Insights

Will the Supreme Court review the Ninth Circuit’s unique Server Test for online copyright infringement? After the Ninth Circuit recently affirmed the Server Test, a photographer and copyright owner has requested certiorari. Petitioner-Plaintiff, Elliot McGucken, is a landscape photographer. Respondent-Defendant, Valnet, Inc., is the owner of a travel website located at “www.thetravel.com.” McGucken sued Valnet for copyright infringement when Valnet embedded on its site a number of links to McGucken’s Instagram posts. The district court, bound by the Ninth Circuit’s en banc decision in Perfect 10, granted Defendant’s motion to dismiss, finding that the Server Test foreclosed McGucken’s direct infringement claim as a matter of law, because Valnet linked to the images and did not store them on its own servers. The Ninth Circuit affirmed in a panel decision. McGucken now requests the Supreme Court to review the validity of the Server Test, which is unique to the Ninth Circuit.

In a unanimous opinion issued by the D.C. Circuit on March 18, 2025, the Court of Appeals affirmed denial of Dr. Stephen Thaler’s application to register a copyright protection for a work created by his generative artificial intelligence system, holding that the Copyright Act requires human authorship.

The U.S. Copyright Office has released Part 2 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI). This part of the Report, issued on January 29, 2025, focuses on the copyrightability of outputs created using generative AI. Overall, the Copyright Office concludes that existing law is sufficient to resolve questions of AI usage in copyrighted works, and sufficient human contributions to AI-generated outputs that would constitute authorship will be analyzed on a case-by-case basis. The Office declined to support a separate copyright registration analysis for AI works, but provided new examples of how using AI as a tool could support sufficient authorship for copyrightability.

Universal Music Group, Sony Music, and Warner Music Group., represented by the Recording Industry Association of America (RIAA), have sued online music AI generators, Suno AI (“Suno”) and Udio AI (“Udio”), for alleged copyright infringement, accusing them of replicating their artists’ music using AI technology. The Suno complaint is filed in the U.S. District Court for the District of Massachusetts, and the Udio complaint is filed in the U.S. District Court for the Southern District of New York.  The lawsuits also target Alphabet Inc., Google's parent company. The RIAA is asking for damages amounting to up to $150,000 per infringing song, which could amount to hundreds of millions of dollars. 

In its first en banc decision in six years, the Federal Circuit in LKQ Corp. v. GM Global Technology Operations LLC, No. 2021-2348 (Fed. Cir. May 21, 2024) overruled the prevailing obviousness test for design patents; abandoning the decades-old standard known as the Rosen-Durling test, and embracing a less rigid approach to assessing obviousness for design patents.  As explained below, the decision creates uncertainty as to how the obviousness of design patents should be assessed in the future.  

On May 9, 2024, the U.S. Supreme Court issued a ruling in Warner Chappell Music Inc. et al. v. Sherman Nealy et al., Case No. 22-1078, resolving a circuit split in federal courts as to whether it is possible to recover copyright damages beyond the three-year filing statute of limitations. The court held in a 6-3 ruling that there is no time limit on monetary recovery, while leaving the three-year filing deadline intact.

On April 11, 2024, the USPTO published its “Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States” in the Federal Register (the “Guidance”). As the title suggests, the document provides additional opinions and guidance from the USPTO on the use of AI tools for prosecuting patent and trademark applications before the USPTO.

On April 10, 2024, the U.S. House of Representatives, Judiciary Committee Subcommittee on Intellectual Property convened Part III to an ongoing discussion and exploration of artificial intelligence (AI) and intellectual property (IP) rights. The session, “Artificial Intelligence and Intellectual Property: Part III - IP Protection for AI-Assisted Inventions and Creative Works,” delved into the nuanced debate over what IP protections should exist for AI-generated or AI-assisted works.

Judge William Orrick in the Northern District of California has dismissed some claims in a lawsuit brought by visual artists Sarah Andersen, Kelly McKernan, and Karla Ortiz against Stability AI, Midjourney, and DeviantArt. The artists allege that the companies misused the artist’s copyrighted works in connection with the companies’ generative artificial intelligence systems and products. Judge Orrick dismissed all allegations against Midjourney and DeviantArt, but gave Plaintiffs leave to amend their complaint. Judge Orrick also dismissed copyright infringement claims brought by McKernan, Ortiz, and others in the artists’ class who had not obtained copyright registrations, a prerequisite to filing a copyright claim, but is allowing Andersen to pursue her claim that Stability AI's use of her work to train Stable Diffusion infringed her copyrights.

The U.S. Supreme Court has granted review of an 11thCircuit ruling in the case of Nealy et al. v. Warner Chappell Music Inc. et al. The issue at hand is whether a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before filing the case. Specifically, the court will examine the application of the discovery accrual rule, which determines when the clock starts ticking for the statute of limitations in copyright infringement cases. Warner Chappell Music argues that a copyright plaintiff should not be able to recover damages for acts that occurred outside the three-year statute of limitations. The company aims to establish a precedent that would limit the timeframe in which copyright plaintiffs can seek additional damages.

In an unconventional opening to the normally staid proceedings of the United States Senate, the voice of Frank Sinatra introduced the July 12, 2023 Senate Judiciary Subcommittee hearing on artificial intelligence (AI) and intellectual property. More accurately, an AI-generated version of Frank Sinatra’s voice sang about regulating AI to the tune of New York, New York, which Senator Chris Coons (D-DE), Chairman of the Senate Judiciary Subcommittee on Intellectual Property, used to illustrate both the possibilities and the risks of the use of AI in creative industries.

Navigating copyright-based legal disputes through traditional federal court options can be a costly and time-consuming process. Historically, federal court was the only venue for copyright lawsuits of all sizes, big and small. The Copyright Claims Board (“CCB”), however, now offers a streamlined and cost-effective alternative for smaller copyright disputes in the United States. This client alert expands on previous news about the CCB, explores the usefulness of the Copyright Claims Board after its first year in existence, and explains why the CCB could be the right forum for copyright litigants.

The U.S. Copyright Office (“Copyright Office”) has clarified its position on AI-generated images, concluding that, while such images are not themselves entitled to copyright protection, copyright protection and registration may be available for works of copyrightable authorship that incorporate such AI-generated images and art.

Last year, in the case of Thaler v. Vidal, the Federal Circuit affirmed that only natural persons (i.e., human beings) can be named inventors on U.S. patents, thereby excluding artificial intelligence from being listed as an inventor per se.  43 F.4th 1207 (Fed. Cir. 2022).  Most Courts around the world ruled similarly.  But this does not mean that artificial intelligence (“AI”) inventions, including inventions developed with AI as a tool and inventions directed to AI subject matters, are not patentable.  To the contrary, according to the U.S. Patent & Trademark Office’s (“USPTO’s”) October 2020 Public Views on Artificial Intelligence and Intellectual Property Policy Report (“2020 Report”), academics and practitioners generally agree that artificial intelligence can represent a subset of computer-implemented technology that can be a subject matter of an invention or used to assist with other inventions.  2020 Report, at iii.  Current stakeholders generally agree that the U.S. laws are calibrated to address artificial intelligence inventions.  2020 Report, at iii.

In 4DD Holdings, LLC v. United States, No. 15-945C (Fed. Cl. March 31, 2022), the Court of Federal Claims (“COFC”) decided cross-motions for summary judgment on a claim by 4DD Holdings, LLC and T4 Data Group, LLC (collectively, “4DD”) brought pursuant to 28 U.S.C. § 1498(b) and alleging that the government violated 4DD’s copyright by over-installing copies of 4DD’s computer program, TETRA, in contravention of the parties’ end-user license agreement (“EULA”). The government countered that 4DD waived the right to further compensation for additional copies of TETRA through a release signed as part of a modification to the contract, and, alternatively, that the government was entitled to make the additional copies of TETRA under copyright law. 

The United States Supreme Court has decided to revisit the copyright doctrine of fair use in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case involves a collection of Warhol’s silkscreen prints and pencil illustrations based on Lynn Goldsmith’s copyrighted photograph of the artist Prince. The Warhol illustration was originally commissioned by Vanity Fair magazine in 1984, but Warhol later created his own series of artwork based on the photograph, which Goldsmith argued was an infringement of her copyright. The Warhol Foundation responded by invoking the fair use defense. The Second Circuit decided that the Warhol works did not constitute fair use of the photograph, concluding that all four of the factors in the fair use test favored Goldsmith.[1]

A cautionary tale for NFT sellers has emerged this month through a lawsuit by Roc-A-Fella Records, Inc. (“RAF”) against label co-founder Damon Dash.[1] In the suit, filed June 18, 2021 in the Southern District of New York, RAF alleges that Dash is attempting to sell the copyright for fellow co-founder Jay-Z’s infamous 1996 rap album Reasonable Doubt as an NFT. RAF, not Dash, owns the copyright. Dash counters that he is actually trying to sell his one-third ownership stake in the label itself. The legal dispute revolves around what the NFT at issue includes.