CIP2 congratulates the Arts & Entertainment Advocacy Clinic at Scalia Law, led by Professor Sandra Aistars, and Student Advocate Natalie Nachman, and supported by Counsel of Record Matt Hersh of Mestaz Law, for filing a powerful amicus brief on behalf of three Tattoo Artists in the 9th Circuit Court of Appeals this week in Sedlik v. Von Drachenberg. The tattooers weighed in to support photographer Jeff Sedlik, who is appealing a copyright decision that permitted celebrity tattooist Kat Von D to tattoo a virtually exact replica of his iconic Miles Davis photograph on a client’s arm. Kat Von D and her companies also reproduced and promoted her infringing use of the Sedlik photo and resulting tattoo widely via social media in order to drive business to her various commercial interests without seeking permission or a license from Jeff.
The three tattoo artists explain the nature of the tattoo industry to the court. They also explain that the decision runs counter not only to the traditions of copyright law, but also to traditions of tattooing itself. Most tattooers have a deep respect for the creations of others. And modern tattooers have grown up with exposure to a wide variety of licensed sources. The amici understand that visual artists are part of a creative ecosystem, and that neither art form will flourish if the other is impoverished. If allowed to stand, this decision will ultimately be harmful to the tattoo industry.
To learn more about licensing in the visual arts, join Professor Aistars, Matt, and Natalie to discuss the case and other copyright issues with Jeff and one of their tattoo clients, Ross Berg, during the Virtual Legal Clinic: “Protect Your Body of Work” on Tuesday, October 29, from 2:00 – 3:30 PM Eastern! Register for free today.
* The blog post below and the law review article it links to are the individual thoughts and views of the author and should not be attributed to any entity with which she is currently or has been affiliated.
Despite a recent decision from the Beijing Internet Court, there is growing consensus that artificial intelligence (AI) can be used as a tool, but that a human author must have ideated a copyrighted work and that the resultant creative work is the outcome of that person’s intellect and personality. Despite some international convergence on this issue, however, it is worth reviewing the backdrop of this issue and uncovering some of the more vexing practicalities regarding the level of creative autonomy a person must exercise to receive a copyright registration. The threshold for creativity in copyright law is low across jurisdictions, but how low is it? Are fifty binary choices enough to confer authorship? Are 624 generative AI prompts enough? Similar to other areas of copyright, such as the idea-expression dichotomy, or the unpredictability of the U.S. fair use doctrine, there are almost no bright lines to be drawn in the context of AI.
In a forthcoming paper, I review the law and the jurisprudential landscape on AI “authorship,” as well as academic commentary on the topic, and conclude that the bedrock principles of copyright law would not be served by permitting an acknowledgment of an AI system or algorithm as an author. Although AI is a groundbreaking, even revolutionary, technology, the ways in which it challenges the traditional contours of copyright law are not entirely new. We know from the New York Bridgeman decision in 1999 that skill and labor – and even creativity – in the production stage of creativity are meaningless unless the output (or in copyright parlance, the “work”) exhibit creativity. The Court of Justice of the European Union (CJEU) and United States courts point to an “author’s own intellectual creation” and a “modicum of creativity,” respectively, in ascertaining whether something merits copyright protection. As the European Union implements the world’s first AI Act, and as the U.S. Copyright Office reviews applications for AI-assisted works, underscoring the importance of human authorship is paramount to ensuring laws and courts are well-equipped with the rationale underlying the important distinction between human creativity and machine-generated outputs.
Human authorship has always been, and continues to be, a foundational requirement for copyright protection to subsist in a work. AI challenges this prerequisite but does not overcome it. The output of generative AI is not discernibly different from the output of a human author and therefore benefits from a false sheen of originality. While some argue that prompt engineering fulfills the requirements of originality––as noted above, the threshold for originality is quite low across jurisdictions––prompting still lacks the requisite link between human creativity and the resulting work to receive copyright protection. International copyright treaties and domestic copyright law must be interpreted as aiming to provide copyright’s exclusive rights to works that reflect human originality and that reward human beings. A 2006 New York district court case outlined three means by which photographs can demonstrate originality: rendition, timing, and creation of the subject. My paper proposes that each of these mechanisms, understood through the prism of generative AI, remains applicable for analyzing whether human originality subsists in a given work. Originality exists along a sliding scale, resulting in a mix of thin copyrights and medium copyrights and thick copyrights. While it may not always be the case as the technology evolves, the current relationship between generative AI and its user results in outputs that are generally too detached from the user’s creativity to satisfy the requirements of copyrightable authorship. Generative AI remixes the content on which it has been trained according to its algorithm and prompts. Copyright protection is a privilege and it can only be earned by humans by way of their own intellectual creations.
The following post comes from Jake L. Bryant, a student in the Intellectual Property Law LL.M. program at Scalia Law and a Research Assistant at C-IP2.
On October 12th and 13th, the Center for Intellectual Property x Innovation Policy (C-IP2) hosted its 2023 Annual Fall Conference, this year titled First Sale: The Role of IP Rights in Markets. One topic that attracted significant attention was the role of copyright law in generative artificial intelligence. A discussion on Generative AI & Human Authorship, was highlighted in one of the key copyright panels of the event. The discussion included a number of distinguished speakers: John Tehranian, the Paul W. Wildman Chair and Professor of Law at Southwestern Law School; Van Lindberg, a partner at Taylor English Duma LLP specializing in IP law; Molly Torsen Stech, General Counsel for the International Association of Scientific, Technical, and Medical Publishers and an adjunct professor at American University School of Law; and Keith Kupferschmid, CEO of the Copyright Alliance. The panel was moderated by Sandra Aistars, a professor at the Antonin Scalia Law School at George Mason University and the Senior Fellow for Copyright Research & Policy at C-IP2. Speakers addressed how copyright law fits with generative AI technology.
According to Tehranian, the copyright issues raised by generative AI are not new but are based on law that has been developing for decades, if not centuries. Notably, the Copyright Act of 1976 does not define the word “author.” Cases like the Ninth Circuit’s Naruto v. Slater (2018) and the D.C. District Court’s Thaler v. Perlmutter (2023), as well as guidelines from the Copyright Office have each analogized to earlier case law to hold that only human beings can be authors for copyright purposes. Nevertheless. answering the question of whether human AI developers and prompt engineers can be authors of the outputs of generative AI models is an open question in determining AI’s place within copyright law.
Approaches vary in shaping AI’s place in copyright jurisprudence, and, as the panelists acknowledged, no definitive right answer has been established. Generative AI has seen IP scholars and practitioners return to the old forge of jurisprudence, one where the exchange of opposing ideas sharpens the tools necessary to develop a viable solution for protecting the rights of all copyright interests involved. Protection of creative expression and room for innovation in copyright was the guiding star for each panelist, addressing the rights of AI developers, existing copyright owners, and any rights to be found for users of AI systems. As Tehranian stated, one should not be quick to deem existing copyright law and its protections inadequate for new technologies. Among other interests, the discussion addressed the importance of hearing the voices of the creators whose rights would be affected by new developments. Touching on seminal cases like Burrow-Giles Lithographic Co. v. Sarony (1884) and Andy Warhol Foundation for the Visual Arts v. Goldsmith (2023), the panelists discussed a host of issues, including the role of authorship related to photographers and prompt engineers, subject rights in photographs and other visual works, and the application of the fair use doctrine to the use of copyrightable works in training AI models.
Kupferschmid discussed the ingestion process in training artificial intelligence and the effects on different industries, staking out five key principles. First, he stated that the rights of creatives and copyright owners must be respected in formulating new legislation. Second, longstanding copyright laws must not be cast aside to subsidize new AI technologies. Third, the ingestion of copyrighted works by AI systems implicates the right of reproduction described in 17 U.S.C. § 106. Fourth, Kupferschmid argued that the ingestion of copyrighted materials is not categorically fair use. Rather, he contended that fair use analysis requires a fact-intensive inquiry and will likely show that ingestion by AI is rarely fair use. Finally, he posited that AI developers must obtain a license from copyright owners of works used to train their models. Kupferschmid also asserted that the ability of copyright owners to license their works to AI developers is a market that would be usurped by deeming AI ingestion a fair use.
Lindberg also acknowledged that fair use analysis requires a fact-intensive inquiry but contended that the ingestion of copyrighted works in training AI systems is likely to be and should be considered a fair use. While a copy is created in the ingestion of a work by an AI, Lindberg analogized the training process of AI systems to a hypothetical where a person takes a book and creates a statistical table calculating the number of nouns, verbs, adjectives, and other parts of speech and the probability of their ordering. He claimed that this is both transformative and outside the scope of the copyright owner’s market. Lindberg likewise suggested that, in most cases, there is no translation from any specific ingested material to the outputs generated by a given prompt. Thus, there is no likelihood of substantial similarity between works ingested and outputs created by using an AI system. Kupferschmid replied that Lindberg’s description of the data used in training the AI is the essence of copyrightable expression—the words chosen by the author, and the order in which they are placed. That an AI system translates this function into computer code makes it no less protectable expression than if a human were to translate an author’s protected work from English into French. Lindberg partially conceded the point but contended that any substantial similarity that resulted on outputs would occur as a result of overtraining or overfitting AI models a result that most proponents of generative AI do not seek to encourage and one that he conceded is unlikely to fall within the scope of fair use. The panelists cited the Books3 data set, which has been used to train various large language AI models, as an example of a problematic example of training sets that could result in a variety of undesirable outcomes.
Tehranian agreed with Lindberg, stating that existing precedent could deem AI training a fair use. Acknowledging that the recent Supreme Court case Andy Warhol Foundation for the Visual Arts v. Goldsmith cut back on the weight afforded to certain transformative uses in fair use determinations, he distinguished that the Court did not reduce the weight of trans-purpose uses, where the copyrighted material is not used to create a new work but instead used for a purpose beyond the scope of an author’s market. While Tehranian stated that he did not necessarily agree that ingestion during AI training should be fair use, he concluded that the existing law creates a likelihood that it will be so.
The panel also discussed the NO FAKES Act, introduced that week by senators from both major parties. See Chris Coons et al., Draft Copy of the NO FAKES Act of 2023, Chris Coons (Nov. 28, 2023), https://www.coons.senate.gov/imo/media/doc/no_fakes_act_draft_text.pdf. Tehranian noted that this proposed legislation would help protect against unauthorized uses of a person’s name, image, or likeness by creating a federal right of publicity, explaining that federal trademark law and state rights of publicity are currently inadequately equipped to handle these issues clearly and consistently.
Stech agreed with each of the five points described by Kupferschmid. Specifically, she argued that the quality of data ingested by AI weighs against a finding of fair use. She also argued in favor of granting copyright over images to the subjects of photographs. She stated that “there are two humans contributing creativity in a photograph,” and that photographers may not be the only authors of photographs including a human subject. Professor Aistars reminded the panel of a case involving model Emily Ratajkowski posting on social media a photograph taken of her by paparazzi in which she had covered her face with a bouquet of flowers. She was then sued for copyright infringement by the photographer. Stech, Tehranian, and Aistars all suggested that this serves as an example where subjects may deserve some rights in photographs taken of them.
Abstract questions surrounding the meaning and value of art and creation continue to force copyright law to tread carefully in providing legal protection to creative expression without becoming a deterministic judge of artistic value. Whether prompt engineers will be considered authors of AI-generated works, whether the ingestion of copyrighted material in training AI models is fair use, and whether the subjects of visual works are entitled to some rights in the images taken of them are all questions at the forefront of IP law in the 21st Century. How Congress and higher courts will address them is not yet known, leaving open the discussion for creatives and lawyers alike to help discern the proper scope of protection for generative AI, its outputs, and the visual arts. As the panelists acknowledged, predictions for the state of policymaking regarding AI are unclear, but there is one certainty. Protecting the rights of artists and their creative expressions must be the driving force behind the application of copyright law to works generated with new technologies.
In early 1940, Woody Guthrie was on the road to New York City, and he was tired. Tired of traveling. Tired of the cold. Tired of having to hobo and hitchhike his way across America (again). He nearly froze to death in a Pennsylvania snowstorm along the way. He eventually made it to New York, though, alive but exhausted.
He was also tired of hearing Kate Smith’s patriotic anthem “God Bless America” on the radio. It had been an instant hit since its debut more than a year prior, but its ubiquity bothered Guthrie as did its use of religious imagery to inspire nationalist feeling. He was so tired of hearing it that when he finally got to New York he wrote his own song in response. Entitled “God Blessed America,” the song’s first three verses were an artistic rendering of his recent travels across “golden valleys” and “diamond deserts.” The fourth verse shifted somewhat in tone, though, and perhaps revealed something about Guthrie’s philosophical outlook:
Was a big high wall there / That tried to stop me
A sign was painted / Said: Private Property
But on the back side / It didn’t say nothing
God blessed America for me
“This Land” in Court
This song would eventually replace the line “God blessed America for me” with “This land was made for you and me” and change its title to “This Land Is Your Land.” The song’s development has been discussed in previous scholarship.[1] Here, I’ll focus on revisions only insofar as they relate to its copyright claim. The validity of this claim has received significant scholarly attention in recent years and even spilled over into public discourse as the copyright has been challenged in court. Research that I conducted while completing a Thomas Edison Innovation Law and Policy Fellowship revealed important details that can reframe scholarly discourse about the copyright in “This Land,” and may inform legal arguments if it is challenged again.[2]
As of this writing, the most recent litigation occurred in 2016 when the law firm of Wolf Haldenstein Adler Freeman & Herz filed a complaint on behalf of the band Satorii against The Richmond Organization (TRO), current publishers of “This Land” and other Guthrie works.[3] In 2015, the same firm successfully litigated a high profile case against Warner/Chappell Music, Inc. that established “Happy Birthday” in the public domain.[4] Buoyed by this success, the firm hoped to similarly invalidate the copyright claim in both “This Land” and the civil rights anthem “We Shall Overcome.”[5] While the cases involving “Happy Birthday” and “We Shall Overcome” were relatively clear-cut, the facts of the copyright claim in “This Land” are more complicated and warrant an in-depth look.
Writing – and Protecting – “This Land”
Having a song undergo several rounds of revision was a normal part of Guthrie’s creative process. Also common to Guthrie’s process was the practice of pairing original lyrics with an established melody.[6] “This Land” is an example of this practice as the melody line and chord progression are based on an old Carter Family song entitled “Little Darling, Pal of Mine,” which itself was based on a gospel hymn entitled “Oh My Loving Brother.”[7]
The original lyric sheet for “This Land” evidences its evolution as lines from the first draft are crossed out and replaced with new ones.[8] The earliest known recording of the song was made in the mid-1940s with producer Moe Asch, and by that time the references to “God Bless America” had been dropped.[9] It was recorded again in the late 1940s and a third time in 1951.[10] As initiates into the byzantine world of music copyright will know, however, copyright in these specific sound recordings is distinct from a copyright in the words and music of the song itself.
“This Land” debuted on the radio in the mid 1940s as merely one song in Guthrie’s vast repertoire. One of the ways that musical acts on the radio generated income at this time was to sell songbooks to listeners that contained the sheet music for tunes they heard on the air.[11] Guthrie had been creating such songbooks for years by this point, and in 1945 he created one that included “This Land” along with other titles. Mimeographed from a handmade manuscript and advertised at a selling price of 25 cents, this document included an explicit copyright claim on both its cover and first page.[12] Such a notice met the basic requirements for claiming copyright at the time. Moreover, Guthrie was generally aware of these requirements and had made efforts to comply with them before.[13]
Card Catalog Entry for Woody Guthrie, “This Land is Your Land,” March 30, 1956
Yet, “This Land” was not officially registered with the Copyright Office until 1956. By this time, Guthrie was profoundly debilitated by Huntington’s Disease. Management of his affairs was handled by his second wife, Marjorie Mazia Guthrie, and her designees. It is possible that when they submitted the application for copyright registration they were unaware of the songbook’s existence. In the mid-1950s, “This Land” was just beginning to achieve the popular recognition it would eventually enjoy, and a hastily drawn songbook he had made a decade prior would likely not even register on their radar as they worked to untangle the myriad contracts and assignments of rights Guthrie had signed since he arrive in New York.[14]
The question of the copyright claim’s legitimacy hangs on a comparative evaluation of the 1945 manuscript and the 1956 registration. Records in the archives of the Woody Guthrie Center demonstrate that the successive entities who managed the copyright, including TRO, believed the 1956 registration to be valid.[15] Yet, when the copyright was challenged in 2004, the Electronic Frontier Foundation (EFF) discovered the 1945 manuscript and positioned it as evidence of “first publication.”[16] That case, like the one in 2016, eventually settled without ruling on the validity of the copyright claim, but the question of first publication will be important if suit is filed again in the future. TRO correctly filed for an extension of the 1956 registration in the twenty eighth year timeframe required at the time (i.e. pre-1976 Copyright Act). If the copyright clock legally began with the publication of the 1945 manuscript, however, the extension window was missed and the song would have fallen into the public domain twenty eight years later in 1973.
Conclusion
Ultimately, if a ruling is made, it will come down to a judge’s decision on whether the 1945 manuscript should count as first publication. When I began this research, I had hoped to produce a definitive recommendation similar to what Robert Brauneis was able to do with his work on “Happy Birthday.”[17] While I am not able to say definitively whether or not the copyright claim in “This Land” is valid, I do believe the case for its validity is stronger than many previous commentators have suggested.
It does not take a professional musicologist to note several differences in the sheet music from 1945 and 1956. They are in different keys and different time signatures. The melodies notated are both recognizable as “This Land,” but they have differences that even an untrained ear can easily distinguish. There are differences in the lyrics as well. For example, the 1945 manuscript has “Canadian Mountain” in place of the more familiar “Redwood Forest” in the first verse, and that difference is just one of many. Even the title on the 1945 manuscript is simply “This Land” rather than the full “This Land Is Your Land.” These discrepancies suggest a strong case that the manuscript accompanying the 1956 registration can reasonably be considered an updated arrangement or version deserving of its own unique copyright. If a judge were to rule the 1956 registration valid, then the current copyright claim would stand as legitimate.
The stakes of “This Land”’s copyright legitimacy are not insignificant. Nora Guthrie, Woody’s daughter and President of Woody Guthrie Publications, has stated explicitly why the claim is still asserted: “Our control of this song has nothing to do with financial gain. . . . It has to do with protecting it from Donald Trump, protecting it from the Ku Klux Klan, protecting it from all the evil forces out there.”[18] In my research, I did not find any scholarship that advocated for “This Land” to become public domain that also seriously addressed the ramifications of that outcome. The copyright claim may be disputed, but it is the only thing currently keeping the song from being appropriated into any number of commercial or political purposes that would have been anathema to Guthrie. It would be ideal, perhaps, if there were a mechanism other than copyright to restrict harmful use of “This Land,” but absent such a mechanism copyright is, in this case, the only thing helping to prevent appropriation and commodification.
References
[1] Most biographies of Guthrie have a section that covers the composition of “This Land Is Your Land.” See Robert Santelli, This Land Is Your Land: Woody Guthrie and the Journey of an American Folk Song (Philadelphia: Running Press, 2012) for an accurate yet accessible narrative. See John Shaw, “The Textual History of ‘This Land Is Your Land” in This Land That I Love: Irving Berlin, Woody Guthrie, and the Story of Two AmericanAnthems (New York: PublicAffairs, 2013), 211-218 for a more detailed analysis.
[2] Jason Lee Guthrie, “This Copyright Kills Fascists: Debunking the Mythology Surrounding Woody Guthrie, ‘This Land is Your Land,’ and the Public Domain,” Information & Culture 58, no. 1 (2023): 17-38.
[3] Plaintiff’s Complaint, ECF No. 6, Saint-Amour et al v. The Richmond Organization, Inc. (TRO Inc.), June 15, 2016, (S.D.N.Y. 2016) (No. 16 Civ. 4464).
[6] See, for example, Alonzo M. Zilch’s own Collection of Original Songs and Ballads (Songbook), April 1935, Item 87, Woody Guthrie Notebooks (Diaries), Woody Guthrie Center Archives, Tulsa, Oklahoma (hereafter WGC), Guthrie’s earliest known songbook, which included the quote: “At times I cannot decide on a tune to use with my words for a song. Woe is me! I am then forced to use some good old, family style tune that hath already gained a reputation as being liked by the people.”
[7] Ed Cray, Ramblin’ Man: The Life and Times of Woody Guthrie (New York: W. W. Norton & Company, 2004), 165-166.
[9] Woody Guthrie, “This Land Is Your Land (Alternate Version),” c. mid-1940s, on Woody at 100: The Woody Guthrie Centennial Collection, Smithsonian Folkways, 2012.
[10] See Woody Guthrie, “This Land Is Your Land”, c. late-1940s, on This Land Is Your Land: The Asch Recordings, Vol. 1, Smithsonian Folkways, 1997; and Woody Guthrie, “This Land Is Your Land,” 1951, on This Land Is My Land: American Work Songs: Songs to Grow On, Vol. 3, Smithsonian Folkways Archival, 2007.
[11] Peter La Chapelle, I’d Fight the World: A Political History of Old-Time, Hillbilly, and Country Music (Chicago: The University of Chicago Press, 2019), 165-166.
[13] See, for example, Copyright Office to Woody Guthrie, September 22, 1937, Series 4, Box 6, Folder 3, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC; and Copyright Office to Woody Guthrie, n.d., Series 4, Box 6, Folder 4, Maxine Crissman “Woody and Lefty Lou” Radio Show Collection, WGC.
[14] Joe Klein, Woody Guthrie: A Life, 2nd ed. (New York: Random House, 1999), 430-432.
[15] See, for example, Harold Leventhal to Woody Guthrie, August 27, 1956, Series 2, Box 2, Folder 13, Woody Guthrie’s Correspondence Collection, WGC; Harold Leventhal to Cisco Houston, November 25, 1958, Series 3, Box 1, Folder 10, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, January 13, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; Jay Mark to Harold Leventhal, December 7, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC; Al Brackman to Harold Leventhal, December 22, 1959, Series 1, Box 1, Folder 16, Harold Leventhal Collection, WGC; and Howard S. Richmond to Harold Leventhal, December 28, 1959, Series 3, Box 1, Folder 8, Harold Leventhal Collection, WGC.
[17] Robert Brauneis, “Copyright and the World’s Most Popular Song,” Journal of the Copyright Society of the U.S.A 56, no. 2–3 (Winter-Spring 2009): 335–426.
Will Donald Trump’s lawsuit against Bob Woodward and publisher Simon & Schuster[1] finally resolve the question of who owns the copyright over interviews? While the complaint has other challenges, it calls out a surprisingly muddled and unresolved area of copyright law.
One might assume that the copyright ownership of interviews is a settled question. But two major questions have never been resolved:
Are interviewee’s responses to an interviewer’s questions copyrightable?
If they are, then who owns that copyright?
C-IP2 2022-2023 Edison Fellow Mary Catherine Amerine presciently identified and analyzed these issues in a 2017 article in the Marquette Intellectual Property Law Review.[2] We relied on her article and current expertise in producing this blog post.
Courts were considering the first question as early as the 1960s, when the estate of Ernest Hemingway claimed that Papa Hemingway, a book that included lengthy quotes from conversations between Hemingway and an interviewer, infringed the estate’s copyright over the interviews themselves.[3] The court ruled on an implied license theory and thus dodged the copyrightability of Hemingway’s conversational statement as captured in an audio recording. In dicta, the court speculated that an interviewee would need to make some clear statement bracketing parts of their extemporaneous responses to an interviewer’s questions “to mark off the utterance . . . from the ordinary stream of speech, . . . to adopt it as a unique statement and that he wished to exercise control over its publication.”[4]
A decade later, a different court employed different reasoning to rule against Jerry Falwell’s copyright infringement claims for republication of interviews in Penthouse Magazine.[5] Whereas the Hemingway dicta suggests that copyrightability turns on an objective manifestation by the interviewee that a particular oral statement has the requisite authorial intent and thus is not mere extemporizing, the Falwell holding turns on whether the content of the particular oral statement is “concrete” enough to indicate authorial intent.[6] This holding then curiously (albeit perhaps unintentionally) imports patent law’s exclusion of “abstract ideas” from patent eligibility into copyright law: “However different or unique plaintiff’s thoughts or opinions may be, the expression of those opinions or thoughts is too general and abstract to rise to the level of a literary or intellectual creation . . . .”[7]
Courts have followed this reasoning ever since, distinguishing off-the-cuff extemporizing typical of unrehearsed oral responses to media questions from the sort of carefully planned oral statements of executives of publicly traded companies on analysts’ earnings calls.[8] At the same time, some courts have upheld copyright in the interviewer for interview quotes as a compilation (which avoids ownership of individual quotations).[9]
While the exact contours of whether there is copyright in any particular interview source material are still not clear, the question of who holds that copyright, should it exist, is even less certain. Trump’s Complaint requests a declaratory judgment for his ownership of the entirety of the interview’s sound recordings,[10] audiobook, and all derivative works, or, in the alternative, “copyright in his responses . . . . ”[11] Trump’s ownership of the entire copyright in the interviews would be unprecedented; no court has held that an interviewee could own the copyright over an entire interview. But the question of ownership of the copyright to an interview—in whole or in part—turns on three other questions:
Can the interviewer seek to claim copyright of all contents of the interview on the theory that they directed and recorded the interview?
Can neither party own copyright to the other’s statements because they did not create or make them, and hence each owns only their own contribution (“divided copyright”)?
Should the entirety be viewed as a work of joint authorship by the interviewer and interviewee?
The court in Suid v. Newsweek Magazine, addressing a reporter’s attempt to claim the entirety of copyright in interviews he conducted, adopted “B” and divided copyright: “The author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work because the author may not claim originality as to those statements.”[12] By contrast, the court in Foundation for Lost Boys v. Alcon Entertainment, LLC was inclined to adopt “C” when it held that interviewee plaintiffs had pled facts sufficient to support a finding of joint authorship with interviewer defendants. Ruling on defendants’ motion to dismiss, the court rejected the argument that plaintiffs’ interview responses were not copyrightable, as telling “personal stories in response to questions designed to elicit material” likely rose to the required level of creativity. Further, the court held that “[T]he interplays between prompts and responses in the Interviews necessarily merged the respective contributions of the [Plaintiffs and interviewers] into inseparable parts of a whole,” even though the refugees had not specifically asserted that they had intended to create a joint work.[13] However, the case settled, leaving the interview copyright ownership question unanswered.
A final wrinkle in interview copyright cases arises when the party asserting copyright does not have physical custody of the interview materials and so cannot register the copyright with the U.S Copyright Office. Parties in similar circumstances have attempted to skirt this issue by positioning their claims as declaratory judgment actions rather than directly claiming infringement, as copyright registration is a requirement for filing a copyright infringement lawsuit. These declaratory judgment actions have generally requested that the court grant an injunction requiring defendants to provide copies of the work in question to allow the plaintiffs to register their copyright. So far, courts have been divided on whether this strategy is a permissible circumvention of the copyright registration requirement.
In Johnson v. Magnolia Pictures LLC, the court granted a motion to dismiss by a producer who created a movie about comedian Gilda Radner based on recorded interviews found in an attic. The court ruled that a declaratory judgment is not an independent cause of action that could survive without the underlying copyright infringement claim, which was itself dismissed for lack of copyright registration.[14] Similarly, in Whistleblower Productions, LLC v. St8cked Media LLC, the court dismissed a copyright infringement case because even as plaintiff claiming ownership of the interview footage used to make a documentary, they did not possess the footage and hence had been unable to register the copyrights.[15] But in Lost Boys, the Sudanese refugees case, the court stated that if the refugees proved facts sufficient to show copyright infringement in a trial on the merits, then they would be entitled to an injunction compelling defendants to turn over the interview materials needed for the plaintiffs to register the copyrights.[16]
Trump’s lawsuit faces a similar registration challenge: the Complaint conspicuously fails to plead that Trump has a copyright registration. According to Trump’s attorney, he was unable to register the copyright because he does not have the interview tapes.[17] Thus, similar to the cases above, he does not plead copyright infringement directly, but instead seeks a declaratory judgment that he owns the interview copyright, in whole or in part. However, distinct from the above cases, Trump does not currently seek an injunction to obtain the interview materials copyright registration. Further, because Trump has filed in the U.S. District Court for the Northern District of Florida, where no local or circuit decisions bind the court on these issues, it is unclear whether the court will allow the suit to proceed as an action for declaratory judgment, or whether the lack of copyright registration will be fatal.
If Trump’s suit survives the likely motion to dismiss for lack of copyright registration, then the court would still need to decide whether to find no copyright, divided copyright, sole copyright owned by either Trump or Woodward (or Simon & Schuster), or joint authorship. Trump has already sought to reject the latter, pleading in the Complaint that “President Trump never sought to create a work of joint authorship, and in the hours of the Interviews, there is neither allusion to nor confirmation of such.”[18] The Lost Boys decision indicates that this lack of intent does not necessarily preclude joint authorship, as interview questions and responses may be “inseparable or interdependent parts” that create a “unitary whole.”[19] However, this is the only case that has directly addressed the possibility of joint authorship of an interview in these circumstances. It remains to be seen whether the court would find this reasoning persuasive or would return to earlier decisions to hold either that interview responses cannot be copyrighted at all, or that interview questions and responses are protected by two separate copyrights owned by the interviewer and interviewee, respectively.[20]
Regardless of the outcome of Trump’s case, this high-profile lawsuit has made it impossible to ignore the unsettled nature of a copyright question that has been long overlooked.
[1]Trump v. Simon & Schuster, Inc., Case No. 3:23-cv-02333-RV-ZCB (Dkt. 1, Complaint, Jan. 30, 2023).
[2] 21 Marq. Intell. Prop. Rev. 159 (2017) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2878800. Drafts of the article won both AIPLA’s Robert C. Watson National Writing Award and the Virginia State Bar Intellectual Property Section’s Student Writing Competition. Amerine is currently an associate at Shearman & Sterling.
[3]Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250 (N.Y. 1968). While this and the Falwell case discussed below were brought under common-law copyright, the courts’ analyses are still relevant to the copyright of interviews under the Copyright Act of 1976.
[5]Falwell v. Penthouse Intern., Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).
[6] “There is nothing concrete which distinguishes his particular expression of his ideas from the ordinary.” Id. at 1208.
[7]Id. Notwithstanding, the court also relied in part on the reasoning of the Hemingway dicta: “the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff’s expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff’s purported copyrighted material.” Id.
[8] Compare Taggart v. WMAQ Channel 5 Chicago, No. 00-4205-GPM, 2000 WL 1923322 at *5 (S.D.
Ill. Oct. 30, 2000) (“comments during the interview were unprepared and spontaneous responses,” and therefore “simply do not rise to the level of a literary or intellectual creation enjoys the protection of the copyright law.”) with Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634, 638 (S.D.N.Y. 2011) (oral statements of executives “possess the requisite creativity to qualify for copyright protection.”).
[9]Quinto v. Legal Times of Washington, Inc., 506 F. Supp. 554 (D.D.C. 1981).
[10] The question of sound recordings adds a layer of complexity beyond the scope of this post. It will be addressed in a subsequent post.
[11]Trump v. Simon & Schuster, supra Note 1 at ¶¶ 64-65.
[12]Suid v. Newsweek Mag., 503 F. Supp. 146, 147 (D.D.C. 1980).
[13]Foundation for Lost Boys v. Alcon Ent., LLC, No. 1:15-CV-00509-LMM, 2016 WL 4394486 at *2-4 (N.D. Georgia Mar. 22, 2016).
[14]Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 4412483, at * 1-2 (S.D.N.Y. Sept. 16, 2019) (reconsideration denied, Johnson v. Magnolia Pictures LLC, No. 18 CV 9337, 2019 WL 5569610 (Oct. 29, 2019). The interviews formed the basis of the film Love, Gilda.
[15]Whistleblower Prods., LLC v. St8cked Media LLC, No. 18-CV-5258, 2019 WL 3082482 (E.D.N.Y. July 15, 2019)
[16]Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *9.
[18]Trump v. Simon & Schuster, supra Note 1 at ¶ 47.
[19]Found. for Lost Boys and Girls of Sudan, Inc. et al v. Alcon Ent. at *8.
[20] A fourth alternative, not yet adopted by courts but proposed by Amerine in her article, is that the journalist own copyright over the entire interview as the “mastermind” who controls the project and can be considered the “author” under the Ninth Circuit’s authorship analysis in Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Supra note 2 at 182-184.
On Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet. The court found that the activities were clearly infringing (PP. 14-15) and also that
Each enumerated fair use factor favors the Publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. (P. 45).
C-IP2’s Sr. Scholar & Senior Fellow for Copyright Research & Policy Prof. Sandra Aistars drafted and filed a successful amicus brief supporting the publishers in the case. She was joined by twelve other scholars. You can read the court’s Order here and the Copyright Scholars’ brief here.
Considering the fair use factors in turn, on factor one — focusing in this instance on transformative use — the court noted that the HathiTrust and Google Books decisions had foreshadowed the ruling. (P. 19). Those cases delineated the outside boundaries of the fair use/transformative use doctrine by allowing the scanning of entire databases of books in their entirety, but making them available only in limited ways and for limited purposes that added transformative purpose, meaning or message to the works. (PP. 19-20). The court explained:
Importantly, the database did not “allow users to view any portion of the books they [were] searching” and therefore, unlike IA’s Website, “d[id] not add into circulation any new, human-readable copies of any books” or “merely repackage or republish the originals.” [Authors Guild v. HathiTrust, 755 F. 3d, 87, 97 (2d Cir. 2014)].
Google Books similarly found transformative use in Google’s scanning of copyrighted books to create a database that included a “snippet view” search function that allowed readers to view a few lines of text containing searched-for terms. [Authors Guild v. Google, Inc., 804 F.3d, 202, 208 (2d Cir. 2015)]. The snippet view showed the searcher “just enough context surrounding the searched term” to help the searcher evaluate whether the book fell within the scope of the searcher’s interest “without revealing so much as to threaten the author’s copyright interests.” Id. at 208, 216. But the Court of Appeals cautioned that “[i]f Plaintiffs’ claim were based on Google’s converting their books into a digitized form and making that digitized version accessible to the public,” precisely what the Publishers allege in this case, the “claim [for copyright infringement] would be strong.” Id. at 225. If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use. (P. 20).
The court likewise rejected arguments under the first fair use factor that IA expands the utility of the Works in Suit in any way recognized in the Second Circuit: e.g., by using technology to “improv[e] the efficiency of delivering content” to “one entitled to receive the content” in a way that does not “unreasonably encroach[] on the commercial entitlements of the rights holder.” [Capitol Recs., LLC v. ReDigiInc., 910 F.3d 649, 661] (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)); see also [Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 177 (2d Cir. 2018)].” (P. 22). The court noted that to accept IA’s expanded utility argument would be to “ignore the teachings of the Court of Appeals for the Second Circuit in Google Books that there would be a ‘strong’ claim for copyright infringement if Google had distributed digitized copies of complete books.” (P. 24).
The court also found unpersuasive IA’s suggestion that it is a non-commercial user. (P. 26). It explained that the facts (including how “every single page of the Archive is monetized” (P. 27)) demonstrate how “IA stands to profit from its non-transformative exploitation of the Works in Suit. The commercial-noncommercial distinction, like the transformativeness inquiry, therefore counsels against a finding of fair use.“ (P. 28).
The SDNY was utterly unconvinced by IA’s attempts to bootstrap its faulty first sale arguments into its equally faulty fair use arguments, hopeful that two wrongs might together make an exception. (PP. 29-31). The court saw through this charade and rightly pointed out that [i]n ReDigi, the Court of Appeals plainly held that the first sale doctrine has now been codified in Section 109(a), that it does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts. Id.” (P. 31). It is also worth noting that it did not escape the SDNY’s notice that the IA and its collaborators do not even follow the CDL lending rules they outline for themselves. (PP. 31-32).
The court found that since the works at issue were original works of authorship (including fiction and non-fiction works that were “far removed from the . . . factual or descriptive work more amenable to fair use” (Pg. 35)), the second factor favored the Publishers. (PP. 34-36). The third factor likewise favored the publishers because IA copied the works in their entirety without a transformative purpose and for a purpose that directly competed with licensed eBooks. (P. 37).
Regarding the fourth factor – marketplace harm – evidence that IA pitches its offerings to libraries to supplant licenses from publishers could not be denied. (P. 39). IA offered weak arguments the court did not find persuasive that Publisher profits had increased during the time of the COVID lockdown while IA was pursuing its Emergency Digital Library initiative, but the metrics suggested by IA were at best weakly correlative in nature in the court’s opinion. (P. 43).
Finally, the court considered whether any other public benefits could flow from IA’s services. (PP. 44-45). It rejected the suggestion that any alleged public benefit created by easier access to works outweighed market harm to publishers. (P. 44). While “any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,” the Works in Suit are already accessible by readers through libraries in a free library lending model supported by widespread legitimate commercial licensing models deploying a variety of lending/licensing options. (PP. 44-45).
While the court’s decision is a resounding indictment of IA’s business model and CDL programs, it should not be read in any way to tarnish the profile or work of libraries. Libraries performed especially important work during the COVID-19 pandemic, and remain bastions of democracy by promoting free thought and learning. It is important that libraries continue to disseminate works to communities that may otherwise lack easy access to them by using a variety of licensed tools and authorized exceptions under the Copyright Act. Should additional exceptions be needed they should be sought (as the court noted on page 31) from Congress, not the courts.
Thanks for C-IP2 Research Assistant Cala Coffman, a 2L at Scalia Law, for her editing assistance.
The following post comes from Cala Coffman, a 2L at Scalia Law and Research Assistant at C-IP2.
At the recent C-IP2 conference entitled IP on the Wane: IP on the Wane: Examining the Impacts as IP Rights Are Reduced, one panel discussed the current state of copyright law, the pressures it has come under in recent years, and their differing perspectives on how the digital world is shaping copyright. Topics of discussion included enforcement techniques, trends in fair use, and the impact of evolving technology on copyright.
Panelists were Clark Asay (Professor of Law at Brigham Young University J. Reuben Clark Law School), Orit Fischman-Afori (Professor of Law at The Haim Striks School of Law, College of Management Academic Studies (COLMAN)), Terry Hart (General Counsel, Association of American Publishers (AAP)), and Karyn A. Temple (Senior Executive Vice President & Global General Counsel, (Motion Picture Association)), and the session was moderated by Sandra Aistars (Clinical Professor, George Mason University, Antonin Scalia Law School; Senior Fellow for Copyright Research and Policy; and Senior Scholar at C-IP2).
Professor Fischman opened the panel by proposing a reconsideration of criminal enforcement for copyright claims. After reviewing current avenues for civil copyright enforcement, including the newly established Copyright Claims Board in the Copyright Office, Digital Millennium Copyright Act, and civil enforcement in federal court including the opportunity for statutory damages, Professor Fischman suggested that criminal copyright enforcement actions seem to be on the decline and should not be a focus of enforcement efforts. Rather, greater attention should be devoted to civil enforcement. Recently, the U.S. Sentencing Commission reported that criminal Copyright and Trademark cases have dropped from 475 cases in 2015 to 137 cases in 2021.
Over the past two decades, several enforcement mechanisms have been introduced to address the challenges authors face enforcing their copyrights in the digital world. These include the Digital Millennium Copyright Act in 1998, the Digital Theft Deterrence Act of 1999, and the Copyright Alternatives in Small-Claims Enforcement Act of 2020, which improved access to enforcement for small creators by creating a new administrative forum with simplified proceedings in the Copyright Office. Small copyright claims can be pursued there with or without the assistance of counsel. While these civil enforcement mechanisms are effective, they have not been without criticism.
Ultimately, Professor Fischman argued that the combination of civil and criminal enforcement frameworks creates a powerful enforcement mechanism for author’s rights. As we consider the current state of IP rights, criminal enforcement is becoming less meaningful overall, in her opinion.
Next, Professor Asay presented three recent empirical studies examining trends in copyright litigation.
The first study indexed fair use cases from 1991 to 2017. In this study, Professor Asay examines the scope of fair use analysis in copyright infringement cases and finds a “steady progression of both appellate and district courts adopting the transformative use paradigm, with modern courts relying on it nearly ninety percent of the time.” The study finds that at the Federal Circuit Court level, in cases where transformative use was asserted, 48% were found to be transformative, and 91% of transformative uses were found to be fair use. Professor Asay states that “fair use is copyright law’s most important defense to claims of copyright infringement,” but as courts increasingly apply transformative use doctrine, he finds that “it is, in fact, eating the world of fair use.”
The second study Professor Asay presented analyzed over 1000 court opinions from between 1978 and 2020 that used a substantial similarity analysis. In this study, Professor Asay finds first that courts rely on opinions from the Second and Ninth circuits “more than any other source in interpreting and applying the substantial similarity standard.” The study also breaks down trends within the two-step substantial similarity analysis. On the first step, Professor Asay finds that “courts mostly decide this first prong . . . as a matter of whether defendant’s had access to the plaintiff’s work, and they mostly favor plaintiffs.” On the second step, he finds “significant heterogeneity” in analyzing improper appropriation of a plaintiff’s work. He states that “no dominant means exist for resolving this question” and “the data also suggest that one of the keys to winning, for either defendants or plaintiffs, is the extent to which the court engages with and discusses copyright limitations.”
The third study, which is forthcoming, examines DMCA Section 1201 litigation. DMCA Section 1201 prohibits attempts to circumvent technological measures used to control access to a copyrighted work.17 U.S.C. § 1201. This study encompasses 205 cases and 209 opinions, and Professor Asay said during the panel that “the most interesting finding in this study is that there’s not much section 1201 litigation.” Although the DMCA has been in force for nearly twenty-five years, less than one appellate decision is made per year on average. The study also finds that “the most litigated subject matter” (over every other subject matter the study coded for) is software.
Ms. Temple discussed how new technologies, techniques, and distribution methods are constantly requiring courts to re-evaluate how authorship rights function in a digital landscape. She likewise commented on the challenges courts seem to face in appropriately drawing distinctions between derivative uses of copyrighted works that should require a license from the author, and transformative uses that are permissible under the affirmative defense of fair use.
Ms. Temple cited the numerous briefs in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (including the Motion Picture Association’s) that note that the transformative use test is becoming the sole criteria courts use to determine fair use. Indeed, the MPA’s brief cited to Professor Asay’s study on transformative use (Is Transformative Use Eating the World?) to support the petitioner’s assertion that “in practice, the transformativeness inquiry is virtually always dispositive of the fair use question.” In closing, Ms. Temple stated that although we may be “waning” in how courts see fair use, Warhol presents a chance to correct the fair use analysis and steer it away from infringing on the derivative work rights of authors.
Finally, Mr. Hart presented on potential threats to authorship rights and the concomitant harms to consumer interests in the e-book arena. Mr. Hart’s perspective was that as businesses, copyright industries legitimately have profit-motivated goals, but happily, their ability to meet these goals is directly tied to the “ultimate goal” of promoting science and the useful arts and thus is beneficial to society as a whole. Mr. Hart stated that “the good news, if we think copyright [protections are] waxing, is that . . . the legal framework both in the United States and internationally recognizes [the] principles” that allow copyright owners to take advantage of and divide their exclusive rights. However, digitization may pose a threat to the ability to license rights as the copyright owner desires, as digital copying and transmission greatly increases risk of infringement of e-books.
The e-book market is unique, according to Mr. Hart, in that authors may be particularly vulnerable to digital threats when “digital copies are completely indistinguishable from the originals, and so they would be competing directly with the copyright owner’s primary markets.” Furthermore, he stated that “threats to the ability of copyright owners . . . to pursue rational choices in how they market and distribute their works can be just as harmful as straight up piracy.”
Mr. Hart characterized the e-book market as a thriving, sustainable economy. E-books have been popular for over a decade now, and there are a “variety of licensing models [available] . . . that continue to evolve to meet both the needs of publishers and libraries.” Mr. Hart stated, “the evidence shows that this is a well-functioning market.” He said that “Overdrive, which is the largest e-book aggregator, reported that in 2021 there was over half a billion check-outs of library e-books worldwide, and the pricing is, in my view, fair and sustainable.” Additionally, Mr. Hart said, “Overdrive also reported . . . that the average cost per title for libraries declined in 2021, and libraries have been able to significantly grow their e-book collections . . . with collection budgets that, when you’ve adjusted for inflation, have essentially been flat the entire time.”
One of the major threats to authorship rights in the e-book market, in Mr. Hart’s view, is the rise of Controlled Digital Lending (CDL). While this theory is currently being litigated in Hachette Book Group v. Internet Archive, Mr. Hart posits that we are only a few steps from a full-blown digital first-sale doctrine, which could have widespread harms throughout copyright for many types of authors. Many amicus briefs in the Internet Archive case have identified this potential harm, as well. According to Hart, the Copyright Alliance brief, for example, stated that a ruling in favor of CDL would have extremely widespread economic harms for authors.
The second threat Mr. Hart identified comes from recent propositions at the state level that would introduce compulsory licenses for e-books. These proposed laws would outlaw limitations on e-book licenses offered to libraries and allow states to dictate what states believe are “reasonable” pricing for e-book licenses. A flaw in both the arguments for CDL and for compulsory e-book licensing, as Mr. Hart sees it, is that both approaches treat the mere exercise of a copyright owner’s exclusive right as unfair and, if accepted, would be dangerous encroachments on authorship rights.
Ultimately, while the panelists identified significant concerns in the existing copyright regime, they were hopeful about the future of authorship rights, reflecting that even if the protections for copyright law had “waned” in certain respects in recent years, and certain rights remain in peril, there are opportunities for education as courts confront the significant changes that accompany an increasingly digital landscape.
C-IP2 is saddened by the death of former Register of Copyrights Marybeth Peters — an accomplished and inspiring copyright lawyer who led the U.S. Copyright Office from 1994-2010. Register Peters began her love affair with copyright on Valentines Day of 1966 with her appointment as a music examiner in the former Music Section of the Examining Division. She held numerous positions at all levels in the Copyright Office, ultimately culminating with her role as Register.
Register Peters’ contributions to the law are enshrined in the Copyright Act, the Digital Millennium Copyright Act, and the numerous regulations implementing them. Her wise counsel will live on in untold hours of advice rendered to Members of Congress, various administration officials, and the many authors, practitioners and scholars who make their careers in the copyright world.
Those scholars and practitioners include scholars at C-IP2 who remember Marybeth with thanks for her gifts of mentorship, her passion for knowledge and learning, and the kindness she showed us as we also pursue our love of creativity and innovation.
This post comes from Sandra Aistars, Clinical Professor and Director of the Arts & Entertainment Advocacy Clinic at George Mason University, Antonin Scalia Law School, and Senior Fellow for Copyright Research and Policy & Senior Scholar at C-IP2.
Click on image for full-size PDF flyer.
On March 17, 2022, I had the pleasure to discuss Artificial Intelligence and Authorship with Dr. Ryan Abbott, the lawyer representing Dr. Stephen Thaler, inventor of the “Creativity Machine.” The Creativity Machine is the AI that generated the artwork A Recent Entrance to Paradise, which was denied copyright registration by the United States Copyright Office. Dr. Abbott, Dr. Thaler, and his AI have exhausted all mandatory administrative appeals to the Office and announced that they would soon sue the Office in order to obtain judicial review of the denial. You can listen to the conversation here.
Background:
Dr. Thaler filed an application for copyright registration of A Recent Entrance to Paradise (the Work) on November 3, 2018. For copyright purposes, the Work is categorized as a work of visual art, autonomously generated by the AI without any human direction or intervention. However, it stems from a larger project involving Dr. Thaler’s experiments to design neural networks simulating the creative activities of the human brain. A Recent Entrance to Paradise is one in a series of images generated and described in text by the Creativity Machine as part of a simulated near-death experience Dr. Thaler undertook in his overall research into and invention of artificial neural networks. Thaler’s work also raises parallel issues of patent law and policy which were beyond the scope of our discussion.
The registration application identified the author of the Work as the “Creativity Machine,” with Thaler listed as the claimant as a result of a transfer resulting from “ownership of the machine.” In his application, Thaler explained to the Office that the Work “was autonomously created by a computer algorithm running on a machine,” and he sought to “register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”[i]
The Copyright Office Registration Specialist reviewing the application refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.”[ii]
Thaler requested that the Office reconsider its initial refusal to register the Work, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.”[iii]
The Office re-evaluated the claims and held its ground, concluding that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.”[iv]
37 CFR 202.5 establishes the Reconsideration Procedure for Refusals to Register by the Copyright Office. Pursuant to this procedure Thaler appealed the refusal to the Copyright Office Review Board comprised of The Register of Copyrights, The General Counsel of the Copyright Office and a third individual sitting by designation. The relevant CFR section requires that the applicant “include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information, and must address the reasons stated by the Registration Program for refusing registration upon first reconsideration. The Board will base its decision on the applicant’s written submissions.”
According to the Copyright Office, Thaler renewed arguments from his first two unsuccessful attempts before the Office that failure to register AI created works is unconstitutional, largely continued to advance policy arguments that registering copyrights in AI generated works would further the underlying goals of copyright law, including the constitutional rationale for protection, and failed to address the Office’s request to cite to case law supporting his assertions that the Office should depart from its reliance on existing jurisprudence requiring human authorship.
The Office largely dismissed Thaler’s second argument, that the work should be registered as a work made for hire as dependent on its resolution of the first—since the Creativity Machine was not a human being, it could not enter into a “work made for hire” agreement with Thaler. Here, the Office rejected the argument that, because corporations could be considered persons under the law, other non-humans such as AIs should likewise enjoy rights that humans do. The Office noted that corporations are composed of collections of human beings. The Office also explained that “work made for hire” doctrine speaks only to who the owner of a given work is.
Of course, both Dr. Abbott and the Copyright Office were bound in this administrative exercise by their respective roles: the Copyright Office must take the law as it finds it—although Dr. Abbott criticized the Office for applying caselaw from “the Gilded Age” as the Office noted in its rejection “[I]t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts.”[v] Likewise, Dr. Abbott, acting on behalf of Dr. Thaler was required to exhaust all administrative avenues of appeal before pursuing judicial review of the correctness of the Office’s interpretation of constitutional and statutory directives, and case law.
Our lively discussion begins with level setting to ensure that the listeners understand the goals of Dr. Thaler’s project, goals which encompass scientific innovation, artistic creation, and apparently—legal and policy clarification of the IP space.
Dr. Abbott and I additionally investigate the constitutional rationales for copyright and how registering or not registering a copyright to an AI-created work is or is not in line with those goals. In particular, we debated utilitarian/incentive-based justifications, property rights theories, and how the rights of artists whose works might be used to train an AI might (or might not) be accounted for in different scenarios.
Turning to Dr. Thaler’s second argument, that the work should be registered to him as a work made for hire, we discussed the difficulties of maintaining the argument separately from the copyrightability question. It seems to me that the Copyright Office is correct that the argument must rise or fall with the resolution of the baseline question of whether a copyrightable work can be authored by an AI to begin with. The other challenging question that Dr. Abbott will face is how to overcome the statutory “work made for hire” doctrine requirements in the context of an AI-created work without corrupting what is intended to be a very narrow exception to the normal operation of copyright law and authorship. This is already a controversial area, and one thought by many to be unfavorable to individual authors because it deems a corporation to be the author of the work, sometimes in circumstances where the human author is not in a bargaining position to adequately understand the copyright implications or to bargain for them differently. In the case of an AI, the ability to bargain for rights or later challenge the rights granted, particularly if they are granted on the basis of property ownership, seems to be dubious.
In closing the discussion, Dr. Abbott confirmed that his client intends to seek judicial review of the refusal to register.
[i] Opinion Letter of Review Board Refusing Registration to Ryan Abbot (Feb. 14, 2022).
[ii] Id. (Citing Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019).)
[iii] Id. (Citing Letter from Ryan Abbott to U.S. Copyright Office at 1 (Sept. 23, 2019) (“First Request”).)
[iv] Id. (Citing Refusal of First Request for Reconsideration from U.S. Copyright Office to Ryan Abbott at 1 (March 30, 2020).)
In Opposition to Copyright Protection for AI Works
This response to Dr. Ryan Abbott comes from David Newhoff.
On February 14, the U.S. Copyright Office confirmed its rejection of an application for a claim of copyright in a 2D artwork called “A Recent Entrance to Paradise.” The image, created by an AI designed by Dr. Stephen Thaler, was rejected by the Office on the longstanding doctrine which holds that in order for copyright to attach, a work must be the product of human authorship. Among the examples cited in the Copyright Office Compendium as ineligible for copyright protection is “a piece of driftwood shaped by the ocean,” a potentially instructive analog as the debate about copyright and AI gets louder in the near future.
What follows assumes that we are talking about autonomous AI machines producing creative works that no human envisions at the start of the process, other than perhaps the medium. So, the human programmers might know they are building a machine to produce music or visual works, but they do not engage in co-authorship with the AI to produce the expressive elements of the works themselves. Code and data go in, and something unpredictable comes out, much like nature forming the aesthetic piece of driftwood.
As a cultural question, I have argued many times that AI art is a contradiction in terms—not because an AI cannot produce something humans might enjoy, but because the purpose of art, at least in the human experience so far, would be obliterated in a world of machine-made works. It seems that what the AI would produce would be literally and metaphorically bloodless, and after some initial astonishment with the engineering, we may quickly become uninterested in most AI works that attempt to produce more than purely decorative accidents.
In this regard, I would argue that the question presented is not addressed by the “creative destruction” principle, which demands that we not stand in the way of machines doing things better than humans. “Better” is a meaningful concept if the job is microsurgery but meaningless in the creation or appreciation of art. Regardless, the copyrightability question does not need to delve too deeply into the nature or purpose of art because the human element in copyright is not just a paragraph about registration in the USCO Compendium but, in fact, runs throughout application of the law.
Doctrinal Oppositions to Copyright in AI Works
In the United States and elsewhere, copyright attaches automatically to the “mental conception” of a work the moment the conception is fixed in a tangible medium such that it can be perceived by an observer. So, even at this fundamental stage, separate from the Copyright Office approving an application, the AI is ineligible because it does not engage in “mental conception” by any reasonable definition of that term. We do not protect works made by animals, who possess consciousness that far exceeds anything that can be said to exist in the most sophisticated AI. (And if an AI attains true consciousness, we humans may have nothing to say about laws and policies on the other side of that event horizon.)
Next, the primary reason to register a claim of copyright with the USCO is to provide the author with the opportunity, if necessary, to file a claim of infringement in federal court. But to establish a basis for copying, a plaintiff must prove that the alleged infringer had access to the original work and that the secondary work is substantially or strikingly similar to the work allegedly copied. The inverse ratio rule applied by the courts holds that the more that access can be proven, the less similarity weighs in the consideration and vice-versa. But in all claims of copying, independent creation (i.e., the principle that two authors might independently create nearly identical works) nullifies any complaint. These are considerations not just about two works, but about human conduct.
If AIs do not interact with the world, listen to music, read books, etc. in the sense that humans do these things, then, presumably, all AI works are works of independent creation. If multiple AIs are fed the same corpus of works (whether in or out of copyright works) for the purpose of machine learning, and any two AIs produce two works that are substantially, or even strikingly, similar to one another, the assumption should still be independent creation. Not just independent, but literally mindless, unless again, the copyright question must first be answered by establishing AI consciousness.
In principle, AI Bob is not inspired by, or even aware of, the work of AI Betty. So, if AI Bob produces a work strikingly similar to a work made by AI Betty, any court would have to toss out BettyBot v. BobBot on a finding of independent creation. Alternatively, do we want human juries considering facts presented by human attorneys describing the alleged conduct of two machines?
If, on the other hand, an AI produces a work too similar to one of the in-copyright works fed into its database, this begs the question as to whether the AI designer has simply failed to achieve anything more than an elaborate Xerox machine. And hypothetical facts notwithstanding, it seems that there is little need to ask new copyright questions in such a circumstance.
The factual copying complication raises two issues. One is that if there cannot be a basis for litigation between two AI creators, then there is perhaps little or no reason to register the works with the Copyright Office. But more profoundly, in a world of mixed human and AI works, we could create a bizarre imbalance whereby a human could infringe the rights of a machine while the machine could potentially never infringe the rights of either humans or other machines. And this is because the arguments for copyright in AI works unavoidably dissociate copyright from the underlying meaning of authorship.
Authorship, Not Market Value, is the Foundation of Copyright
Proponents of copyright in AI works will argue that the creativity applied in programming (which is separately protected by copyright) is coextensive to the works produced by the AIs they have programmed. But this would be like saying that I have claim of co-authorship in a novel written by one of my children just because I taught them things when they were young. This does not negate the possibility of joint authorship between human and AI, but as stated above, the human must plausibly argue his own “mental conception” in the process as a foundation for his contribution.
Commercial interests vying for copyright in AI works will assert that the work-made-for-hire (WMFH) doctrine already implicates protection of machine-made works. When a human employee creates a protectable work in the course of his employment, the corporate entity, by operation of law, is automatically the author of that work. Thus, the argument will be made that if non-human entities called corporations may be legal authors of copyrightable works, then corporate entities may be the authors of works produced by the AIs they own. This analogizes copyrightable works to other salable property, like wines from a vineyard, but elides the fact that copyright attaches to certain products of labor, and not to others, because it is a fiction itself whose medium is the “personality of the author,” as Justice Holmes articulated in Bleistein.
The response to the WMFH argument should be that corporate-authored works are only protected because they are made by human employees who have agreed, under the terms of their employment, to provide authorship for the corporation. Authorship by the fictious entity does not exist without human authorship, and I maintain that it would be folly to remove the human creator entirely from the equation. We already struggle with corporate personhood in other areas of law, and we should ask ourselves why we believe that any social benefit would outweigh the risk of allowing copyright law to potentially exacerbate those tensions.
Alternatively, proponents of copyright for AI works may lobby for a sui generis revision to the Copyright Act with, perhaps, unique limitations for AI works. I will not speculate about the details of such a proposal, but it is hard to imagine one that would be worth the trouble, no matter how limited or narrow. If the purpose of copyright is to proscribe unlicensed copying (with certain limitations), we still run into the independent creation problem and the possible result that humans can infringe the rights of machines while machines cannot infringe the rights of humans. How does this produce a desirable outcome which does not expand the outsize role giant tech companies already play in society?
Moreover, copyright skeptics and critics, many with deep relationships with Big Tech, already advocate a rigidly utilitarian view of copyright law, which is then argued to propose new limits on exclusive rights and protections. The utilitarian view generally rejects the notion that copyright protects any natural rights of the author beyond the right to be “paid something” for the exploitation of her works, and this cynical, mercenary view of authors would likely gain traction if we were to establish a new framework for machine authorship.
Registration Workaround (i.e., lying)
In the meantime, as Stephen Carlisle predicts in his post on this matter, we may see a lot of lying by humans registering works that were autonomously created by their machines. This is plausible, but if the primary purpose of registration is to establish a foundation for defending copyrights in federal court, the prospect of a discovery process could militate against rampant falsification of copyright applications. Knowing misrepresentation on an application is grounds for invalidating the registration, subject to a fine of up to $2,500, and further implies perjury if asserted in court.
Of course, that’s only if the respondent can defend himself. A registration and threat of litigation can be enough to intimidate a party, especially if it is claimed by a big corporate tech company. So, instead of asking whether AI works should be protected, perhaps we should be asking exactly the opposite question: How do we protect human authorship against a technology experiment, which may have value in the world of data science, but which has nothing to do with the aim of copyright law?
About the IP Clause
And with that statement, I have just implicated a constitutional argument because the purpose of copyright law, as stated in Article I Clause 8, is to “promote science.” Moreover, the first three subjects of protection in 1790—maps, charts, and books—suggest a view at the founding period that copyright’s purpose, twinned with the foundation for patent law, was more pragmatic than artistic.
Of course, nobody could reasonably argue that the American framers imagined authors as anything other than human or that copyright law has not evolved to encompass a great deal of art which does not promote the endeavor we ordinarily call “science.” So, we may see AI copyright proponents take this semantic argument out for a spin, but I do not believe it should withstand scrutiny for very long.
Perhaps, the more compelling question presented by the IP clause, with respect to this conversation, is what it means to “promote progress.” Both our imaginations and our experiences reveal technological results that fail to promote progress for humans. And if progress for people is not the goal of all law and policy, then what is? Surely, against the present backdrop in which algorithms are seducing humans to engage in rampant, self-destructive behavior, it does seem like a mistake to call these machines artists.
The following post comes from Sabren H. Wahdan, a 3L at Scalia Law and a Research Assistant at C-IP2.
In one of his final majority opinions before announcing his retirement, Justice Steven Breyer penned a nuanced ruling that carefully threads the policy needle on copyright registration issues. The case pitted fabric designer Unicolors against fast fashion company H&M, but it was ultimately a victory for creators of art, fashion, music, dance, literary works, and others who rely on copyright registrations to protect their rights but lack the means to hire an attorney to ensure that their registration applications are legally and factually perfect. As a result of the ruling, they can register their works without fear that their registration could be invalidated by a good-faith mistake.
Unicolors v. H&M answers a narrow question of copyright law: what is the requisite level of knowledge to invalidate copyright registration? Justice Stephen Breyer’s majority (6-3) opinion holds that actual knowledge of either a factual or legal mistake is required before a registration is invalidated. This makes good sense because copyright registration applications are often completed by creators who are not lawyers. Some background on the case is useful.
The District Court
In 2016, Unicolors sued H&M for copyright infringement in the United States District Court for the District of Central California, alleging that H&M sold apparel, specifically a jacket and skirt, with a design remarkably similar to a Unicolors-copyrighted design. The jury returned a verdict in favor of Unicolors.[i] Subsequently, H&M filed a renewed motion for judgment as a matter of law, arguing that Unicolors’ copyright registration was invalid because Unicolors knowingly submitted inaccurate information in its application for registration.[ii] The U.S. Copyright Office has established an administrative procedure that allows an applicant to register multiple works that were physically packaged or bundled together as a single unit and first published on the same date.[iii] However, under 37 C.F.R. § 202.3(b)(4), an applicant cannot use this provision if the works were published in different units or first distributed as separate, individual works.
Unicolors had filed an application with the Copyright Office seeking a collective copyright registration for thirty-one of its designs in 2011. H&M contended that Unicolors could not do so because it had sold some of the patterns separately to different customers at different times, invalidating Unicolors’ registration.[iv] The District Court denied H&M’s motion for judgment as a matter of law, holding that a registration may be valid even if it contains inaccurate information, provided the registrant did not know the information was inaccurate.[v] H&M had to show Unicolors had knowledge and intent to defraud in order to invalidate the registration. H&M appealed.[vi]
The Ninth Circuit Decision
On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the District Court’s judgment holding that invalidation under 17 U.S. Code § 411 does not require a showing that the registration applicant intended to defraud the Copyright Office.[vii] In other words, knowing about the inclusion of inaccurate facts and law in an application is enough to warrant invalidation. Furthermore, the Ninth Circuit stated that Unicolors had failed to satisfy 37 C.F.R. § 202.3(b)(4) – the single unit of publication requirement.[viii] The Court found that Unicolors’ registration was inaccurate because Unicolors registered all thirty-one of its designs together as a single unit with the same publication date, when in fact, the designs were not all published as a single unit. Some designs were available to the public, while others were confined designs only available to particular exclusive customers.[ix] The Court determined that Unicolors knew the designs would not be released together at the same time; therefore, they knew that the registration information was inaccurate.[x]Consequently, the Ninth Circuit remanded the case to the District Court for further proceedings.[xi]
The Supreme Court Reverses the Ninth Circuit Decision
In 2021, Unicolors filed a petition to the Supreme Court asking whether the Ninth Circuit erred in determining that §411(b)(1)(A) required referral to the Copyright Office on any inaccurate registration information, even without evidence of fraud or material error in conflict with other circuit courts and the Copyright Office’s own findings on §411(b)(1)(A). The United States Supreme Court granted certiorari.
Justice Breyer’s Majority Opinion
Justice Breyer is well known for his use of analogies to probe the arguments of parties appearing before the Court. Likewise, in Unicolors, the majority opinion relied not only on statutory construction, legislative history, and the plain language of the statute as informed by dictionary definitions, but also on analogies––both to adjacent provisions of the code, and to analogies involving birdwatching––to reach its conclusion, in the end finding that §411(b)(1)(A) does not distinguish between a mistake of law and a mistake of fact and thus excuses inaccuracies in registration applications premised on either mistakes of fact or law.
To explain employing Justice Breyer’s birdwatching analogy, Breyer imagines a man who sees a flash of red in a tree and mistakenly says it is a cardinal when the bird is actually a scarlet tanager: “[A man] may have failed to see the bird’s black wings. In that case, he has made a mistake about the facts.” Alternatively, if said man saw “the bird perfectly well, noting all of its relevant features,” it is possible that, “not being much of a birdwatcher, he may not have known that a tanager (unlike a cardinal) has black wings.” For Breyer, that is a “labeling mistake” because the man “saw the bird correctly, but does not know how to label what he saw” (analogous to a mistake of law).[xii] A business person in the arts may know specific facts about her business; however, she may not be cognizant of how the law applies to it and applies the law to those facts inaccurately. §411(b)(1)(A) states that a certificate of registration satisfies the requirements of section 411 and section 412, regardless of whether the certificate contains any inaccurate information–—unless the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.
The plain language of the text does not support an interpretation that would read constructive knowledge of how legal requirements bear on the facts at issue into the standard. To reach this conclusion, the majority opinion analyzed not only the plain language of the text but also “case law and the dictionary to find that “knowledge” means an applicant’s understanding of the relevant law that applies to the submitted information.[xiii] Therefore, an applicant who believes information submitted on a registration application is accurate cannot have acted with knowledge that the information was inaccurate.
The Majority also examined other provisions in the Copyright Act that refer specifically to circumstances where an individual should have been aware that a particular legal requirement is implicated (e.g., “‘reasonable grounds to know . . .,’” “‘reasonable grounds to believe . . .,`” ”‘not aware of facts or circumstances from which . . . is apparent’” and concluded that §411(b)(1)(A) does not contain any such analogous language.[xiv]
According to the majority, “the absence of similar language in the statutory provision before us tends to confirm our conclusion that Congress intended ‘knowledge’ here to bear its ordinary meaning.” When Congress includes particular language in one section of a statute but omits it in another, there is a presumption that Congress intended a difference in meaning.[xv]
Finally, the majority considered the legislative history of the Copyright Act. The Court understood that Congress wanted to make it easier, not more difficult, for artists and nonlawyers to obtain valid copyright registrations. Congress did not intend for good-faith errors to invalidate registrations, whether those errors were in issues of fact or issues of law. Invalidating copyright registration when a copyright owner was unaware of or misunderstood the law undermines the purpose of the Copyright Act. The Court dismissed the often-cited legal maxim that ignorance of the law is not an excuse by stating that it does not apply to civil cases concerning the scope of a statutory safe harbor that arises from ignorance of collateral legal requirement.[xvi]
Justice Thomas’ Dissent
Careful readers will note that the question the majority opinion answers is somewhat different from that granted certiorari. Justice Clarence Thomas filed a dissenting opinion, joined by Justices Samuel Alito and Neil Gorsuch, arguing primarily that the majority decided a question not properly presented to the Court. The question originally taken up by the Court was whether fraud was necessary to invalidate a registration. The majority found that the knowledge question is close enough to the question presented in the petition to qualify as a “subsidiary question fairly included” in the question presented.[xvii]
Justice Thomas, not joined by Justice Gorsuch, further dissents from the majority view that ignorance of the law is not an excuse.[xviii] He would have ruled that individuals are responsible for knowing the law, whether that be in the context of criminal or civil cases.
Conclusion
Based on the ruling, a mistake in an application for copyright registration is excusable so long as the copyright registrant or claimant lacked actual knowledge of the inaccuracy. The more complex issue perhaps is the proof issue––proving the relevant knowledge or lack of knowledge. While some may worry that there is a risk that claimants will falsely argue lack of knowledge, courts are well-versed in evaluating truthfulness and parsing evidence, including when they must evaluate subjective viewpoints and experiences.
The majority opinion demonstrates a sensitive balancing of the interest in promoting accurate registration with the understanding of the challenges faced by artists, creators, and other non-lawyers who may unintentionally make errors in filing registrations. Importantly, this decision gives little shelter to copyright lawyers if they register works and make a mistake; on the contrary, it should serve as a warning to copyright lawyers to be careful when filing a copyright registration lest they face potential validity challenges in the future.
The case is going back down to the Ninth Circuit on remand, and the question is: what facts and law did Unicolors know when it filed these registration applications?
[i]Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 959 F.3d 1194, at 1195* (2020).
Despite a 
On October 12th and 13th, the Center for Intellectual Property x Innovation Policy (C-IP2) hosted its 
Will Donald Trump’s lawsuit against Bob Woodward and publisher Simon & Schuster
On Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA’s Controlled Digital Lending (CDL) program, under which IA scanned books and “loaned” digital copies of copyrighted works over the internet. The court found that the activities were clearly infringing (PP. 14-15) and also that
At the recent 
In one of his final majority opinions before announcing his retirement, Justice Steven Breyer penned a nuanced ruling that carefully threads the policy needle on copyright registration issues. The case pitted fabric designer Unicolors against fast fashion company H&M, but it was ultimately a victory for creators of art, fashion, music, dance, literary works, and others who rely on copyright registrations to protect their rights but lack the means to hire an attorney to ensure that their registration applications are legally and factually perfect. As a result of the ruling, they can register their works without fear that their registration could be invalidated by a good-faith mistake.