Cases & Developments

Opinion and Order Granting Defendant’s Motion for Summary Judgment. Plaintiff, a former administrative assistant in the athletics department at the University of Vermont, sued the university for copyright infringement based on a front-facing “V-Cat” logo that she designed while employed by the university and participating as a member of an internal branding working group. The court granted summary judgment for the university finding that the university held the copyright to the design under the “work for hire” and alternatively, “derivative work” exceptions. In analyzing the “work for hire” exception, the court determined plaintiff’s efforts in creating the design (1) were the kind of work that plaintiff was employed to perform; (2) occurred substantially within the authorized time and space limits of her job; and (3) were actuated, in part, by a purpose to serve the employer. The court reasoned that just because “no one specifically told [plaintiff] to come up with the Design herself does not take her work outside the ‘ultimate objective’ of [the university].” Further, while plaintiff used her personal Adobe Photoshop account outside of work hours to create the design, she did so based off of conversations from branding working group meetings held during work hours and requested feedback from colleagues on her design. The court also held that plaintiff’s design was a derivative work of the university’s own copyrighted V-Cat logo, noting the similarities in the features of the cat design, “such as ears, eyes, and whiskers” and the “expression of those features” and concluding the “aesthetic appeal” of the two images was the same.

Part 2 of the U.S. Copyright Office Report of the legal and policy issues related to copyright and artificial intelligence (AI). The Report addresses the copyrightability of outputs created using generative AI and affirms the existing principles of copyright law are flexible enough to apply to new technology. The Report includes situations where a human-authored work is perceptible in an AI output and confirms that the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability. The Report follows Part 1 which was published in July of 2024, and Part 3 will be released at a later time, and plans to address the legal implications of training AI models on copyrighted works, including licensing considerations and the allocation of any potential liability. 

Opinion affirming the judgment of the Eleventh Circuit. The underlying dispute concerns songs recorded and released by Sherman Nealy and Tony Butler through Music Specialist, Inc., which they formed in 1983. Nealy later served prison terms from 1989 to 2008 and 2012 to 2015. In the interim, Butler entered an agreement with Warner Chappell Music, LLC to license songs from the Music Specialist catalogue, including for projects that proved commercially successful. In 2018, within three years of when he discovered the infringement, Nealy and Music Specialist, Inc. sued Warner Chappell for the infringement that had begun more than ten years earlier. The district court permitted Nealy to proceed on the infringement claims, but it limited recovery of monetary damages to the three years immediately prior to filing the action. On interlocutory appeal limited to the question of the limitation on recovery, the Eleventh Circuit reversed, assuming without deciding that Nealy’s claims were otherwise timely under the discovery rule. The U.S. Supreme Court, also assuming without deciding that the discovery rule permitted Nealy’s infringement claims to proceed, affirmed, finding that the Copyright Act provides only a single limitation for a plaintiff to file suit “within three years after the claim accrued” and “contains no separate time-based limit on monetary recovery.”  

Library of Congress, Copyright Office Notice of Inquiry and Request for Comments.  As part of a study of copyright law and policy issues raised by artificial intelligence (AI), the U.S. Copyright Office seeks comments on numerous questions concerning AI systems, “including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.”  Written comments are due on or before November 15, 2023.