1. AI — “Truthful Use” and the Creation of GenAI
In 2024, media and leisure companies will deal with whether or not the longstanding tenet that content material is king has been disrupted by the “honest use” affirmative protection being deployed within the courts by synthetic intelligence (AI) expertise firms working platforms that generate inventive works based mostly on a person’s prompts, often known as generative AI (GenAI). Underneath the Copyright Regulation of america, honest use is an affirmative protection to what would in any other case be copyright infringement. GenAI firms, that are defendants in numerous copyright infringement lawsuits, assert they don’t want permission from media and leisure firms to coach GenAI platforms on copyrighted content material owned by these firms. They argue that the coaching constitutes honest use underneath the Copyright Regulation and that works generated by GenAI platforms usually are not by-product works of the copyrighted content material on which the platforms are skilled. The concentration is going to shine on choices the courts make concerning the deserves of the arguments of GenAI firms.
2. AI — “Human Authorship” Requirement for Copyright Registration
A latest resolution by the US Copyright Workplace Overview Board may have far-reaching implications for artistic endeavors created partly by GenAI. On December 11, 2023, the Overview Board affirmed a refusal to register a murals partially created by GenAI, concluding that the work lacked the “human authorship” vital to say copyright safety. This resolution marks the third time in latest months that the Overview Board issued a written opinion analyzing the influence of GenAI on copyright safety and continues a development of courts and the Copyright Workplace rejecting copyright safety for AI-generated works. This resolution has important implications for rights homeowners. If a piece comprises an excessive amount of GenAI content material, it may result in a lack of copyright safety for the work, both in entire or partly. Furthermore, copyright candidates should disclose the inclusion of AI-generated content material of their copyright purposes. Failure to take action can result in cancellation of the copyright registration and, consequently, lack of entry to federal courts and the power to hunt statutory damages from infringers. Normal counsel will wish to work carefully with inventive groups to implement greatest practices and insurance policies to assist cut back the chance that any explicit work product will probably be unprotectible underneath US Copyright legal guidelines.
3. Defamation — Excessive Stakes, Excessive Damages
The previous few years have seen an growing variety of extremely publicized, high-dollar defamation instances introduced towards media and leisure firms or public figures. Already this yr, a jury has awarded writer E. Jean Carroll a big quantity in punitive damages in her defamation motion towards Donald Trump, and a New York court docket has denied Fox Company’s movement to dismiss in Smartmatic’s defamation motion towards it, that means that case will proceed to discovery.
These instances underscore vital rules for firms within the media and leisure area. First, a father or mother firm may be held accountable for its subsidiary’s defamatory statements. Second, there seems to be an urge for food for elevated punitive damages the place a defendant continues to repeat their defamatory statements. To guard towards the chance of defamation legal responsibility, media and leisure firms ought to take into account fastidiously whether or not the statements that they publish — or statements printed by their brokers or subsidiaries — create a danger of defamation legal responsibility, and vigilantly defend towards repetition of these statements.
4. AI — Increasing Safety for the Proper of Publicity
The suitable of publicity offers a celeb, musician, or different particular person the correct to forestall unauthorized business use of his or her title, picture, voice, likeness, or different features of id. There is no such thing as a federal proper of publicity; as a substitute, the correct arises based mostly on various state legal guidelines and customary legislation. The rise of deepfakes and advances in GenAI have brought about considerations concerning the simple capacity to imitate likenesses and voices. US Congress has taken discover.
A dialogue draft circulated by US senators in October 2023, the NO FAKES Act of 2023, would create a civil motion for producing, publishing, distributing, or transmitting a “digital reproduction” of an actual individual’s picture, voice, or likeness with out consent (with some exceptions). A invoice launched within the Home of Representatives in January, the No AI FRAUD Act, would create a civil motion for sure conduct involving “digital depictions” and “digital voice replicas” of actual folks with out their consent. These proposed payments wouldn’t preempt current state legislation rights of publicity however create a further treatment for sure unauthorized makes use of of an individual’s likeness.
5. Important IP Audit — IP Rights Ought to Mirror Technological Developments
As AI, digital content material, and the metaverse frequently evolve how items and providers are offered to customers, media and leisure firms themselves frequently must adapt their mental property (IP) rights and authorized choices to face these new challenges and alternatives. One such step is to evaluate type agreements — similar to contracts with manufacturing firms, expertise, licensees, and associates, on-line phrases of providers, and privateness insurance policies — to substantiate that they’ve secured their present and future pursuits for real-world eventualities and digital, digital, augmented, and digital platforms. One other step is to audit trademark portfolios for potential gaps in protection for digital items and/or providers and strategically fill these gaps. As a reminder, the US Patent and Trademark Workplace (USPTO) requires an applicant to not less than have a superb religion intent to make use of the trademark in reference to all items and providers in an utility on the time of submitting. Failure to satisfy this requirement can render the appliance and any ensuing registration void.
6. Sports activities — Rise in Streaming
The sports activities media panorama is experiencing growing fragmentation with the rise in streaming providers and digital platforms. We’ve got seen a decline within the conventional modes of broadcasting. Gone is the previous mannequin of getting 82 video games broadcast on a mix of over the-air and cable broadcasters. In 2024 and past, the competitors to broadcast skilled league content material will proceed to extend, with streaming providers and digital platforms keen to pay a premium for these rights. This development has already led to additional realignment of the sports activities media panorama, as evidenced by the 2023 chapter petition filed by Diamond Sports activities Group, which offers regional tv broadcasts for groups within the Nationwide Basketball Affiliation (NBA), Nationwide Hockey League (NHL), and Main League Baseball (MLB). As leagues enter into partnerships, rights holders should fastidiously take into account learn how to allocate their rights to maximise income.
7. Truthful Use — Put up-Warhol Panorama
The US Supreme Courtroom’s ruling towards artist Andy Warhol’s property within the copyright dispute over the usage of {a photograph} of Prince for a Self-importance Truthful cowl continues to lift questions in regards to the wide-reaching implications for brand new media and GenAI in 2024. In a 7-2 resolution, the Courtroom discovered the “objective and character” issue of the copyright honest use evaluation didn’t weigh in favor of a discovering of honest use the place the usage of a brand new work encompassing an authentic work shares the identical objective as the usage of the unique work and is commercially licensed. Though the addition of a brand new that means or message is a related consideration in assessing the aim and use of a piece for functions of figuring out honest use, it’s not dispositive. As firms and executives proceed to grapple with learn how to use new AI applied sciences, this case is forcing management to extra fastidiously take into account whether or not the brand new works created may qualify as transformative, and whether or not they transcend that required to qualify as a by-product work.
8. Publishing — Ebook Bans
Many states have enacted sweeping legal guidelines that broadly require the removing of books from public or faculty libraries. Typically, these legal guidelines have restricted or no foundation in current constitutional jurisprudence, don’t present steerage to educators concerning learn how to implement the legal guidelines, and embrace provisions that penalize educators for failure to implement the legal guidelines.
An ArentFox Schiff staff just lately obtained a preliminary injunction stopping the enforcement of 1 such legislation, which offered for the removing of books from faculties and classroom libraries. In that case, our shoppers included the world’s largest commerce writer, Penguin Random Home, 4 award-winning authors, the Iowa State Training Affiliation, academics, a librarian, and a highschool pupil.
9. Knowledge Privateness — Related to the Increasing Use of Expertise
In 2018, the European Union’s (EU) Normal Knowledge Safety Regulation (GDPR) took impact, and California enacted the California Shopper Privateness Act (CCPA), later amended by the California Privateness Rights Act of 2020 (CPRA). This was supplemented by 13 different new complete privateness legal guidelines round america. Since then, privateness points have taken a front-row seat for media and leisure firms. The GDPR (and its counterpart in the UK (UK)), in addition to US state privateness legal guidelines, impose a slew of latest necessities on the trade, from opt-outs for focused promoting and profile creation to assessments for high-risk information makes use of, to honoring people’ requests to evaluate, appropriate, and even have their private info deleted, along with detailed contract necessities for sharing private info with distributors and different third events.
The GDPR and UK legislation additionally prohibit the cross-border switch of non-public info, even amongst associates. There may be additionally a big and rising development involving non-public privateness litigation and regulatory enforcement in america. Media and leisure firms can discover themselves defending these instances the place they deploy third-party chatbots, cookies, pixels, and different monitoring applied sciences, movies, session replay expertise, biometric info similar to AI-enabled facial recognition expertise or acquire fingerprints (similar to for wage and hour functions), and customary analytics and promoting providers.
Now, greater than ever, it is very important evaluate your contracts and to establish and remediate these points in your digital properties to keep away from regulatory and personal privateness enforcement.
10. Emblems — Put up-Jack Daniel’s Panorama
The Supreme Courtroom’s landmark resolution in Jack Daniel’s Properties, Inc. v. VIP Merchandise LLC (US 2023) has invited uncertainty about the way forward for the so-called “Rogers check.” This check, typically relied on by media and leisure firms when conducting title clearances, states that the unauthorized use of a third-party trademark within the title of an expressive work constitutes trademark infringement or false endorsement provided that (1) “the title has no creative relevance to the underlying work by any means,” or (2) if there’s creative relevance, the place the title “explicitly misleads as to the supply or the content material of the work.” Media and leisure firms needs to be conscious that titles that had been beforehand held defensible underneath the Rogers check at the moment are being remanded for consideration underneath the Jack Daniel’s precedent, with some courts discovering that Rogers doesn’t apply. Underneath Jack Daniel’s, if a third-party’s trademark is used as a supply identifier for the defendant’s personal items or providers, even when the defendant’s use additionally has an expressive perform, the case is not going to be reviewed underneath the edge Rogers check. As a substitute, courts will now conduct commonplace chance of confusion evaluation to find out whether or not the use is infringing.
On the finish of the day, whereas many titles that arguably embrace third-party emblems can nonetheless be cleared to be used (e.g., based mostly on conventional chance of confusion and nominative honest use evaluation), the price of defending trademark infringement claims concerning present and movie titles is more likely to improve. It’s because instances are much less more likely to be resolved on the movement to dismiss stage given the fact-specific nature of figuring out whether or not a time period is used as a “supply identifier” and whether or not there’s a chance of client confusion.
Moreover, firms mustn’t assume that the title of a single work, like a film or e book title, will at all times be analyzed underneath the Rogers check. Whereas the title of a single inventive work isn’t registrable on the USPTO, some courts have discovered that the title of a single work can be utilized as a supply identifier, that means such titles wouldn’t be analyzed underneath Rogers, however would as a substitute be evaluated based mostly on conventional chance of confusion requirements.
Danielle W. Bulger, Adam Diederich, Matthew L. Finkelstein, D. Reed Freeman Jr., Dan Jasnow, and Andrew Sevanian additionally contributed to this text.
