2023 Round-Up: Litigation and Industry Updates

Amanda Alasauskas, Swanson, Martin, & Bell

Brian A. Rosenbaltt, Downey & Lenkov LLC

Contributing Authors:

Law Students:

Tripp Burton (Indiana University Maurer School of Law)

Chelsea Cohen (Loyola Law School)

Alexis C. Hivner (The University of Memphis Cecil C. Humphreys School of Law)

Kasey Hughes (DePaul University College of Law)

Emma Johnson (University of Miami)

Tyler Kennedy (Georgetown University)

Colette Manahan (DePaul University College of Law)

Beau Reeves (DePaul University)

Andres Rodriguez Gomez (University of New Hampshire Franklin Pierce School of Law)

Attorneys:

Thomas J. Caulfield (Erik M. Pelton & Associates)

Joseph Esses (Gordon Law Group)

Priscilla Fasoro (Covington & Burling)

Kasey Hughes (DePaul University College of Law)

Julia Rhieu Lifton (Covington & Burling)

Alexa Tipton (Irwin IP)

Caroline Waldo (Covington & Burling)

There is Still Time for One More Dance: Revival of Hanagami v. Epic Games Lawsuit

The US Court of Appeals for the Ninth Circuit has granted renowned choreographer Kyle Hanagami (“Hanagami”) another dance by reviving his lawsuit against the video game publisher Epic Games Inc. (“Epic”) for direct and contributory infringement of a protectable and registered choreographic work. Epic is most famous for publishing first person battle royale shooter Fortnite, which has been one of the most popular video games across the globe since it released in 2017.

This story traces back to November 11, 2017, when Hanagami published a YouTube video featuring a five-minute dance routine (the “Choreography”) to Charlie Puth’s song “How Long,” accumulating over 37 million views. In February 2021, Hanagami obtained a federal registration for the Choreography with the US Copyright Office.

In March 2022, Hanagami brought suit against Epic for the unauthorized use and imitation of a portion of his Choreography in the game Fortnite, in which players can buy virtual animations that can be used to celebrate or dance in the game, known as emotes. Epic released the “It’s Complicated emote,” allegedly copying a “four-count portion” and the “most recognizable portion” of the Choreography, repeated eight times throughout the routine. To facilitate comparison, Hanagami’s attorney created a video highlighting the similarities between the two works.

The district court granted Epic’s motion to dismiss by asserting that Hanagami had failed to plausibly allege substantial similarity between Epic’s emote and his Choreography. The court held that individual “poses” are not protectable “when viewed in isolation,” and found that the allegedly copied steps that the Court describes as “a two-second combination of eight bodily movements, set to four beats of music” were unprotectable under the Copyright Act, as they were just a “small component” of the Choreography and not the whole work.

However, the Ninth Circuit reversed the district court’s dismissal, remanding the action for further proceedings. (Kyle Hanagami v Epic Games, no. 22-55890). The court held that Hanagami plausibly alleged both the copying and unlawful appropriation of his Choreography.

Regarding the second requisite, the court stated that, under the “extrinsic test,” Hanagami plausibly alleged the substantial similarity between his Choreography and the emote, by analyzing in detail the selection and arrangement of elements of the Choreography, such as the movement of the limbs, hands, fingers, head and shoulder, as well as the tempo, which were substantially similar to those in the Epic emote. Protectability, the court emphasized, lies in the choreographer’s “selection and arrangement of the work’s otherwise unprotected elements” (cf. Rentmeester, 883 F.3d at 1120).

Finally, the Ninth Circuit held that the district court erred when ruling that “steps are unprotectable because they are relatively brief,” and that “short does not always equate to simple.” Choreography, like music, can incorporate elements that are unprotectable when viewed in isolation, but can become protectable when combined in an original way.

Therefore, when determining the extent of copyright protection for choreographies, size is not all that matters, and that when comparing two works, in addition to poses, courts should evaluate other elements of the choreography such as, “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition.”

This decision represents a protection for certain original choreographies in the era of short-form video content, compelling game publishers to closely examine the clearance of dance routines inside the game. We’ll have to wait and see who closes the dance with the final winning pose.

Truly Humble Under Dawson? Atlanta Rapper Young Thug’s RICO Trial and the Legal Precedent That Could Protect Rap Lyrics

Musical expression, a protected form of free speech, continues to be used by prosecutors to charge hip-hop artists with crimes. But have courts crossed the line by admitting lyrics in trial while evading an artist’s constitutional right to free speech? This long standing question has been heating up once again.

The question was addressed in the State of Georgia v. Jefferey Lamar Williams et. al, commonly referred to as the Young Slime Life (“YSL”) Racketeering and Influenced Corruption Organizations (“RICO”) Act Trial. In this case, Young Thug, along with 28 other individuals associated with YSL, allegedly committed, cumulatively, 182 overt acts in furtherance of a conspiracy, as well as a wide range of criminal wrongdoing, including murder, assault, robbery, and more.

In the YSL RICO Trial, prosecutors attempted to use lyrics as evidence against the artist who wrote them. Young Thug’s attorney filed a motion to dismiss in December of 2022, but it was ultimately denied, as Judge Ural Glanville ruled that 17 sets of lyrics mentioned in the indictment can be preliminarily admitted in the trial. Judge Glanville stated the court is conditionally admitting the pending lyrics depending on the subject and whether the foundation was properly laid by the state or the proponent that seeks to admit the evidence.

An issue future courts will be forced to address is balancing the admission of the lyrics with First Amendment protections. Judge Glanville said he conducted an analysis of the lyrics and First Amendment protections and determined that he was dissuaded as to the propensity argument. He stated the evidence was not admitted to suggest ‘Young Thug and the others did these things before,’ which would inevitably create the presumption they would do them again.

While various courts have allowed lyrics as admissible evidence, the Supreme Court has ruled that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. In Dawson v. Delaware, a Delaware jury convicted petitioner Dawson of first-degree murder and other crimes. U.S. 159 (1992). However, the Supreme Court found in 1992 that Dawson’s First and Fourteenth Amendment rights regarding free speech and association were violated due to evidence that was improperly considered admissible. The prosecution entered evidence of Dawson’s membership in the Aryan Brotherhood, including an Aryan Brotherhood tattoo he had, which came in due to a stipulation the Defense agreed to in exchange for exclusion of some expert testimony. The tattoo represents the protected speech in question.

The Supreme Court ruled that because the evidence had no relevance to the issues decided in the proceeding, the tattoo’s admission was improper. Id. The court in Dawson noted the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Barclay v. Florida, U.S. 939 (1983). However, the narrowness of the stipulation admitted in Dawson left evidence totally without relevance to the sentencing proceeding. Dawson at 159. The stipulation said nothing about the beliefs of the Delaware prison’s chapter of the Aryan Brotherhood and their propensity for violence. Id. The court noted the evidence proved only the group and Dawson’s abstract beliefs, not that the group had committed or endorsed any unlawful or violent acts. Id. Presumably, if Dawson’s standard were to be strictly adhered to, the prosecution would have to be able to connect the rap lyrics with the specific crime at issue.

Dawson set a heightened evidentiary standard when it comes to art forms and other protected speech, whether a tattoo or a song, but Courts have not yet applied that standard to rap lyrics. However, regardless of the ruling in Dawson, rap lyrics are commonly used in criminal cases across the country. Any lyrics referencing violence whatsoever could be used against artists should courts continue to ignore Dawson. In the instant case, after 10 months of jury selection, Judge Glanville seated a jury and began opening arguments on Nov. 27. Judge Glanville expects the trial to last for a year. Analysis of Dawson will almost certainly be at issue in this case, but history shows it may have little if any impact.

Trade Secrets in the NBA? More Than Just Your Last Second Buzzer Beater Inbound Play

The 2023 NBA season began with two unprecedented developments—the flashy in-season tournament, and a seething court battle between two division rivals. In August, the New York Knicks filed a lawsuit in federal district court against the Toronto Raptors, and Raptors’ personnel, over an alleged theft of the Knicks proprietary information. Compl., N.Y. Knicks vs. Maple Leaf Sports & Ent. Ltd., No. 1:2023cv07394 (Aug. 21, 2023). Asking for $10 million in damages, the Knicks claim that former team employee Ikechukwu Azotam stole scouting files, season prep books, play reports, and other materials when he left New York to join Toronto as their head of video and assistant player development coach. Id. The Knicks argue that Azotam did so on instruction from the Raptors including first-year head coach Darko Rajakovic. Id.

Subsequent court filings have highlighted two points of contention in the lawsuit. First, in a motion to dismiss filed in October, the Raptors argued the files in question do not qualify as trade secrets. Memorandum of Law in Support of Motion to Dismiss N.Y. Knicks vs. Maple Leaf Sports & Ent. Ltd., No. 1:2023cv07394 (Oct. 16, 2023). They acknowledge that Azotam used his Knicks credentials to obtain files, but emphasized that he could have obtained the exact same information in the absence of said credentials. Id. According to the Raptors, the files were not unique to the Knicks because they contained data on all NBA teams, which could likewise be gathered by simply watching televised games. Id. On simple terms, the Raptors contend that an everyday NBA fan on their couch could gather and convey the same data that Azotam transmitted to the Raptors, and therefore such information is not a trade secret peculiar to the Knicks.

The Raptor’s motion to dismiss also argued that federal court was the improper forum for commencing the action. Citing the NBA Constitution, which states that the “Commissioner shall have exclusive, full, complete, and final jurisdiction of any dispute involving two (2) or more Members of the Association,” the Raptors urged that the claim go to internal arbitration. Id. The Knicks, however, expressed concern with the propriety of arbitration—in a response filed in November, the Knicks posited that Commissioner Adam Silver faces a conflict of interest requiring his removal from the arbitration process. Mike Vorkunov & Eric Koreen, Knicks Argue Lawsuit against Raptors Should Stay in Federal Court and Not be Moved to NBA-run Arbitration, Athletic (Nov. 20, 2023), https://theathletic.com/5078586/2023/11/20/knicks-raptors-lawsuit-nba/. Raptors’ governor Larry Tanenbaum is not only a friend of Silver’s, but is also the chairman of the NBA’s board of governors, making him Silver’s de facto boss. Id. Moreover, the Knicks believe the dispute is not governed by the NBA Constitution because it is not a dispute about “basketball operations,” but rather a dispute over “the theft of trade secrets by a disloyal employee.” Because, in the Knicks opinion, the claim lacks a nexus to the language of the NBA Constitution, it should be treated like any other trade secret misappropriation, breach of contract, or tort claim placed before a federal judge. Id.

League insiders and legal experts find the Knick’s lawsuit both strange and surprising. Baxter Holmes, ‘This Isn’t the 11 Herbs and Spices’: Inside this Unprecedented Knicks-Raptors Lawsuit, ESPN (Nov. 30, 2023), https://www.espn.com/nba/story/_/id/39007136/this-11-herbs-spices-unprecedented-knicks-raptors-lawsuit. The lawsuit will likely dominate headlines and churn through the league’s publicity machine while team executives lob pointed insults, but the propriety of the case is, in the minds of many, questionable at best. Id. Even if the Knicks are successful in classifying the files as trade secrets, the level of economic harm is unclear and speculative. Stephen Noh, Knicks vs. Raptors Lawsuit Explained, Sporting News (Aug. 24, 2023), https://www.sportingnews.com/us/nba/news/knicks-vs-raptors-lawsuit-legal-expert-case-outcomes/ampmtdorfmstuwxoq3o5zkry. Nevertheless, the Knicks, and unpredictable owner James Dolan, have instigated a one-of-a-kind sports dispute that will draw attention for months to come.

Music Industry Giants Take Aim at AI

A group of music publishers, including Universal Music Group, Concord Music Group, and ABKCO Music & Records, are leading the music’s industry first major legal battle against AI. The publishers’ copyright claim, filed in Tennessee federal court, centers around Anthropic’s unauthorized use of music lyrics. Winston Cho, Universal Music Files $75 Million Lawsuit Against Amazon-Backed AI Firm for Ripping Off Rolling Stones, Beyonce Lyrics, Hollywood Reporter (Oct. 18, 2023, 4:27 PM), https://www.hollywoodreporter.com/business/business-news/universal-music-lawsuit-rolling-stones-beyonce-lyrics-1235622348/. The complaint cuts through the complicated technical façade of AI and says the “legal issues presented…are straightforward and longstanding. A defendant cannot reproduce, distribute, and display someone else’s copyrighted works to build its own business unless it secures permission from the rightholder.” Compl. 3, Universal Music Group v. Anthropic PBC, No. ___ (Oct. 10, 2032) (see https://fingfx.thomsonreuters.com/gfx/legaldocs/zjvqedyawvx/UMG%20ANTHROPIC%20LAWSUIT%20complaint.pdf).

The publishers acknowledge the exceptional potential of AI-developments in the music industry, but plainly assert that AI’s promises do not exempt it from traditional copyright principles. Id. at Appealing to certain public aversions to AI, the complaint avers that, “if left unchecked, Anthropic will continue to infringe Publishers’ rights and cause damage on a broad scale to Publishers and the songwriters they represent, supplanting the fruits of human ingenuity and creativity with automated infringements that simulate genuine expressive works.” Id. at 7.

The lawsuit targets Anthropic’s generative AI, Claude. Claude, like other popular generative AI such as ChatGPT, scrapes the internet for text and generates output based on that text. In so doing, Claude copies the lyrics to “innumerable” musical compositions without the permission of the publishers and copyright owners. Id. at 4. Arguing that Anthropic has excessively departed from conventional norms, the publishers detail how there are many internet websites that have negotiated licenses for copyrighted lyrics, and Anthropic has “undermin[ed] existing and future licensing markets in untold ways” by flaunting those agreements. Id. at 6. Additionally, the publishers aim to hold Anthropic secondarily liable for enabling individual users to infringe on lyrical copyrights. Id.

This lawsuit follows a summer of widespread distress over AI’s impact on media and entertainment industries. The prolonged actor’s and writer’s strike in Hollywood featured intense disagreement over the studios’ use of AI. In the literary world, a group of prolific authors filed complaints against OpenAI for copyright violations. Max Zahn, Authors’ Lawsuit against OpenAI could ‘Fundamentally Reshape’ Artificial Intelligence, ABC News (Sep. 25, 2023), https://abcnews.go.com/Technology/authors-lawsuit-openai-fundamentally-reshape-artificial-intelligence-experts/story?id=103379209. AI is undeniably an important breakthrough technology, and Universal’s recent agreement with Endel suggests there are fruitful partnerships to be had. Cathy Applefeld Olson, World’s Largest Music Company Embraces AI, Pitchfork (May 23, 2023, 10:15 AM), https://www.forbes.com/sites/cathyolson/2023/05/23/worlds-largest-music-company-embraces-ai/?sh=5374a6ba788d. Yet for years there have been numerous unanswered questions about its legal treatment in creative industries. Universal’s lawsuit could be a major step in further solidifying AI’s relationship and its lack of protectability with existing legal frameworks.

All I Want For Christmas Is You To Give Me A Writing Credit

Andy Stone and Troy Powers of the band Vince Vance & the Valiants have defrosted a copyright infringement claim against Mariah Carey, Walter Afanasieff, SONY, and three new parties over her holiday hit “All I Want for Christmas Is You” for a second year. Stone and Powers have moved their complaint across the country from Louisiana to California seemingly to obtain the representation of Gerard P. Fox. Fox reached a private settlement for Sean Hall and Nathan Butler in 2022 alleging Taylor Swift’s infringement of “Playas Gon’ Play” with “Shake It Off” (not Taylor’s Version). While the details of the settlement remain unknown, the two did not receive writing credits on “Shake It Off (Taylor’s Version)” release in 2023. 1989 (Taylor’s Version), GENIUS (Oct. 27, 2023), https://genius.com/albums/Taylor-swift/1989-taylors-version.

Should Stone and Power’s issue proceed in court, they will have to contend with the 9^th Circuit’s 2020 ruling in Gray v. Perry that “common or trite” musical elements, such as chord progression and recurring vocal phrases, are not individually copyrightable. Gray v. Perry, No. 2:15-CV-05642-CAS-JCx, 2020 U.S. Dist. LEXIS 46313, 2020 WL 1275221, at *3 (C.D. Cal. Mar. 16, 2020). They must show that the unoriginal elements are combined in an original way, that the new combination is used numerously in the work, and that Carey substantially copied that original work. Id.

Central to Stone and Power’s allegations is a claim that Carey has misrepresented how she came to write her song with Afanasieff. Complaint, Andy Stone and Troy Powers v. Mariah Carey, et al., (C.D. Cal 2023) (2:23-cv-09216) In doing so, it suggests Carey had been exposed to Vince Vance’s song prior to recording hers.

Released in 1989, Vince Vance & the Valiants’ “All I Want for Christmas Is You” appeared for the first time on Billboard’s Hot Country chart in January of 1994 peaking at No. 55. Whitburn, Joel (2008). Hot Country Songs 1944 to 2008. Record Research, Inc. p. 244. ISBN 978-0-89820-177-2. While the song gained popularity in the country music community, Carey’s “All I Want for Christmas Is You” gained popularity across the county. After it’s released in October of 1994, Carey’s recording appeared on 29 charts internationally including Billboard’s Hot 100 and Top 40. Whitburn, Joel (2004). Christmas in the Charts (1920–2004). Wisconsin: Record Research Inc. p. 26. ISBN 0-89820-161-6. The song remains an absolute smash hit today and has charted just about every holiday season since its release.

While Stone and Powers do not attempt to claim any originality of the phrase “All I Want for Christmas Is You” due to its previous copyright history by other musicians, nor of the “Gift of the Magi”-esq theme, pointing out its “universality,” they nonetheless allege Carey is infringing upon the “unique linguistic structure” of the band’s extended comparison used to convey a story of longing leading into the iconic line. Stone v. Carey at 6. The complaint also alleges Carey’s manipulation of the words “want” and “dream” which become “need” and “wish” in her lyrics, respectively, enhancing the similarities of the two songs to “approximately 50%”. Id.

Vince Vance’s lyrics read: “All that I want, it can’t be found / underneath the Christmas tree / you are the angel atop my tree/ you are my dream come true / Santa can’t bring me what I need.” Vince Vance–All I Want for Christmas Is You, Lyrics.com https://www.lyrics.com/lyric/3132489/Vince%20Vance%20&%20the%20Valiants/All%20I%20Want%20for%20Christmas%20Is%20You. Carey’s lyrics reads: “I don’t want a lot for Christmas / There is just one thing I need / I don’t care about the presents / Underneath the Christmas tree / I just want you for my own / More than you could ever know / Make my wish come true.” All I Want for Christmas Is You, GENIUS, https://genius.com/Mariah-carey-all-i-want-for-christmas-is-you-lyrics.

In addition to the linguistic dispute, Stone and Powers also claim that Carey’s song “directly lifted” the dulcet harmony consisting of a diminished C and G progression. Stone v. Carey at 13. The complaint does not assert the originality of this harmony. It does, however, draw upon a musicologist and commentator to say the arrangement contributes to the distinctiveness of Carey’s song. Id. The complaint does not cite this comment, although it is easily identifiable as that of Adam Ragusea for Slate in 2014. Adam Ragusea, All I Want for Christmas is Diminished Cords, Slate (Dec. 18, 2015), https://slate.com/culture/2015/12/mariah-careys-all-i-want-for-christmas-is-you-a-musicological-explanation-of-why-the-song-sounds-so-christmassy.html. In the interview, Ragusea gives no mention of Vince Vance, instead identifying Carey’s usage of the chord with a long history of R&B music, Motown, and Irving Berlin’s 1942 hit White Christmas. Id. On a final note, Carey’s recording layers in additional instruments including xylophone and tambourine for a more upbeat sound. Vince Vance & the Variant’s recording is more somber, resembling Gene Redd’s “Please Come Home for Christmas” released in 1960.

Classes Certified Making Student Athletes One Step Closer to a NCAA NIL Payout

The District Court for the Northern District of California certified three damages classes of student-athletes in the most recent order in In Re: College Athlete NIL Litigation, Case No. 20-cv-03919 CW (N.D. Cal.). The case, which centers around the NCAA’s antitrust behavior that has historically restrained student-athletes from profiting off of their name, image, and likeness (“NIL”), originally began as two separate actions: House v. National Collegiate Athletic Association and Oliver v. National Collegiate Athletic Association. House was brought by named Plaintiffs Sedona Prince, a current Division I student-athlete who competes for the University of Oregon’s women’s basketball team, and Grant House, a current Division I student-athlete who competes for Arizona State University’s men’s swimming and diving team. Oliver was brought by named Plaintiff Tymir Oliver, a former Division I student-athlete who competed for the University of Illinois’ men’s football team.

Plaintiffs allege injuries by Defendants as a result of the rules that restrict athletes from receiving compensation in exchange for the commercial use of their names, images, and likenesses, and prohibit NCAA member conferences and schools from sharing with student-athletes the revenue they receive from third parties for the commercial use of student-athletes’ NIL. The named defendants include the National Collegiate Athletic Association (“NCAA”) and the Power Five Conferences, including the Pac-12 Conference, Big Ten Conference, Big 12 Conference, Southeastern Conference, and Atlantic Coast Conference.

Plaintiffs assert against Defendants conspiracy to fix prices in violation of Section I of the Sherman Act, 15 U.S.C. § 1; group boycott or refusal to deal in violation of Section I of the Sherman Act; and unjust enrichment. Plaintiffs argue that without the restraints that the NCAA has imposed, Division I conferences and schools would compete “by allowing their athletes to take full advantage of opportunities to utilize, license, and profit from their NIL in commercial business ventures and promotional activities and share in the conferences’ and schools’ commercial benefits received from exploiting student-athletes’ names, images, and likenesses.” In addition, Plaintiffs claim that conferences and schools would compete for recruits by redirecting money that they currently spend on facilities and coaching salaries to marketing programs and educational resources designed to help their athletes “develop and grow their personal brand value” and “would seek out opportunities to co-market their athletes’ NIL in conjunction with the school’s own marks.” Plaintiffs seek an injunction, a declaratory judgment, damages, and attorneys’ fees.

The Injunctive Relief Class, which was certified on September 22, 2023, includes all college athletes who compete on, competed on, or will compete on a Division I athletic team at any time between June 15, 2020 and the date of judgment in this matter (excluding all judicial officers presiding over this action and their immediate family members and staff, and any juror assigned to this action).

The most recent November Order certified three Damages classes. First, the Football and Men’s Basketball Class includes all current and former college athletes who received full Grant-in Aid (GIA) scholarships and compete on, or competed on, a Division I men’s basketball team or a Football Bowl Subdivision (“FBS”) football team, at a college or university that is a member of one of the Power Five Conferences (including Notre Dame), at any time between June 15, 2016 and the date of the class certification order. Second, the Women’s Basketball Class includes all current and former Division I college athletes who have received full GIA scholarships at a college or university that is a member of one of the Power Five Conferences, including Notre Dame, at any time between June 15, 2016 and the date of the class certification order in this matter. Lastly, the Additional Sports Class excludes members of the Football, Men’s Basketball, and Women’s Basketball class, and includes all current or former Division I college athletes who competed on an athletic team prior to July 1, 2021 and who received compensation while a Division I college athlete for use of their NIL between July 1, 2021 and the date of the class certification in this order and those who competed in the same Division I sport prior to July 1, 2021. All classes exclude all judicial officers presiding over this action and their immediate family members and staff, and any juror assigned to this action.

Plaintiffs contend, and the Court agreed, that members of the proposed damages classes suffered injury and damages in three categories: (1) broadcast NIL (BNIL) injury and damages, arising out of student-athletes having been deprived of compensation they would have received from conferences for the use of their NIL in broadcasts of FBS football or Division I basketball games in the absence of the challenged rules; (2) video game injury and damages, arising out of student-athletes having been deprived compensation they would have received from video game publishers for the use of their NIL in college football or basketball video games in the absence of the challenged rules; and (3) third-party NIL injury and damages, arising out of student-athletes having been deprived of compensation from third parties for their NIL from 2016 to July 1, 2021, when the interim NIL policy went into effect.

In response, the NCAA and Power Five Conferences petitioned the 9th Circuit on November 17, 2023 seeking an interlocutory appeal. Defendants claim that if Plaintiffs are successful, the potential payment of $4 billion in damages would be the “death knell” of this litigation and could put the NCAA and the Power Five Conferences out of business.

IP Dogfight Over Top Gun Sequel

On November 6, 2023, both parties in the ongoing suit Yonay et al. v. Paramount Pictures Corp. et al., Case No. 2:22-CV-3846-PA (C.D. Cal.) filed Motions for Summary Judgment disputing whether Paramount’s Top Gun: Maverick (2022) (“Sequel”) infringed Ehud Yonay’s “Top Guns” article published in the May 1983 issue of California Magazine. The rights in the 1983 “Top Guns” story were exclusively granted to Paramount in a 1983 agreement between the parties for the creation of Paramount’s 1986 Top Gun film but the grant of rights was later terminated by Mr. Yonay’s widow and son under the Copyright Act’s § 203(a) provision on January 24, 2020, prior to the completion of filming and release of the 2022 Sequel. Plaintiffs sent Paramount a cease-and-desist letter upon discovering that the Sequel would be released after the effective date of the reversion of rights in the underlying story. However, instead of re-licensing the story from Plaintiffs, Paramount continued in its development of the film and ultimately released the Sequel in 2022.

In its Motion for Summary Judgment, Plaintiffs argue that the 1983 article is more than just a factual account of the Navy’s Top Gun program, and that the protectable expression found in the “Top Guns” article’s plot, theme, dialogue, setting, characters, sequence of events, and mood was infringed by Paramount’s Sequel. A few of the notable aspects that Plaintiffs allege are substantially similar copyrightable expression include a plot that focuses on the fighter pilots who revolutionized the business which is different from traditional military stories which focus on the war itself, the local bar with the brass bell that is rung when house rules are broken, the pilot’s frat-boy culture, and the characters of Maverick and Goose who mirror Plaintiffs’ Yogi and Possum.

In contrast, Paramount claims that it is antithetical to the purpose of the Copyright Act for the Court to exclude Paramount from depicting the real-life Top Gun Navy program based on the copyright in the 1983 article because the article is nothing more than unprotectable facts, ideas and scènes à faire about the program and the Sequel is not substantially similar to the 1983 article. Instead of using the article as inspiration for Top Gun: Maverick, Paramount claims that the story was created through “years of painstaking research, conversations with pilots, and direct consultation with naval advisors.”

Plaintiffs emphasize that Paramount cannot engage in revisionist history by retroactively asserting that the article was only facts absent any copyrightable expression when Paramount initially rushed to gain an exclusive license to the story in order to create the 1986 film Top Gun.

If the 1983 article was nothing but “facts, ideas, and scènes à faire” then no license would have been needed.

Cleveland Museum of Art Seeks to Retain Turkish Bronze Statute After New York County District Attorney’s Attempted Seizure

The Cleveland Museum of Art responded to the New York County District Attorney’s August 14, 2023 “seize in place” order of a bronze statute, long called “The Philosopher”, allegedly trafficked from Bubon, Türkiye with a complaint seeking title. Filed September 19,^, 2023 in the Northern District of Ohio, the museum claims the bronze, which it has within the past several months begun to call “Draped Male Figure” of unknown “possibly Greek or Roman” origin, is being improperly seized. Complaint, The Cleveland Museum of Art v. Alvin Bragg, (N.D. Ohio 2023) (1:23-cv-02048-CEF).

The museum alleges that the seizure is based on a false identification of the statue as one of Turkish origin from a looted site called Bubon. Cultural Heritage experts have been quick to point out the discrepancy between the re-identification the museum proffers in the complaint and its own decades-long exhibition of the statue as “the Philosopher (possibly Marcus Aurelius)” likely from Bubon, Türkiye . Elaine Velie, Museums Sues Manhattan DA Over $20M Statue, HYPERALLERGIC (Oct. 19, 2023), https://hyperallergic.com/851773/cleveland-museum-art-sues-manhattan-da-over-20m-ancient-statue/. This 1986 identification of the statue likely contributed significantly to why the museum sought to acquire the statue and continues to impact its value in their collection, which the museum self describes as “one of the most significant works in CMA’s collection”. Cleveland Museum of Art v. Bragg, at 1. In the complaint, the museum suggests that experts have recently begun to offer alternative provenances for the statute in support of its re-identification. Id. At 3. The museum fails to mention that the alternative places of origin offered by their main expert, Arielle P. Kozloff, all still fall within present-day Türkiye and that the bronze was nonetheless moved to and held at Bubon thus still subject to Turkish patrimony law. Arilelle Kozloff, Bubon: A Re-Assessment of the Provenance, 1987 Bull. of the Cleveland Museum of Art.

The complaint additionally suggests that the legality of the bronze’s residence can be favorably assumed after Türkiye questioned its provenance along with 20 other objects but did not specify what information the country wanted regarding a documentation of provenance request and by not initiating legal proceedings with respect to those items between 2009 and 2012. Cleveland Museum of Art v. Bragg, at 4.

The Northern District of Ohio court will decide whether to declare rights and title of the contested piece for the museum barring against any future claims of ownership, or whether to make no declaration as to ownership and uphold the seizure pending further action. Should the court allow the question of title to go forward, the New York County District Attorney will need to produce clear and conceiving evidence that the bronze was stolen, thus defeating any bona fide purchaser argument regardless of whether the museum had originally purchased the piece in good faith.

The Brandr Group v. Electronic Arts

On June 20, 2023, The Brandr Group (“Brandr”) sued Electronic Arts (“EA Sports”) over the company’s attempt to acquire player name, image and likeness (“NIL”) rights for an upcoming college football videogame while circumventing Brandr’s group licensing contracts with schools. The Brandr Group, LLC v. Electronic Arts Inc., No. 4:2023cv02994 - Document 23 (N.D. Cal. 2023).

In November 2022, EA Sports announced NCAA Football, an American football video game, would return in summer 2024 after a decade without a new installment in the long running series due to player NIL rights among other issues. Brandr alleged EA Sports told Brandr in May 2022 EA Sports would “100 percent” make agreements through Brandr for its partner schools. Instead, EA Sports announced a deal with OneTeam Partners for group licensing.

Players simply needed to opt-in via written consent by June to receive compensation from EA Sports. On3 reported players would likely earn around $500.00 each with no royalties. According to Brandr, the plan would deny players from earning additional compensation off their NIL in other simulation games such as arcade and video games.

In 2014, Ed O’Bannon, a former UCLA basketball player, and EA Sports negotiated a settlement following a class action lawsuit O’Bannon filed wherein about 29,000 players who appeared in college football and college basketball video games were paid, on average, about $1,200.00, 140% more than $500.00. O’Bannon v. NCAA, No. 14-16601, 2015 WL 5712106 (9th Cir. Sept. 30, 2015). While real players were not technically named in the old games, their images and likeness were obvious. A settlement paid an average of $1,600.00 to thousands of players leading to the discontinuation of the videogame. When identifying the anticompetitive effects, the Ninth Circuit in O’Bannon found that the amateur rules were considered necessary because college football and basketball are “industr[ies] in which horizontal restraints on competition are essential if the product is to be available at all.” NCAA v. Board of Regents, 486 U.S. 85, 101 (1984).

Now, the NCAA has other issues. Brandr expressed concerns that EA Sport’s plan will continue a pattern of large corporations taking advantage of young student-athletes and capitalizing on their NIL. NFL players earn thousands of dollars through Madden, an EA Sports NFL video game, whereas college players make significantly less from the college equivalent videogame.

Brandr sought to delay the production of the game by filing a temporary restraining order. U.S. District Judge Haywood Gillam Jr. stated Brandr failed to show any risk of immediate harm to the athletes and denied Brandr’s motion for the order to be entered. The Brandr Group, No. 4:2023cv02994 at 4. The Judge further noted Brandr provided little support for its allegations that EA would continue to encourage colleges and student-athletes to break their contractual obligations if the restraining order was not granted. Id.

While the order was unsuccessful, Brandr and the College Football Players Association (“CFPA”) continue to express concerns about how much players will be paid. CFPA Vice President, Justin Falcinelli, has urged players to boycott the deal citing the low amount of money offered to players. While reports existed as early as late 2022 that the NCAA 2023 videogame would be released in July 2023, just before the start of the college football season, the game remains unavailable with the college football season already well underway.

AI Is Not a Human Author: Thaler v. Perlmutter

On August 18, 2023, United States District Court Judge Beryl A. Howell for the District of Columbia upheld the Copyright Office’s refusal to register Stephen Thaler’s application to register the work “A Recent Entrance to Paradise,” holding that “[h]uman authorship is a bedrock requirement of copyright.” Thaler v. Perlmutter, No. 22-1564, 2023 WL 5333236, at *4 (D.D.C. Aug. 18, 2023).

In his application for copyright registration, Thaler listed the author of the work as the “Creativity Machine,” an AI computer system which autonomously generated the work, and Thaler claimed that ownership of the copyright in the work should transfer to himself as the owner of the Creativity Machine as a work-for-hire. Id. at *1. However, as “property transfer cannot be implicated where no property right exists to transfer in the first instance,” id. at *6, this ownership claim “put the cart before the horse,” id. at *3.

First, there must be a determination of whether a valid copyright exists at all. Falling back on the plain text of and basic principles behind the Copyright Act, the court reaffirmed that copyright protection extends only to “original works of authorship.” 17 U.S.C. § 102(a). While Thaler highlighted the fact that the Copyright Act does not define the term “author,” the court asserted that “centuries of settled understanding” gives rise to a presumption that the authorship requirement is human. Thaler, 2023 WL 5333236, at *4. Fundamentally, “’authorship’ is synonymous with human creation.” Id. at *5.

The court acknowledged that copyright law is adaptable and can accommodate new and advancing technology; nevertheless, there “has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.” Id. at *3. Further, regardless the technology or method, the law “has never stretched so far . . . as to protect works generated by new forms of technology operating absent any guiding human hand.” Id. at *4.

Recognizing that with the development of AI, “we are approaching new frontiers in copyright,” the court additionally posed, but did not attempt to answer, several complex questions, including “how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work.” Id. at 6. Here, though, Thaler’s copyright claim was plainly insufficient, as he described the work in his application as “created autonomously by machine.” Id. Although during this appeal Thaler attempted to recharacterize his claim, professing to have instructed and directed the AI, these arguments “impl[ied] a level of human involvement in this case entirely absent in the administrative record.” Id. at *3 n.1. Therefore, the court held that the Copyright Office’s decision, based on the record at hand, not to register the work was proper.

The Music Industry Sues Internet Archive: Does the Digitization of Vintage Records Provide Access or Induce Infringement?

Digitally converting vintage records from the early 1900s to 1950s may ultimately cost Internet Archive upwards of $400 million. Blake Brittain, Music labels sue Internet Archive over digitized record collection, Reuters (7:56 PM Aug. 11, 2023), https://www.reuters.com/legal/music-labels-sue-internet-archive-over-digitized-record-collection-2023-08-12/. On August 11, 2023, multiple music labels suffering from an allegedly devastating copyright infringement scheme filed suit against the alleged infringers including a name familiar to many: Internet Archive.

Founded in 1996, Internet Archive defines itself as “a non-profit library of millions of free books, movies, software, music, websites, and more” with a “mission [] to provide Universal Access to All Knowledge.” Internet Archive, https://archive.org, (last visited Aug. 10, 2023); About the Internet Archive, Internet Archive, https://archive.org/about/ (last visited Aug. 10, 2023). Internet Archive has a reach comparable usage to that of Apple Music’s subscribers. (Citation Omitted). In 2021, this massive platform saw, “well over 100 million people us[ing] the resources of the Internet Archive, [with] over 100,000 people ma[king]…financial donation[s] to support” Internet Archive. (Citation Omitted.)

This most recent action involving alleged copyright infringement of music is not Internet Archive’s first venture into the world of copyright infringement litigation. Internet Archive’s e-book lending “library” came under scrutiny in June 2020, when, “four of the leading publishers in the United States” filed a lawsuit against it for copyright infringement. Hachette Book Grp., Inc. v. Internet Archive, No. 20-CV-4160 (JGK), 2023 WL 2623787, at *1, *4 (S.D.N.Y. Mar. 24, 2023). The trial court granted the Publishers’ motion for summary judgment, finding that Internet Archive failed to establish its fair use of the copyrighted material as “fair use does not allow . . . the mass reproduction and distribution of complete copyrighted works in a way that does not transform those works and that creates directly competing substitutes for the originals.” Id. at *15, *16. Undisputed by Internet Archive, the Publishers claimed that Internet Archive “committed secondary copyright infringement by contributing to, inducing, and vicariously causing direct infringement by users who obtained ebooks on [Internet Archive]’s [w]ebsite.” Id. at *5 n.5. As of August 2023, a “narrowly tailored” permanent injunction prohibits Internet Archive “from distributing unauthorized reproductions of the Publishers’ print books” which “cover[s] only copyrighted works . . . available from the Publishers in electronic form.” [Order at 1, 4, 2023 WL 2623787, ECF 216.]

Now, Internet Archive enters a new copyright infringement litigation once again as a defendant, but this time with the music industry hot on its trail. The Complaint contains ten causes of action by Music Labels including UMG Recordings, Inc., Capitol Records, LLC, and Sony Music Entertainment (collectively, the “Labels”) against Internet Archive and others asserting various types of infringement such as “Infringing Reproduction and Distribution,” “Infringing Public Performance by Means of a Digital Audio Transmission,” and “Inducement of Infringement.” [Complaint at 1, 33, 35, 39, UMG Recordings, Inc. v. Internet Archive, No. 23-cv-7133 (Aug. 11, 2023), ECF No. 1.] The Labels allege that the Defendants’ project, known as the Great 78, was “blatant infringement” by “willfully reproduc[ing] thousands of…protected sound recordings without authorization by copying physical records into digital files. . . . then willfully upload[ing], distribut[ing], and digitally transmitt[ing] those illegally copied sound recordings millions of times from Internet Archive’s website.” [Id. at 2.] The Labels base their arguments on the Orrin G. Hatch–Bob Goodlatte Music Modernization Act, which granted federal protection to sound recordings created before February 15, 1972, and provides for the right to sue an infringer of the exclusive rights under 17 U.S.C. § 106 such as the “rights of reproduction, distribution, and performing the protected work publicly by means of a digital audio transmission.” Pub. L. 115-264; codified in relevant part at 17 U.S.C. § 1401 et seq; Complaint at 3.

Internet Archive responded, stating that “the Great 78 Project [is] a community effort for the preservation, research and discovery of 78 [revolution per minute] records” and only wants to “bring free public access to a largely forgotten but culturally important medium.” Chris Freeland, Internet Archive Responds to Recording Industry Lawsuit Targeting Obsolete Media, Internet Archives Blog (Aug. 14, 2023), https://blog.archive.org/2023/08/14/internet-archive-responds-to-recording-industry-lawsuit-targeting-obsolete-media/. Brewster Kahle, founder of Internet Archive, stated: “When people want to listen to music they go to Spotify. When people want to study 78 rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.” Id.

The Labels don’t see it that way. Rather, in their lawsuit against Internet Archive’s “illegal record store,” the Labels “allege that some 2,749 recordings have been infringed, bringing the potential damages up to $412 million.” Jonathan Bailey, 3 Count: Music Archive, PlagiarismToday (Aug. 14, 2023), https://www.plagiarismtoday.com/2023/08/14/3-count-music-archive/. Based on Internet Archive’s experience in the Hackett lawsuit, the distribution of the musical “library’s” 78 revolutions per minute playlist, consisting of artists like Elvis Presley, Duke Ellington, Billie Holiday, Frank Sinatra, and Ella Fitzgerald, may be coming to a record halt soon.

SoundExchange, Inc. v. Sirius XM Radio Inc.

On August 16, 2023, SoundExchange filed suit in the District Court for the Eastern District of Virginia against SiriusXM alleging that SiriusXM underpaid its owed royalties, resulting in millions of dollars of overdue royalties and late fees, and directly harming the very artists that enable SiriusXM to operate as a music provider. SiriusXM provides a Satellite Digital Audio Radio Service (“SDARS”) and webcasting service for which it has obtained a statutory license. Under this statutory license, SiriusXM is required to pay royalties to SoundExchange, a nonprofit organization that collects digital sound recording performance and related royalties and distributes them to artists and copyright owners.

SoundExchange alleges that SiriusXM, by bundling its SDARS and webcasting services, has mischaracterized SDARS revenue as webcasting revenue in order to avoid paying its proper share of royalties. Through 37 C.F.R. § 382.22(b)(7)(iv), SiriusXM is able to avoid double-paying royalties on both its SDARS and webcasting services that it would otherwise be obligated to pay under the statutory license. This regulation permits SiriusXM to exclude from the SDARS revenue base any revenues SiriusXM earns from webcasting.

SoundExchange alleges that SiriusXM is able to circumvent the SDARS royalty structure by artificially inflating the value of its webcasting. The statutory royalty rate owed by a SDARS platform is 15.5% of Gross Revenues which includes all revenue recognized by a statutory license in accordance with Generally Accepted Accounting Principals (“GAAP”) from the operation of an SDARS. In contrast, because of the ability to record the number of listeners per transmission, the 2023 statutory royalty rate for commercial webcasters is $0.0030 per Performance for subscription services and $0.0024 per Performance for non-subscription services.

SoundExchange claims that instead of using its usage data to quantify how much its subscribers use its SDARS versus its webcasting services, SiriusXM paid its royalties based on conflicting surveys, and further, ignored the determination of an independent auditor that SiriusXM had underpaid its royalties for the 2018 calendar year and that it owes interest on said royalties. SiriusXM has agreed that it owes only roughly 3% of the amount determined by the auditor but refuses to pay the remaining amount.

SoundExchange requests that the court award compensatory damages arising from SiriusXM’s underpayment of royalties as required by the statutory license and arising from SiriusXM’s failure to pay royalties that an independent auditor has determined SiriusXM owes together with interest. In addition to an injunction preventing SiriusXM from prospectively using its current method of revenue calculation, SoundExchange requests late fees available under 37 C.F.R. §382.3(e), and SoundExchange’s costs and attorney fees. If SoundExchange’s allegations are true and SiriusXM has avoided paying musicians their earned royalties, this will serve as just another example of how musicians are frequently exploited for their work while large companies profit off of their creations.

Hindsight Has No Blind Side: A Conservatorship Under Scrutiny

On August 14, 2023, Michael Oher, the left tackle whose arduous path to the NFL was made famous by the film The Blind Side, petitioned to end his conservatorship under Sean and Leigh Anne Tuohy, a wealthy southern family who provided a home to Oher during high school. The conservatorship was approved by Oher’s biological mother and signed by Oher on August 9, 2004, two months prior to his commitment to Ole Miss as an offensive lineman. The conservatorship over Oher granted Sean and Leigh Anne, “the full co-legal custody, guardianship and conservatorship” of Oher and “all powers of attorney to act on his behalf” while preventing Oher from entering “into any contracts or bind[ing] himself without the direct approval of his guardians/conservators.”

Oher’s Petition claims that once Oher began staying at the Tuohy’s home the summer after his Junior year at Briarcrest High School, where the Tuohy’s children also attended school, that the family viewed Oher as, “a gullible young man whose athletic talent could be exploited for their own benefit.” As evidence, the Petition cites Mrs. Tuohy’s purchases of clothes for Oher, the fact that the family did not immediately pursue legal custody of Oher when he was a minor (note that Oher turned 18 years old on May 28, 2004, preceding the time his Petition states he lived with the Tuohys), and that the Tuohys encouraged Oher to refer to them as “Mom” and “Dad.” The Petition states that Oher “happily complied” and when presented with documents that were described as “legal papers that were a necessary step in the adoption process,” Oher trusted the Tuohys and signed. The Petition also states that Oher did not know until “after February of 2023” that the papers were actually a Petition for Appointment of Conservators. However, Oher stated in his 2012 autobiography “I Beat the Odds: From Homelessness, to The Blind Side, and Beyond,” that Sean and Leigh Anne were his “legal conservators,” calling into question his claim that he first learned about the conservatorship in February of 2023. Oher claims that the Tuohys unjustly profited off of his name, image, and likeness, without distributing his share of the profits, and falsely represented themselves as his adoptive parents. He seeks a full accounting of assets, due to the monumental success of The Blind Side film, compensatory and punitive damages, and attorneys’ fees.

In defense, lawyers for the Tuohys stated that the conservatorship was the quickest and necessary route for Oher to attend the University of Mississippi, the school at which Oher chose to advance his football career and the Tuohys’ alma mater. Because Mr. Tuohy is considered a booster of Ole Miss, his housing of Oher as a prospective student-athlete would constitute impermissible recruiting activities under the National Collegiate Athletics Association’s (“NCAA”) compliance rules, jeopardizing Oher’s eligibility as an intercollegiate student-athlete. Further, because Oher was subject to the NCAA’s infamous Name, Image, and Likeness (“NIL”) restrictions, legally Oher could not enter into contracts during his time as a student-athlete that would enable him to profit off of his NIL in connection with his amateur athlete status, preventing him from benefitting from the film The Blind Side.

The Tuohys stated that prior to the filing of Oher’s Petition, Oher threatened to plant a negative story in the press if they did not give him a check for 15 million dollars. In a statement released by the Tuohys, they said that they have “given Mr. Oher an equal cut of every penny received from The Blind Side” and despite Oher’s threats, the Tuohys “still deposited Mr. Oher’s equal share into a trust account they set up for his son.” The Tuohys stated that they will not oppose Oher’s termination of the conservatorship.

IP Protections in AI-Assisted Works

In early April, TikTok user ghostwriter977 independently released “Heart on My Sleeve” across music streaming platforms, quickly going viral. The song, created with the assistance of artificial intelligence, or AI, uses AI-generated vocals to mimic the voices and styles of artists Drake and The Weeknd. Although ghostwriter977 may have written the lyrics, it is uncertain which, if not all, other components of the song were created by AI. Tiffany Hu, Fake Drake Song Cues Up Murky Copyright Issues for AI, Law360 (May 3, 2023, 7:42 PM), www.law360.com/media/articles/1604168 ; Joe Soscarelli, An A.I. Hit of Fake ‘Drake’ and ‘The Weeknd’ Rattles the Music World, N.Y. Times (Apr. 24, 2023), https://www.nytimes.com/2023/04/19/arts/music/ai-drake-the-weeknd-fake.html. The attention garnered by this song has brought concerns regarding the use of AI to the forefront of the music industry.

Universal Music Group (“UMG”), who owns the record labels of both Drake and The Weeknd, had the song taken down within two weeks of its release. Isaiah Poritz, AI-Faked Drake, The Weeknd Song Amps Music Industry’s IP Alarm, Bloomberg L. (May 2, 2023, 3:50 AM), https://news.bloomberglaw.com/ip-law/ai-faked-drake-the-weeknd-song-amps-music-industrys-ip-alarm. While many believe that in such cases copyright law should protect the voice or style of artists, ultimately the song was taken down because it uses a copyrighted sample (producer Metro Boomin’s recognizable tag). Id.

However, the use of AI in the context of creative works does implicate a host of copyright questions. The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet emphasized the two most prominent issues in its May 17th hearing on the Interoperability of AI and Copyright Law, the first of an ongoing series on AI and intellectual property. See Artificial Intelligence and Intellectual Property: Part I – Interoperability of AI and Copyright Law, H.R. Judiciary Comm., https://judiciary.house.gov/committee-activity/hearings/artificial-intelligence-and-intellectual-property-part-i (last visited June 4, 2023). The first concerns the input, or what material the AI learns from and uses. Here, “’permission, credit, and compensation’ are essential.” Riddhi Setty, AI Companies Should Pay to License Work, Artists Tell Lawmakers, Bloomberg L. (May 17, 2023, 6:41 PM), https://news.bloomberglaw.com/ip-law/ai-companies-should-pay-to-license-work-artists-tell-lawmakers. Because it would likely be impossible to track “the number of times an AI draws from a specific piece,” though, a system in which copyright owners could be paid for AI’s use of their works “would have to be based on the number of works from each creator that the AI is trained on.” Id.

The second issue involves whether the AI’s output, or the works it creates, is protectable by copyright. Id. The United States Copyright Office, which published a policy statement regarding the registration of AI-assisted creative works in March, highlighted that only original, creative works authored by humans are potentially protectable. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16191–92 (Mar. 16, 2023). In other words, works created with the use of AI may be only protectable to the extent of the human author’s contribution. Because AI technology is rapidly developing and yet unregulated, though, it is unclear where to draw the line in terms of how much of a work must be human-authored. Moreover, that portion must still meet the minimal requirements for originality and creativity.

Two recent cases spurred, in part, the Copyright Office’s guidance. In February 2022, the Copyright Office refused registration of a work applied for by Steven Thaler, “A Recent Entrance to Paradise,” where Thaler sought to register the “computer-generated work as a work-for-hire” and listed the AI, the “Creativity Machine,” as the author. Letter from U.S. Copyright Off. Rev. Bd. to Ryan Abbott, Esq., Att’y for Steven Thaler at 2 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf. Thaler’s appeal of the final refusal is still pending. Thaler v. Perlmutter, No. 22-cv-01564 (D.D.C. filed June 2, 2022).

More recently, the Copyright Office cancelled the registration of Kristina Kashtanova’s application for the work “Zarya of the Dawn,” after learning Kashtanova made the work with the assistance of Midjourney (an AI generative tool) without having disclaimed the non-human authorship in the application. Letter from Robert J. Kasunic, Assoc. Dir. of Copyrights & Dir. of the Off. of Registration Pol’y & Prac., U.S. Copyright Off., to Kristina Kashtanova (Oct. 28, 2022), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf. The work reregistered in February 2023, but only after limiting the claim of original authorship to Kashtanova’s contributions and “explicitly exclud[ing] ‘artwork generated by artificial intelligence.’” Letter from Robert J. Kasunic, Assoc. Dir. of Copyrights & Dir. of the Off. of Registration Pol’y & Prac., U.S. Copyright Off., to Kristina Kashtanova at 12 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.

The Copyright Office is actively exploring AI’s use of and in creative works. Having conducted a string of AI “listening sessions” this spring, it plans to issue a notice of inquiry to solicit comments on various related AI issues. Copyright Office Launches New Artificial Intelligence Initiative, Copyright.gov (Mar. 16, 2023), https://www.copyright.gov/newsnet/2023/1004.html; see Spring 2023 AI Listening Sessions, Copyright.gov, https://www.copyright.gov/ai/listening-sessions.html#literary-works (last visited June 4, 2023).

In the case of “Heart on My Sleeve,” UMG dodged these particular copyrightability issues as they relate to the use of AI to create works. However, had the AI-authored song not contained a sample, UMG may have had to resort to other claims to get the work taken down, namely, infringement of the artists’ right of publicity, which typically encompasses name, image, and likeness rights (“NIL”) and is governed by state law. Poritz, supra. While copyright law would likely not protect an artist’s style, id.; see U.S. Copyright Off., Compendium of U.S. Copyright Office Practices § 310.2 (3d ed. 2021), an artist’s vocals may be protected under NIL laws, Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988) at 463 (holding that “when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product,” this constitutes an appropriation of part of the singer’s identity).

As the copyrightability and legality of AI’s use in art and music continue to develop, creators and other copyright owners would be wise to monitor legislative and regulatory developments to determine what copyright, or other implicated intellectual property, protections may be available for the use of AI across creative industries.

The Fight for Financial Aid: San Diego State University Student-Athletes’ Title IX Lawsuit

The first Title IX lawsuit seeking damages for a university’s alleged failure to provide proportional athletic financial aid to female athletes will be moving forward, setting a precedent that could impact the field of college sports for years to come.

On April 13, 2023, U.S. District Court Judge Tom Robinson ruled that 16 female student-athletes who sued San Diego State University (SDSU) in a class-action lawsuit would be able to move forward with their suit, rejecting SDSU’s and the California State University Board of Trustee’s call for dismissal. Fisk v. Bd. of Trustees of California State Univ., No. 22-CV-173 TWR (MSB), 2023 WL 2919317, at *18 (S.D. Cal. Apr. 12, 2023). As the lead plaintiffs’ attorney, Arthur Bryant, noted, “This is the first case in the country in which women have sued a university for damages for depriving them of equal financial aid, and the first case in the country in which a judge has allowed them to do it.” Alex Riggins, Judge rules female athletes can seek damages in Title IX lawsuit against SDSU, The San Diego Union-Tribune (Apr. 17, 2023), https://www.sandiegouniontribune.com/news/courts/story/2023-04-17/sdsu-title-ix-lawsuit.

The plaintiffs claim that SDSU violated Title IX of the Education Amendments of 1972 by depriving female student-athletes of equal scholarship money, treatment, and benefits as compared to their male counterparts and retaliated against the athletes who joined the lawsuit. Id. To support their claim, the plaintiffs provided data allegedly reflecting that SDSU withheld over $5.36 million in financial aid from its female student-athletes from 2010-2020 by disparately providing scholarships based on gender, a practice they claim is still ongoing. Id.

Title IX is a landmark 1972 legislation that prohibits schools, local and state educational agencies, and other institutions that receive federal financial assistance from discriminating against the students of such institutions on the basis of sex (including gender identity and sexual orientation) and requires such institutions to provide equal access to education, scholarships, athletics, and more. See Title IX and Sex Discrimination, U.S. Dep’t of Educ. Off. for C.R. (Aug. 2021), https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html. While federal funding can be retracted for non-compliance with Title IX, no institution has ever lost any federal funding due to a Title IX violation. What is Title IX?, The Myra Sadker Found., https://www.sadker.org/TitleIX.html. Further, the Department of Education’s Office for Civil Rights, which is tasked with enforcing Title IX, has never proactively filed a lawsuit against a school for failing to follow Title IX law. Dan Murphy, San Diego State athletes band together in Title IX fight: ‘If women want equality, they have to sue’, ESPN (Jun. 14, 2022), https://www.espn.com/college-sports/story/_/id/34071621/a-coxswain-courts-course-title-ix-compliance. While the threat of losing federal funding or paying damages arising from a lawsuit acts as a penalty for Title IX violations, the lack of real-world examples of an institution suffering such penalty likely lessens its deterrent effect.

This lawsuit, however, has the potential to reverse such precedent. In the event that a court finds SDSU liable for significant monetary damages, the “standard of impunity” that many non-compliant schools have relied on may be replaced with a strong monetary incentive to preemptively end their discriminatory practices rather than risk an expensive lawsuit. Andy Zimbalist and Carrie N. Baker, Student-Athletes Can Now Sue Discriminatory Universities for Money Damages, a Victory for Title IX, Ms. (Apr. 17, 2023), https://msmagazine.com/2023/04/17/title-ix-female-student-athletes-discrimination-money-damages/. In any event, both student-athletes and schools will be paying close attention to the outcome of this trial, and it’s safe to say that the aftermath will provide a roadmap for similar suits moving forward.

The Supreme Court’s Decision in Jack Daniel’s v. VIP and the Narrowing of the Rogers Test

Trademark law holds a pivotal role in balancing the interests of trademark owners and fostering creative expression. The Rogers test, a legal standard developed from the case of Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), provides safeguards for creatives, particularly filmmakers, when utilizing trademarks in their expressive works. The Rogers test was brought to the forefront in the recent Supreme Court case: Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 599 U.S. _ (2023). This article explores the essence of the Rogers test, its benefits for creatives, and the recent decision in the Jack Daniel’s case. By delving into these aspects, the significance of Rogers in facilitating artistic freedom is more evident.

The Rogers test acknowledges situations where trademarks are used by third parties in artistic or expressive works. The Rogers test states that a third-parties use of a trademark in their expressive work does not violate the Lanham Act, “unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Rogers, 875 F.2d at 999. The Rogers test grants significant benefits to creatives, particularly filmmakers, by providing protection and freedom in utilizing trademarks within their expressive works. By accommodating the use of trademarks, this test supports the authenticity and relatability of film narratives, enabling filmmakers to accurately reflect real-world scenarios, cultural references, and brand contexts. Moreover, the inclusion of recognized trademarks in films enhances their realism and engagement with audiences, contributing to a more immersive cinematic experience.

The Rogers test also empowers filmmakers to exercise their creative expression by allowing the incorporation of trademarks for social commentary, parody, and satire. Filmmakers can effectively critique societal norms, challenge brand identities, and engage in meaningful cultural discourse. Such artistic liberties, facilitated by the Rogers test, foster a vibrant and diverse creative landscape in which filmmakers can harness their medium to address social issues, evoke emotions, and inspire intellectual exploration.

The Rogers test provides benefits of artistic freedom for creators, but its validity in trademark law was questioned in the Jack Daniel’s case. In this case, VIP Products LLC, a dog toy manufacturer, designed a plastic toy resembling the iconic bottle of Jack Daniel’s. However, instead of using the name “Jack Daniel’s,” the toy featured a label reading “Bad Spaniels,” and rather than “Old No. 7” and “Tennessee Sour Mash Whiskey,” it displayed the phrase “The Old No. 2 on your Tennessee Carpet.” While VIP Products did not register a trademark in the name or design of the bottle, the company did represent in its pleadings the mark and trade dress are used to “identify and distinguish [VIP’s] goods.” Subsequently, Jack Daniel’s filed suit, claiming infringement of its trademark rights. The district court found for Jack Daniel’s on its trademark infringement claims and applied the likelihood-of-confusion test, not the Rogers test. The appellate court found that the district court erred by not using the Rogers test and ruled in favor of VIP. The appellate court concluded that the Bad Spaniels dog toy was an expressive work entitled to First Amendment protection. The Supreme Court ruled in favor of Jack Daniel’s, stating that “Rogers does not apply when the challenged use of a mark is as a mark.” The Court stated that its opinion was narrow, and that it would not, “decide whether the Rogers test is ever appropriate.” Although the Rogers test was not overturned, its range of applicability and protection has been narrowed.

Swifties Wage War With Ticketmaster

Taylor Swift fans patiently waited with their browsers ready and their presale codes at hand to see Swift in concert for the first time in five years. The self-proclaimed “Swifties” expected a competitive ticket purchasing scene and potentially high prices. However, they did not expect the site to crash and walk away empty handed.

Taylor Swift exclusively contracted with Ticketmaster for venues regarding Taylor Swift’s “The Eras” Tour. Through the language of the contract, Ticketmaster controlled the registration and access to Swift’s tour tickets. Upon announcement of the registration for the TaylorSwiftTix presale, selected customers were guaranteed “leveling the playing field without racing against bots-for ticket access.” But, instead of bots, fans raced against millions of other fans.

The unprecedented demand crashed the website for many users as tickets went on sale. While some fans were eventually let into a queue or managed to purchase tickets, many were left choosing from tickets seemingly sold by scalpers or bots which were drastically higher than Ticketmaster’s originally set market price.

In turn, dozens of Swifties filed a lawsuit against Defendants Live Nation Entertainment, Ticketmaster’s parent company, for “unlawful violation of California’s Cartwright Act and the California Unfair Competition Law to recover more than five million in damages arising from fraud, misrepresentation, and fraudulent inducement.” Barfuss v. Live Nation Ent. Inc., 22STCV37958 (L.A. Superior Court).

California’s Unfair Competition Law (“UCL”) prohibits business acts or practices that are “unlawful, unfair, or fraudulent.” See Cal. Bus. & Prof. Code § 17200. California Cartwright Act prohibits any agreements among competitors to restrain, trade, fix prices or production, or reduce competition.

Attorneys for Live Nation pointed to a 9th U.S. Circuit Court of Appeals ruling from February that upheld arbitration in an antitrust suit against the ticket company. In Oberstein v. Live Nation Ent. Inc., plaintiffs sought to bring a class action lawsuit against Ticketmaster and Live Nation alleging the companies used their market power to charge above-market prices for concert tickets. 60 F.4th 505 (9th Cir. Feb. 13, 2023). In turn, Ticketmaster and Live Nation sought to compel the named plaintiffs to individual arbitration under the binding arbitration and class action waiver clauses in the terms of the use on Ticketmaster’s and Live Nation’s websites. Id. at 509.

Plaintiffs argued the terms were invalid for failure to properly identify Ticketmaster and Live Nation by their full corporate names, and the arbitration clause was unenforceable because plaintiffs were not provided with constructive notice of the terms of use. Id.

Affirming the 2021 U.S. District Court for the Central District of California, the federal appeals court noted Ticketmaster and Live Nation webpage users were presented with a confirmation button which informs the user that, by clicking on this button, the user agrees to be bound by the website’s terms of use (“TOU”). Id. at 514. Also, the court found that California law does not require that corporate parties to a contract use their full legal names. Id. at 511.

Then, on Jan. 4, 2023, another ticket-consumers class action lawsuit filed in the Central District of California after court issued its arbitration ruling in Oberstein. In Heckman v. Live Nation Ent. Inc., plaintiffs alleged antitrust violations of the Federal Sherman Act, 15 U.S.C. §§1 and 2, and Clayton Act, 15 U.S.C. §§15 and 16. 2022 WL 19376995 (C.D.Cal., 2022). And, as of June 2, 2023, following the courts holding defendants shall file a motion to compel arbitration, defendants Live Nation Entertainment have filed a supplement to the notice of motion and motion to compel arbitration.

As for the most recent Barfuss v. Live Nation Ent. Inc. case, litigation is trudging along. Plaintiffs will continue to fight to see their favorite stars and performers, while ticket marketplaces will continue to fight to maintain their competitive edge. While history tells us Ticketmaster is likely to end up on top once again, hell hath no fury like a Swiftie scorned.

Orioles and MASN Lose Appeal over Nationals’ TV Deal

The Baltimore Orioles and Mid-Atlantic Sports Network’s lost their appeal to review the arbitration agreement, which resulted in a nearly $300 million television rights award for the Washington Nationals at the New York Court of Appeals. The ruling was the most recent in the multi-year dispute between the organizations over the fees owed to the Nationals by MASN, including the Court of Appeals throwing out the initial award.

The case, In re TCR Sports Broad. Holding LLP vs. WN Partner, LLC, Judge Madeline Singas found that two highly sophisticated ought to be bound by the terms of their arbitration agreement. No. APL-2020-00175 (N.Y. Apr. 25, 2023). The agreement between the parties created a three-step process for telecast rights dispute that included a 30-day negotiation period, a non-binding mediation, and a final decision by the MLB’s Revenue Sharing Definitions Committee (RSDC), a standing organization that is composed of three rotating members from MLB teams. Id. After the initial award was vacated, the RSDC determined that the Nationals’ rights averaged $59.3 million annually between 2012 and 2016. MASN and the Orioles subsequently appealed to the Appellate Division, seeking a third arbitration in a forum unaffiliated with the MLB and an award of prejudgment interest by the Supreme Court. Id.

The NY Court of Appeals has adopted the Second Circuit Standard for partiality, requiring the party seeking vacatur to prove evident partiality by clear and convincing evidence. In this case when the RSDC remedied the initial conflict when it replaced the members hearing this dispute, and the venue as a whole was not “irredeemably infect[ed]”. Id. Judge Madeline Singas’s opinion pointed out that the Orioles and MASN knew that RSDC was comprised of MLB insiders when the parties crafted the agreement and selected the RSDC because of its knowledge and experience in resolving complex telecast disputes. Furthermore, the award of prejudgment interest by the Supreme Court was appropriate in this case as those damages were governed by a separate more general dispute resolution provision, not the RSDC arbitration process. Id.

The Court in this case ruled it was appropriate to hold the parties to the process outlined in the contract. The Orioles and MASN failed to establish any basis to deviate from the contract that the parties negotiated. The decision is in line with and reiterates the rules of New York contract law, which favors enforcing arbitration agreements between sophisticated and counseled parties, such as the parties involved in this dispute.

The Tampa Bay Buccaneers Take Their Rivalry with the New Orleans Saints off the Field and into the USPTO

In a rare off-field battle, the National Football League (“NFL”) team, The Tampa Bay Buccaneers instituted two trademark opposition proceedings against their fellow NFL NFC South divisional rival, the New Orleans Saints over the term, “KREWE.” See Buccaneers Team LLC v. New Orleans Louisiana Saints, LLC., Oppositions Nos. 91285042 and 91285043 (TTAB 2023). A trademark opposition is an administrative proceeding before the Trademark Trial and Appeal Board that operates like a normal court proceeding. Although rare to see two professional sports teams litigate against one another, this likely did not come as a surprise to the Saints, as the Buccaneers had filed two extensions of time to oppose the trademarks in question – essentially putting the Saints on notice that they may oppose its trademark application. See Id.

The Buccaneers own a trademark application at the United States Patent and Trademark Office (“USPTO”) for the word “KREWE” for use in connection with numerous goods and services, including trading cards, towels, clothing, advertising, incentive programs, and the most obvious one, entertainment services related to professional football. See U.S. Application Ser. No. 97/169,871. Meanwhile, the Saints own two trademark applications for the wording, including a stylized design, “SAINTS CHEER KREWE” for use with their entertainment services performed by the team’s cheerleaders, dancers, and stunt specialists. See U.S. Application Ser. Nos. 97/178,632 & 97/178,607.

“KREWE” has a similar meaning for both teams and their respective cities. In Tampa, “KREWE” is a reference to social and philanthropic clubs that celebrate Gasparilla, a festival in Tampa that celebrates the mythical pirate Jose Gaspar. See Kathryn Deen, Krewe Life, Tampa Magazines (Jan. 24, 2022), https://tampamagazines.com/krewe-life. Similarly, in New Orleans, “KREWE” is a club or organization that exists to celebrate Mardi Gras. See THNOC Visitor Services, Krewe FAQ: Inside New Orleans’s Secretive Carnival Organizations and Their Parades, First Draft (Feb. 16, 2022), https://www.hnoc.org/publications/first-draft/krewe-faq-inside-new-orleans%E2%80%99s-secretive-carnival-organizations-and-their.

In the race to the USPTO, the Buccaneers were victorious in filing their trademark application for “KREWE” first, as they filed on December 13, 2021. See U.S. Application Ser. No. 97/169,871. Likely in reaction to the Buccaneers filings, the Saints filed two applications for “SAINT CHEER KREWE” a mere four days after on December 17, 2021. See U.S. Application Ser. Nos. 97/178,632 & 97/178,607. However, this does not guarantee the Buccaneers an easy win. A key difference in the trademark applications filings is that the Buccaneers filed their application as an intent-to-use application, meaning that they were not yet using the mark “KREWE” in connection with their applied for goods and services, mentioned above. See U.S. Application Ser. No. 97/169,871. On the other hand, the Saints filed their applications as use in commerce applications, which establishes that they were using “SAINTS CHEER KREWE” in connection with their entertainment services performed by the team’s cheerleaders, dancers, and stunt specialists at the time they filed the applications. See U.S. Application Ser. Nos. 97/178,632 & 97/178,607. Importantly, the Saints claim that they had begun using “SAINTS CHEER KREWE” in commerce on December 6, 2021, only a week before the Buccaneers filed their application. Id.

What does this actually mean? If this case is fully contested at the Trademark Trial and Appeal Board (“TTAB”), the threshold issue will likely be who used their mark in commerce first? Whomever did, likely has priority in the word “KREWE.” Although the Saints claim a first use in commerce date of December 6, 2021, the Buccaneers are going to seek evidence in discovery to confirm that the Saints were actually using their marks as early as December 6, 2021, especially given the suspicious proximity between the dates of first use and the Buccaneers’ application filing date.

If the priority issue is settled, the final issue will be whether or not the marks are confusingly similar. The TTAB will decide that by determining (1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation, and commercial impression and (2) the relatedness of the goods or services as described in the applications. See In re E. I. du Pont de Nemours and Company, 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). That will be a close call, as both marks contain the wording, “KREWE” and the services are related, meaning consumers would expect a single entity to offer the goods and services provided under both marks. However, the Saints’ marks do contain the additional first words “SAINTS CHEER,” which may be the dominant and distinguishing portion of the marks.

If this case is fully contested, it will be a close call that may come down to who used the term “KREWE” in commerce first – a difference that could be as little as a few days. If that is decided, it will be interesting to see how the TTAB compares the differences in appearance, sound, and commercial impressions between the marks. In my opinion, given the parties relationship as members of the NFL, it is unlikely that this case is actually contested and instead settles with a coexistence agreement, meaning both teams can use the term KREWE with certain restrictions and obligations; in other words, this game will likely end in a tie.

Supreme Court Rules Against Warhol’s Copyright Defense

In a 7-2 decision, the Supreme Court ruled against Andy Warhol’s foundation’s fair use defense for using Lynn Goldsmith’s photograph of Prince in a series of silkscreen images. The central issue in this case was licensing the “Orange Prince” image to Condè Nast as cover art in 2016. Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 2023 U.S. LEXIS 2061. The case can potentially affect many facets of the creative industry, particularly for artists who alter existing works, like the Pop artists of the mid-20^th century.

The Court focused its fair use analysis on the “purpose and character of the use” factor. Id. at *33. Although the use was commercial, the Warhol Foundation contended that the Prince Series was “transformative” because the works conveyed a different meaning or message than the Goldsmith’s original photographs. Id. at *23. The Court ruled in favor of Goldsmith, focusing its analysis on whether the Warhol work merely superseded Goldsmith’s original work in the market or instead added something new to it. Justice Sotomayor’s majority opinion focused on two elements: the degree of difference between the works and the commercial nature of the use. Applying that framework to this case, the Court found that Goldsmith’s original photograph and the Warhol Foundation’s 2016 license of “Orange Prince” to Condè Nast share substantially the same purpose, using the image by a print media company. Id. at *36 Coupled with the commercial nature of using the silkscreens, the facts cut against a finding of fair use, absent an additional justification. Id. at *8.

Chief Justice Roberts joined Justice Kagan’s dissent, criticizing the majority’s reliance on the market substitution theory. The dissent emphasized the artistic message and aesthetic differences between Goldsmith’s photograph and Warhol’s work. Id. at *62. The dissent argues that the analysis should be more nuanced and that just because Goldsmith and Warhol’s works were licensed to magazines does not mean that Warhol’s work was a direct substitute. Id. at *64. Coincidental similar usage of two works can be overcome if the subsequent work adds a new meaning or message to the underlying work, creating substantial differences between the two works. Id. at *64. In the dissent’s view, the majority’s approach cuts off any analysis of the artistic differences between the works that share a common economic use. Id. In the eyes of the dissenters, the majority’s approach undermines the constitutional goal of copywrites, promoting the progress of arts and sciences. Id.

The majority opinion limited the finding to only the context of the 2016 license granted by Warhol’s Foundation to Condè Nast. The Court explicitly did not opine on as to the creation, display, or sale of any of the original Prince Series works. Id. at *35. This limitation leaves unanswered questions on how lower courts should apply the fair use framework in broader contexts but attempts to alleviate fears that the ruling could upend the entire creative industry. Limiting what constitutes fair use, even if only in the context of licensing as in this case, may have a chilling effect on the development of new ideas, expressions, and works as the industry adopts to the ruling in this case.

Rick Astley v. Yung Gravy, Various Producers, and Republic Records

Rick Astley, primarily known for his massive 1987 hit “Never Gonna Give You Up” which caught a second wind around 2007 with the internet phenomenon known as “rick rolling”, has filed a lawsuit in Los Angeles County Superior Court against rapper Yung Gravy, his producers, and Republic Records. Astley alleges a violation of his right of publicity stemming from Gravy’s song, “Betty (Get Money).” The complaint includes counts for Violation of Right of Publicity, various False Endorsement counts, and Unfair Competition. (See Complaint.) Although Astley acknowledges in Page 2 of his complaint that Gravy and Republic Records have cleared the use of the underlying musical composition to Astley’s song, Astley believes Gravy, his producers, and singer Popnick, “flagrantly impersonated (his) voice and falsely stated that he endorsed (the song) causing significant and continuing damage to (him.)” (See Plaintiff’s Complaint, pg. 2.) Further, Astley accuses Gravy and his producers of, “conspir(ing) to include a deliberate and nearly indistinguishable imitation of Astley’s voice throughout the song.” (Id. at pg. 5.) Astley’s right of publicity claim is primarily relying on the famous Bette Midler case which addressed sound-alikes and states, “The singer manifests themselves in the song. To impersonate their voice is to pirate their identity.” Midler v. Ford Motor Co., 849 F.2d 460, 463 (1988.) Most state common law recognizes rights of publicity in name, image, likeness, and voice in the form of “rights of publicity,” “rights of privacy,” or “unfair competition” laws. In an interview with Billboard last year Gravy stated, “(Rick) approved it and he’s a fan of the song.” (Saponara, M. (2022, August 11). All Aboard the Yung Gravy Train, Don’t Get Left Behind. Billboard. https://www.billboard.com/music/rb-hip-hop/yung-gravy-betty-rick-astley-hot-100-interview-1235124221/). This interview appears to be the source of the False Endorsement counts.

The Defendants’ legal team has yet to reply. To be clear, this is not an instance of “sampling.” Astley’s recorded vocal performance was not copied and pasted into “Betty (Get Money).” Gravy and his producers brought in singer Popnick to record the vocal passage for the song, which makes this closer to an instance of interpolation than it does sampling. It remains unclear what Gravy’s defense will be but it could rely on some combination of parody, anti-SLAPP, and that the track’s creation was not intended to deceive listeners into believing that Astley was actually singing on the track. Gravy’s team may also cite various passages found in the Copyright Act regarding parody or imitation even though this case is not a copyright case, but a case involving right of publicity. Considering the popularity of Yung Gravy, “Never Gonna Give You Up”, and the fact that Astley is being represented by Richard Busch of Marvin Gaye Estate verdict fame, this will certainly be a case to watch.

U.S. Copyright Office Slams the Door on AI-Generated Comic Book

Artificial intelligence continues to boom. Programs like ChatGPT, OpenAI, and DALL-E continue to develop as more and more useful tools while consumers and legislators alike weigh their usefulness, value, and ethical position in society. The U.S. Copyright Office has been dealing with AI generated works of art since at least the 1960s, but that familiarity has not lead to a robust body of rules addressing their copyrightability. In the Copyright Office’s 1965 annual report under a section titled “Problems Arising From Computer Technology” the author clairvoyantly predicts, “(it is) certain that both the number of works proximately produced or ‘written’ by computers and the problems of the Copyright Office in this area will increase.” (Registrar of Copyrights, “Sixty-Eighth Annual Report of the Register of Copyrights For The Fiscal Year Ending June 30, 1965” Received by The Library of Congress, 1966, pg.5. https://www.copyright.gov/reports/annual/archive/ar-1965.pdf. ) The U.S. Copyright Office has been notoriously ruthless when it comes to AI art. Any art created entirely by AI has been rejected for copyright protection by the Office. Currently, legal precedent only allows humans to copyright work and the office’s most recent decision shows they are unwavering from that position whether the art was created by any type of AI, algorithm, monkey, or anything else.

Author Kris Kashtanova received a U.S. Copyright registration for her comic book, Zarya of the Dawn, on September 15, 2022. (Kasunic, Robert. “Zarya of the Dawn (Registration # VAu001480196).” Received by Van Lindberg, 21 Feb. 2023. https://copyright.gov/docs/zarya-of-the-dawn.pdf.) The comic included images generated by Midjourney, an AI program that turns text into digital art. (Id.) Kashtanova’s application failed to include any information about her use of Midjourney. (Id.) Later, the Copyright Office apparently became aware the Kashtanova used Midjourney to partially create Zarya of the Dawn. On October 28, 2022, the Copyright Office sent her a letter stating that it intended to terminate her registration because her application was substantively incomplete. (Id.) Although Kashtanova responded in a timely manner, the Office rejected her argument that Midjourny was an “assistive tool” and announced on February 21, 2023 that it is terminating Kashtanova’s registration. (Id.) Although Kashtanova provided Midjourney with the text, the Copyright Office declared that Kashtanova was not the author of the resulting images for copyright purposes.

All hope is not lost for Kashtanova. The Copyright Office noted in their February 21 letter that they intend to issue Kashtanova a new registration which only protects, “the expressive material (the author) created.” (Id.) This is not without precedent-the Copyright Office has granted copyright protection to other creators who have partially used Midjourney and other AI systems in the creation of their works in the past. Still-these copyrights are specific and only cover the original work created by the author while excluding any works created by AI. In Kashtanova’s case, this means the text and the coordination and arrangement of the text with the images alone will be issued a copyright. (Id.) While no bright line rule or formula exists yet, the U.S. Copyright Office is clear about a few things: if you use AI disclose it, if your entire work was created by AI it will be rejected, and the work has to show a human level of authorship sufficient to support a copyright claim. (Id.) In other words, the less AI the better.

Widow of Former USC Football Player Sues to Hold NCAA Liable for Brain Injuries

Alana Gee filed suit against the National Collegiate Athletic Association for negligence and wrongful death after her husband, Matthew Gee, a former University of Southern California linebacker, was posthumously diagnosed with Chronic Traumatic Encephalopathy (CTE). The case is at trial and will deliver the first ruling on the NCAA’s culpability for brain injuries.

Matthew Gee began playing tackle football in third grade. He was a linebacker at USC from 1987-1991 making 210 career tackles. However, an injury late in his senior season ultimately prevented him from playing football in the NFL. In January 2013 Matt started exhibiting uncharacteristic behavior including forgetfulness, emotional outbursts, and declining physical health. He began to abuse substances, but he was sober on the days he was found to be out of sorts. Matt died in his sleep on December 31, 2018 with alcohol in his system. Alana donated Matt’s brain to research where he was later diagnosed with Stage II-III CTE.

CTE is a degenerative brain disease found in those with a history of repetitive brain trauma including symptomatic concussions as well as asymptomatic sub-concussive hits to the head. It is oftentimes found in former football players. In fact, in a recent study published in the Journal of the American Medical Association, researchers posthumously found CTE in the brains of 91% of college players and of 99% of NFL players. Unfortunately, signs and symptoms of CTE during life are largely unknown and a diagnosis can only be confirmed after death.

Alana claims that the NCAA knew about the long-term dangers of traumatic brain injuries and failed to inform the college athletes of the life-threatening risks associated with football. In a motion for summary judgment or in the alternative, summary adjudication, the NCAA argued that Gee’s negligence claim fails for four reasons: Gee cannot establish the NCAA had a special relationship with Matthew Gee nor USC’s coaching staff, Gee cannot establish the NCAA owed a duty to Matthew Gee pursuant to a negligent undertaking theory, Gee’s claim is barred by the doctrine of primary assumption of risk, and finally, Gee cannot establish that the NCAA caused Matthew Gee’s injuries.

The judge denied the NCAA’s motion for summary judgment and summary adjudication. The court determined that “it seems reasonably clear” the NCAA does owe a duty to protect the players, but the court is unsure whether Gee can prove that the breach of the NCAA’s duty caused Matt’s injuries. Duties are imposed on defendants where (1) the defendant created the risk of the harm that befell the plaintiff, (2) the defendant undertook to help the plaintiff deal with some risk, (3) a specific statute creates a duty, or (4) the defendant has a “special relationship” with either the plaintiff or the person who actually caused the harm. Gee argues that the NCAA falls into both the undertaking and special relationship category and the court agreed.

In terms of undertaking, the court noted that those who engage in sport assume the risk. However, those who govern the conduct of the sport have two duties: not to make the sport more dangerous than it already is, and to reduce the identifiable risks “without also altering the nature of the activity.” Although it is difficult to make football safer without altering the game, the court agreed that there could be alterations in the rules that govern play and the handling of injuries off the field.

Additionally, the NCAA is in a special relationship with collegiate athletes, creating a duty of care owed to Gee. A special relationship may exist where “(1) one party is dependent on another to some degree, (2) the dependent party is a member of a definable community, and (3) the dependent party provides a benefit to the other party.” A special relationship exists because the NCAA is the governing body for college sports, athletes can only compete by complying with its rules, athletes are a definable community, and they provide a benefit to the NCAA. The court rejected the NCAA’s argument that it had an exception to its duty to Gee because any governing body could have foreseen that head trauma might cause CTE in any football player. Further, the court concluded that changing game rules or making the concussion protocol mandatory rather than a suggestion would impose a minimal burden, and potentially prevent significant harm.

The court cannot grant summary judgment unless any reasonable jury could not find that the NCAA caused Matt’s death. Gee only offered one piece of evidence that Matt suffered a head injury while playing at USC. While this evidence is enough to survive summary judgment, the court noted that Gee would need more evidence for a jury to conclude his CTE was caused while playing at USC and not while he played football before and after college.

The court denied the NCAA’s motion for summary judgment and summary adjudication with the jury trial occurring through November. The case is Gee v. NCAA, No. 20 STCV 43627, 2022 WL 16142495 (Cal. Super. Aug. 9, 2022).

Digital Basketball Cards, a Security or Collector’s Item?

In one of the many recent non-fungible token lawsuits, Dapper Labs is accused of violating the Securities Act of 1933 after it partnered with the NBA to create “Moments,” digital packs of limited-edition NBA highlight clips. Jeeun Friel, one of the named plaintiffs in the class action suit, argues that these NFTs operate as securities subjecting them to regulations and oversight by the Securities and Exchange Commission, and without this regulation, consumers are denied the protections mandated by the Securities Act.

Moments are officially licensed NBA collectibles that capture the best plays in the NBA and are made unique to each purchaser through NFTs on the Flow blockchain. A blockchain is a decentralized digital ledger that records transactions of digital assets. Once the NBA determines that a highlight should become a Moment, Dapper Labs mints the highlight into an NFT which is recorded on the blockchain. Moments contain exclusive collectible details including an on-court video highlight, guaranteed authenticity by the NBA and NBPA, Moment Type, Tier, Series, and Serial Number, highlight and player stats, and badges. Current prices for Moments range from $1 to as much as $230,000 and can be bought, sold, and traded in the NBA Top Shot marketplace as well as secondary markets.

Plaintiffs claim that these NFTs are securities under the Howey test and should be regulated as such. To determine whether the U.S federal securities laws apply, courts employ the Howey test adopted in SEC v. W.J. Howey Co., which finds an “investment contract” where “there is the investment of money in a common enterprise with a reasonable expectation of profits to be derived from the efforts of others.” The test focuses on the form and terms of the instrument itself, on the circumstances surrounding the digital asset, and the manner in which it is offered, sold, or resold (including secondary market sales).

In their complaint, Plaintiffs argue that Moment purchasers invested money by acquiring the digital asset in exchange for value and participated in a common enterprise with the profits of each investor intertwined with the fate of NBA Top Shot and its blockchain. Plaintiffs claim that Moment investors expect profits to be derived from the managerial efforts of the issuers; Dapper Labs uses its control over the platform to prevent investors from cashing their investments; and that Dapper Labs is selling Moments to investors to prop up the price of its Flow token, the security token that powers the Flow blockchain. As evidence of how Moments buyers view their purchase, Plaintiffs cite a top purchaser’s tweet that stated “these are investments…And that’s a big reason why I bought it.“ Therefore, Plaintiffs maintain that Moments are securities and the retail investors who lack the financial sophistication to have evaluated the risks associated with their investments have suffered without the information that would have been contained in the materials required for the registration of the Moment NFTs.

Dapper Labs countered with a motion to dismiss, asserting that Moment NFTs are “digital alternatives to physical sports cards” and not securities that would subject them to the Securities Act regulations. Dapper states that it does not set Moment values since the sales are “peer-to-peer,” they can be purchased outside of the Top Shot marketplace, and the value of the NFT depends on factors that are outside of Dapper’s control. Importantly, Dapper states that Plaintiffs fail to allege that Moment holders are engaged in a common enterprise because there is no horizontal nor vertical commonality among Moment purchasers where the fortunes of would-be investors are tied by the pooling of assets and a pro-rata distribution of profits. Nevertheless, Plaintiffs’ claims fail, Dapper argues, because the legal analysis turns on the underlying product, basketball cards, not the digital nature of them, and the Supreme Court has already recognized that unique collectibles are not securities. Therefore, Dapper requested the court to dismiss Plaintiffs’ claims.

If this case survives Dapper’s motion to dismiss, it will set the framework for how future digitization of physical products are characterized, with the potential to alter the course of creation of NFTs. The case is Friel v. Dapper Labs, No. 1:21-cv-05837-VM (S.D.N.Y. Aug. 31, 2022).

California’s AB 2799 Paves the Way for Federal Legislation Protecting Freedom of Expression in Criminal Proceedings

Freedom of expression has been a constitutional right protected by the First Amendment of the Constitution since its very adoption. Yet, this freedom of expression has long been breached in criminal proceedings and used against the very artists who create artistic or expressive works. Moreover, this use in criminal proceedings has its roots in racial bias and discrimination. Rappers, more so than any other genre of music or works, have been and continue to be subject to this discrimination as their own work is used as evidence against them in criminal proceedings. Ethan Shanfeld, Young Thug’s Lyrics Used Against Him in Court Is ‘Unprecedented Racism,’ Legal Experts Say, Variety (May 13, 2022), https://variety.com/2022/music/news/young-thug-rap-lyrics-criminal-trial-court-racist-1235266740/.

Currently, Yung Thug and Gunna, two very prominent rappers, are making headlines as both men currently face criminal trial, with some charges being in due part to their very own lyrics. Two relatively recent courts have already determined that rap lyrics should not be used as evidence in criminal proceedings. For example, in 2016, the court in United States v. Sneed stated, “We may not permit a jury to infer that simply because Defendant rapped about selling drugs that he is guilty of selling drugs.” This is further reaffirmed in a 2021 Pennsylvania case, Bey-Cousin v. Powell, where the court did not allow rap lyrics to be used as evidence against the defendant because artistic expression is not factual. Ethan Shanfeld, Young Thug’s Lyrics Used Against Him in Court Is ‘Unprecedented Racism,’ Legal Experts Say, Variety (May 13, 2022), https://variety.com/2022/music/news/young-thug-rap-lyrics-criminal-trial-court-racist-1235266740/. It is something to be said that it took until 2021 for a court to establish that music is not fact. However, with California’s recent passage of AB 2799, this will now be the norm.

In September of this year, California Governor, Gavin Newsom, signed The Decriminalizing Artistic Expression Act which among many things, restricts the use of rap lyrics as evidence in criminal proceedings. Ethan Shanfeld, California Restricts Use of Rap Lyrics in Criminal Trials After Gov. Newsom Signs Bill, Variety (Sept. 30, 2022), https://variety.com/2022/music/news/rap-lyrics-cant-be-used-evidence-newsom-california-new-bill-1235389803/. While there is similar legislation going through New York, the passage of AB 2799 is the first step in ensuring federal legislation can move forward. Currently, the Restoring Artistic Protection Act (RAP Act), is being introduced to congress that would prevent the use of lyrics as the sole basis for prosecuting cases – which is what we see happening in the Yung Thug and Gunna action.

Moreover, this is not entirely a freedom of expression argument as these cases continue to delineate the racial bias that plagues the court system. For example, country music is deeply rooted in lyrics involving murder and drug use, but there has not been any lyrics used against a country artist to bring a criminal case. As Ice Cube was quoted after the bill was passed in California, “They ain’t gonna arrest Stephen King for his words.” Kelly Rissman, “THEY AIN’T GONNA ARREST STEPHEN KING FOR HIS WORDS”: NEW CALIFORNIA LAW LIMITS THE USE OF RAP LYRICS AS EVIDENCE IN COURT CASES, Vanity Fair (Oct. 1, 2022), https://www.vanityfair.com/news/2022/10/california-law-limits-use-of-rap-lyrics-in-court. The imbalance by which rap music is used against rappers to bring charges as opposed to any other form of expressive work is startling, and California’s passage of AB 2799 is the first step to remedying this inequality for artists, especially those of color. While the RAP Act is still up in the air, California’s actions signal what may come for federal legislation and justice for artists of all genres of music and beyond.

LIV Golf-PGA Tour Litigation Settles

The PGA Tour is under attack from all sides, and it is only just beginning. On August 3rd, 2022 Phil Mickelson and ten other golfers, who recently abandoned the PGA Tour for the new, more lucrative, LIV Golf league, sued the PGA Tour for antitrust violations. LIV Golf, which aims to shake up the game of golf, has been successfully doing so.

Players who have qualified for the PGA Tour are independent contractors of the non-profit tour, but they are subject to certain restrictions, including that they must request approval to (i) play in other tournaments that conflict with PGA Tour events and (ii) participate in other televised golf events. Both of these restrictions were under investigation by the Federal Trade Commission beginning in 1994, urged in part by Greg Norman. Chuck Stogel, F Tee C Probe, Brandweek, June 27, 1994, at 1. Ultimately, the FTC dropped that investigation, after voting not to issue a complaint. Leonard Shapiro, FTC Move is Relief for PGA, Wash. Post (Sept. 4, 1995), at D05.

As a non-profit, the PGA Tour is relatively limited in the funds that it can award players. Additionally, each purse for an event is distributed according to how players place, meaning the players who play the best earn the most winnings. Often, the bottom half of the field leaves with nothing. LIV Golf, on the other hand, which is backed by Saudi Arabia’s Public Investment Fund, offers $25 million in prize money at each of its events, with even the last-place finisher guaranteed at least $120,000. These amounts do not include large offers made to players to join the new league in the first place.

The earning potential LIV Golf presents is obviously a huge draw—and several top players, including Phil Mickelson, have jumped at the opportunity. Other PGA Tour players, such as Rory McIlroy and Tiger Woods, have turned down up to nine-figure offers from LIV Golf, denouncing the new league as a “money grab,” and remained loyal to the PGA Tour.

However, LIV Golf’s deep pockets are not without controversy. Saudi Arabia, with its poor history on human rights, has been accused of “sportswashing,” meaning using golf’s popularity to better its global reputation. As a result, a number of companies who had previously sponsored the LIV Golf players have dropped their deals after they joined the new league.

The PGA Tour, however, is not letting its players go easily. With LIV Golf looming earlier this season, PGA Tour Commissioner Jay Monahan warned players that they would be suspended from the PGA Tour if they opted to join LIV Golf. And indeed, seventeen players from the PGA Tour who have now started playing in LIV Golf events were suspended from the PGA Tour for violation of their contractual restrictions.

Further, the PGA Tour has accused LIV Golf of attempting to evade discovery. As part of the Mickelson case, the PGA Tour had issued subpoenas in New York for the Public Investment Fund and its governor, Yasir Al-Rumayyan, who then “refused to produce documents and declined to appear for depositions.” Andrew Beaton & Louise Radnofsky, PGA Tour Accuses LIV Golf’s Saudi Benefactors of Claiming Immunity from U.S. Courts, Wall St. J. (Nov. 5, 2022, 10:33 AM), https://www.wsj.com/articles/liv-golf-pga-tour-lawsuit-saudi-arabia-immunity-11667658780?page=1. In a motion to compel (filed originally in the Southern District of New York but transferred to the Mickelson case in California), the PGA Tour argued that “[t]here is no serious dispute that PIF and Mr. Al-Rumayyan possess highly relevant discovery in the underlying action” since “PIF created, funded, and owns LIV; PIF and Mr. Al-Rumayyan have had effective control over LIV from its inception,” but that “ PIF and Mr. Al-Rumayyan now assert that there is no court in the U.S. with jurisdiction over them; claim to be immune from discovery altogether; and deny that they are relevant to LIV’s lawsuit in any way.” Id.

With both sides well into litigation and no end in sight, a surprise announcement on June 6, 2023 came. Both organizations announced a merger between the PGA Tour and LIV Golf in order to “unify the game” with all pending litigation settled. Reaction from players, fans, and the media has been mixed. Numerous players took to Twitter expressing shock at the announcement. Numerous commentators have seen the move as hypocritical. Critics point out that the PGA Tour was quick to criticize it’s former players who chose to play for LIV Golf for accepting morally grey money. The PGA Tour’s criticisms now ring a bit more hollowly. The PGA Tour will likely continue to battle critics while carefully incorporating their positive-public-relations-starved new partner into golf’s greater landscape.

New NCAA Guidance on NIL Collectives is Good for Lawyers

On July 1st, 2021, the National Collegiate Athletic Association (“NCAA”) adopted an Interim Name, Image, and Likeness (“NIL”) Policy that suspended the prohibition on college athletes being able to enjoy the NIL rights that every other student at their institution could enjoy. Since then, the industry has seen a bevy of partnerships between college athletes and various brands, and many once-struggling college athletes have been able to receive substantial income from this newly available revenue stream. For the first time since the original interim policy was rolled out, the NCAA published guidelines on NIL through their regulatory guidance on NIL Collectives which was released on October 26th. The latest guidance from the NCAA has created a new need for more lawyers in the NIL space.

The ability of institutions to differentiate their athlete’s NIL profitability from other institutions became a major recruiting point for prospective athletes. However, NCAA rules still prohibited prospective athletes from being promised NIL income for enrolling at a school as part of the NCAA’s ban on monetary inducements. Enter: NIL Collectives.

NIL Collectives, which are entities independent of the institution, help an institution’s athletes enter into NIL partnerships. Collectives have a wide variety of purposes including pooling funds for endorsements from boosters and businesses, facilitating NIL partnerships, and even educating athletes on how they can monetize their brand. The term collective has no legal significance and the entities are typically structured as limited liability companies. There are over 120 NIL collectives across the country and over 90% of Power 5 Conference institutions have a NIL collective with more in the process of setting one up.

The NCAA has become incredibly interested in ensuring that these NIL Collectives are not being operated indirectly by the institutions themselves as such activity would violate NCAA rules. The October guidance detailed permissible and impermissible involvements that NCAA institutions can have with their respective NIL Collectives. Under the guidance, institutions may (1) provide college athlete contact information to NIL Collectives, (2) introduce college athletes to the representatives of these entities, (3) provide university IP to NIL Collectives, and (4) facilitate other opportunities for a college athlete to meet with such entities.

More importantly, the NCAA Guidance issued rules detailing what institutions may not do with their NIL Collectives. Institutions are not allowed to communicate with NIL Collectives regarding specific college athlete demands or requests for compensation. Additionally, institutions may not provide tax or legal services to NIL Collectives or college athletes. Prior to the guidance being released, several institutions were having university counsel and compliance officers review partnership agreements on behalf of the athletes for tax and contract review purposes. Under the new guidance, providing counsel to college athletes on the legal ramification of NIL activities is not allowed. As such, NIL Collectives are now required to retain their own lawyers to provide legal advice to their athletes creating a demand for more lawyers in the space.

While this was the first NIL guidance released since the Interim NIL Policy lifted the prohibition on NIL monetization, this will surely not be the last. Lawyers and other professionals in the college athletics and social media endorser space should be apprised of this guidance and future NIL policies to ensure that their clients are not running afoul of NCAA rules which would negatively impact their athlete’s eligibility. To date, the NIL era has been the modern wild west, but may not be for much longer with the NCAA attempting to reign in the industry.

“My Crypto is Gone and I’m Suing Larry David and Tom Brady”

After news broke that cryptocurrency exchange FTX was improperly using client funds leading to a liquidity deficit to the tune of $8 billion, the company filed for bankruptcy on November 11th. Investors were left with millions of dollars in investments essentially lost. Numerous lawsuits have been filed against FTX with many more to come throughout its bankruptcy proceedings. While FTX’s demise has had an unimaginable impact on the cryptocurrency industry, the financial improprieties of FTX have sent a shockwave through the entertainment industry as well.

On November 15th, 2022, crypto investors filed a lawsuit against the founder of FTX Sam Bankman-Fried, and several celebrity endorsers of the FTX platform. The lawsuit, filed in the Southern District of Florida, had a long list of defendants including Tom Brady, Gisele Bundchen, Udonis Haslem, David Ortiz, Shaquille O’Neal, Trevor Lawrence, Shohei Ohtani, Naomi Osaka, Stephen Curry, and even, Larry David. The central claim of the lawsuit is that certain FTX yield-bearing offerings were unregistered securities unlawfully sold in the United States. Stemming from certain FTX accounts being considered unregistered securities, it was unlawful for the celebrity endorsers to promote FTX without disclosing the methods by which and how much they were compensated for their endorsement.

In a world where it is becoming ever-so-difficult to determine which asset may be considered a security in the eyes of the SEC, celebrity endorsers including athletes and entertainers should be careful in determining the companies with whom they partner for endorsements. In a recent settlement with the SEC, Kim Kardashian was ordered to pay $1.2 million dollars for a similar violation of securities law in failing to disclose how much she was compensated for endorsing the Ethereum Max token. In this case, the lawsuit is being filed against private individuals by a class of private individuals. It would not be surprising to see similar lawsuits in the future!