Tag: copyright infringement


Is Generative AI Fair Use?


Is Generative AI Fair Use?:
What the Courts Are Saying About AI and Copyright Infringement

Generative AI concept: hands on a laptop with floating AI icons and charts above the screen

Generative AI, OECD (Accessed Sept. 22, 2026), https://www.oecd.org/en/topics/generative-ai.html

On September 4, 2026, the Seattle Times filed a lawsuit against Microsoft and OpenAI, claiming that the tech giants illegally stole their articles to train their AI models ChatGPT, Microsoft Copilot, and Bing AI.[1] Together with Newsday, a Long Island-based newspaper, the Seattle Times alleged that Defendants bypassed Seattle Times’ and Newsday’s online paywalls to scrape content that they should have paid for.[2] Plaintiffs filed in federal court in the Southern District of New York, seeking that Defendants cease using and destroy any remaining copies of the illegally obtained articles.[3]

The action brought by the Seattle Times and Newsday is the latest in a line of lawsuits by American writers and copyright holders alleging that AI companies have engaged in copyright infringement on an unprecedented scale. Last year, the New York Times sued Perplexity AI, claiming that the tech startup was copying millions of its articles to train its AI products.[4] In July 2025, a group of authors settled a class action suit against Anthropic, the company behind the AI model Claude. The lawsuit settled for $1.5 billion, the largest payout in the history of US copyright law.[5]

These lawsuits also have major political implications. In September 2026, the US government weighed in for the first time on the question of AI and copyright. In a lawsuit titled In Re: OpenAI, Inc. Copyright Infringement Litigation,[6] the US threw its weight behind AI development. In a Statement of Interest filed on September 1, 2026 with the Southern District of New York, the US stated that it has a “strong interest in this court rejecting any argument that training LLMs on copyrighted texts violates copyright law.”[7] Its justification? International politics. Quoting President Trump, the brief emphasized the US’s commitment to “sustain and enhance America’s global AI dominance.”[8]

Seattle Times v. OpenAI: The Claims

Columns of a United States Court House seen from below

Hiroko Masuike, New York Times (Accessed Sept. 22, 2026) https://www.nytimes.com/2014/12/26/nyregion/a-new-york-court-celebrates-its-status-as-the-nations-oldest-but-others-arent-so-sure.html

But what are the courts actually saying? To answer that, a closer look at the claims brought by copyright holders is warranted. The latest lawsuit from the Seattle Times and Newsday provides an interesting case study.

The Seattle Times’ and Newsday’s copyright claims against OpenAI and Microsoft fall into two major categories. The first claim is copyright infringement, which is a violation of federal law codified under 17 U.S.C. § 501. The second claim is a violation of the Digital Millennium Copyright Act (“DMCA”). The DMCA is a portion of US copyright law amended in 1998 designed to address the rapidly-evolving relationship between copyright and the burgeoning Internet.[9]

17 U.S.C. § 501 provides that “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright or right of the author.”[10] In Seattle Times v. OpenAI, the Plaintiffs allege precisely that. The Seattle Times alleges that, “[b]y reproducing, storing, and processing copies of Plaintiffs’ works to build training datasets and to train, fine-tune, and ground Defendants’ GenAI models, and by disseminating generative output containing copies and derivatives of Plaintiffs’ works,” OpenAI and Microsoft have directly infringed on the Seattle Times and Newsday’s copyright.[11]

The Seattle Times also alleges a similar copyright violation under the DMCA. The DMCA, among other things, specifically protects a copyright holder’s “copyright management information” (“CMI”). CMI includes the name and title of the work as well as any authors of the work. The DMCA, at 17 U.S.C. § 1202, prohibits anyone from altering or removing CMI from any work or from distributing any work knowing that CMI has been removed. To prove copyright infringement under 17 U.S.C. § 1202, a plaintiff must show that a defendant knew that CMI was removed or altered, and that they knew its distribution would “induce, enable, facilitate, or conceal an infringement.”[12]

In their complaint, the Seattle Times and Newsday allege that OpenAI and Microsoft intentionally removed the Seattle Times’ and Newsday’s CMI from their works, and that OpenAI and Microsoft knew that doing so would “induce, enable, facilitate, or conceal infringement” of the Seattle Times’ and Newsday’s copyrights.[13] Plaintiffs also showed that by simply copy-and-pasting a Seattle Times article’s headline and URL into ChatGPT, the model returned nearly four paragraphs verbatim from the original article.[14]

Fair Use: A Limitation on Copyright Enforcement

Fair use scales balancing rightsholders against innovators, creators, and consumers

Fair Use Decoded, Re:Create Coalition (Accessed Sept. 22, 2026), https://recreatecoalition.org/resources/fair-use-decoded/

Despite the numerous copyright claims the Seattle Times has against OpenAI and Microsoft, the Defendants have a powerful defense: fair use. The fair use doctrine is a carve-out in US copyright law that allows for the use of copyrighted materials in certain contexts. Specifically, fair use protects the use of copyrighted materials for “purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research.”[15]

The rationale behind fair use is one of promoting innovation and free speech; it allows some flexibility in how courts must enforce copyright law, so that copyright does not “stifle the very creativity which that law is designed to foster.”[16] The law provides a four-factor test for courts to determine whether the use of a copyrighted work falls under fair use. Courts consider:

(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.[17]

Fair use is an affirmative defense against an alleged infringing use. A defendant accused of copyright infringement need not claim that they didn’t violate a plaintiff’s copyright, only that they did so in a way that falls under fair use. If a court finds that fair use applies, the use is excused and can lead to the dismissal of the case entirely.[18]

Claiming fair use is the overwhelmingly popular defense for AI companies accused of copyright infringement.[19] And some courts are agreeing with them.

What Courts Are Saying: Bartz v. Anthropic

Judge's gavel on a sound block with brass scales of justice in the background

The Decision, New York State Unified Court System (Accessed Sept. 22, 2026), https://www.nycourts.gov/help/after-case-over/decision

Two significant cases, both coming from California federal court in June 2025, have come down with strong arguments in favor of finding fair use when AI companies use copyrighted works to train their large language models.

In Bartz v. Anthropic PBC, authors of copyrighted books brought a putative class action against Anthropic, claiming that Anthropic made unauthorized copies of their works and used those copies to train its large language model. Judge William Alsup, writing for the Northern District of California, analyzed Anthropic’s use of the authors’ works, weighing each of the four fair use factors, and ultimately decided that Anthropic’s usage fell under fair use.

Most significantly, the court found that OpenAI’s use was “quintessentially transformative.” Judge Alsup wrote that Anthropic’s large language model did not merely duplicate the authors’ works, but acted “[l]ike any reader aspiring to be a writer[.] Anthropic’s LLMs trained upon works not to race ahead and replicate or supplant them[,] but to turn a hard corner and create something different.”[20] The authors did not allege that Claude could directly produce copies of their work—thus, the court found no “traceable connection” between the model’s output and the authors’ works.[21]

The court also found that Anthropic’s use of the authors’ works would not have a detrimental effect on the value of their original works. The authors argued that the use of generative AI would lead to an explosion of competitive works, but the court did not agree. Judge Alsup wrote that the authors’ argument was “no different than it would be if they complained that training schoolchildren to write well would result in an explosion of competing works.”[22]

Judge Alsup found that all but one of the fair use factors favored Anthropic. Alsup granted summary judgment in favor of Anthropic on the issue of Anthropic’s use of copyrighted works in training data.

Pumping the Brakes: Kadrey v. Meta Platforms

While Judge Alsup came down conclusively in favor of AI, Judge Vince Chhabria, also a judge in California’s Northern District, cautioned against granting AI companies free rein to train their models on copyrighted material. Chhabria conducted the same four-factor fair use test in Kadrey v. Meta Platforms, an action brought by various copyright holders against Meta and its large language model, Llama.[23] While Judge Chhabria also held that Meta had successfully established a prima facie showing of fair use, Chhabria suggested a pathway for future plaintiffs to survive a motion to dismiss.

Chhabria agreed with Alsup that Meta’s use of copyrighted work to train its AI model was transformative. However, he disagreed with Alsup’s analysis of AI’s potential market effect. Chhabria argued that Alsup’s analogy equating AI to a horde of schoolchildren was “inapt.” “[W]hen it comes to market effects,” Chhabria wrote, “using books to teach children to write is not remotely like using books to create a product that a single individual could employ to generate countless competing works with a miniscule fraction of the time and creativity it would otherwise take.”[24] Chhabria noted that “[b]ecause the issue of market dilution is so important in this context, had the plaintiffs presented any evidence that a jury could use to find in their favor on the issue, factor four would have needed to go to a jury.” (emphasis added).[25]

Chhabria also acknowledged the implicit injustice in allowing AI companies to profit directly from the works of copyright holders while paying them nothing in return. “No matter how transformative LLM training may be,” Chhabria wrote, “it’s hard to imagine that it can be fair use to use copyrighted books to develop a tool to make billions or trillions of dollars while enabling the creation of a potentially endless stream of competing works.”[26]

Returning to Seattle Times v. OpenAI: What’s the News?

What does this mean for the Seattle Times and Newsday and their case against OpenAI and Microsoft? Plaintiffs likely have an uphill battle ahead of them, but there may be a few key factors that could turn the case in their favor.

Seattle Times’ first favorable fact is on the third factor: the amount and substantiality of OpenAI’s use. While the plaintiff authors in Bartz v. Anthropic did not submit any evidence that Claude could produce replicas of their copyrighted works, the Seattle Times does. In their complaint, they specifically allege that ChatGPT will regurgitate, verbatim, large parts of the Seattle Times and Newsday’s copyrighted material, effectively bypassing the newspapers’ online paywall.[27] Since the third fair use factor is primarily an analysis of the extent to which the allegedly infringing use functions as a competitor to the original work, the Seattle Times may have a better case than the plaintiffs in Bartz v. Anthropic.

Second, the Seattle Times has a blueprint for surviving a motion to dismiss, thanks to the opinion in Kadrey v. Meta Platforms. While not a binding authority, federal courts regularly look to other jurisdictions for instruction, particularly in cases of first impression. If the Seattle Times can produce a triable issue of fact that OpenAI has diluted the market for paid news sources, that showing may be sufficient to overcome a motion to dismiss on a fair use argument.

The future of AI development is on a high-speed collision course with existing copyright law, and only time will tell how—or if—both sides will weather the impact. Generative AI is a rapidly evolving market with trillions of dollars behind it, and proponents of AI growth may claim that copyright law must evolve or be left behind. But large language models are only as good as the data they are trained on. Ignoring the impact that training these models has on the people creating the works that serve as the foundation for these models is a convenient but unjust shortcut in the pursuit of tech and profit. Copyright law still has a place in ensuring that people are compensated for the works they produce. Judge Chhabria put it succinctly: “If using copyrighted works to train the models is as necessary as the companies say, they will figure out a way to compensate copyright holders for it.”[28]

[1] Chase DiBenedetto, OpenAI, Microsoft Face Copyright Lawsuit from Local Newspapers, Mashable (Sept. 6, 2026), https://mashable.com/tech/openai-microsoft-face-another-publishing-lawsuit.

[2] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[3] Seattle Times, Newsday sue OpenAI, Microsoft, alleging copyright infringement, Reuters (Sept. 4, 2026), https://www.reuters.com/legal/government/seattle-times-newsday-sue-openai-microsoft-alleging-copyright-infringement-2026-09-05/.

[4] Jaspreet Singh, New York Times Sues Perplexity AI for ‘illegal’ Copying of Content, Reuters (Dec. 5, 2025), https://www.reuters.com/legal/litigation/new-york-times-sues-perplexity-ai-infringing-copyright-works-2025-12-05/

[5] Blake Brittain, AI Copyright Battles Enter Pivotal Year as US Courts Weigh Fair Use, Reuters (Jan. 5, 2026), https://www.reuters.com/legal/government/ai-copyright-battles-enter-pivotal-year-us-courts-weigh-fair-use-2026-01-05/.

[6] In Re: OpenAI, Inc. Copyright Infringement Litigation, Docket No. 1:25-md-03143 (S.D.N.Y. Apr 11, 2025)

[7] Blake Brittain, US government backs OpenAI in New York Times copyright case, Reuters (Sept. 2, 2026), https://www.reuters.com/legal/litigation/us-government-backs-openai-new-york-times-copyright-case-2026-09-02/.

[8] Statement of the Interest of the United States, In Re OpenAI Copyright Infringement Litigation, Docket No. 1:25-cv-03483-SHS-OTW.

[9] The Digital Millennium Copyright Act, US Copyright Office (Accessed Sept. 22, 2026), https://www.copyright.gov/dmca/.

[10] 17 U.S.C § 501.

[11] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[12] Mango v. BuzzFeed, Inc., 970 F.3d 167, 171 (2d Cir. 2020).

[13] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[14] Id.

[15] 17 U.S.C. § 107.

[16] Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527 (2023).

[17] 17 U.S.C. § 107.

[18] Bell v. Eagle Mountain Saginaw I.S.D., 27 F.4th 313, 320-21 (5th Cir. 2022).

[19] Blake Brittain, AI Copyright Battles Enter Pivotal Year as US Courts Weigh Fair Use, Reuters (Jan. 5, 2026), https://www.reuters.com/legal/government/ai-copyright-battles-enter-pivotal-year-us-courts-weigh-fair-use-2026-01-05/.

[20] Bartz v. Anthropic PBC, 787 F. Supp. 3d 1007, 1022 (N.D. Cal. 2025).

[21] Id. at 1030.

[22] Bartz, 787 F. Supp. 3d at 1032.

[23] Kadrey v. Meta Platforms, Inc., 788 F. Supp. 3d 1026 (N.D. Cal. 2025).

[24] Id. at 1036.

[25] Id. at 1060.

[26] Id.

[27] Complaint, The Seattle Times Company et al v. OpenAI Inc. et al, Docket No. 1:26-cv-07644 (S.D.N.Y. Sep 04, 2026).

[28] Kadrey v. Meta Platforms, Inc., 788 F. Supp. 3d 1026, 1036 (N.D. Cal. 2025).



Intellectual Property Litigation: Strategies for Resolving Disputes and Protecting Rights


Intellectual Property Litigation: Strategies for Resolving Disputes and Protecting Rights

Intellectual Property Litigation: Strategies for Resolving Disputes and Protecting Rights

Intellectual Property (IP) litigation has become increasingly complex in the modern era, as technological advancements continue to blur the lines between creativity, innovation, and ownership. This article explores key strategies for resolving disputes and protecting rights in IP litigation, with a focus on recent case law that has shaped the legal landscape. From patent and trademark infringement to copyright disputes, understanding effective litigation strategies is crucial for both rights holders and accused infringers.

Intellectual Property encompasses a range of rights, including patents, trademarks, copyrights, and trade secrets. Disputes often arise when parties assert their rights or defend against allegations of infringement. The dynamic nature of technology and creativity requires a nuanced approach to litigation.

Before initiating litigation, parties should explore alternative dispute resolution methods, such as negotiation, mediation, or arbitration. These methods can be cost-effective and lead to quicker resolutions. Patent infringement cases rarely go to bench or jury trial and are settlement before going to trial at the claim construction stage.i Additionally, conducting a thorough pre-litigation investigation is crucial, involving the identification of key evidence, estimated legal costs, potential witnesses, and the assessment of the strength of the case.

I. Recent Case Law Trends

A. Notable Cases in Patent Litigation and Strategy Implications

a. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014): The Supreme Court’s decision clarified the patent eligibility of software and business method claims, impacting the approach to patent litigation in these areas. The court used the two-step framework from Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012) to determine patent eligibility of a computer-implemented schedule for mitigating settlement risk. The court determined that the generic computer implementation did not provide an “inventive concept” to transform the abstract idea into a patent-eligible application under 35 U.S.C. § 101. The invention must be something that could lead to a patent.ii

Careful Claim Drafting: Post-Alice, patent holders must draft claims with an emphasis on technical details and inventive concepts to overcome eligibility challenges and to avoid ceasing at abstract ideas of a concept.

b. TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1219 (2017): This case reshaped venue rules for patent infringement lawsuits, limiting the jurisdictions where cases can be filed. The court held that a domestic corporation “resides” only in its state of incorporation for purposes of the patent venue statute.iii

Strategic Venue Selection: On both the plaintiff and defendant’s side, TC Heartland has led to a strategic consideration of the most favorable venue for patent litigation, impacting case outcomes. Fact-intensive inquiry may ensue depending on whether parties select their venue based on where “the defendant had committed acts of infringement and has a regular and established place of business” or the state of incorporation.iv

B. Notable Cases in Trademark Litigation and Strategy Implications

a. Matal v. Tam, 137 S. Ct. 1744 (2017): The Supreme Court’s decision in this case held that the Lanham Act’s prohibition on disparaging trademarksv violated the First Amendment and amounts to viewpoint discrimination. The First Amendment does not allow the government to prohibit the expression of an idea simply because it is offensive. The court also refused to accept the contention that trademarks are government speech, impacting the criteria for registering trademarks.vi

Careful Selection of Marks: The Matal decision underscores the importance of choosing distinctive and non-disparaging marks.

b. Patent and Trademark Office v. Booking.com B. V., 140 S. Ct. 2298 (2020): The Supreme Court ruled that adding “.com” to a generic term can result in a protectable trademark.

Expanding Protection: Booking.com highlights the potential for obtaining trademark protection for domain names that include generic terms. However, in order to be capable of trademark protection, the use of the term as a brand name has to be distinctive enough that the consumer has to perceive the term as a source identifier.vii

C. Notable Cases in Copyright Litigation and Strategy Implications

a. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021): The Supreme Court’s decision clarified the fair useviii doctrine in the context of software code, impacting the boundaries of copyright protection. The court ruled that Defendant Google’s copying of a portion of Plaintiff Oracle’s Java SE computer program was fair use because Google’s use of the Java API was transformative, allowing the creation of new products and expanding use of Android-based smartphones, and had little market effect on Oracle.

Fair Use Considerations: Oracle provides guidance on the fair use analysis, emphasizing transformative use and the nature of the copyrighted work, especially in the area of software interface use and development.ix

b. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019): This case clarified the registration requirement for filing copyright infringement lawsuits.x Registration has been made when the Copyright Office has registered a copyright after examining a properly filed application. The Register’s action triggers a copyright owner’s entitlement to sue not upon submission of an application for registration.xi

Timely Registration: Fourth Estate underscores the importance of promptly registering copyrights for litigation purposes because it affects the copyright owner’s leverage in threats to initiate immediate legal action for copyright infringements.xii Without a properly and timely copyright registration, the copyright owner may be unable to seek a preliminary injunction. Furthermore, it will be further costly for small copyright owners if they need to use the expensive expedited process for copyright registration.xiii

II. Key Litigation Strategies

A. Early Case Assessment

Conducting a detailed early case assessment allows parties to evaluate the merits of their claims or defenses, helping in the formulation of effective legal strategies. It also allows to measure potential costs, what tasks could be complete in-house, and how long the litigation make take.xiv Considering the cost and expense of IP litigation, early case assessment also allows counsel and the client to consider out-of-court solutions such as mediation, negotiation, and/or settlement.

B. Effective Use of Experts

Engaging qualified experts is crucial in IP litigation to provide technical or industry-specific insights that can influence the court’s understanding of complex issues. The expert can simplify technical jargon and translate intricate scientific or technical processes for easier digestion by the court.xv In the earlier part of the case, the expert’s advice can also assist counsel with whether there is a valid intellectual property claim.xvi They can also help with negotiations and settlement considerations and give objective expert advice on finding a fair ground between the parties.xvii

C. Enforcement of IP Rights Abroad

Globalization has increased the need for enforcing IP rights internationally, necessitating a strategic approach to cross-border litigation and coordination with foreign counsel. In case of infringement, the availability of litigation tools depends on the jurisdiction and the intentionality of the infringement.xviii The enforcement process may involve cease and desist letters and/or various judicial proceedings to preserve evidence of the alleged IP infringement, seek injunction and eventually damages.xix Because of the difficulty of enforcing IP rights globally, international bodies such as the World Trade Organization have established international agreements such as the Trade-related Aspects of Intellectual Property Rights (TRIPS) agreement to provide judicial measures to protect IP rights around the world.xx

D. Post-Grant Proceedings

Utilizing post-grant proceedings for patents, such as Inter Partes Review (IPR), Post-Grant Reviews (PGRs), and Ex Parte Reexaminations can be an effective strategy to challenge the validity of asserted IP rights before the relevant administrative bodies. In choosing which post-grant proceeding to use, it is important to consider factors such as “the nature of the dispute, the availability of prior art, and desired level of involvement from the owner or challenger.”xxi

IP litigation requires a multifaceted approach that considers legal, technical, and strategic aspects. Recent case law developments highlight the evolving nature of intellectual property disputes, necessitating a dynamic and well-informed strategy for both rights holders and accused infringers. Understanding the impact of recent decisions and integrating effective litigation strategies can significantly influence the outcome of IP disputes and safeguard the interests of the parties involved.

iJames C. Yoon, IP Litigation in United States,Wilson Sonsini Goodrich & Rosati (Aug. 4, 2016),https://law.stanford.edu/wp-content/uploads/2016/07/Revised-Stanford-August-4-2016-Class-Presentation.pdf.

ii Julia Powles, Alice v. CLS Bank: United States Supreme Court Establishes General Patentability Test, WIPO Magazine (Aug. 2014),https://www.wipo.int/wipo_magazine/en/2014/04/article_0004.html.

iii28 U.S.C. § 1400(b).

ivId.; see also “TC Heartland:” The End of an Era in Patent Litigation, Dorsey & Whiney LLP (May 25, 2017), https://www.dorsey.com/newsresources/publications/client-alerts/2017/05/tc-heartland.

v 15 U.S.C. § 1052.

viMatal v Tam: Supreme Court Holds Disparaging Trademark Ban Violates First Amendment,Scarinci Hollenback, LLC (June 27, 2017),https://constitutionallawreporter.com/2017/06/27/matal-v-tam-2017/.

viiBass, Berry & Sims PLC, Impact of Supreme Court Trademark Decision in Booking.com Case,JD Supra (July 13, 2020), https://www.jdsupra.com/legalnews/impact-of-supreme-court-trademark-91400/.

viii17 U.S.C. § 107.

ixJeffrey Robert Kaufman, What Google v. Oracle Means for Open Source, Opensource.com (May 5, 2021), https://opensource.com/article/21/5/google-v-oracle.

x17 U.S.C. § 411(a).

xiFourth Estate Pub. Benefit Corp. v. Wall-Street.com,LLC, 139 S. Ct. 881 (2019).

xii Sylvia Zhang, A Guide to Fourth Estate v. Wall-Street.com, Harvard Law School (May 28, 2019), https://hls.harvard.edu/clinic-stories/legal-policy-work/a-guide-to-fourth-estate-v-wall-street-com/.

xiiiId.

xivPowles,supranote ii.

xvImportance of Expert Witness Testimonies in Intellectual Property Litigation, LITILI Group (Sept. 12, 2023), https://litiligroup.com/expert-witness-testimonies-in-intellectual-property-litigation/.

xviId.

xviiId.

xviiiSettling Disputes and Enforcing IP RightsWorld Intellectual Property Organization,https://www.wipo.int/sme/en/settle-ip-disputes.html#(last accessed on Feb. 21, 2024).

xixId.

xxEnforcement of intellectual property rights Enforcement of intellectual property rights, World Trade Organization,https://www.wto.org/english/tratop_e/trips_e/ipenforcement_e.htm(last access on Feb. 21, 2024).

xxiHoward Suh, USPTO Post-Grant Proceedings: An Overview, Fox Rothschild LLP (June 23, 2023),https://www.foxrothschild.com/publications/uspto-post-grant-proceedings-an-overview



Musical Litigation Groove


Musical Litigation Groove

 
 

Musical Litigation Groove – The LAW FIRM OF DAYREL SEWELL, PLLC is pleased to announce that Messrs. Sewell’s and Ng’s recent, featured publication, “Pharell Williams and Robin Thicke told they “Got To Give It Up””, appears in this month’s IPFrontline newsletter. In March 2015, a federal jury in Los Angeles ordered Robin Thicke and Pharrell Williams, singers of the hit song “Blurred Lines,” to pay over $7 million in damages and earned profits to the family of Marvin Gaye, singer of the chart-topping 1977 song “Got To Give It Up,” after determining that the two were guilty of copyright infringement. See Pharrell Williams, et al. v. Bridgeport Music, Inc., et al., 2015 WL 1476803 (C.D. Cal. Mar. 10, 2015). The verdict adds increasing uncertainty for the music industry with the finding of substantial similarity between the two songs, and hence copyright infringement, but its ramifications may have also spawned a shift in copyright infringement litigation that puts musicians and record labels on alert. Musical Litigation Groove The test for copyright infringement relied on whether a reasonable and average lay observer would recognize an alleged infringing piece of work as having been appropriated from a copyrighted work. The jury had to decide whether the two songs were similar enough in any way to establish some evidence of copying. The jury was not to give any weight to the amount of elements that were dissimilar or those dissimilar elements themselves. This particular instruction proves challenging in that it is a perspicacious analysis to accurately explain to jurors and just as difficult, if not harder, for jurors to properly apply. The music industry argues that this current test severely limits and restricts an artist’s ability to create music. In this particular case, the jury relied heavily on the composition of the sheet music in reaching a decision of infringement. From the sheet music, along with conflicting testimonies on the similarities and differences of the two songs, the jury concluded that the two songs were sufficiently similar. However, what the jury precisely found to be similar remains unknown. There are many elements in all music that are not embodied by the sheet music, including tone, mood, style, and feel, yet play an integral part in forming the identity of the song. These elements simply cannot be seen on a piece of paper. These essential aspects of a song help to create expressive, original works, but at times are non-dispositive in such analyses for copyright infringement. You are encouraged to comment and receive free updates by subscribing to the firm’s Blog and Press Release sections.

 

Robin Thicke Pharrell Williams Pay 5 million marvin Gaye Estate News