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ARTISTS, AUTHORS, COPYRIGHTS, INNOVATION, INTELLECTUAL PROPERTY, MOVIES, Photography, SONGWRITERS

AI-Generated Content + Copyright Law

There has been rapid advancement in the capabilities of artificial intelligence (AI) this year, posing many advantages and challenges to both consumers and business owners. These AI tools have the ability to create, interpret, and manipulate creative works, which is raising questions in the intellectual property world about potential copyright infringement.

Many platforms, including Canva, Grammarly, and Zoom, have even started to include AI tools to help users create original and unique works. Although these AI-generated works can be interesting and convenient, the question still remains as to who “owns” the content. The AI developer? The AI user? The AI itself?

What is a Copyright?

A copyright is a type of intellectual property that protects original works as soon as the author creates the work into a tangible medium of expression. This can include a painting, any written work, movies, and much more. When a copyright is created, there must be an author who claims the work. When an AI generator creates the content, the line becomes blurry as to who is the “author.”

Does Copyright Infringement Apply to AI Creations?

Although these conversational and generative AI technologies are fairly new, there are still relevant laws that can apply to and protect ownership rights. AI generators are capable of accidentally producing content that is similar to existing works due to its unpredictability. For common copyright infringement, the plaintiff must be able to prove that the defendant “copied” the work with unauthorized access. For AI outputs, access or “copying” might be shown by evidence that the AI program was trained using their original works to create similar outputs.

There have already been many litigations with this issue since 2021. In 2022’s Andersen vs. Stability AI et.al, three artists formed a group to sue the Stability AI platform developers on the basis that the AI platform was using the group’s original works to train their AI generator, allowing users of the platform to generate content from their existing and protected works. The case is still being observed, but if the court finds that the AI-generated work is unauthorized, substantial infringement penalties may apply.

Just as with generative AI itself, the requirements and litigation process for copyright infringement will continue to evolve as more challenges emerge. It is crucial that respected rights between users and creators are established to uphold the overall principles of intellectual property.

If you have any questions regarding the use of generative AI in your business or the protection of your intellectual property, contact Martin IP Law Group! We are experts in helping you harness the power of your creations while ensuring that they are protected. Let’s connect today!

ARTISTS, COPYRIGHTS, INTELLECTUAL PROPERTY, SOCIAL MEDIA, SONGWRITERS, TRADEMARKS

A BRIDGERTON TOO FAR – WHEN FAN FICTION BECOMES COPYRIGHT AND TRADEMARK INFRINGEMENT

On Christmas Day 2020, in the midst of a global pandemic, Netflix debuted “Bridgerton”, a new series based on a collection of novels by author Julia Quinn. The series is set in Regency-Era London during the social season, and revolves around the fictional Bridgerton family. The show got generally good reviews in its first season, and in it’s second season became a worldwide sensation. As with anything or anyone famous these days, this resulted in a number of fan pages and “tributes” on social media sites. Among those was a TikTok tribute by started by fans Abigail Barlow and Emily Bear in early 2021. That fandom grew into a 15 song album, The Unofficial Bridgerton Musical, which was released in September 2021 and won a Grammy Award for best musical theater album in 2022. The songs on that album include verbatim lyrics, plot elements and scenes and characters that are lifted from Netflix’s Bridgerton series.

Then, on July 26, 2022, Barlow and Bear performed a live, for-profit stage show entitled “The Unofficial Bridgerton Musical Album Live in Concert” before a sold out audience at the Kennedy Center in Washington, DC. Three days later, Netflix filed suit alleging copyright infringement and trademark infringement in that Barlow and Bear have “taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.”

There can be little argument that the Unofficial Bridgerton Musical album and the live performance are derivative works based on the copyrighted Bridgerton series. Likewise, Barlow and Bear’s use of the term “Bridgerton” in its title, absent some other justification, is clearly a violation of Netflix’s trademark rights, notwithstanding the use of the word “Unofficial”. To hold otherwise would be akin to Ricky Bobby’s argument that he could say whatever he wanted so long as it was prefaced by “with all due respect”.

On it’s face, this would appear to be an open and shut case of copyright and trademark infringement. However, there are at least three legal theories upon which Barlow and Bear could prevail – fair use, latches and estoppel.

Does the Unofficial Bridgerton Musical constitute “Fair Use”

The doctrine of fair use permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is often applied where the subsequent work is being used for purposes such as criticism, commentary, news reporting, teaching, scholarship or research. Four factors must be considered in determining whether the fair use exception applies:

The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.

While no one factor alone is determinative, the first and fourth factors are generally given the most weight. Looking at the first factor, the fact that the live performance was for profit makes it less likely to qualify as fair use. Unless the live musical performance can be considered “transformative” – a use that adds something new, with a further purpose or a different character”, the first factor is likely to weigh heavily in favor of Netflix. With regard to the fourth factor, Netflix alleges that the live performance adversely affects its ability to profit from its own planned release of a live event entitled “The Queen’s Ball: A Bridgerton Experience.” Given the commercial nature of the live performance, it is difficult to imagine a court siding with Barlow and Bear on a fair use defense.

Laches and Estoppel – Did Netflix waive its right to object to continued and/or further use?

Even according to the complaint filed by Netflix, they took little more than token efforts to stop the infringing actions of Barlow and Bear for more than a year and a half. The doctrines of laches and estoppel provide for the denial of claims of infringement where the claim is not acted on in a timely manner.

When asked about the impending release of the Unofficial Bridgerton Musical Album in a September 2021 interview, Barlow stated “Ask and you shall receive. Netflix was very, very supportive” suggesting that Netflix may have given permission. Netflix’s own complaint admits that they knew about Barlow and Bear’s Bridgerton inspired TikTok posts as early as December 2020. Although Netflix alleges that they repeatedly told Barlow and Bear that their works were not authorized, Netflix did nothing to stop those unauthorized works until after the live musical performance in July 2022. The complaint specifically states that Netflix believed that it “would be consulted before Barlow & Bear took steps beyond streaming their album online in audio-only format.” Is that an acknowledgement of permission? Time will tell.

How will the outcome of this case affect fan fiction in the future?

If the case proceeds to trial, which is rare in intellectual property litigation, the court’s decision could have a significant affect on fan fiction activities in the future. If the court sides with Brown & Barlow and finds that the doctrines of laches and estoppel prevent Netflix from asserting claims of copyright and trademark infringement, you can expect movie and music producers like Netflix to be far more aggressive in pursuing posts on TikTok and social media that make unauthorized use of their materials. On the other hand, if the court rules in favor of Netflix, there may be a chilling effect on fan fiction posts on social media in the future. While this may better protect the intellectual property interests of companies like Netflix, the support from fan fiction posts is certainly good for their brand too. In the end, the best interests of both parties is likely better served by maintaining the status quo rather than having the courts draw a line in the sand that may not be good for either.

ARTISTS, COPYRIGHTS, INTELLECTUAL PROPERTY, SONGWRITERS

L.A. Jury Awards $2.8 Million to Christian Rap Artist

Because of the time and expense involved, it is rare for any intellectual property infringement action to be tried before a jury. Recently, a case against pop star Katy Perry did just that, and resulted in a $2.8 Million verdict against Perry and her producers. The ruling is part of a growing trend of claims against big time pop song artists and is causing a great deal of concern among musicians and songwriters who are concerned that the ruling stifles creativity.

The lawsuit concerned alleged similarities between Perry’s 2013 hit song “Dark Horse” and a 2008 Christian rap song “Joyful Noise,” by Marcus Gray aka Flame. The lawsuit alleged that Perry and her collaborators copied Joyful Noise’s hook. The case was filed in 2014 and concluded with a seven day jury trial in July 2019. As discussed in our March 2019 Blogpost, a copyright plaintiff must register his or her work with the U.S. Copyright Office prior to bringing suit in Federal Court, something that Gray did by securing Copyright Registration No. PA0001900321 for “Joyful Noise.” It is worth noting that Gray did not secure copyright registration until June 3, 2014 — seven years after creation of “Joyful Noise”, and presumably very shortly before filing suit against Perry. One has to wonder if the jury’s award would have been even bigger had Gray registered the work within three months of its publication which would have entitled him to statutory damages of $150,000 per infringement, plus attorney fees.

In order to prevail in his copyright infringement claim, Gray also had to prove that Perry and her collaborators “copied” his work. Theoretically, two works could be identical and there not be infringement if the second work was independently created without the author having knowledge of the previous work. Not surprisingly, Perry and her collaborators claimed that they had never heard of “Joyful Noise” before writing and recording “Dark Horse.” But since most artists don’t live the isolated life of a Buddhist monk at the Key Monastery, factors other than an artists claim to have independently created a work must be considered. Most often this is done be the copyright plaintiff showing that the alleged infringer had access to the copyrighted work and that the works are substantially similar. Gray did so in this case by claiming that “Joyful Noise” had been widely distributed (more than 2 million YouTube views) and that there was a good chance the Perry, who started her career as a Christian musician, or her collaborators could have heard the song before writing and recording “Dark Horse.” In finding for Gray, the jury apparently believed that Perry had access and that the two works were substantially similar.

The question of substantial similarity in this case also raises significant concerns for songwriters. Western music is made up of only 12 notes, which means that there are nearly 9 trillion different combinations that can be made. A copyright plaintiff does not have to show that the works are identical, only that they are substantially similar. So if the combination of a series of notes are not identical, but close, infringement can still be found. My more experienced readers may recall the case of alleged copying by Vanilla Ice in his song “Ice, Ice Baby” of the bass line from Queen/David Bowie’s “Under Pressure.” Notwithstanding Ice’s infamous claim that his song was different because he added a beat between notes, the case was settled out of court and Queen/Bowie received songwriting credit. More recently, in 2015 Robin Thicke’s “Blurred Lines” was found to have infringed Marvin Gaye’s 1977 “Got to Give it Up,” resulting in a $7.3 Million verdict.
Many in the music industry claim that the musical elements at issue in the Perry/Gray dispute are generic. Perry’s attorney went so far as to claim that “they’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone.” They argued further that the beats found in the songs are so common they can be found in tunes as standard as “Mary Had a Little Lamb.” One concern expressed is that such rulings will lead to increased litigation which they worry will stifle creativity. The concern appears to be well founded given the consistent rise in copyright infringement cases since the “Blurred Lines” ruling in 2015.

What do you think? Are the two songs “substantially similar”? Are the musical elements at issue generic? Check them out – Joyful Noise – and post your opinion!

ARTISTS, AUTHORS, COPYRIGHTS, INTELLECTUAL PROPERTY, SONGWRITERS

ARTISTS, AUTHORS, SONGWRITERS AND OTHER CREATIVE PEOPLE TAKE NOTE – SCOTUS ISSUES TWO DECISIONS THAT AFFECT THE RIGHTS IN YOUR WORKS

In our January 2018 blogpost, we reported to you that the U.S. Supreme Court was considering whether to hear a case that would resolve a spilt between circuit courts in different parts of the country as to when a copyright owner could file suit for infringement. On March 4th, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, the Supreme Court did just that, holding that a copyright owner could not file suit against a potential infringer until the Copyright Office has acted on the owner’s application for registration. This effectively overruled the practice in the Fifth Circuit (Texas, Louisiana, Mississippi) and Ninth Circuit (California, Arizona, Nevada, Oregon, Washington, Idaho, Montana) of permitting plaintiffs to file actions for copyright infringement once their application for registration was filed with the Copyright Office.

Register your Work Early for the Best Protection.
In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court held that the language “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made” enumerated in 18 U.S.C. 411(a) means precisely what it says, and that no suit for infringement may be filed until the work is registered. In so holding, the Court pointed to language in the very next sentence of Section 411(a) providing an exception to the registration requirement in cases where “registration has been refused”, in support of it’s reasoning that the mere filing of an application for registration is not sufficient to satisfy the statute. In the later case, where registration has been refused, the plaintiff must also serve a copy of the complaint on the Register of Copyrights, who may, at his or her option become a party to the action on the issue of registerability of the copyright claim.
So what is the impact of this decision on authors, songwriters, artists the other people who create copyrightable work? Because the creator of a work must now wait until a decision is made on his or her application for registration, we expect to see a substantial increase in requests for “special handling” of applications from those parts of the county where a mere application had been sufficient to allow suit to be filed. “Special Handling” with regard to a copyright registration is a process where, for an extra fee ($800.00), an applicant is effectively bumped to the front of the line and a decision on registration is made within five (5) business days instead of the normal six to eight months. The normal fee to file an application for registration is $55.00, so the extra $800 fee per claim can be significant for those who create a number of works they wish to protect, or for “starving artists” with limited financial resources. In addition, when you consider that for registrations filed within three months of the work’s publication or before the infringement occurs a copyright owner is eligible for statutory damages of up to $150,000 per infringement, plus attorneys’ fees, the case for registering works sooner rather than later is even more compelling.
The best strategy for the average author, artist or songwriter is to file their application for registration with the Copyright Office early – within three (3) months of publication, or sooner to preserve the potential recovery of statutory damages and attorney fees and to give the application time to be processed before infringement occurs. In contrast, a person who waits until infringement occurs will need to either pay an additional $800 for “special handling” or wait 6-8 months before suit can be filed. Add to that the potential forfeiture of statutory damages and attorney fees, and the case for early registration makes perfect sense.

Don’t expect Hot Dogs with your Ticket Plan.
The ability to maximize a damages award under Section 504 which includes statutory damages and attorney fees discussed above is even more critical now that the Supreme Court has limited what a prevailing claimant can recover as costs in a successful lawsuit. In Rimini Street Inc. v. Oracle USA Inc., another March 4th unanimous Supreme Court opinion, the Court narrowly construed what “costs” could be recovered under Section 505 of the Copyright Act which states that a prevailing party may, in the discretion of the court, recover “full costs”. The Supreme Court struck down the Ninth Circuit’s expansive interpretation of the term “full costs” to mean something more than the “costs” typically awarded in other statutes and governed by 28 U.S.C. 1821 and 1920. Writing for the majority, Justice Kavanaugh quipped that “‘A ‘full moon’ means the moon, not Mars. A ‘full breakfast’ means breakfast, not lunch. A ‘full season ticket plan’ means tickets, not hot dogs. So too, the term ‘full costs’ means costs, not other expenses.”

Recommended Actions.
In response to these two decisions, we think that copyright owners should take the following steps to best protect their creative works:
Take action early. If at all possible, file an application for registration of your work within 3 months of the first publication of your work, and before a dispute arises. This puts you in the best position to act when infringement does occur, and puts you in a position to maximize the potential damages available if you prevail.
Request Special Handling. If infringement is already occurring, or is imminent, you should request expedited handling of your application for registration. While the $800 filing fee may seem excessive, it is far better than having to wait 6-8 months for the Copyright Office to act while your valuable work is being pirated by others.
Don’t expect hot dogs with your ticket. Litigation is expensive, time consuming and emotionally draining. Don’t expect a court to fully compensate you for your loss by awarding you “full costs” for all of your out-of-pocket expenses. If you followed our advice under bullet point one above, you may be able to recover statutory damages which can help ease the sting.
Don’t go it alone. While fling your own application for copyright registration may initially seem easy and fun (if you are a masochist), those unfamiliar with the process can make errors that may delay the application or result in a refusal which places the owner in a much less-desirable position. The attorneys at Martin IP Law Group are experienced in applying for and obtaining copyright registrations for clients involving all types of creative works. Contact Us today to see how we can help you protect your most important creations.

AI-Generated Content + Copyright Law

What is a Copyright?

Does Copyright Infringement Apply to AI Creations?

L.A. Jury Awards $2.8 Million to Christian Rap Artist

ARTISTS, AUTHORS, SONGWRITERS AND OTHER CREATIVE PEOPLE TAKE NOTE – SCOTUS ISSUES TWO DECISIONS THAT AFFECT THE RIGHTS IN YOUR WORKS

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MARTIN IP LAW GROUP, PC