Patry Copyright Blog Redux

If bad facts make bad law, what kind of copyright law does Jeff Koons make? The answer is pretty good. Sometimes he wins, sometimes he loses.  Yesterday he won in Hayden v. Koons, 2025 WL 605009, in an opinion by Judge Reif of the International Court of Trade, sitting by designation. Koons won on statute of limitations grounds, and because the work at issue was not covered by the Visual Artists Works Act (VARA). More on that below. Koons’ most famous loss was the 1992 Rogers v. Koons. 960 F.2d 301 (2d Cir.).  I know that case well because the photographer plaintiff Art Rogers was from Point Reyes, Marin County California,  my home county and where my soul resides if I have one. When I was copyright counsel to the House of Representatives, we held a hearing on statutory damages. I had Art testify. Due to Koons’ contempt of court for sending one of the unsold copies of his work overseas, I was able to re-route its return from Germany to our hearing, where along with Art it ...

“Loose language sinks ships” was a saying in World War II. As applied to legal opinions, loose language leads not to ships sinking, but to judicial efforts to undo concepts never meant or at least not well thought out.  Loose language often occurs when a court is rejecting an erroneous argument, leading some courts to make an overstatement in the process of rejecting the erroneous argument. This occurred in the Second Circuit with the requirements for joint authorship. One might assume that to be joint authors each party should be – an author. Being an author has always meant contributing “authorship,” that is, protectible material. One should begin by looking to the statutory definition of “joint work”: a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. There is nothing difficult in that definition. There needs to be “authors.” To be an “author” no court has ever doubted you have...

There are many specialties in law, copyright being one of them. Another is horses, or more formally Equus ferus caballus, belonging to the taxonomic family Equidae, from which we get the word “equine.”  Those who own or want to own horses have many legal needs, and where there is a need there will be a lawyer to fill those needs, even a law firm, in this case Legal Equine Solutions , based in Portland Oregon.  Among the services offered are Equine Litigation and Dispute Resolution (among humans, not horses, who quickly settle such things on their own), business entity formation, “matters concerning governing bodies of Horse Sport,” and forms, lots of different types of forms: for boarding contracts, breeding contracts, Covid-19 liability releases, sales, purchases, stall cleaner, groom, and exercise rider forms, as well as lesson forms. If you taken horse riding lessons, no doubt you have filled out such a form. Legal Equine Solutions helpfully sells all these types of forms a...

Now that the media has moved on to other things, such as Elon Musk’s 13th child, it may be possible to calmly review the February 11th opinion in Thomson Reuters Centre GmbH v. Ross Intelligence, Inc., 2025 WL 458520 (D. Delaware). That opinion follows on, and changes some of the court’s 2023 conclusions on summary judgment, 694 F.Supp.3d 467. Upon issuance of the February 11 opinion, we were presented with headlines like “A Legal Win Could Change the way AI Models Get Built,”  and “A Win at Last: Big Blow to AI world in training data copyright scrap.”   Whether knowing clickbait or not, I hope readers do not get their understanding of the implications of the opinion from such sources. Even a cursory analysis shows the decision is modest in scope and on facts that cannot be applied beyond the unique context of that dispute.  Whatever the results will be in other AI cases, those results are highly unlikely to be influenced by this one, although I imagine Thomson Reute...

In a world seemingly beset by violence, hatred, bigotry,  it is easy to lose hope and forget about the beautiful souls that exist, who refuse to be silenced and who still bring beauty into the world. There are such people: I have my amazing twins, but we all have people who have devoted their lives to bringing joy and learning. One such person is Mira Sundara Rajan. Her website, with the URL, professormira.com, has as its landing page the title “Author, Musician, Professor.” The musician part comes from her being a classical pianist. She is presently a visiting professor at the UC Davis Law School.  I first met her when she published her 2011 book, “Moral Rights: Principles, Practices and New Technology.” (Oxford University Press). That book is now in a second, updated and greatly revised edition, entitled “The Moral Rights of Authors and Artists: From the Birth of Copyright to the Age of Artificial Intelligence.” (Oxford University Press) This is a very important, timely...

Among the many, many joys of having children is watching shows and movies with them. Along with Shaun the Sheep, and the Backyardigans, my twins loved Wallace & Gromit, as do I. The chase scene in The Wrong Trousers, with Gromit chasing Feathers McGraw on an inside-the house model train track is the best. It has been 32 years since The Wrong Trousers, although in between there was The Curse of the Were Rabbit (2005) and A Matter of Loaf and Death (2008). Now, we have Vengeance Most Fowl, which sees the return of Feathers McGraw.  There have always been strong plot elements in Wallace & Gromit about technology, due to Wallace’s barely useful inventions paired against the long suffering Gromit. In The Wrong Trousers, this took an extreme turn, with Gromit being kicked out of the house in favor of Feathers McGraw. In Vengeance Most Fowl, Wallace invents a ”smart” garden gnome, called Norbot. Gromit is quite happy toiling away by himself in the garden. Norbot, however, totally ...

For those wondering what might satisfy the Copyright Office's guidance on altering an entirely AI generated work to a degree sufficient to justify a registration as a selection, coordination or arrangement of such alterations, we may have an idea thanks to a registration issued on January 30. The work is entitled "A Single Piece of American Cheese," created by Kent Keirsey, CEO of Invoke, an AI creation platform.  Here is a side by side of the entirely AI generated work (left figure) and the final work for which registration was obtained: Not much difference, one might say. The Office initially agreed, rejecting the application in August 2024. This conclusion might be heightened by knowing that it only took 10 minutes to alter the initial work to the final one for which registration was eventually made. The prompt to create the initial image was: fractured glass, faces in the facets , surreal pattern of glazed brushstrokes, spaghetti noodle hair <boldline-soft> <...

 In 1985 A transfers to B a non-exclusive right to use copyrighted works. B used the works, placing them online. In his will A conveys his copyrights to C. A dies in 1999. C doesn’t like A. In 2014, C discovers B had placed the materials online but doesn’t sue until 2019. C learns B had a license, which C purports to cancel in 2021, claiming infringement. In the litigation, B asserts that the license could not be terminated by C because C failed to comply with the provisions in 17 USC 203 dealing with terminations of transfer. The trial court agreed.  A was Keith Milton Rhinehart. C was the Aquarian Foundation. In 1955, in Seattle, Rhinehart founded the Aquarian Foundation. Encyclopedia.com explains that the foundation  existed for several decades as a single congregation in Seattle. Rhinehart articulated an eclectic occult perspective that combined elements of Theosophy and Eastern religion with more traditional Spiritualism. Rhinehart also claimed contact with the ascen...

Section 301 of the Copyright Act is entitled “Preemption with respect to other laws.” Section 301(a) states that all legal or equitable rights that are equivalent to any of the Section 106  rights with respect to works protected by Section 102 are governed exclusively by title 17. Keep your hands off, states. Section 301(b) is a mirror image of Section 301(a), noting that state laws that aren’t like those mentioned in Section 301(a) are not preempted, meaning such state laws are enforceable. One example would be a purely oral speech. The emphasis on fixation as one of the demarcations between federal and state protection stems from the Constitutional limitation of protection to the “writings” of authors. I believe that “writings” presupposes fixation of the work in some tangible form, as did the Supreme Court’s opinion in Goldstein v. California, 412 U.S. 546, 561, 563 (1973) .That belief led me to draft, while copyright counsel to the House of Representatives, the bootleg provisio...

From the late 1890s, when Congress began the process of revising and consolidating our copyright laws into what became the 1909 Act, the issue of the proper length of copyright was twined with the ability of authors of get back rights they had transferred. These have been called termination or reversionary rights. The 1909 Act as originally proposed had a term of life of the author, but this was dropped out of concern that authors would not be able to renegotiate royalty payments if a work later became popular. A dual system of an original term and a renewal term was believed to allow such renegotiation, or "second bite at the apple." As a result, Congress granted a 28 year original term, and a 28 year renewal term. The intent was that authors would not be able to convey rights to the renewal term when they conveyed rights to the original term. This intent was expressed in Section 24 of that act which stated that renewal could be made by “the author” (or heirs). It did not in...