Category Archives: Copyright

4 Things Businesses Should Know About ChatGPT

Workers in your business are probably trying out ChatGPT. Here are 4 things you should know.

#1 – You don’t own what it writes. ChatGPT output is not copyrightable. The Copyright Office explains: “When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright.” So, if your competitor copies your ChatGPT generated content, there won’t be much you can do about it. ChatGPT may even help them do it. From OpenAI: “[d]ue to the nature of machine learning, Output may not be unique across users and the Services may generate the same or similar output for OpenAI or a third party.”

#2 – You may need another’s permission to use what it writes. ChatGPT “learns” by ingesting material that it can reproduce, at least in part, in response to user prompts. As claimed in the mounting number of lawsuits targeting generative AI, the material ingested can include copyrighted material. Therefore, the output could include that copyrighted material, and your use of it could be copyright infringement. OpenAI grants users rights in the content generated by ChatGPT, but that won’t prevent a copyright owner from suing you.

#3 – It can’t keep a secret. Whatever information you input is not confidential. ChatGPT is ingesting and storing all the information it receives, and using it to improve its answers to prompts. So, its very purpose is to use your information to inform others. From the opening screens: “Conversations may be reviewed by our AI trainers to improve our systems…Please don’t share any sensitive information in your conversations.” There is an option to prohibit use of your data to train the AI, but exercise of that option requires trust in both your employees to use it and OpenAI systems to actually honor it.

#4 – It makes stuff up. You need to fact-check ChatGPT output. This right from opening screens: “the system may occasionally generate incorrect or misleading information….” From the Your Rights Section of the OpenAI Privacy Policy: “you should not rely on the factual accuracy of output from our models.” Lawyers will know the story of the attorney who used ChatGPT to write a brief that included citations to cases that did not exist. Don’t be that guy.

Warhol v. Goldsmith – My Hot Take

Some interesting and telling moments in yesterday’s Supreme Court oral argument of the Warhol v. Goldsmith case started with the Syracuse hypothetical Justice Thomas posed to the attorney for the Warhol Estate. At bottom the case is about whether Warhol’s orange color alteration of Goldsmith’s photo of Prince qualifies as copyright fair use. Justice Thomas asked: “let’s say that I’m also a Syracuse fan and I decide to make one of those big blowup posters of Orange Prince and change the colors a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me?” Warhol’s attorney hypothesized that if Warhol did sue for that, Warhol should win even though Goldsmith should lose this case, basically because Warhol’s work is more creative than Justice Thomas’.

I can’t see why, or that it should matter. Warhol’s argument is that Orange Prince is fair use because Warhol “transformed” the “meaning” of Goldsmith’s photo of Prince. According to Warhol, the photo show’s Prince’s vulnerability but Warhol’s addition of color and other alterations render Prince in a more “iconic” way. If Warhol is correct, Thomas’ poster must qualify as fair use of Warhol because it “transforms” Warhol’s work into one demonstrating support for the ‘Cuse. The Warhol Estate’s unwillingness to concede the Syracuse hypothetical seems unprincipled and likely to hurt its case. Justice Thomas’ hypothetical highlights that one cannot expand the scope of fair use without diminishing the scope of copyright. If the Warhol Estate doesn’t have to license Orange Prince, its own copyright protection must be similarly narrow and Justice Thomas shouldn’t have to license Go Orange. Which way should it be?

U.S. Copyright Deposits Are Important

U.S. copyright applications must be accompanied by a deposit of “complete copies of the best edition.” Two recent cases underscore the importance of deposit copies. In Pyrotechnics Management v. XFX Pyrotechnics, plaintiff claimed defendant infringed by copying computer commands designed to manage firework displays, generated in accordance with a method protocol. The deposit copy, however, included only a description of the protocol (basically a manual), only three of the actual messages generated in accordance with the protocol, and no code. Therefore, the court held that plaintiff’s copyright did not include code. It was limited to the description of the protocol, and not even the protocol itself because the protocol itself was an uncopyrightable method. Because defendant did not copy the description of the protocol, plaintiff lost. Had the plaintiff deposited code perhaps the result might have been different.

In Parker v. Hinton, No. 3:19-CV-00214, 2022 WL 706920 (M.D. Tenn. Mar. 8, 2022), plaintiff was unable to prove that he deposited any material at all. Guess what. He lost too.

Bottom line: the deposit copies matter. They are required, and they stake the outer boundaries of copyright protection. The deposited copies should be a complete and accurate copy of the copyrighted work. The deposit copy should be the first piece of evidence examined by both plaintiff and defense counsel in litigation.

Substantial Similarity 2022 Released

Release #19 of Substantial Similarity in Copyright Law is now available from PLI.

Practical Law Update Completed

Eric Osterberg’s article Copyright Infringement: Analyzing Substantial Similarity in Westlaw’s
Practical Law has recently been updated.

Spirit v. Led Zeppelin, Taurus v. Stairway To Heaven

The copyright infringement lawsuit accusing Led Zeppelin of plagiarizing the song Taurus in the iconic Stairway to Heaven just got really interesting because the judge denied (in part, but in the most important part) defendants’ motion for summary judgment, and whether the songs are “substantially similar” seems like it may be a close call. If they end up with a jury like the one in the Marvin Gaye Estate lawsuit against Pharrell Williams, in which the jury ruled that Blurred Lines infringed Got to Give It Up, the case may go badly for the defendants. Here are links to some material that may help you decide for yourself.

Recordings of both songs –

Guitar analysis by TJR –

Opinion denying (in part) motion for summary judgment –

2015 Substantial Similarity in Copyright Law Supplement Available

The 2015 annual supplement to our treatise Substantial Similarity in Copyright Law is now available from PLI.


The Government Can’t Take Your Copyright

A little known and infrequently invoked feature of the U.S. Copyright Law is its prohibition against government-mandated copyright transfer from an individual author. 17 U.S.C. § 201(e) reads:

When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 [the bankruptcy code].

Even a court cannot order a transfer. In a recent case in the District of Massachusetts, the court held that the effect of § 201(e) was to void a court ordered transfer from the defendant to the plaintiff.

Clickwraps and Browsewraps: What’s the Difference?

Clickwrap and browsewrap agreements are documents typically used by website owners to mandate the terms on which users may access their websites. The difference between the two is the manner in which the user agrees to the terms. Clickwrap agreements require an overt act of consent by the user. Typically, the user must click a button to signify acceptance. Browsewrap agreements do not require any overt consent. Rather, the website owner posts the terms of use on the site and asks that users not access the site unless they agree to those terms.

Courts treat the two differently because of the difference in the manner in which the user accepts the terms. Clickwrap agreements are generally enforceable because the user’s click is an affirmative act indicating acceptance. The enforceability of browsewrap agreements depends on the prominence of the browsewrap terms. The more prominently the terms are displayed, the more likely a court will rule that users are bound because they must have seen the terms (or deliberately ignored them) and therefore a user’s continued use of the site demonstrates consent to the terms.

Copyright Fair Use – Is “Transformativeness” The Key?

Fair use is a statutory defense to copyright infringement. The fair use statute, 17 U.S.C. § 107, suggests certain types of uses that generally may qualify as fair use, and identifies four factors a court must consider to decide when any particular use qualifies.  The statute reads as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Until recently, case law identified the fourth factor, the effect of the use on the potential market for the original work, as the most important.  But in a 2012 case, Cariou v. Prince, the Second Circuit arguably shifted emphasis to the first factor, and particularly whether the new use qualified as “transformative” .

Cariou is a professional photographer who published an anthology of photographs of Rastafarians.  Years later, the self-styled “appropriation artist” Prince, copied Cariou’s photographs and altered them to varying degrees to create a series of works of his own.  The alterations ranged from wholesale changes that left Cariou’s images barely recognizable to mere pasting of colored ellipses over the subjects’ eyes.  The district court found Prince guilty of copyright infringement ,but the Second Circuit reversed.  The most significant factor in the Second Circuit’s decision was the court’s finding that many of Prince’s works were undoubtedly “transformative”, defined as “add[ing] something new, with a further purpose or different character.”  The Second Circuit held that a number of the Prince works “manifest an entirely different aesthetic from Cariou’s photographs.”

A recent decision from the Seventh Circuit, however, suggests that emphasis on “transformativeness” may not take hold elsewhere.  In Kienitz v. Sconnie Nation the Seventh Circuit pointed out that the Second Circuit approach risks interfering with one of the rights the Copyright Law grants to copyright owners: the exclusive right to create derivative works.  Derivative work is defined in the Copyright Act as  “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”  The Seventh Circuit asked, basically: what else is a derivative work but a transformative use of an existing work?  The court wrote: “We’re skeptical of Cariou ‘s approach, because asking exclusively whether something is “transformative” not only replaces the list in § 107 but also could override 17 U.S.C. § 106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under § 106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under § 106(2).  We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect).”

These recent cases should cause parties analyzing their likelihood of success on a fair use defense to consider most carefully how they think they will fare on the first factor (purpose and character of the use, the factor in which courts consider whether a work is transformative) and the fourth factor (effect on the market).  Once they decide that, they may then seek to gain advantage by steering their case to, or away from, the Second Circuit and its emphasis on “transformativeness.”