philip lelyveld The world of entertainment technology

Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues

... “It’s an interesting question because the pictures are not really, strictly speaking, being scanned and scraped for their expressive content, but rather for their data,” said intellectual property attorney Aaron Moss of Greenberg Glusker LLP. 

Cases like Authors Guild v. Google might provide some guidance, he noted. The New York-based US Court of Appeals for the Second Circuit in 2015 ruled that Google manually scanning millions of copyrighted books without a license to create its book search project was fair use.

Warhol and Fair Use

The Supreme Court is expected to hand down a decision in its most recent copyright case, Andy Warhol Foundation v. Goldsmith, which could redefine the boundaries of fair use in artistic works for the first time since the 1990s. 

The case focuses on whether Andy Warhol’s portraits of the musician Prince, based on photographs taken by Lynn Goldsmith, are “transformative” enough to prevent a copyright infringement claim. 

Goldsmith succeeded in convincing a federal appeals court that Warhol’s prints are infringing because they are “derivatives” of her copyrighted photographs. But the Andy Warhol Foundation argued that Warhol’s prints, which are cropped and highly colorized, have transformed the message and meaning of the original photographs. ...

Web-Scraping Fight

The Supreme Court in early December asked the US Solicitor General to weigh in on whether it should take up a case that accused Google of illegally scraping lyrics off the website Genius and posting them at the top of search results pages. 

Genius said the scraping breached its terms of service agreement and diverted internet traffic from its website, resulting in tens of millions of dollars in lost advertising revenue. ...

Instagram Embeds

The San Francisco-headquartered US Court of Appeals for the Ninth Circuit, which receives a high volume of copyright cases, will soon revisit a legal test it established in 2007 that has faced enormous scrutiny from district courts across the country, and artists enforcing their copyrights online. 

The server test, first articulated in Perfect 10 v. Amazon.com Inc., established that a website that displays an unauthorized copyrighted work can’t be held liable for infringement if the work is digitally stored elsewhere. 

A blog containing an embedded Instagram post, for example, is free from copyright liability because the photograph is technically stored on Instagram’s servers, not the blog’s. ...

See the full story here: https://news.bloomberglaw.com/ip-law/generative-ai-andy-warhol-fair-use-lead-2023-copyright-issues