Oftentimes, a year may go by without very many remarkable copyright cases. However, this year, several cases have come to the fore that authors should know about.
Hachette v. Internet Archive: This case, first filed in mid 2020, revolves around publishers suing the Internet Archive (IA) for scanning thousands upon thousands of literary works and distributing copies for free online. Initially, the IA insisted that the titles on loan corresponded to a legally purchased copy, thus operating like any library on a one-to-one basis, but during the COVID-19 pandemic, the IA ended the restrictions and allowed up to 10,000 copies of a title in its collection to be “loaned” free of charge at any one time.
The case revolves around the principle of Fair Use. The IA considered its use transformative and that the lending of multiple copies for free would not harm the publishers and authors of the books. However, in March of 2023, the District Court for the Southern District of New York ruled in favor of the publishers, stating that, as the works made available were protected by the copyright laws of the United States, the IA’s distribution of copies of whole works negatively impacted the publishers’ rights to distribute digital copies of the books to the public and to libraries through regular distribution channels.
Andy Warhol Foundation v. Goldsmith: In another case revolving around Fair Use, the Andy Warhol Foundation sued photographer Lynn Goldsmith for a declaration of noninfringement over the late artist’s usage of one of Goldsmith’s photographs of the musician Prince in a series of silkscreens.
Authors may wonder at the term “declaration of non-infringement,” but it is indeed a legitimate thing. In front of a federal judge, or via the Copyright Claims Board (CCB), a plaintiff may effectively ask for a decision that states no infringement prior to being on the receiving end of a copyright infringement suit.
This case was litigated in a district court and then in several appeals between 2017 and 2023 where the judges ruled for and against the plaintiffs until the Supreme Court of the United States took on the case. On May 18, 2023, the justices handed down a 7-2 decision in favor of the photographer, stating that the usage was not “transformative” simply because of the infringing party’s intent (in this case, Warhol). What this means is that the degree of transformation in an infringed work cannot be so wide as to limit the original rights holder’s right to make derivatives in their work (which is a principal right under U.S. Copyright Law).
Our final case in this round-up, Silverman et al v. Open AI and Meta still remains to be decided, but it is a case that authors should keenly watch as it puts all creatives up against new technological advances in artificial intelligence (AI). Although the U.S. Copyright Office has issued guidance stating that AI-generated materials cannot have copyright protection, the crux of this case rests on the use of creative materials (books, comedy sketches, and other works) to train generative AI in the creation of new materials. The suit maintains that individuals and companies using generative AI should obtain proper licenses for the usage of their materials in training the AI. Further, the suits allege that any AI-produced materials constitute a derivative to the original works. To date, there have been motions to dismiss these cases, but so far the courts have not determined a need to dismiss. It will be interesting to see how these cases are decided, and what impacts any decisions may have on future contracts and works.
Copyright law provides authors certain protections in and to their works, so it behooves creatives to keep a close watch on cases involving copyright disputes that come in front of both the Supreme Court of the United States and the newly organized Copyright Claims Board. In doing so, authors are better armed with the knowledge they need to help defend their intellectual property against unlawful use that could cost them revenue.
Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent nearly two decades specializing in licensing, subsidiary rights, and permissions. MJ is a frequent and polished presenter on licensing and copyright, instructing future publishing professionals in the George Washington University’s Masters in Publishing program for the last 16 years. She currently serves on the Board of Experts for the National Association of Independent Writers and Editors, serves on the Advocacy Committee for the Independent Book Publishers Association, and holds memberships with the Book Industry Study Group and the Society of Children’s Books Writers and Illustrators.
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