Recently our colleagues Natalie Arbaugh and Rex Mann discussed the Fifth Circuit’s decision in GlobeRanger Corp. v. Software AG USA, Inc., 2016 WL 4698270 (5th Cir., Sept. 7, 2016), focusing on the Court’s discussion of the damages available to a plaintiff in a common law trade secrets case. The GlobeRanger opinion also devoted considerable attention to the “Copyright Preemption” doctrine, addressing Software AG’s contention that GlobeRanger’s common law misappropriation of trade secrets claim was preempted under the federal Copyright Act, 17 U.S.C. §106 because the software GlobeRanger claimed was misappropriated by Software AG was indisputably copyrightable. Although the Fifth Circuit had dealt with issues of Copyright Preemption in prior cases (including an earlier appeal in the GlobeRanger v. Software AG USA litigation), it had never directly dealt with the issue of whether a state common law claim of misappropriation of copyrightable trade secrets was preempted under the Copyright Act.

The court's opinion, however, is most significant for its open skepticism of the Second Circuit's finding in Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013) ("Cariou") that a work may be transformative as a matter of law – regardless of its purpose and connection to the original copyrighted work – if it "alters the original with new expression, meaning, or message."In particular, and as detailed below, the court cautioned that Cariou's interpretation and application of the fair use doctrine compromises, and possibly eliminates, a copyright holder's statutory right to prohibit others from making derivative works under 17 U.S.C. § 106(2).The Lawsuit and District Court Opinion In 2011, plaintiff Michael Kienitz photographed Madison, Wisconsin mayor Paul Soglin, who subsequently (with Mr. Kienitz's permission) posted the photograph on the City's website.

ction 106 of the Copyright Act provides as follows:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:to reproduce the copyrighted work in copies or phonorecords;to prepare derivative works based upon the copyrighted work;to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; andin the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.17 U.S.C. § 106(1)-(6) (emphasis added).Rights of Authors to Attribution and Integrity. Section 106A of the Copyright Act provides that, subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art shall have certain additional rights, such as to claim authorship and to prevent the use of the author’s name as the author of any work of visual art which the author did not create. 17 U.S.C. § 106A. Those authors also have the right to prevent the use of the author’s name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to the author’s honor or reputation. Authors within the meaning of section 106A may seek to prevent any intentional distortion, mutilation, or other modification of the particular work that may violate the rights vested in the author by section 106A. Id. at § 106A(a)-(a)(3)(B).Limitation on Exclusive Rights: Fair Use, Section 107. Pursuan

The U.S. Copyright Act grants copyright owners an exclusive distribution right with respect to their protected works. It reads, “[T]he owner of copyright under this title has the exclusive [right] … to distribute … the copyrighted work to the public by sale or other transfer of ownership … ” or to authorize others to do so. 17 U.S.C. § 106(3). These and other exclusive rights guaranteed by law are not absolute.

Federal judge boots Most AI copyright claims Re: StabilityA federal district court judge has thrown out most of the claims that a group of artists asserted against artificial intelligence (AI) platforms that they claim used their work without permission.The case is Andersen et al. v. Stability AI Ltd.Sarah Anderson and other artists filed a putative class action on behalf of themselves and other artists to challenge the defendants’ creation or use of Stable Diffusion, an AI software product.Plaintiffs assert the following claims against all three sets of defendants: Stability AI Ltd. and Stability AI, Inc., DeviantArt, Inc., and Midjourney, Inc.:Direct Copyright Infringement, 17 U.S.C. § 106;Vicarious Copyright Infringement, 17 U.S.C. § 106;violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201-1205 (“DMCA”);violation of the Right to Publicity, Cal. Civil Code § 3344;violation of the Common Law Right of Publicity;Unfair Competition, Cal. Bus. & Prof. Code § 17200; andDeclaratory Relief.Plaintiffs alleged that Stable Diffusion was “trained” on plaintiffs’ works of art to be able to produce Output Images “in the style” of particular artists.The three sets of defendants each filed separate motions to dismiss. DeviantArt also filed a special motion to strike.The judge granted the motions to dismiss and deferred the motion to strike.According to the judge’s summary of the complaint,Stability created and released in August 2022 a “general-purpose” software program called Stable Diffusion under a “permission open-source license.” … Stability is alleged to have “downloaded of otherwise acquired copies of billions of copyrighted images without permission to create St

Office of Legal Educ. Exec. Off. Of U.S. Att’ys., Prosecuting Intellectual Property Crimes 10 (4th ed. 2013). 17 U.S.C. § 106(1)–(6). Office of Legal Educ., supra note 2, at 11.Id. (citing United States v. Wise, 550 F.2d 1180, 1188 n.14 (9th Cir. 1977) (“[T]he general principle in copyright law of looking to civil authority for guidance in criminal cases.”)). 17 U.S.C. § 101 (defining financial gain as the “receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works”). 17 U.S.C. § 506.Copyright Law, Dep’t of Just., https://www.justice.

On appeal in Castillo v. G&M Realty (No. 18-498-cv) and Cohen v. G&M Realty (No. 18-538-cv), the Second Circuit considered the question of whether the transitory nature of the defaced art precluded protection under VARA, which inter alia affords artists the right to prevent damage to works of “recognized stature,” as well as other acts that may harm their reputations or prospects. See (17 U.S.C. §106(A)). The Second Circuit further addressed the related question of under what circumstances could art be considered to have attained “recognized stature,” as the term had been left undefined in statutory law.

On appeal in Castillo v. G&M Realty (No. 18-498-cv) and Cohen v. G&M Realty (No. 18-538-cv), the Second Circuit considered the question of whether the transitory nature of the defaced art precluded protection under VARA, which inter alia affords artists the right to prevent damage to works of “recognized stature,” as well as other acts that may harm their reputations or prospects. See (17 U.S.C. §106(A)). The Second Circuit further addressed the related question of under what circumstances could art be considered to have attained “recognized stature,” as the term had been left undefined in statutory law.

The Copyright Act precludes the reproduction of any copyrighted works without the consent of the copyright holder. See 17 U.S.C. §§ 106, 501. Section 106 of the Copyright Act vests in the owner of the copyright theexclusiveright to duplicate and to authorize duplication of the copyrighted work.

A fourth and relatively new PRO, Global Music Rights (GMR), is small but gaining increasing market share in the industry. 17 U.S.C. § 106(4). Musical compositions consist of the written music and lyrics to a song.