Patry Copyright Blog Redux

Today the Copyright Office released Part 2 of three studies on AI copyright issues. Part 1, released on July 31, 2024, dealt with digital replicas. Part 3, due out this quarter, will deal with the use of copyright works in training models. Today's report dealt with the copyrightability of works that employ AI, so-called generative AI. Essentially, the Office called for the status quo in terms of law, and its own practices. The Office adheres to its views that human authorship is required so that if there is no such authorship then there can be no registration. I agree of course.  As regards prompts, the Office writes that prompts, alone, at least currently, are insufficient to satisfy the human authorship requirement.  Why? "Prompts essentially function as instructions that convey unprotectible ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output....

A Texas sized fight between two gas station chains may help us learn who an ordinary observer of beavers is, at least in Texas. Plaintiff is Buc-ees. Defendant is Super Fuels. Plaintiff claims there is an “anthropomorphic and cartoon representation of a smiling animal that closely resembles a beaver, which is similarly positioned in a right-facing angle and is depicted in front of a circular background." Here is plaintiff’s work: Here is defendant's work: As a Northern California vegetarian, I am ill-suited to appreciate the finer points of beaver physiology, but here is a picture of one from Wikipedia: This is said to be an "American" beaver, to distinguish it from a Canadian beaver, which looks like this: Much less friendlly, right? Regardless of whether these two pictures are actually representative of their respective nations, there is the question of whether the two are, in fact, different. Do beavers stay on their own side of the St. Lawrence River, or is there...

\ Moon Hee Lee is a rising star in copyright law. We are colleagues at Quinn Emanuel, which is how I got to know her. She clerked for one of my copyright heroes, Ninth Circuit Judge Margaret McKeown. While at Northwestern University Law School, she wrote an article entitled “Seeing’s Insight: Toward a Visual Substantial Similarity Test for Copyright Infringement of Pictorial, Graphic, and Sculptural Works.” 111 Northwestern University Law Review 833 (2017). I encourage everyone to read it. Her basic point is that existing substantial similarity tests do not reflect the nature of visual perception. A principal reason for this is that judges are more comfortable analyzing text, and as result, the way they think of textual works is transferred to how they think of visual works. A review of the case law shows she is correct. In addition to this unconscious textual bias, in some circuits things can easily go awry due to adoption of a bifurcated extrinsic-intrinsic test. The extrinsic test –...

 The Patry Copyright Blog Redux: Post Number 1 Thanks to my new employer, the litigation law firm of Quinn Emanuel Urquhart & Sullivan, I can restart my former blog. Naturally, the views expressed in this blog are solely mine and not the firm's. I hope the separation of personal from employer is respected.  My goal is the same as it ever was (Hat Tip to Talking Heads): provide a civilized discussion of current issues in copyright law. Passion is well and fine but let's not let it led to discussing issues as  partisans. Homilies out of the way, let's begin with the Eighth Circuit's January 14, 2025 opinion in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 2025 WL 86370. Simplifying the facts and claims, Plaintiff was a residential home designer. In 1996, he designed a home featuring a triangular atrium and stairs. He obtained a registration for an unpublished architectural work. He later built a few additional homes using the design. There thin...