Law Commons^™

Ai Training Is Fair Use: The Beginning Of The End Of The Copyright Assault On Gen Ai, Michael D. Murray

Journal of Law, Technology, & the Internet

Two federal courts overseeing claims against the developers of generative artificial intelligence (GenAI) have pointed the way to resolving these infringement actions by finding that the training of GenAI models is a transformative fair use under copyright law. While the two opinions differed in tone and scope, this article takes these rulings as the starting point for a discussion on resolving the ongoing copyright claims against AI developers, signaling what may be the beginning of the end of the copyright assault on GenAI.

The goal of this article is to inject urgency into resolving these matters. It asserts that uncertainty …

Fair Use In The Supreme Court: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several …

Ai Can't Adlib: Theorizing An Improvisation Carveout In The Work For Hire Doctrine, Audrey Pope

IP Theory

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for …

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

Gamification: The Viability Of Using Genai To Create Games To Teach Legal Concepts, Nicole Belbin

Faculty Scholarship

This Essay examines whether generative artificial intelligence (GenAI) can lower the technical, time, and cost barriers that have limited the use of game-based learning (GBL) in legal education. It first considers the science of learning, focusing on spaced practice, retrieval practice, and concrete examples, and explains how GBL can incorporate these strategies. It then evaluates four general-purpose GenAI tools—Perplexity, Gemini, ChatGPT, and Claude—by testing their ability to state legal rules accurately and create games that teach personal jurisdiction.

The results demonstrate both GenAI’s promise and its limitations. Although all four tools incorporated core concepts of general jurisdiction, each omitted at …

Friday Night Rights: Ornamental Use In Collegiate Sports Merchandising, Isabel Mury Carvalho

Law Student Publications

University logos and insignias—once limited to athletic uniforms and official stationery—now appear on everything from high-end apparel to mass-produced mugs. Collegiate merchandising is a massive industry, generating $14.8 billion in 2023 alone. Infringers have followed close behind, producing look-alike goods that blur the line between authorized merchandise and unauthorized imitation. ...

Caught In The Web: The Resolution Of The Internet Service Provider Contributory Copyright Infringement Split, Olivia F. Johnson

Cybaris®

No abstract provided.

History And Tradition In First Amendment Intellectual Property Cases: A Critique, Rebecca Tushnet

Marquette Intellectual Property & Innovation Law Review

This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

The Library Of Congress At A Crossroads: Executive Overreach And The Future Of Public Knowledge, Leslie A. Street, Amanda M. Runyon

Library Staff Publications

This Article argues that the removal of the Librarian of Congress and the Register of Copyrights exposed a dual vulnerability: a constitutional breach of the separation of powers and a cultural threat to the nation’s knowledge infrastructure. The Library’s structural ambiguity—its simultaneous identity as a legislative library, national library, and copyright agency—has left it vulnerable to executive overreach. By asserting control over an institution designed to serve Congress and safeguard America’s intellectual heritage, the President destabilized a statutory framework that has endured for over two centuries. To protect both constitutional integrity and the Library’s role as custodian of national memory, …

Campbell At 30: A Retrospective Appreciation, Michael W. Carroll, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

This Article traces the intellectual history of copyright law’s fair use doctrine at the Supreme Court from its first encounter with fair use to its landmark decision slightly more than three decades ago in Campbell v. Acuff-Rose Music, Inc. Campbell provided courts with a coherent, user-centered theory for applying the four statutory fair use factors provided under 17 U.S.C. § 107, a standard the Court recently ratified in Google LLC v. Oracle Am., Inc. and Andy Warhol Foundation for the Visual Arts v. Goldsmith. As one of three related articles, this Article advances two principal claims to contribute to …

Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz

Scholarly Works

We study how copyright impacts the distribution and reuse of images in the visual arts sector, exploiting the discontinuity at the 1926 US public domain cutoff together with cross-country variation between US and European museums. We find that public domain status raises artist-level image availability on Useum, a major image aggregator, by approximately 19 percent relative to comparable copyrighted artworks. Onward reuse of Useum images across the web is substantial - an artwork image appears on 76 additional web pages on average - and is higher for public domain artworks, though estimates are statistically significant only in some specifications. Moreover, …

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

Fluid Agency In Ai Systems: A Case For Functional Equivalence In Copyright, Patent, And Tort, Anirban Mukherjee, Hannah H. Chang

Research Collection Lee Kong Chian School Of Business

Modern Artificial Intelligence (AI) systems exhibit fluid agency in multi-step workflows: lacking human-like consciousness or culpability, yet they display behavior that is (i) stochastic (probabilistic and path‑dependent), (ii) dynamic (co‑evolving with user interaction), and (iii) adaptive (able to reorient across contexts). These properties generate valuable outputs but collapse attribution, irreducibly entangling human and machine inputs. Doctrines that assume traceable provenance—authorship, inventorship, and liability—fracture under this unmappability, yielding ownership gaps and moral “crumple zones.”This Article argues that only functional equivalence stabilizes doctrine under unmappability: Where provenance is indeterminate, legal frameworks should treat human and AI contributions as equivalent for allocating rights …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

An Evidence-Based Approach To Fair Use, Clark D. Asay, Cree Jones, Cassidy Mccleary, Stephanie Plamondon

Georgia Law Review

Recent Supreme Court cases have opened the door for market effects to play an even more prominent role in copyright law’s fair use defense to copyright infringement. Historically, however, market effect analysis under fair use’s factor four has either been largely speculative or merely a repackaging of analysis done under the first three factors of the fair use defense. We argue that recent developments in data availability and causal estimation in the social sciences enable litigants and courts in many cases to engage in a more fulsome and credible analysis of market effects in fair use cases. As a proof …

Readers Are Authors, Especially In The Ai Age, Jessica Silbey

Faculty Scholarship

In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.

Sweat And Subjectivity Copyright Impulses, Danny Friedmann

Fordham Intellectual Property, Media and Entertainment Law Journal

Generative artificial intelligence (gAI) is generating vast vol- umes of content, including visual art with minimal human effort that competes directly with visual artists and threatens to dilute human culture in the process. In response, courts and copyright offices are quietly reintroducing two doctrines long considered incompatible with modern copyright: sweat of the brow, which rewards labor over originality, and aesthetic discrimination, which risks conditioning protection on perceived merit.

This article is the first to demonstrate how legal authorities are reintroducing these discredited doctrines under the guise of regulating AI-assisted outputs, thereby eroding the set of copyright doctrines accepted by …

Copyright Law And Property Law, Keith N. Hylton

Texas A&M Journal of Property Law

Property is at the core of state law since it is the exclusive power of the individual state governments to define and protect property rights within their jurisdiction. In this paper I will discuss the general connection between copyright and property generally. I will argue that property law sheds important light on copyright law and can help us cut through modern controversies in copyright law. If I am correct in this view, any judge sufficiently familiar with property law doctrines could do better than the Supreme Court of the United States in resolving a new copyright controversy. Specifically, property law …

Thinking Differently: Creating Spaces Of Autonomy For The Revitalization Of Indigenous Legal Traditions In The Context Of Copyright, Johnny Mack, Graham Reynolds

All Faculty Publications

There is an urgent need to think differently. Colonialism, in its settler variant, has developed new and particularly dangerous strategies to advance its dual imperatives of the dispossession of Indigenous peoples and the erasure of Indigeneity as a politicized identity construct with a legitimate claim to law. This goal is advanced today through rights frameworks, which have generated a worrisome platform to support the logic of elimination by drawing Indigenous calls for autonomy, self-determination, and sovereignty into a settler colonial framework of authority. In this chapter, we highlight how these strategies function in the context of Canadian copyright law. Canadian …

An Out-Of-The-Block Solution For Modern Ip Law: How Pairing Generative Ai With Blockchain Could Resolve Copyright Conflicts, Emma Wozniak

University of Cincinnati Law Review

No abstract provided.

Reclaiming Sound: Copyright Restoration As Cultural And Economic Justice For Black Musicians, James Roberts Jr.

Senior Theses

This paper examines copyright restoration as both a legal mechanism and a form of cultural reparations for Black musicians historically excluded from ownership and profit in the American music industry. It traces the evolution of U.S. copyright law from its earliest forms to the Music Modernization Act of 2018, highlighting how shifting statutory frameworks have gradually extended protection and restoration rights to artists who were once denied them. The analysis situates this legal trajectory within a broader history of racialized exploitation in the recording industry, where inequitable contracts and systemic power imbalances functioned as modern forms of artistic sharecropping. Through …

Fairer Public Benefit In Copyright Law, Amanda Levendowski Tepski

Georgetown Law Faculty Publications and Other Works

In 1966, a court considered expressly whether a secondary use of copyrighted works served a public benefit. While public benefit has become a subfactor of the fair use doctrine, it remains undefined, uncodified, and undertheorized. Courts often invoked public benefit in pivotal cases involving novel technologies, from home video recorders to digital libraries to algorithms--but they did not need to. After the recent Supreme Court decision in Google v. Oracle, however, public benefit is unavoidable: The Court stated that “we must take into account the public benefits the copying will likely produce.” A qualitative analysis of key public benefit cases …

Attribution As Architecture In The Digital Age, Laura A. Heymann

Faculty Publications

As technology changes, one thing remains constant: human creators seem to care about attribution, whether as creators or as audience members. Current U.S. law lacks the means for many creators to effectively address attributional interests, and experience has shown that top-down, imposed technological solutions can fail to gain the necessary buy-in and adoption. The best approach, examples suggest, is for platforms to think of attribution as part of the architecture of their systems, but to take their cues from user-developed, individualized solutions, which will not only be more responsive to user interests but also allow adaptation as interests change and …

De Minimis Copying: An Empirical Study, Jessica Silbey, Samantha Zyontz

Faculty Scholarship

In the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying …

Brief For Amici Curiae Brian L. Frye, Jess Miers, And Mateusz Blaszczyk In Support Of Appellant, Bryan L. Frye, Jess Miers, Mateusz Blaszczyk

Scholarly Works

This is an amicus curiae brief filed by Brian L. Frye, Jess Miers, and Mateusz Blaszczyk in support of ROSS Intelligence, Inc., arguing that Thomson Reuters's claim for copyright infringement should be dismissed.

The First Sale Doctrine For The Digital Age, Ethan Thomas

Journal of Intellectual Property Law

For well over a century consumers have long enjoyed the ability to resell, gift, lend, or otherwise transfer their legally purchased copyrighted media. First established in common law and later codified into the Copyright Act of 1976 the first sale doctrine granted the right of transfer to consumers. In 2013, a district court held that the first sale doctrine does not let consumers transfer digital media through file sharing. Instead, a consumer must sell the object the media was downloaded onto. This decision effectively gutted the first sale doctrine’s application to digital media. Further reducing the reach of the first …

Literary And Artistic Property Rights Between Regular Courts And Administrative Courts: A Comparative Study Of Jordan And Egypt, Noor Al-Hindi

Jordan Journal of Applied Science-Humanities Series

This study addresses literary and artistic property rights within the context of the ordinary and administrative judiciary, focusing on the legal framework for the deposit of these rights under the Jordanian and Egyptian Copyright and Neighboring Rights Protection Laws. The research findings indicate that legal deposit is an obligation of the rights holders of the work to submit a copy of the published work to a government authority. In Egypt, the rights holder is required to submit a licensing application to the General Department for the Control of Works, accompanied by certain data. The department is responsible for maintaining records …

Creative Expression Over Rigid Protection: Why The Ninth Circuit Is Correct To Permit De Minimis Sampling, Mitchell Brost

Pepperdine Law Review

The legal world is at a crossroads following the Ninth Circuit’s decision to uphold de minimis sampling as a valid practice in VMG Salsoul, LLC v. Ciccone. On the one hand, the Ninth Circuit’s affirmation of de minimis sampling fosters creativity and gives aspiring artists greater access to resources they would not otherwise be able to afford. On the other hand, the Sixth Circuit’s earlier decision in Bridgeport Music, Inc. v. Dimension Films that held de minimis sampling to be categorically illegal bolsters copyright protection and facilitates more predictable outcomes in copyright lawsuits. This Note analyzes both cases and ultimately …

Introduction: Symposium ‒ Ai Disrupting Law, Edward Lee

Chicago-Kent Law Review

No abstract provided.