Copyright Developments

Only humans can be authors under the Copyright Act, the D.C. Circuit Court of Appeals affirmed in a unanimous opinion on March 18, 2025.

The Court considered whether an artificial intelligence model could be an “author” of a work for copyright purposes – and answered “no.” In doing so, however, the court left open the crucial question of whether a human can be the “author” of an AI-generated work where he made and used the AI to generate the work.

On January 26, 2024, a unanimous jury held that a tattoo of Miles Davis inked by celebrity artist Katherine Von Drachenberg (better known as Kat Von D) was not substantially similar to the reference photo on which it was based.  The jury also found that the Instagram posts showing the photo in the background were protected under the fair use doctrine. 

Update:  This article was republished in the October 2021 issue of The Licensing Journal published by Wolters Kluwer.

Biz Markie (born Marcel Theo Hall), popularly known as hip-hop’s clown prince, passed away on July 16, 2021 at the age of 57. Biz’s innovative beats and lovably goofy lyrics left their mark on the music industry in more ways than one.

In Google LLC v. Oracle America, Inc., Case No. 18–956, 593 U. S. ____ (2021), the U.S. Supreme Court held that Google’s unauthorized copying of around 11,500 lines of Oracle’s computer code was a fair use and therefore not an infringement.

Oh, the Mashups You’ll Stop!

In Dr. Seuss Enterprises, LP v. ComicMix LLC, Case No. 19-55348 (9^th Cir. December 18, 2020), the Ninth Circuit held that Oh, the Places You’ll Boldly Go! (“Boldly”)—ComicMix’s Star Trek-themed sendup of Dr. Seuss’s iconic Oh, the Places You’ll Go! (“Go!”)—was an infringement rather than a parody. In finding that all four fair use factors weighed in Dr. Seuss’s favor, the Ninth Circuit decisively reversed the lower court’s decision, which had held that Boldly was a fair use, that is, a permissible albeit unauthorized use of Go!

In Georgia v. Public.Resource.Org, Inc., 590 U.S. ____ (2020), the U.S. Supreme Court held (5-4) that any works (including non-binding annotations to a State code) authored by or for the State’s legislature in the course of its legislative duties are ineligible for copyright protection. 

In a recent decision, the Ninth Circuit reversed a district court’s finding, as a matter of law and notwithstanding the jury’s verdict, that a defendant’s copyright infringement was not willful, but affirmed the district court’s refusal to award attorneys’ fees to the prevailing plaintiff (without prejudice to the plaintiff seeking reconsideration of this refusal on remand).