Last week, Grossman LLP special counsel Kate Lucas spoke to Amherst College students and faculty about emerging copyright issues posed by generative artificial intelligence (AI).  The event was part of an ongoing initiative at Amherst called “AI in the Liberal Arts,” which aims to explore, from an interdisciplinary perspective, the ways in which AI is rapidly changing our world. 

After a four-year legal battle, famed artist Jeff Koons has defeated a copyright lawsuit by another artist whose artwork was incorporated into a 1990 Koons project; earlier this spring, a federal judge held that plaintiff had waited too long to sue and his claims were time-barred.  

A report from the U.S. Copyright Office and a recent federal court decision are adding to the already complex legal landscape in which artificial intelligence (AI) tools are rapidly evolving.  These new developments are relevant to anyone interested in how AI is changing the creative arts and copyright law.

A recent dispute over a one-of-a-kind Wu-Tang Clan album highlights some of the potential challenges inherent in ownership of digital art.  The suit was initiated by PleasrDAO, an international entity that collects important works of digital media, against disgraced former American pharmaceutical executive Martin Shkreli.

We have written before about the many legal questions raised by new and rapidly-proliferating artificial intelligence technology.  In recent weeks, there have been significant developments in AI-related litigation across the country.  As the new year began, the New York Times instituted a lawsuit alleging copyright infringement of its news content by ChatGPT.  In February, a federal judge trimmed the scope of a group of lawsuits challenging the use of books to “train” AI.  And multiple competing class actions are jostling to determine which one will proceed first.  These lawsuits promise to raise difficult questions about how our existing copyright regime should apply to the brave new world of content generated by AI. 

The evolution and rapid advancement of artificial intelligence (“AI”) is transforming many industries, but courts are just starting to examine how AI interacts with existing copyright law governing artistic works.  In a groundbreaking new case handed down this summer, a federal court has now ruled that an artwork wholly generated by AI is ineligible for copyright protection.

Artist Maurizio Cattelan arguably created the most talked-about work at Art Basel Miami in 2019.  But in 2020, fellow visual and conceptual artist Joe Morford sued Cattelan for copyright infringement, alleging that Cattelan’s work, Comedian—which consisted of a banana duct-taped to a wall—unfairly copies one of Morford’s creations, a piece titled Banana and Orange.  This summer, a Florida federal court rejected Morford’s claims, holding on summary judgment that the two works are not “substantially similar” enough to support an infringement claim. 

Three visual artists have sued the ultra-fast-fashion behemoth Shein for copyright infringement, alleging that Shein operates a wide-ranging scheme that relies on artificial intelligence, deliberate copyright infringement, and a hope that none of the artists will notice.

Two copyright lawsuits against appropriation artist Richard Prince arising out of his controversial “New Portraits” artworks have cleared a major hurdle—summary judgment—and appear to be headed for trial.  In a decision issued in May (just days before the Supreme Court issued its Warhol ruling), a federal judge rejected Prince’s fair use defense.

In late May, the Supreme Court issued its long-awaited decision in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.  The case sought to provide clarity on the thorny concept of “fair use” in copyright law.  In particular, it focused on how courts should evaluate the “purpose and character” of an artist’s use of someone else’s creations, and the role of “transformativity” in that evaluation.  The resulting decision is, in some ways, limited in scope, but in other respects, it raises new questions for artists who borrow from the work of others. 

In the last few years, aided by the rise of non-fungible tokens (“NFTs”), digital art has become an increasingly important part of the art market.  Now a new frontier seems to be opening up: art that is created at least in part using artificial intelligence (“AI”) technology.  Indeed, just as NFTs have crossed into the traditional art market, artists who are creating using AI are likewise being welcomed onto the art scene (for example, by gaining gallery representation).  As this trend unfolds, we art lawyers find ourselves wondering how AI art will interact with our current copyright system. 

Last week, the Supreme Court heard oral argument in the major copyright case of Warhol Foundation v. Goldsmith, which could provide a significant opinion about the "fair use" defense to copyright infringement, with wide-ranging potential implications for the art world—especially appropriation art, photography, and copyright licensing and management.  The oral arguments, however, underscore both the magnitude of the questions posed, and the odd aspects of the case’s path to the Supreme Court, which arguably complicate the Court’s ability to grapple with the already-complex issues it presents. 

A recent trial has highlighted some of the unique legal issues posed by cases that seek to apply copyright law to tattoo art.  At the center of the case is a group of tattoos on the back and arms of pro wrestler Randy Orton—tattoos which were then incorporated, without the artist’s permission, into a series of World Wrestling Entertainment video games as part of Orton’s appearance in the game.

A copyright infringement dispute now pending in a California federal court is raising interesting questions about how copyright applies to tattoo art—as well as some familiar questions about transformative use of photographs. 

An infringement case pending in a California federal court raises some interesting questions about how copyright law applies in the context of interactive art installations—an important topic in an art market that is increasingly exploring these innovative forms and mediums.

We wrote recently about the Warhol Foundation’s petition to the Supreme Court, asking the Court to review a case involving claims by photographer Lynn Goldsmith.  Goldsmith sued over Warhol’s use of a photograph in creating a series of artworks, and the Foundation argued that Goldsmith’s claims should fail due to the fair use doctrine, which provides a defense to copyright infringement claims.  A federal district court sided with the Foundation, but the Second Circuit reversed, and in the process issued an opinion that further complicated the already-complex landscape of fair use case law, especially as applied to artists whose creations incorporate, appropriate, reference, or otherwise make use of works by others. 

Famed artist Jeff Koons is no stranger to litigation; indeed, it might be argued that his litigation history is part of his artistic legacy.  We’ve written before about his works, which frequently test the boundaries of copyright infringement and fair use (see here for one example) and his fabrication and sales practices which have also sparked dispute (see here).  Now Koons is back in court as a defendant in a federal lawsuit by sculptor Michael Hayden over his reproduction of a Hayden creations in one of his famous “Made In Heaven” artworks.  The case promises to raise many familiar but difficult questions about the extent to which artists can incorporate other creators’ work into their own.

A couple of years ago, we wrote about “Rabbit Town,” a “selfie tourism” theme park in Indonesia where visitors can take photographs set against fantastical backdrops.  The park charges admission for access to the park, which features several attractions that essentially recreate famous art installations from around the world, including works by Yayoi Kusama and imitations of scenes from the Museum of Ice Cream.  The Rabbit Town versions often have different titles and do not credit the original artist.  Now, Rabbit Town is facing a court order to destroy one of its attractions, an installation called “Love Light,” which is strikingly similar to Urban Light, a work by the late artist Chris Burden.  

Since 2017, we’ve been following the federal lawsuit between the Andy Warhol Foundation and photographer Lynn Goldsmith.  In mid-2019, a federal judge in New York dismissed Goldsmith’s copyright infringement claims against the Foundation, ruling that a series of Warhol artworks based on an image taken by the photographer were protected as fair use.  But now, the Second Circuit Court of Appeals has reversed that decision, in an opinion that has potentially wide-reaching impacts for the Foundation, for appropriation art generally, and for anyone in the art world who is interested in the ongoing question of how courts handle the difficult concept of fair use.  

At the very end of 2020, Congress enacted new legislation that will provide a streamlined process for adjudicating small-claim copyright infringement cases.  The Copyright Alternative in Small-Claims Enforcement Act of 2020 (the “CASE Act”), included as part of the COVID-19 Relief Bill, establishes a new Copyright Claims Board (“CCB”) to oversee claims of copyright infringement that do not exceed $30,000.  Some see this is an efficient solution for those seeking to adjudicate minor copyright disputes, while others view this legislation as a potential avenue for attacks on everyday internet users who may lack the resources to track and opt out of these proceedings.