Copyright Cases To Watch In 2025
In this Law360 article, Shanti Sadtler Conway discussed copyright cases to watch in 2025.
Several copyright cases involving artificial intelligence are teed up for major rulings in 2025, with attorneys anxiously awaiting what courts have to say about fair use, and at the Ninth Circuit, a photographer will argue for the reversal of a jury finding that a tattoo artist didn't infringe his photo of Miles Davis. Here are Law360's picks for copyright cases to watch in 2025.
Thomson Reuters et al. v. ROSS Intelligence; Concord Music et al. v. Anthropic; and The New York Times Co. v. Microsoft et al.
Attorneys tracking AI litigation have been waiting for more than a year for a substantive court ruling that provides even a modicum of insight into how judges will interpret the fair use doctrine in the context of copyrighted content used to train AI models.
Thomson Reuters sued in 2020, alleging ROSS built an AI legal research system by ripping off material from its Westlaw platform. The parties were about to go to trial in August when U.S. District Judge Stephanos Bibas delayed it for further summary judgment briefing on the eve of jury selection.
Judge Bibas heard arguments on the parties' summary judgment motions in December.
"That is going to be a seminal case probably, in terms of generative AI and what constitutes fair use or how we determine market value or replacement of the market position of the copyrighted work," said Anna Naydonov, a partner at White & Case LLP.
Meanwhile, a group of music publishers led by Universal Music Group will find out soon whether a California federal judge will grant its preliminary injunction motion against Anthropic PBC, a company founded by former OpenAI executives. The publishers allege in a suit filed in October 2023 that Anthropic's large language model "Claude" reproduces lyrics to thousands of copyrighted songs on command.
In November, a judge heard arguments on Anthropic's motion to dismiss the case and the publisher's motion for a preliminary injunction. None of the other two dozen complaints filed against AI companies by content creators have such a motion pending.
The New York Times' lawsuit against Microsoft Corp. and OpenAI filed in late 2023 has also attracted the attention of intellectual property attorneys because of the allegations in the complaint that ChatGPT — which was developed in part with Microsoft's funding — was trained on millions of copyrighted works.
The Times' suit, which has been consolidated with other complaints against Microsoft and OpenAI from news organizations and authors, cites several examples where ChatGPT has reproduced entire articles verbatim. In other instances, ChatGPT has also made up articles and attributed them to the Times, according to its suit.
"It just encapsulates some of the major issues with AI itself," said Michael Word, a member at Dykema Gossett PLLC. "On the one hand, The New York Times is arguing that the model is too accurate [because] it has this alleged capability — as some highly trained models do — which is to replicate training data almost verbatim. At the same time, they have these claims of harm to reputation where they argue that the models are completely inaccurate with these issues of hallucinations."
Word said the Times' case "is likely to result in a number of decisions that are going to be informative about the interplay of generative AI and copyright."
The cases are Thomson Reuters Enterprise Centre GmbH et al. v. Ross Intelligence Inc., case number 1:20-cv-00613, in the U.S. District Court for the District of Delaware; Concord Music Group Inc. et al. v. Anthropic PBC, case number 3:24-cv-03811, in the U.S. District Court for the Northern District of California; and The New York Times Co. v. Microsoft Corp. et al., case number 1:23-cv-11195, in the U.S. District Court for the Southern District of New York.
Thaler v. Perlmutter et al. and Allen v. Perlmutter et al.
Artists are testing the bounds of the U.S. Copyright Office's decree that only works created by humans are entitled to copyright protection with suits challenging the rule that something completely created with artificial intelligence is ineligible for registration.
So far no case has gotten further in the courts than Stephen Thaler's attempt to register the two-dimensional artwork titled "A Recent Entrance to Paradise," which was made using an AI system he programmed and dubbed the "Creativity Machine."
A trio of D.C. Circuit judges who heard arguments in Thaler's appeal in September are expected to issue a ruling in 2025. Thaler is appealing the Copyright Office's refusal to register the work of his Creativity Machine and a district court's ruling affirming the government's decision.
"Thaler was always setting this up as a test case and initially framed it as 'The machine created it. It is copyrightable,' and that's how he applied for the copyright registration and that's how the district court viewed the dispute between him and the Copyright Office," said Justin Hughes, a professor at Loyola Law School, Los Angeles, and a visiting law professor at University of Oxford.
During arguments at the D.C. Circuit, the panel questioned whether Thaler was backing off his position that his program created the art completely autonomously by arguing that the copyright registration could list him as the author for the artwork under the work-for-hire doctrine because he controlled his AI model.
"I think what happens in a case like Thaler is the circuit court says, 'Sorry, we're going to take this as you pled it. You pled the machine as the author, and we agree with the Copyright Office and the district court that a machine can't be an author,'" Hughes said.
In another case filed in September, a Colorado artist who created the first image generated by artificial intelligence to win an award at the state's fair sued the Copyright Office for rejecting the work for registration. The plaintiff, Jason Allen, is trying to distinguish his suit from Thaler's case, arguing that he had an active role in making the two-dimensional artwork he titled "Théâtre D'opéra Spatial," created on Midjourney's platform.
"He's arguing more that it was a tool for his creative expression, and that is certainly going to get us closer to more interesting rulings," Word said.
The cases are Thaler v. Perlmutter et al., case number 23-5233, in the U.S. Court of Appeals for the District of Columbia Circuit, and Jason Allen v. Shira Perlmutter et al., case number 1:24-cv-02665, in U.S. District Court for the District of Colorado.
Whyte Monkee Productions et al. v. Netflix et al.
The Tenth Circuit will issue another opinion on whether Netflix made fair use of a funeral video clip in its popular "Tiger King" docuseries after vacating its prior ruling against the streaming service amid criticism that it misapplied the U.S. Supreme Court's decision in The Andy Warhol Foundation v. Goldsmith .
In March, a three-judge panel of the Tenth Circuit reasoned that Netflix's inclusion of the funeral clip was not sufficiently transformative to avoid infringement because the streaming service did not "target" or add any "commentary" to the video. However, Netflix and others in the film industry that filed amicus briefs supporting the streaming service argued that targeting is not a requirement to establish fair use and that the appeals court had misapplied Warhol.
In that case, justices held that Warhol's "Orange Prince" — a silkscreen of the music icon based on a Lynn Goldsmith photo — was not fair use because both shared the same commercial purpose of magazine publishing.
The case highlights how the Warhol decision has divided attorneys on the doctrine of fair use, much like it divided the justices in their 7-2 opinion, with Justice Elena Kagan and Chief Justice John Roberts criticizing the majority's "lack of appreciation" for how Warhol transformed Goldsmith's photo.
The high court's opinion, penned by Justice Sonia Sotomayor has "engendered more confusion in the lower courts, and Whyte Monkee is a good example of that," said Jose Sariego, a partner at Bilzin Sumberg Baena Price & Axelrod LLP.
"What I find amusing is that there's all this hue and cry about how [the Tenth Circuit] got it wrong, and I actually think they got it right — that this is not fair use," he said, adding that the appeals panel "got it right, but for the wrong reasons."
"They did get it right in the sense that the Tenth Circuit said, 'No, this isn't fair use because you're not using it for a different purpose,'" Sariego said, referring to Netflix's use of the funeral video taken by Timothy Sepi, a former employer of the titular character of "Tiger King," Joe Exotic. "But they go off on this tangent about not commenting on the earlier work."
The Tenth Circuit's next opinion on the case could show whether the panel's view has evolved since its initial holding and after the case was reheard in July.
The case is Whyte Monkee Productions LLC et al. v. Netflix Inc. et al., case number 22-6086, in the U.S. Court of Appeals for the Tenth Circuit.
Sedlik v. Von Drachenberg et al.
Photographer Jeffrey Sedlik is hoping to reverse a jury verdict in favor of celebrity tattoo artist Kat Von D, who used Sedlik's copyrighted photo of Miles Davis as a reference for a tattoo she inked on a friend for free.
Sedlik's appeal to the Ninth Circuit to reverse the California jury verdict has drawn attention from copyright attorneys because of the fair use questions it raises in the aftermath of the Warhol decision.
Jurors in January found that the tattoo created by Von D, whose real name is Katherine Von Drachenberg, was not substantially similar to Sedlik's 1989 photo of Davis and that social media posts showing the actual photo in the background while Von D drew the tattoo were covered by fair use.
The jury's conclusions left some attorneys baffled.
"If you look at side-by-side images of the photograph and the tattoo, it's hard to understand how a finding of no substantial similarity could have been found," said Felicity Kohn, a partner at Pryor Cashman LLP.
Kohn said she's interested in how the Ninth Circuit will analyze the fair use question of whether Von D "using the photograph as a reference point for this creation of a new image is transformative."
"And again, it seems to me that the answer to that is probably 'No, they look aesthetically very similar,'" Kohn said. "If there's no aesthetic transformation, you need some sort of compelling justification under Warhol, and no compelling justification was offered. In other words, why this particular picture and not another one?"
In closing statements to jurors, Von D's counsel argued the tattoo she drew is not substantially similar to the photo it's based on, pointing to the different ways the tattoo was shaded and shaped differently.
It will be challenging to overturn a jury verdict, said Shanti Sadtler Conway, a Kirkland & Ellis LLP partner.
"I don't think it's shocking that [Sedlik's] appellate brief pushes really hard to say that these are issues that the court can decide and should decide de novo," she said. "But I expect that the other side will have a very different view of that and talk about how the jury, from their perspective, was properly instructed and that should get a lot of deference."
The case is Sedlik v. Von Drachenberg et al., case number 24-3367, in the U.S. Court of Appeals for the Ninth Circuit.
Gifford et al. v. Sheil et al.
In a case a federal magistrate called the first of its kind in the country, two social media influencers who promote Amazon products are embroiled in a legal fight with one accusing the other of copying her aesthetic in TikTok and Instagram posts.
The Texas case is in its early stages, but U.S. Magistrate Judge Dustin Howell recommended in November that Sydney Nicole Gifford should be allowed to proceed with some of her claims against Alyssa Sheil, including misappropriation of likeness and vicarious copyright infringement. A federal judge approved the magistrate judge's recommendations in December.
"I imagine there's a lot of this happening on social media," said Peter Swanson, a partner at Covington & Burling LLP. "It would not surprise me if there are others that are sort of inspired by a particular influencer and trying to emulate that influencer, and so I think you could start to see a lot more cases like this."
Gifford alleges in her April complaint that she met Sheil in Austin, Texas, in 2022 "with the intent of supporting one another's business." They met again the following year for a joint photo shoot. Gifford, however, alleges that days later, Sheil blocked her from viewing her accounts and "began to publish posts that replicated the neutral, beige, and cream aesthetic of plaintiffs' brand identity" along with similar Amazon products.
Sheil disputed Gifford's version of events and said if anyone is copying or mimicking another's posts, it's Gifford. Sheil filed objections to the magistrate judge's recommendations, arguing that Gifford has not supported her claims that she's "unique" or "special."
The case is Gifford et al. v. Sheil et al., case number 1:24-cv-00423, in the U.S. District Court for the Western District of Texas.
