Patry Copyright Blog Redux

To what should have been no one's surprise, including Thaler's,  yesterday the DC Circuit affirmed the Copyright Office's rejection of his application. 2025 WL  839178 (DC Circuit March 18, 2025). I have always regarded this as a PR stunt, given the way the application was phrased, the long standing requirement of human authorship, and the very high bar of APA review. There will next, I assume, be a fruitless petition for cert.  All toward what end? No new law was made because blessedly the Circuit decided the issue on statutory and not constitutional grounds, and did not go further than is had to. It did not address what are the real issues regarding copyrightability and AI: what level of human authorship is enough? On this the court of appeals wrote: First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being—the p...

 The 1798 Alien Enemies Act is much in the news.  That Act, now in 50 USC Chapter 3, begins: Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.  Nothing in there about copyright of course, but there is a history in the U.S. of expropriation of other country's citizens intellectual property during war. On October 6, 1917, President Woodrow Wilson approved the Trading with the Enemy Act, Pub. L. No. 65-91, 65th Cong., 1st Sess., 40 Stat....

 The third fair use factor reads: “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The phrasing of this assumes the whole work isn’t copied since the section uses the word “portion,” but the copying of entire works has long been permitted when the context and the other fair use factors weigh in favor of doing so, the Sony Betamax decision being the first prominent example, where copying of entire audiovisual works for time-shifting was found to be fair use.  At the other end of the spectrum, copying a small portion of the work but which is deemed to be the “heart” of the work usually weighs against fair use.  Debates over what is the “work” can influence how the third factor is weighed, as seen in a March ruling 12, 2025 from the Second Circuit, Wilder v. Holland, 2025 WL 783642.  This case, like many fair use cases, is between two authors, here two faculty members at the City University of New York (CUNY), although ...

17 USC 411(b)(2) has a provision by which a court either on its own or at the request of a party may ask the Register of Copyrights for her opinion advising the court whether inaccurate information on an issued registration, if known, would have caused the Register of Copyrights to refuse registration. This was the only piece of copyright legislation to pass from the 110th Congress, the Enforcement of Intellectual Property Rights Act of 2008. Whatever the purpose, the effect of this “peculiar” amendment, Fashion Avenue Sweater Knits, LLC v. Poof Apparel Corp., 2021 WL 1035117, at *2 (C.D. Cal. 2021). has been to delay federal courts in their expeditious adjudication of infringement claims. Whether the Office's advice is useful is in the eye of the beholder, or more aptly put the side the Office's letter ends up supporting.  A March 7 letter from the Register to a district court in Washington State takes a position that I find quite surprising.  Here is a link to the Office...

U.S. federal courts are courts of limited jurisdiction and may only hear cases which Congress, acting under its constitutional authority, prescribes.  Jurisdiction in the federal courts is presumed not to exist, with the party asserting its existence bearing the burden of establishing it. The source of federal courts' limited authority is Article III § 2 of the Constitution, which provides that the federal courts shall have jurisdiction over “Cases, In Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Until 1875, absent a special grant of subject-matter jurisdiction, federal question cases were heard in state court unless diversity jurisdiction existed. In the case of copyright, the Copyright Act of 1790 did not provide for jurisdiction in the federal courts over infringement claims, but instead provided in Section 2 that a suit for infringement would be “by action of debt in ...

Copyright is a territorial right. The Berne Convention is an international treaty but not an international law. Article 5 of the convention makes this clear: 1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. (2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. (3) Protection in the country of origin is governed by domestic law. Howev...