Founding Partner
Despite being widely used for several decades, the internet is still the Wild West when it comes to copyright law. Streaming media, user-created content hosted on third-party sites, generative AI systems like ChatGPT and DALL-E, and other innovations have made it much more challenging to determine who owns a piece of copyrighted material and what they can do with it. Furthermore, lawmakers have passed a few new laws addressing these issues, leaving the courts to decide on these issues, which can lead to competing or contradictory decisions. Let’s explore where things stand as of today, and what recent changes all creators should know.
USCO Denies Copyright for AI-Generated Materials
Early in 2023, the U.S. Copyright Office (USCO) issued a crucial decision regarding creative works produced by generative AI. The decision involved a graphic novel called Zarya of the Dawn. The USCO initially approved the registration for author Kristina Kashtanova, only to change its mind once it came to light that the images in the book came from a generative AI program. The USCO did not revoke Kashtanova’s copyright entirely, saying her contributions to the work (the text, the layout of the images, etc.) qualified for copyright protection. However, the USCO revoked the copyright registration for the actual images in the work. In their decision, the USCO said that because an AI program created the images, they were “not the product of human authorship” and did not qualify for copyright protections. This decision ties back to previous court rulings arguing that the phrase “works of authorship” in the Copyright Act of 1976 only applies to works by human authors.
Supreme Court Places New Limits on Transformative Fair Use
The Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith, though it does not mention the internet specifically, has profound implications for fair use cases involving creative works made or transformed online. The case concerned a photograph of the pop star Prince that photographer Lynn Goldsmith originally took in 1981. Vanity Fair licensed Goldsmith’s photo for a one-time use as the basis for an illustration in the magazine. The magazine then gave the photo to pop artist Andy Warhol, who took the original black-and-white photo and flattened, cropped, and colored it for use in the magazine. Vanity Fair credited Goldsmith as the source photographer and paid her a $400 licensing fee.
So far, so good. But things got complicated when Prince died in 2016. At that time, the Andy Warhol Foundation (which has managed Warhol’s estate since his passing in 1987) licensed a different version of Warhol’s Prince portrait to another magazine. Without Goldsmith’s knowledge or consent, Warhol had created 16 different prints and drawings based on her photographs. Furthermore, Goldsmith received no credit or royalties when the second magazine published the newer Prince portraits the Warhol Foundation provided, though the foundation received a $10,000 fee. When Goldsmith found out about the new portraits, she informed the foundation that they had infringed on her copyright. The foundation then sued Goldsmith, arguing the portraits fell under the fair use doctrine.
The Supreme Court ultimately sided with Goldsmith. They said that even though Warhol had transformed Goldsmith’s original photograph, the act of transformation was not enough to override Goldsmith’s original copyright. The court said the degree and nature of transformation, including any commercial use by the derivative author, has to matter in copyright cases. Otherwise, the fair use exception becomes so broad that it effectively renders the original copyright worthless.
Why does the Goldsmith decision matter when it comes to online works? Many online creators make derivative works from existing songs, books, movies, and other media. Many of these creators claim they are not infringing on the original copyright through the fair use doctrine. With the new limits the Supreme Court has placed on transformative fair use, online creators may have a more challenging time disputing claims of copyright infringement.
Have Questions About Copyright Laws and the Internet? Contact Our New Jersey Copyright Lawyers Today
It’s easy to get tripped up over copyright laws when it comes to works published or generated online. Working with a knowledgeable copyright lawyer can help you avoid legal hassles and protect your copyrighted works from unfair infringement. Call Gearhart Law today or complete our contact form for a consultation.