Glow in the Dark Law

05/18/2023

The Warhol case went Goldsmith's way. I have not digested the opinion yet, so I'm not sure how I'm going to ultimately feel about it. But my knee jerk reaction, as a proponent for strong and expansive fair use rights, is unfortunately that the Bait-and-Litigate™ trolls got another hash mark in the "W" column.

https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

05/04/2023

Digital creators have been learning just how difficult it is to define where the line between fair use and unlawful derivative works exists. This is particularly true on YouTube®, where instructive content creators from musician Charles Berthoud to retro digital computer hobbyist Adrian Black to science fiction and LGBTQ+ social commentator Jessie Gender have all found themselves on the wrong side of a “copyright strike.” These three creators and more have a common complaint – YouTube® and other media providers ruthlessly enforce DMCA takedowns without any consideration of the content in question or whether it may be fair use. As these creators collectively attest, this “shoot first, ask questions never” approach to DMCA enforcement risks the livelihood of those who monetize their right to fair use in order to make a living, and the original copyright holders lose out, as well. But why is this a problem in light of the statute?

In the United States, 17 U.S.C. §107 limits the extent of copyright protection to ostensibly preclude infringement claims against fair use. But what is fair use? The statute gives some examples – criticism, comment, news reporting, teaching, scholarship, and research – but then affirmatively suggests that fair use goes far beyond those things by providing a four factor test. Academics and legal scholars such as Patricia Aufderheide and Peter Jaszi (authors of “Reclaiming Fair Use”) have insisted for years that this test is as subjectively applied as any in the law. Why? As they claim, to benefit the powerful at the expense of the weak. Or in this case, the rich at the expense of the poor.

So, if a copyright claimant claims infringement and the alleged infringer claims fair use, why isn’t that the end of it for the forum provider? After all, the DMCA provides in 17 U.S.C. § 512 a safe haven for service providers who are not responsible for content creation or publication and who act reasonably in light of DMCA takedown demands. The answer is because fair use is so painfully difficult to reasonably identify. The safer position is to reflexively take down content in light of takedown demands. But what of those creators who insist their use is either fair or original? According to these jilted content creators, YouTube® takes the approach of least economic pain to itself – it invests minimal effort into providing a forum to assert fair use rights or for appeals.

As we progress further into the digital millennium, this should concern all of us. We’re all out recording video and taking pictures with our cell phones. We are quite content and wholly oblivious when it comes to posting things to social media, including the prolific sharing of those amusing, insightful, or meaningful posts others have shared with us. So long as fair use remains this difficult to identify, we’re all at risk. The world wide web is still the wild wild west. Be careful out there.

04/26/2023

Some authors argue there should be a right of reversion. In the United States, if an originating author were to exclusively assign or license rights in a particular creation, including all rights to create derivatives, to another party, outside the limited window provided in 17 U.S.C § 203, that party would retain the rights for the length of the originating copyright, absent some sort of claw back in the agreement.

Those who argue for a more robust right of reversion (and I suspect Sylvester Stallone, the creator of Rocky, might be a proponent of such a right) suggest that if time proves that the assigned right is more valuable than the parties could have anticipated at the time the rights were originally conveyed, that the originating author should be able to revert some or all of the originating rights back to herself. This would allow her to reap the unanticipated but substantial financial rewards of her creation. Generally, reversion rights would exist only after a fixed period, and only for a limited window of time (as in §203). In this way, creators are encouraged to both market their works through licenses and assignments and honor their contracts, but are not so wholly stripped of their copyright that others reap in perpetuity the rewards for the author's hard work.

Copyright reversion has some analogy in other areas of U.S. law. For example, contracts are voidable upon a showing of mistake or void if there is fraud in the inducement. Surely Stallone would argue it was a mistake to sell his rights to a multi-million dollar franchise for an equivalent pittance. On the other hand, capitalism and the world economy rely on the enforceability and "absolute" nature of contract. If one party can unilaterally unravel a lucrative contract decades after the fact, that could have devastating consequences and even upend entire creative industries. Depending on the original terms or subsequent agreements related to other stories in the franchise, Stallone may have been able to claw back his rights circa 2011. That ship has likely sailed.

What do you think? Should an author be able to claw back their work if it proves more valuable than they originally anticipated? Or should the assignee or licensee be able to enjoy the fruits of an obviously favorable deal?

Sylvester Stallone LEAKS Never-Before Seen Rocky 7..Welcome back to Recap On Tap, today on the channel we're going to be talking about Sylvester Stallone LEA...

04/11/2023

Don't get scammed by TV commercials, social media posts, or ads from companies telling you to “act now” to claim your Camp Lejeune or PACT Act benefits.

04/05/2023

I've been focused for the last couple weeks on the complications for facing creators seeking copyright who incorporate contributions from AI. But as Professor Crouch aptly points out, the creative contributions from AI pose significant patentability risks, as well.

04/04/2023

Although the attorney accused of infringement did not prevail before the CCB with his several defensive arguments, those arguments were based in large part on work that GITDLaw™ and an affiliate did for another defendant against the same photographer. The end result was that a claim for $30,000 in statutory damages was whittled down to a much more reasonable $1,000 award.

Since the U.S. Copyright Office implemented a small claims court last year, there's been one final determination on the merits, a total of $1,000 awarded to a copyright owner, and several cases that were dismissed due to filing deficiencies — signs that the board is making some strides as it conti...

04/02/2023

Law schools should begin teaching 1Ls in Legal Writing classes that shepardizing sources in the age of AI is more important than ever. If you wouldn't take a human's word for it, you shouldn't take a computer's, either.

This has practical applications well beyond legal research and writing. You can't accept things that are force-fed to you without verifying sources and objectively criticizing opinion pieces. As Morpheus says in Matrix Resurrections, "...they taught you good. Made you believe their world was all you deserved." Social media and biased news sources are constantly pumping our heads full of preferred interpretations. Putting blind faith in AI could become the ultimate way of "jacking in." If we're not careful, one of humanity's greatest innovations will deliver one of its swiftest defeats.

03/22/2023

DALL-E 2, create for me a radioactive lawyer that glows in the dark.

03/22/2023

Litigation counsel, be careful what you say in your emails regarding settlements. If there is a condition precedent to acceptance of the settlement, make that clear. If you are not authorized to settle on behalf of your client without first contacting them, make that clear, too. We were on the positive side of this issue in our last litigation, but it took a motion and court order to ultimately enforce the settlement. It turns out if counsel A emails counsel B and says "we accept your proposal," there are no take-backs.

Always assume your correspondence is going to end up attached to a motion as an exhibit, and draft accordingly.

Email that settlement agreement “looks fine” eliminated need for signatures, according to an appellate court

03/15/2023

Assuming the published version will be identical, my initial reaction is that this is no help at all. Like with most things in the law, the USCO says the answer to the AI-copyrightability question is "it depends."

I certainly agree that if a person provides a de minimis prompt, there is not enough creativity (formerly, "sweat of the brow") for the provider of the prompt to claim copyright. On the other hand, even after a de minimis prompt, the AI-user has to accept the final product. Is this not "selection, coordination, or arrangement" as would typically define a compilation? On the other, other hand, granting copyright to someone who provided AI with a prompt that merely describes various scenes a faire would be unfair, because it would blur the lines of what is scenes a faire until everything and nothing became copyrightable. This is same reason why questions of fair use are still clear as mud.

The short term outcome of this "guidance" is that IP attorneys advice will (and should) be to take your chances and apply for registration. The answer is always "no" if you don't ask, and there is so much gray that no scenario is likely crystal clear one way or the other. But this invites protracted litigation when registrations are denied or AI-generated materials are copied and republished, meaning the lawyers are going to benefit while authors continue to pay the price in determining what the answer actually is.

03/06/2023

The Copyright Claims Board has begun issuing final determinations.

In the final determination for Oppenheimer v. Prutton, the CCB notes that the copyright holder provides no market evidence of value for his photograph beyond a retrospective "fotoQuote" quote. Citing analogous decisions by federal district courts, the CCB declines to consider such retrospective quotes for which no evidence (such as the factors used by fotoQuote in achieving the quote) of "accura[cy] or reliab[ility]" of the quote was provided.

More importantly, however, the CCB aligns with various federal districts by preventing the copyright holder from using statutory damage provisions to sidestep actual damages (or lack of evidence of actual damages) in an apparent attempt to achieve a statutory windfall.

While some federal courts have noted that the "effect of the use upon the potential market" is the most significant of the 17 USC § 107 fair use factors, the CCB makes no such suggestion. Although the determination seems to implicitly accept that none of the four factors is individually dispositive, the Board notes that a defendant availing herself of the affirmative defense of fair use has the burden as to all four factors. Thus, by focusing on only one of four statutory factors, the defendant made a fatal error. This suggests that while the fourth factor may be "the single most important" (Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985)), the Copyright Office considers that the other three factors cumulatively outweigh the fourth.

https://dockets.ccb.gov/document/download/2220

02/06/2023

While Professor Sag’s article, Defense Against the Dark Arts of Copyright Trolling, focuses on file-sharing litigation, it teaches many valuable lessons regarding serial copyright litigation brought by digital photographers. These litigations suffer from many of the same evidentiary weaknesses and can benefit from similar defense strategies.

Although the majority of digital photographers in this country willingly and equitably engage in the fair market, there is a subset that has determined that it is far more lucrative to engage in a business of litigation. By exploiting the high costs of litigation and the premium over fair market value inherent in currently available copyright statutory damage awards, they are able to extract significant nuisance settlements from defendants who lack the sophistication or stamina to resist. Many bloated settlements are unfairly negotiated for images the fair market ascribes only nominal value to.

I predict that the forthcoming ubiquity of artificial intelligence (such as DALL-E and ChatGPT) will be the catalyst through which an already unchecked digital photography "troll" industry explodes. There are already questions as to whether AI-created content is infringing derivatives. If this question remains unanswered (or is answered in the affirmative), unscrupulous digital photographers will further saturate the internet with their photographs, and make a killing suing both the hosts of AI platforms and the people who use them.

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John