

It's been a quiet week, so yesterday I wrote for the IP Law Daily about a new infringement complaint brought by music production company APM Music. If you don't know the company, you know of its work: its musical themes have been used in Monday Night Football, The People’s Court, Stranger Things, Ted Lasso, and Saturday Night Live - among many others.

The new lawsuit (Associated Production Music LLC v. Stones Throw Records, LLC) takes aim at Stones Throw, an indie label founded by a Los Angeles disc jockey who goes by the moniker Peanut Butter Wolf. The decidedly eclectic label, once described by LA Weekly as an “eternally evolving experiment,” markets hip-hop, psychedelic rock, and just about everything in between. But five of its songs sampled without permission from APM Music works, the complaint alleges. The music production company claims it tried to reach out to the label to resolve the dispute amicably, but got no response.

APM Music is no stranger to the federal courts. Early this year it made headlines by accusing Major League Soccer and its member teams of purloining the company’s music for its promotional videos. The case seems to have settled a few months ago. The company also once sued a Colorado-based ski resort company for allegedly using its music in connection with promotional videos.

Full link to my article here.

Copyright Blog, December 5, 2023 -- Take Two for Artists In Lawsuit Against Stability AI - But Will It Be Enough?

A few weeks ago I wrote for the IP Law Daily about Judge Orrick’s decision to pitch a complaint brought by three artists against Stability AI, the company behind the most popular image generation software. (Ask it for an image of a cat in a hat eating ice cream in front of a McDonald’s and that’s – more or less – what you’ll get.) The complaint leveled a wide range of allegations against Stability AI - copyright, trademark, DMCA, right of publicity, breach of contract, you name it. Judge Orrick found that many of the allegations were deficient, but he gave the artists a chance to amend. Last week the artists took him up on the opportunity, filing a 94-page amended complaint.

Possibly the most interesting aspect of the new complaint is that it doesn’t – at least on my quick review – seem to fix the problem with the derivative works claim. AI models potentially infringe copyrights on the front and back end: on the front end by hoovering up protected works into their training databases, and on the back end by spitting out results that are potentially derivatives of the originals. One of Judge Orrick’s many issues with the complaint had to do with the derivative works allegations – they fell short, he felt, because the plaintiffs didn’t identify any particular outputs that were identically or at least substantially similar to the original. (Sarah Silverman recently ran into the same problem with her lawsuit as well.) The new complaint addresses a lot of issues with the original, but I’m not sure this is one of them.

It's important to remember that we’re still in the throat-clearing stage when it comes to AI litigation. From a copyright standpoint there’s one question and one question only: does the ingestion of protected works into these models constitute fair use? Fair use is such a fact-intensive issue, though – so don’t anticipate answers on this very soon. For the meantime we’re stumbling around in the dark and will continue to do so for a while. Gonna be an interesting ride.

Copyright Blog, December 4, 2023 -- A treatise on copyright v patent law from the Court of Federal Claims?

Last Friday I wrote about 4DD Holdings, LLC. v. U.S., a (rare) copyright case just decided by the Court of Federal Claims. The headline is that the court found that the Department of Defense made thousands of unlicensed copies of a vendor's software - and then tried to hide the infringement by destroying evidence. The government will have to fork over $11 million in damages.

But that's not the part of the opinion that interests me. What I find interesting is the court's discussion of copyright law versus patent law. How does patent law come up in a copyright infringement case, you ask? Well follow along. Once the court settled on the number of copies the DOD infringed, it had to set a value on those copies. But the problem was that there was no active market for the product - the software was made specially for the government. So the court had to value the product somehow.

Here's where patent law comes in. In patent law there is a concept of the "non infringing alternative" - basically what it means is that if the infringer could have legally gotten a product with the same function from someone else for a particular price, then that's the ceiling on damages to the infringer. The government did have such an alternative, it argued - so that effectively set the price it would have paid for legal copies of the software it purloined.

Not so fast, said the court. You see, patent law protects ideas - novel and original ones, that is. You invent a new blender technology that chops and dices more efficiently than everything else on the market, you can prevent someone else from using the same basic idea, even if there are differences in how the idea is implemented from blender to blender. In other words, the value of a patent lies in the idea itself, not the specific way the idea is expressed.

But that's not what copyright is about. Copyright protects the expression of ideas, not the ideas itself. The court gave a good example: If someone infringed the copyright of an author’s mystery novel, “we would not reduce the value of his book simply because thousands of other mystery novels exist.” Indeed, it would be “nonsensical to think that the value of that novel depended on how many other mystery novels there were.” Instead, the court reasoned, “we value the novel by the quality of the author’s expression.”

So too with software, the court then reasoned. Just because the government could get software that performed the same function from somebody else doesn't mean that the value of that software was same. Ten pieces of software that perform the same function in ten different ways - different code, a different GUI, etc - could each get their own copyright. It's wrong to think of each of these as effectively fungible in a copyright context.

There's a lot more here, but this was the part of the opinion that struck me. My full article in the comments below.

Full link to my article here.

Yesterday I wrote for the IP Law Daily about a new cert petition involving attorney fees. The case involves The Game of Life, the 1960s classic (which itself was a remake of an 1860s version!) that at one point ranked only second to Monopoly in terms of worldwide popularity. Sadly, the litigation over the game has lasted almost as long as the game itself. The developer of the game has been in a pitched battle with the game's designer over the rights to the game. The developer eventually won - a court found the designer's work was "for hire," so all the rights remained with the developer.

But then the battle shifted to attorney fees. The developer wanted them. The designer didn't want to pay them. The trial court, and then the First Circuit, sided with the designer. The designer's case was a loser, the courts held, but it wasn't "objectively unreasonable." And the other factors came out a wash. So no dice.

Now the developer wants the Supreme Court to intervene. His petition points to a split on attorney fees brewing in the circuit courts. The Fifth and Seventh Circuits apply a presumption in favor of awarding fees, the petition notes, while the Eighth and Ninth Circuits apply no presumption at all. The First Circuit, the petition argues, takes the even more extreme view that as long as the losing party took an objectively reasonable position, there will almost never be a fee award.

Personally, I doubt this is the right vehicle for the case. (To me, the petitioners over-read the First Circuit caselaw to make it seem more aggressive than it is.) But it's a great backgrounder on attorney fees if you are interested. More at the link in the comments below.

NOVEMBER 29 Matt's copyright update: More rulings start to flow in on the intersection between artificial intelligence and copyright. In a decision just before the holidays, the Northern District of California brusquely dismissed portions of a class action brought by comedian Sarah Silverman and several other writers.

The lawsuit alleged that large language models, like those offered by OpenAI (the famed ChatGPT) and Meta, infringe their copyrights in several ways: by ingesting their works into their database (thus unlawfully copying the works) and by recasting their works as part of their output (thus unlawfully creating derivatives of their works). The lawsuits also brought claims under the DMCA and several common law theories.

The court easily batted away the derivative works theory - at least as applied against Meta - as "nonsensical." To prevail on a theory that Meta's outputs constitute derivative infringement, the court noted, "the plaintiffs would [] need to allege and ultimately prove that the outputs incorporate in some form a portion of the plaintiffs' books." The plaintiffs here did not do that, so their derivative works complaint failed. (The claim that Meta copied their works by hoovering them up into its system remains viable, at least for now.)

This is the second straight loss for a derivative works attack on large language models. In late October, Judge Orrick of the same court dismissed on similar grounds derivative works claims brought a series of artists against Stable Diffusion, the AI program that creates user-generated art.

I'll have more to say about these issues in later posts.

NOVEMBER 28 Copyright news: The federal court for the Central District of California has found that an author’s contention that a co-collaborator’s work was done “for hire” can trigger the running of the statute of limitations on a claim of authorship. The decision is Crabtree v. Kirkman. I wrote about in yesterday’s IP Law Daily (link to my article, and to the opinion, in comments below).

This is one for the comic fans. The lawsuit targets Robert Kirkman, the celebrated comic book writer and screenwriter who co-created The Walking Dead and Invincible (among many others). He’s been sued before by collaborators, this time by artist and colorist William Crabtree. The artist wanted a declaration of co-authorship based on his contributions to the Invincible comic series—which, as it happens, had just been picked up by AMC for what turned out to be a two-season run.

The court found that the lawsuit was time-barred. Under caselaw interpreting the Copyright Act (itself somewhat controversial, but that’s another story), a claim of ownership of a copyright accrues at the time the ownership is “repudiated” by a former collaborator. The repudiation here? Back in 2012 the artist and the writer got into a long email argument about whether the artist was being paid the royalties due to him under the contract. The writer mentioned in several emails that he considered the artist’s contribution to be a “work for hire,” which is copyright language for “I own the copyright and you’re only a paid contributor.” The artist should have known he had a dispute right then, the court found.

This strikes me as a little harsh. The email argument was over the calculation of royalties, not ownership. Would the artist have been focused on the “work for hire” references as opposed to the main topic of the argument? The opinion emphasizes the artist’s extensive industry experience and sophistication when it comes to copyright, so that might cabin the opinion a bit.