Intellectual Property Law Commons^™

Skin In The Game: The Case For Statutorily Excluding Tattoos From Copyright Protection, Emily Gamble

Georgia Journal of Law & Technology

The growth of social media, AI-generated imagery, and name, image, and likeness (NIL) licensing has exponentially increased the reproduction of tattoos, yet their status under the Copyright Act remains unsettled. While tattoos arguably satisfy the threshold requirements of Title 17, their fixation on human skin challenges the definition of a "material object" and raises unique conflicts regarding bodily autonomy and publicity rights. Currently, courts address these disputes largely through equitable doctrines like implied license and fair use to avoid public policy failures, resulting in an unpredictable and incoherent legal framework.

This Note argues that judicial improvisation is insufficient to resolve …

Generative Ai Training And Fair Use: Can Chatgpt Turn Your Favorite Meme Into A Stupid Ghibli Animation?, Liam Donovan

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Judicial Subjectivity In The Fair Use Analysis Of Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith And Its Implications, Donna Khademi

Theses

The case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith demonstrates the subjective nature of the fair use doctrine. Scholars suggest that judges are often forced to interpret expressive works without specialized training in art, leading to inconsistent rulings. These discrepancies can lead to legal ambiguity and potentially weaken First Amendment protections. A deeper understanding of authorship, appropriation, and contemporary art highlights their crucial role in evaluating expressive works. By examining current legislation and judicial precedents, this paper shows the subjective and inconsistent nature of the present legal framework and offers a set of related proposals. It …

Toward A Transformative Fair Use Standard After Warhol, Sangwook Park

Georgia Journal of Law & Technology

The Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith narrowed the transformative fair use inquiry but left unresolved where derivative adaptation ends and genuine transformation begins. This article proposes that the Purpose-Expression Shift (PES) Framework can supply that missing line, a dual-pronged standard rooted in § 107(1) that asks (1) whether the secondary work serves a purpose meaningfully different from the original and (2) whether its expressive alterations are tailored to realize that new purpose. Mapping two decades of case law onto a four-quadrant matrix, this article shows how the PES Framework can predict outcomes under first factor …

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 …

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 …

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 …

Amicus Brief In Support Of Ross Intelligence In Ross Intelligence V. Thomson Reuters, Jess Miers, Bryan L. Frye, Mateusz Blaszczyk

Akron Law Faculty Publications

This amici curiae brief, filed in Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. ROSS Intelligence Inc. before the U.S. Court of Appeals for the Third Circuit, argues that Thomson Reuters failed to state a viable claim for copyright infringement against ROSS Intelligence. The amici—law professors specializing in copyright and technology—contend that Westlaw’s headnotes are uncopyrightable factual summaries of judicial opinions and that the West Key Number System has long been in the public domain. The brief distinguishes between AI “pretraining” and “fine-tuning,” emphasizing that ROSS’s fine-tuning process relied on expert-created materials rather than wholesale copying. It cautions …

Generative Ai's Illusory Case For Fair Use, Jacqueline C. Charlesworth

Vanderbilt Journal of Entertainment & Technology Law

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, …

Generating More Equitable Fair Use, Jacqueline Kessel

Pepperdine Law Review

From advancing healthcare and education to threatening democratic systems, generative artificial intelligence (AI) has demonstrated a capacity to positively and negatively impact society. And these benefits and consequences are not shared equitably. Copyright law, however, stands as a powerful mechanism in monitoring AI system development. Several complaints have charged generative AI system developers with copyright infringement, alleging that (1) ingesting copyrighted works as training data infringes the copyright owner’s exclusive right to reproduce works in copies and (2) generating AI outputs infringes the exclusive right to prepare derivative works because the outputs are based upon the works on which the …

Generative Al's Illusory Case For Fair Use, Jacqueline C. Charlesworth

Vanderbilt Journal of Entertainment & Technology Law

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, …

Quo Vadis, Fair Use? The Future Of Fair Use After The Warhol Decision, Vicenç Feliú, Josh Lida

Northwestern Journal of Technology and Intellectual Property

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings.

The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial …

Preventing Unjust Enrichment And Copyright Opportunism: An Equitable Interpretation Of Section 103(A), Pamela Samuelson, Jessica Silbey

Faculty Scholarship

A stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work’s expression was “used unlawfully.” Courts have largely ignored § 103(a). But recent cases, such as Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), have raised the profile of § 103(a). This Article traces the origins, history, …

Copyright Law And Property Law, Keith N. Hylton

Faculty Scholarship

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 …

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

IP Theory

No abstract provided.

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

Trademark Fair Use Is No Joke, Christine Farley

Scholarly Articles in Law Reviews & Journals

This Article examines how the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products reveals the limitations of using parody as a framework for resolving tensions between trademark rights and free speech. While the Court's ruling narrowed trademark protection in certain instances and acknowledged the importance of protecting parodic speech, it ultimately avoided addressing fundamental questions about the relationship between trademark law and the First Amendment. The Article argues that courts' reliance on parody as a paradigmatic case of permissible trademark use has become a distraction that prevents necessary reform of trademark law to better accommodate First Amendment …

The Fair Use/Fair Dealing Handbook, Jonathan Band, Jonathan Gerafi

Joint PIJIP/TLS Research Paper Series

More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments. This is particularly the case considering that the copyright laws in many “civil law” countries currently allow their courts to apply …

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

Authorship In The Age Of Algorithms: Adapting Copyright Law For Ai-Generated Content, Sydney Thomas

Journal of Nonprofit Innovation

In the age of Artificial Intelligence (AI), the relationship between technological advancement and legal protection for human creators has become increasingly critical. From Stephen Hawking's admonition of the potential risks of unregulated AI to Sam Altman's advocacy for proactive regulation, this paper navigates the evolving landscape of AI innovation and copyright law. By examining the challenges posed by AI-generated content, including issues of intellectual property infringement and privacy concerns, it highlights the need for adaptive legal frameworks. Strategic enhancements to copyright law must be developed, such as bolstering fair use doctrine and expanding creator rights, to ensure the protection of …

Train Or Restrain? Using International Perspectives To Inform The American Fair Use Analysis Of Copyright In Generative Artificial Intelligence Training, Serena Lightstone

Northwestern Journal of International Law & Business

The rise of generative artificial intelligence (“AI”) has brought questions regarding the permissibility of using copyrighted materials in training generative AI systems around the globe. This article examines whether such use constitutes infringement under the American fair use doctrine, drawing insights from the regulatory approaches of the European Union (EU) and Japan.

Ultimately, this article advocates for United States courts to recognize the permissibility of using copyrighted materials in training generative AI models, rejecting the EU’s rights-holder-centric approach, and going beyond Japan’s limited-permissibility solution. Through a detailed four-factor fair use analysis, this article demonstrates that training generative AI on copyrighted …

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 …

Fair Use In The Us Redux: Reformed Or Still Deformed?, Jane C. Ginsburg

Faculty Scholarship

In 2019, Professor Ginsburg delivered the Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore. Titled “Fair Use in the US: Transformed, Reformed, Deformed?”, the lecture explored US caselaw applying the statutory fair use exception, highlighting its excesses and apparent rebalancing. Four and half years (and a pandemic) later, the Supreme Court has rendered decisions in two fair use cases (Google v Oracle; Andy Warhol Foundation v Goldsmith). Together, these controversies prompt inquiry whether the Supreme Court has redrawn the landscape of US fair use and copyright law, expanding fair use …

What's The Use? The Structural Flaw Undermining Warhol V. Goldsmith, Peter J. Karol

Law Faculty Scholarship

This article argues that the Supreme Court’s recent and significant ruling in Warhol v. Goldsmith suffers from a foundational error that jeopardizes its value as precedent. Namely, the Court conceptualized the fair use defense at issue as arising from the alleged infringer’s “commercial licensing” of an Andy Warhol silkscreen to a non-party magazine publisher. But commercial licensing is neither a copyright use nor an act of infringement. It is the passive grant of permission to another to use the licensed work and a promise not to sue. It is incoherent to raise or evaluate fair use as a defense to …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

An Unauthorized Renaissance? An Analysis Of Artists’ Claims For Copyright Infringement Against Ai Generated Art And Possible Defenses, Victoria Young

FIU Law Review

AI currently presents a novel issue in terms of copyright infringement, specifically AI generated art. Recently, a group of artists filed a class action lawsuit against several AI generated art companies. This comment evaluates the potential avenues the court may take. The artists allege these AI generated art companies directly infringed on their copyrighted works by making unauthorized copies of copyrighted works which they used to train their machine learning programs. A determination on whether AI generated art constitutes copyright infringement has not been made by the courts before. To bring a successful copyright infringement claim, a party must show …

Deepfakes And Dog Toys: First Amendment Defenses Under The Rogers Test After Jack Daniel’S V. Vip Products, Michael D. Murray

Law Faculty Scholarly Articles

Given that deepfakes are almost always associated with expression of some kind, any attempt to litigate or regulate deepfakes will require the consideration of the First Amendment. Deepfakes implicate so many areas of law and society that a discussion of the interface of First Amendment free speech rights and deepfakes writ large would require a treatise volume with several chapters. This article is more modest: It will examine the past, present, and future use of the Rogers test in an evaluation of the application of First Amendment protections in trademark infringement cases and in legal actions traditionally associated with the …

Virtually Identical: A Case For Maintaining Architectural Copyright Protections In The Metaverse, Stephen Mcpaul

Cybaris®

No abstract provided.

Legislative Report: Protecting Lawful Streaming Act Of 2020, Melissa Rezzag

Cybaris®

No abstract provided.