Thomas B. James, Minnesota attorney in Cokato MN - copyright and trademark law
Copyrights in AI-Generated Content - Cokato Copyright Attorney: The Law Blog of Thomas James. Copyright registrations are being issued for works created with generative-AI tools, subject to some important qualifications. Also, Internet Archves revisited (briefly) The U.S. Copyright Office has issued its long-awaited report on the copyrightability of works created using AI-generated output. The legality of using copyrighted works to train generative-AI systems is a topic for another day.
Key takeaways: Copyright protects the elements of a work that are created by a human, but does not protect elements that were AI-generated (probably the key take-away from the Report) The Copyright Office believes existing law is adequate to deal with AI copyright issues; it does not believe any new legislation is needed Using AI to assist in the creative process does not affect copyrightability Prompts do not provide sufficient control over the output to be considered creative works.
Prompts How much control does a human need over the output-generation process to be considered an author? The U.S. Court of Appeals Affirms Registration Refusal for AI-Generated Output - Cokato Copyright Attorney: The Law Blog of Thomas James. In 2019, Stephen Thaler developed an AI system he called The Creativity Machine. He generated output he called A Recent Entrance to Paradise. When he applied to register a copyright claim in the output, he listed the machine as the author.
He claimed ownership of the work as a work made for hire. In his application, he asserted that the work was autonomously created by a machine. The Copyright Office denied the claim on the basis that human authorship is a required element of a copyright claim. On appeal, the United States district court affirmed the Copyright Office’s decision. The Court of Appeals Affirms Thaler sought review in the Court of Appeals for the Federal Circuit. The Court held that the question whether Thalercould claim authorship on the basis of the fact that he made and directed the operation of the Creativity Machine has not been preserved for appeal.
Like this: Like Loading... Author: Thomas James Formally known as Thomas B. Photographers' Rights - Cokato Copyright Attorney: The Law Blog of Thomas James. The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte. Romanova v. Amilus, Inc. Romanova v. Amilus, Inc., No. 23-828 (2nd Cir., May 23, 2025) The Second Circuit Court of Appeals reversed a trial judge’s dismissal of a photographer’s copyright infringement complaint, holding that because “fair use” was not clearly established on the face of the complaint, the district court should not have dismissed the complaint sua sponte. Photographer Jana Romanova created a photograph of a woman with a snake wrapped around her left hand and another snake crawling up her torso.
The defendant allegedly did not appear or respond to the complaint, so Romanova moved for the entry of default judgment. Romanova appealed. Fair Use Romanova, supra. Sua Sponte Dismissal for “Fair Use” When Your Car Is a Character - Cokato Copyright Attorney: The Law Blog of Thomas James. Carroll Shelby Licensing v. Halicki et al. If you’re like me, you’ve probably owned a car with character, or even several cars with character, at some time in your life.
A used Volkswagen Jetta with a replacement alternator that was held in place with washers. An old Plymouth Duster with a floor and doors that rusted clean through before the slant-6 ever had a problem. A Honda Fit that . . . well, this is probably a good place to stop dredging up memories. The Ninth Circuit Court of Appeals had occasion to address this very question in Carroll Shelby Licensing et al. v. Gone in 60 Seconds and Sequela In the 1974 movie, Gone in 60 Seconds, the protagonist is tasked with stealing forty-eight types of cars. Three movies incorporating elements of this one were made and released thereafter — The Junkman, Deadline Auto Theft, and a year 2000 remake of Gone in 60 Seconds.
Shelby contracted with Classic Recreations to produce “GT-500CR” Mustangs. Character Copyrights 1. 2. 3. Quiz Like this: The Copyright Discovery Rule Stands - Cokato Copyright Attorney: The Law Blog of Thomas James. Last year, the United States Supreme Court held that as long as a claim is timely filed, damages may be recovered for any loss or injury, including losses incurred more than three years before the claim is filed (Warner Chappell Music. v.
Nealy). The Court expressed no opinion about whether the Copyright Act’s three-year limitation period begins to run when the infringing act occurs or when the victim discovers it, leaving that question for another day. “Another day” arrived, but the Court still declined to address it. What, if anything, can be made of that? Statute of Limitations for Copyright Infringement The Copyright Act imposes a 3-year limitations period for copyright infringement claims. No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued. 17 U.S.C. 507(b). But when does a claim accrue? According to the “incident of injury” rule, an infringement claim accrues when an infringing act occurs.
The U.S. AI OK; Piracy Not: Bartz v. Anthropic - Cokato Copyright Attorney: The Law Blog of Thomas James. A federal judge has issued a landmark fair use decision in a generative-AI copyright infringement lawsuit. In a previous blog post, I wrote about the fair use decision in Thomson Reuters v. ROSS. As I explained there, that case involved a search-and-retrieval AI system, so the holding was not determinative of fair use in the context of generative AI. Now we finally have a decision that addresses fair use in the generative-AI context. Bartz et al. v. Anthropic is an AI software firm founded by former OpenAI employees. Adrea Bartz, Charles Graeber, and Kirk Wallace Johnson are book authors. Earlier this year, Anthropic filed a motion for summary judgment on the question of fair use. On June 23, 2025, Judge Alsup issued an Order granting summary judgment in part and denying it in part.
The Order includes several key rulings. Digitization Anthropic acquired both pirated and lawfully purchased printed copies of copyright-protected works and digitized them to create a central e-library. Order. Court Rules AI Training is Fair Use - Cokato Copyright Attorney: The Law Blog of Thomas James. Just days after the first major fair use ruling in a generative-AI case, a second court has determined that using copyrighted works to train AI is fair use. Kadrey et al. v. Meta Platforms, No. 3:23-cv-03417-VC (N.D. Cal. June 25, 2025). The Kadrey v. I previously wrote about this lawsuit here and here. Meta Platforms owns and operates social media services including Facebook, Instagram, and WhatsApp. To train its AI, Meta obtained data from a wide variety of sources. Meta trained its AI models to prevent them from “memorizing” and outputting text from the training data, with the result that no more than 50 words and punctuation marks from any given work were reproduced in any given output.
The plaintiffs named in the Complaint are thirteen book authors who have published novels, plays, short stories, memoirs, essays, and nonfiction books. Judge Chhabria’s Fair Use Analysis Judge Chhabria analyzed each of the four fair use factors. 3 Ways of Proving Adverse Market Effect Market Substitution. Voice Cloning - Cokato Copyright Attorney: The Law Blog of Thomas James. Lehrman v. Lovo, Inc. On July 10, 2025, the federal district court for the Southern District of New York issued an Order granting in part and denying in part a motion to dismiss a putative class action lawsuit that Paul Lehrman and Linnea Sage commenced against Lovo, Inc. The lawsuit, Lehrman v. Lovo, Inc., alleges that Lovo used artificial intelligence to make and sell unauthorized “clones” of their voices.
Specifically, the complaint alleges that the plaintiffs are voice-over actors. For a fee, they read and record scripts for their clients. This lawsuit ensued. The complaint sets out claims for: Copyright infringement Trademark infringement Breach of contract Fraud Conversion Unjust enrichment Unfair competition New York civil rights laws New York consumer protection laws. The defendant moved to dismiss the complaint for failure to state a claim. The copyright claims Copyright protection in a sound recording extends only to the actual recording itself. The trademark claims False association. Excuse Me While I KIST the Sky - Cokato Copyright Attorney: The Law Blog of Thomas James.
The Jimi Hendrix song, “Purple Haze” contains one of the most famous misheard lyrics of all time. Ever fixated on sex and sexuality, many people insist that when he sings, “Excuse me while I kiss the sky,” he is saying, “Excuse me while I kiss this guy.” Kiss the sky and kiss this guy are near-homophones, that is to say, they are phrases that nearly sound alike. In the trademark world, homophones and near-homophones can create or contribute to a likelihood of confusion which, in turn, can result in a denial of registration to one of the marks and/or infringement liability. Jimi Hendrix also wrote a song called Love or Confusion, but that is a story for a different day. See In re Peace and Love World Live, LLC.
Sunkist Growers v. Intrastate Distributors Intrastate Distributors, Inc. applied to register KIST, both as a standard character mark and as a stylized mark, for soft drinks. On July 23, 2025, the U.S. The DuPont Factors Confusing Similarity Conclusion Like this: Like Loading... Excuse Me While I KIST the Sky - Cokato Copyright Attorney: The Law Blog of Thomas James. Smelly Trademarks - Cokato Copyright Attorney: The Law Blog of Thomas James. If you have a distinctive smell, you might be able to claim trademark rights in it.
If it smells like a trademark and it functions like a trademark, it might be a trademark. Rose-Scented Tires Sumitomo Rubber Industries has successfully applied for the registration of an olfactory trademark in India. It is the smell of a rose, as applied to tires. India’s Trademark Registry has now accepted it for advertisement. This is not the first time Sumitomo has secured trademark protection for its smelly tires. In fact, the company’s rosy tire was the first smell mark registered in the United Kingdom, back in 1996. It’s a Smell World Since the U.K.’s venture into scent trademarks, smell trademarks have been approved in several other jurisdictions around the world. In 1999, the European Union accepted an application to register the smell of freshly cut grass as a trademark for tennis balls. The non-functionality requirement is the biggest obstacle for scent trademarks in the United States. It worked. Trump's Executive Order on AI - Cokato Copyright Attorney: The Law Blog of Thomas James.
On December 11, 2025, President Trump issued another Executive Order. This one is intended to promote “national dominance” in “a race with adversaries for supremacy.” To “win,” the Order says, AI companies should not be encumbered by state regulation. “The policy of the United States,” the Order says, is “to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI.” It sets up an AI Litigation Task Force to challenge state AI laws that allegedly do not do that. Excepted from the Order are state laws on child safety protections, data center infrastructure, and state government use of AI. The Order speaks generally about “state AI laws,” but does not define the term. Stalking and Harassment A North Dakota statute criminalizes using a robot to frighten or harass another person.
Political Deepfakes Several states have enacted laws prohibiting the distribution of political deepfakes to influence an election. Sexual Deepfakes. Last Exit from Paradise. Can We Talk Here? – Trademark Speech Rights. In recent years, the United States Supreme Court has been grappling with the thorny question of how the First Amendment applies to trademarks.
In this blog post, attorney Thomas B. James attempts a reconciliation of recent pronouncements. The Slants (Matal v. Tam) Simon Tam, lead singer of the band, The Slants, tried to register the band name as a trademark. The USPTO denied the application, citing 15 U.S.C. § 1052(a). That provision prohibited the registration of any trademark that could “disparage . . . or bring . . . into contemp[t] or disrepute” any persons. The USPTO argued that the issuance of a registration certificate is “government speech.” “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.” — Hon.
Commercial speech At one time, the Court took the position that the First Amendment does not protect commercial speech (speech relating to the marketing of products or services). Conclusion. The New Copyright Circumvention Rules | Cokato Copyright Attorney: The Law Blog of Thomas James. In 1998, Congress enacted the Digital Millenium Copyright Act (“DMCA”). In addition to establishing the notice-and-take-down regimen with which website and blog owners are (or should be) familiar, the DMCA made it unlawful to “circumvent a technological measure that effectively controls access to” copyrighted material. (17 U.S.C. § 1201(a)(1)(A)). The Act set out some permanent exemptions, i.e., situations where circumvention is allowed.
In addition, it gave the Librarian of Congress power to periodically establish new ones. These additional exemptions are temporary, lasting for three years, but the Librarian of Congress can and does renew them. What is “circumvention of a technological measure”? Circumventing a technological measure means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (17 U.S.C. § 1201(a)(3)(A)).
The permanent exemptions. New Trademark Fees Coming | Cokato Copyright Attorney. The USPTO has announced that trademark fees in the United States will be undergoing significant increases on January 18, 2025. Here is a summary of the changes. Application Fees You will no longer enjoy a discounted fee for filing a TEAS-Plus application instead of a TEAS-Standard application. All applications. other than applications filed under the Madrid Protocol, will require a fee of $350 per class. For Madrid applications, the fee is $600 per class. Additional fees must be paid in the following situations: Insufficient information in the application: $100 Use of a custom-made identification of goods or services (as distinguished from using one of the pre-approved descriptions appearing in the Trademark ID Manual): $100 Each additional group of 1,000 characters over the first 1,000 characters in an identification: $200.
Madrid applications are not subject to these additional fees. Statement of Use Fees Maintenance Fees The filing fee for a Section 9 registration will be $350. Like this: Top Copyright Cases of 2024 | Thomas B James Cokato attorney. Warner Chappell Music Inc. v. Nealy The Copyright Act imposes a three-year period of limitations for copyright infringement claims. There has been a split in the circuits about whether this means that damages could be claimed only for infringement occurring during the three-year period or whether damages could be recovered for earlier acts of infringement so long as the claim is timely filed. The issue arises in cases where a claimant invokes the discovery rule.
The general rule is that a limitations period runs from the date of the act giving rise to the cause of action. The discovery rule, by contrast, measures the limitations period from the date the infringing act is discovered. Thus, for example, if an infringing act occurred in 2012 but the copyright owner did not learn about it until 2022, then under the traditional rule, the claim would be time-barred. The Court did not rule on the validity of the discovery rule. Warner Chappell Music Inc.. v. Hachette Book Group Inc. v. U.S. Copyright Fair Use| Thomas James. Copyright owners prevail in Internet Archive lawsuit.
Is Jazz Confusingly Similar to Music? | Thomas James. Trademark | Balancing the First Amendment on Whiskey and Dog Toys. Copyright owners prevail in Internet Archive lawsuit.