Entertainment, Arts, and Sports Law Commons^™

When Robots Read Westlaw: Linking Inputs And Outputs In Generative Ai Fair Use Analysis, Aaron Lam

Vanderbilt Journal of Entertainment & Technology Law

Generative artificial intelligence has revealed a novel tension in copyright law: a two-stage act (input and output) of copying that traditional fair-use doctrine never squarely anticipated. In the input stage, vast swaths of copyrighted expression are reproduced and ingested to train large language models. In the output stage, those models generate works that may substitute for or dilute the market of the originals. Courts now face both stages. Their rulings diverge when they consider training and outputs together. In Bartz v. Anthropic PBC and Kadrey v. Meta Platforms, Inc., the courts characterized training uses as “highly transformative,” yet reached opposite …

Jazz V. Law: An Overview Of Copyright Law For Jazz Musicians, Trevor Thompson

University Honors Theses

The United States copyright system has become increasingly complicated and has developed a bias toward written, notated mediums over performance mediums. This bias can be traced from the Statute of Anne through the modern system under the Copyright Act of 1976, and it directly affects jazz musicians' ability to comply with copyright laws and properly receive royalties for their work. This study traces the evolution of copyright law from 1710 to the present, noting important cases such as White-Smith Music Pub. Co. v. Apollo Co., McIntyre v. Double-A Music Corporation, and Tempo Music, Inc. v. Famous Music Corp. …

Copyright On Stage: Protecting The Directions Behind The Performance, Eliana Sakin

The Journal of Business, Entrepreneurship & the Law

In this comment, the author argues that theatrical stage directions should be recognized as copyrightable material under the U.S. Copyright Act, primarily by categorizing them as "choreographic works". Sakin highlights that while the 1976 Copyright Act explicitly protects choreography and pantomimes, stage directions—which serve as the "blueprints" for a production's blocking, technical cues, and artistic mood—currently exist in a legal gray area. Through an analysis of historical context and industry disputes, such as the Urinetown and The Most Happy Fella settlements, the author illustrates a growing industry recognition of a director’s staging as a protectable, original contribution, despite the lack …

Public Means Public: A Call For Amendment Of The Copyright Act Of 1976'S Public Display Right To Immunize Private Businesses From Unintentional Infringement, Lucy Greaney

Et Cetera

Private businesses increasingly face copyright liability and burdensome licensing fees under the Public Display Provision of the Copyright Act of 1976, despite engaging in activities that cannot be truly considered public. This Note examines the historical development of the Public Display Provision, analyzes case law involving public accommodations and semi-private entities, and explores the intersection between copyright enforcement and U.S. antitrust principles. It argues that Congress did not intend for private, employee-only business settings to fall within the scope of the Public Display Provision and that the current enforcement regime enables anticompetitive licensing practices by performing rights organizations. To resolve …

From Software To Models: Rethinking Open Source In The Age Of Generative Ai, Dana Beldiman

Washington Journal of Law, Technology & Arts

Open-source software (OSS), a form of distributed and collaborative software development rooted in the ethos of early computer science, has evolved into an essential component of modern digital infrastructure. This article asks whether open source will assume a similarly transformative role within the emerging technological paradigm of generative artificial intelligence (AI).

Generative AI differs fundamentally from software: its constituent artifacts, architectures, generative capacities, and deployment contexts are distinct and substantially more complex. Despite these differences, foundation models continue to be released under licenses originally designed for software, which may not constitute a valid transfer of rights in the generative AI …

Cardozo Law Introduces New Course On Theatre Law, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo School of Law introduced Theatre Law, the first law school course devoted entirely to the legal framework of the live stage industry. Taught by Adjunct Professor Ben Feldman, the course explores contracts, intellectual property, labor relations, licensing, financing, and other legal issues unique to theatrical productions, providing students with specialized training in entertainment law.

Fight For Your Right: An Analysis Of A Musician’S Ability To Terminate A Copyright Assignment Of A Music Recording, Ian Waldron

Georgia Journal of Law & Technology

In 2019, musicians joined together to launch two separate lawsuits against Sony Music Entertainment (“Sony”) and Universal Music Group (“UMG”) after the record labels ignored the musicians’ copyright termination notices. Copyright termination is a powerful tool that allows the original owner of a work, under some circumstances, to regain possession years after they have assigned it to another party. To defend their actions, UMG and Sony countered that since the recordings were created under a record deal, they were works for hire and the musicians acted as employees. Therefore, under the record label’s theory, the musicians would have no ownership …

The Free Content Illusion, Jonathan M. Barnett

Georgia Journal of Law & Technology

Conventional scholarly wisdom tends to discount the importance of copyright as a tool for delivering remuneration to the artists that sustain the digital creative ecosystem or as an enabling mechanism that facilitates the licensing, distribution, and financing transactions that constitute the economic infrastructure of the media and entertainment industries. This position runs counter to the evolution of digital content markets, which have experienced renewed investment and growth concurrently with the development of technological tools that have enabled content owners to correct for the “copyright deficit,” regulate access, and extract payment from platforms and users. This result conforms to standard economic …

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

Washington Journal of Law, Technology & Arts

Modern artificial intelligence (AI) systems lack human-like consciousness or culpability, yet they exhibit fluid agency: behavior that is (i) stochastic (probabilistic and path-dependent), (ii) dynamic (co-evolving with user interaction), and (iii) adaptive (able to reorient across contexts). Fluid agency generates valuable outputs but collapses attribution, irreducibly entangling human and machine inputs. This fundamental unmappability fractures doctrines that assume traceable provenance—authorship, inventorship, and liability—yielding ownership gaps and moral “crumple zones.”

This Article argues that only functional equivalence stabilizes doctrine. Where provenance is indeterminate, legal frameworks must treat human and AI contributions as equivalent for allocating rights and responsibility—not as a claim …

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 …

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 …

Copyright In Characters: A Proposal For Reform, Michael W. Carroll

Joint PIJIP/TLS Research Paper Series

The doctrine of character copyright is an eccentricity in copyright law that should either be abandoned or substantially reformed. Originally limited to literary characters, this doctrine decomposes a narrative work in order to recognize characters as works of authorship independent of the narrative works from which they are derived. Claimants generally seek independent protection for characters for three, sometimes overlapping, reasons: (1) to repackage what would otherwise be a weak claim of substantial similarity if comparison were to be made with the work(s) from which the character has sprung; (2) to overcome obstacles posed by prior licensing decisions that have …

Roll For Lawsuit: Are Actual-Play Series Copyright Ingringers?, Mark Mehochko J.D. Candidate

Vanderbilt Journal of Entertainment & Technology Law

Dungeons and Dragons is a highly popular Tabletop Role-Playing Game designed by Gary Gygax and Dave Arneson in 1973. The game’s emphasis on narrative storytelling makes it an interesting subject for copyright analysis. When a group plays Dungeons and Dragons (D&D) for an audience, using copyrighted materials from Dungeons and Dragons’s publisher, Wizards of the Coast, there is an open question about whether the players infringe on Wizards of the Coast’s exclusive rights under § 106 of the Copyright Act of 1976. This issue is further complicated by Wizards of the Coast’s unique approach to licensing.

This Note examines how …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

The Times They Are A-Changin': Adapting Copyright Law To Generative Ai, Giovanni Lomonaco

Pace Law Review

Artificial intelligence has come a long way since the days of the “heartless” tin man of the Wizard of Oz, and the cool, precise autonomy of Kit from Nightrider. We have moved rapidly from mere questions about what life could be like with autonomous machines, to having books, movies, and albums created using machines for part or even all of the process. The Copyright Act, however, has not come as long of a way since the implementation of the most recent version of the Act in 1976. Recently, the federal district court for the District of Columbia held …

World Wide Whac-A-Mole: The Inadequacies Of The Dmca To Protect Copyright Holders Online And Why Artificial Intelligence Is The Solution, Nathania Davis-Fox

Texas A&M Journal of Property Law

Congress created the Digital Millennium Copyright Act (DMCA) at the dawn of the internet age 25 years ago. It addressed the needs and concerns of Online Service Providers (OSPs) in the nascent cyber landscape, but the DMCA must now be reformed to meet the needs of Web 2.0. The DMCA’s refusal to condition §512(c) safe harbor protection on OSPs’ platform monitoring is no longer practical. This now produces results contrary to the Copyright Act’s purpose of encouraging the creation and dissemination of new works. Copyright owners are fighting a losing battle against infringing OSP users and the DMCA’s notice-and-takedown procedures …

The Great War (Taylor's Version): Examining The New Era Of Recording Artists & Master Recording Ownership, Victoria B. Villanueva

Journal of Legislation

In 2019, Taylor Swift took to social media to voice her unease with the recent sale of her entire master recording catalogue to Ithaca Holdings, a sale that allegedly occurred without her explicit permission. Following a series of negotiations, holdouts, and ultimate deadlock, Swift made the critical and costly decision to re-record and re-release each of those six albums under her sole ownership in an effort to reclaim them as her own work—re-recordings publicly denoted by “Taylor’s Version”. This highly-publicized feud brought to the public’s attention a decades-long conflict between the recording artist and the recording company, one that has …

A Personal Interview With William Patry: His Thoughts On Music, Ai, And Copyright

IP Theory

No abstract provided.

Artificial Intelligence And Music Mash-Ups: Monetizing An Opt-In Closed Universe Database To Preserve Royalties And Credit For Composer And Sound Recording Rights Holders, Michael M. Epstein

Marquette Law Review

This Article charts the development of an opt-in database of music publishing and sound recording catalogues that would allow music industry stakeholders to profit from those who use artificial intelligence to generate new creative content from existing intellectual property. The database would be a portal to content that rights holders would consent to include in a library made available to the public. The database could be advertiser-supported, allowing for no-cost access by the public, or users could pay for a blanket license or per- search fee. Proceeds from the database would be distributed to rights holders based on the content …

How Theories Of Art Can Inform Debates About Ai, Jessica Silbey

Faculty Scholarship

Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …

All’S “Fair” In Love & Copyright: Copyright’S Incentivization Of Fiction Through The Second Fair Use Factor & Idea/Expression Dichotomy, Peyton J. Smetana

Catholic University Law Review

Copyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is …

A New Frontier: The Music Industry’S Struggle Against Generative Ai, Vaughn Gendron

University of Miami Business Law Review

Since the modern notion of artificial intelligence emerged in 2014, AI has rapidly developed into a technology with vast generative capabilities. This technology has allowed for the creation of copious amounts of AI-generated media content. One of the most impacted industries by this evolution is the music industry. In April of 2023, an unidentified user produced a viral AI-generated song titled “Heart on My Sleeve” in the vocal likeness of both Drake and The Weeknd. The song’s instant popularity among consumers shattered the music industry’s long-held belief that listeners would always prefer human creativity over artificial creation. This shift in …

Fake Drake? Ai Music Generation Implicates Copyright And The Right Of Publicity, Hope Juzon

Washington Law Review

Artificial intelligence has contributed to music composition since the 1950s. Its contributions evolved from machines that produced simple melodies to programs that generate accurate vocal imitations of singers. Modern artificial intelligence relies on pre-existing—and often copyrighted—songs to create new music, the most common of which include vocal imitations of popular singers. Copyright law in the United States has yet to address how copyright holders’ rights are implicated when artificial intelligence programs are trained on protected works. As a result, these rights holders across disciplines and sectors have filed complaints alleging infringement of their works. While copyright holders await their fate, …

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik

Faculty Scholarship

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

Catch Me If You Can Claim Copyright Infringement: How Copyright Law Unevenly Protects Novice Scriptwriters, Alexander Cole Dibucci

Global Business Law Review

In the realm of creative endeavors, novice scriptwriters often find themselves in a precarious position, highly susceptible to having their original work exploited for profit by formidable players in the industry, drawing a parallel to the timeless tale of David versus Goliath. In these all-too common scenarios, the multi-million-dollar film agencies that, reminiscent of Goliath, appropriate the creative fruits of amateurs striving to establish their names in the field. Regrettably, unlike the triumphant David from the biblical narrative, novice scriptwriters are frequently left without adequate protection within the legal landscape of the United States, where the scales tend to tip …

Copyright & Modding In The Modern Gamespace, Josephine Railston

Student Scholar Symposium Abstracts and Posters

In the modern gamespace, modding has become an excellent opportunity for video game enthusiasts to express their creativity and love for a game; but what happens when that passion is stifled by a major company? My poster presentation will examine the ethics behind modding and ROM hacking, from both the perspectives of major video game corporations as well as their fanbase at large. We will analyze this issue using the case study of Pokémon Prism, a Pokémon Crystal ROM hack, which was canceled days prior to its release following a cease and desist by Nintendo. More specifically, we will investigate …

The Triumph Of Three Big Ideas In Fair Use Jurisprudence, Michael W. Carroll, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

In two recent cases, Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), the Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law’s fair use provision. In doing so, the Court withstood significant pressure from industry participants in these cases to change course. This Article argues that the Court’s decisions, which represent one third of the Court’s total merits decisions on fair use, are historic. The principal contribution this Article makes is to demonstrate to courts and parties in future …

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

Robots As Pirates, Henry H. Perritt Jr.

Catholic University Law Review

Generative AI has created much excitement over its potential to create new works of authorship in the literary and graphical realms. Its underling machine-learning technology works by analyzing the relations among elements of preexisting material in enormous databases assembled from publicly available and licensed sources. Its algorithms “learn” to predict “what comes next” in different types of expression. A complete system thus can become glib in creating new factual summaries, essays, fictional stories and images.

A number of authors of the raw material used by Generative AI engines claim that the machine learning process infringes their copyrights. Careful evaluation of …

The Phillie Phanatic Hits Free Agency: An Analysis Of Phillies V. Harrison And The Application Of Copyright Law To Mascots As Characters, Olivia C. Giles

Duquesne Law Review

Wacky, chaotic, lovable. These are just a few words used to describe mascots of all types, especially the Phillie Phanatic. The Phanatic is arguably one of the most well-known and recognizable mascots in sports. Its taunting of opposing teams and goofy yet aggressive personality have shifted the mascot landscape; as the way mascots are perceived continues to change, so does the number of teams hoping to use them.¹ The Phanatic's antics at games have led to trouble more than a few times, gaining it the title of the mostsued mascot in sports.² Nonetheless, the Phanatic is a cherished …