Supreme Court Holds Warhol’s “Orange Prince” Not Transformative, Not Fair Use

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The Supreme Court recently upheld an appellate court’s ruling that Andy Warhol’s use of a photograph of Prince as a reference for a collection of screen prints is not fair use – to the extent his foundation decided to license them at least. In the weeks that followed, the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al, Case No. 21-869, has been met by both praise and scorn, but we think the holding provides some useful guidance to visual artists to avoid running foul of rights holders– even if it does leave many questions unanswered.

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The Rise of Influencer Marketing – Contractual Considerations

According to the UK’s Department for Digital, Culture, Media and Sport report on influencer culture, the global sector is expected to grow from $6.0 billion in 2020 to $24.1 billion by 2025, at a compound annual growth rate of 32%.

Influencer marketing offers brands a unique opportunity to target and connect with online communities, using a personalized approach. Whilst influencer marketing can yield great returns for brands, it is essential for influencers and brands to navigate this legal landscape carefully, especially in terms of contractual relationships.

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Federal Circuit Holds that Software Plaintiff Bears Evidentiary Burden of Copyrightability Where Defendant’s Evidence Shows Some Elements Not Copyrightable


In a case that could have some lasting impact, the Federal Circuit recently affirmed a 2020 ruling by Judge Rodney Gilstrap in the Eastern District of Texas dismissing claims that a competitor infringed non-literal elements of the plaintiff’s software. Because defendant World Programming Limited (“WPL”) had shown that some elements of plaintiff SAS Institute’s (“SAS”) software were not copyrightable, Judge Gilstrap found that SAS bore the burden of pointing to specific protectable elements that the jury could compare to the accused software to determine infringement. Because SAS failed to do so, Judge Gilstrap dismissed SAS’s claim.

Because the jury is charged with determining whether the defendant copied original elements of the copyrighted work, Judge Gilstrap held an evidentiary “copyrightability” hearing to “filter” out the non-original, non-copyrightable elements of the plaintiff SAS’s software. Judge Gilstrap reasoned that filtering out “ideas, facts, processes, public domain material, merger material, and scenes a faire” from the copyrighted work would permit a “comparison of the ‘golden nugget’ or ‘core’ of protectable elements” to determine whether there was infringement. On appeal, the Federal Circuit not only confirmed that using the so-called “abstraction-filtration-comparison” or “AFC” test in a case alleging non-literal software infringement was an appropriate tool but that Judge Gilstrap did not err in shifting the burden back to the copyright plaintiff once some elements of the work were found not protectable.

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Automating Entertainment: Writers Demand that Studios Not Use AI

When the Writers Guild of America (WGA) came with their list of demands in the strike that has already grinded production on many shows to a halt, chief among them was that the studios agree not to use artificial intelligence to write scripts. Specifically, the Guild had two asks: First, they said that “literary material,” including screenplays and outlines, must be generated by a person and not an AI; Second, they insisted that “source material” not be AI-generated.

The Alliance of Motion Picture and Television Producers (AMPTP), which represents the studios, rejected this proposal. They countered that they would be open to holding annual meetings to discuss advancements in technology. Alarm bells sounded as the WGA saw an existential threat to their survival and that Hollywood was already planning for it.

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Don’t let the Sun Go Down on EU 2: Proposed further changes to UK plans for Retained EU Law post Brexit and guidance on IP provisions

We reported last week on the UK government’s decision to reduce the scope of its proposed Retained EU Law (Revocation and Reform) Bill. As originally drafted had that bill become law then all direct EU legislation currently retained as UK law would have automatically lapsed at the end of this year unless specifically retained or amended by a minister or devolved authority before then. However, last week the government announced plans to reduce the scope of this bill to a list of circa 600 specific pieces of direct EU legislation as opposed to all direct EU legislation, whether or not yet specifically identified.

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Ghostwriter in the Machine: Copyright Implications for AI-Generated Imitations

A track called “Heart on My Sleeve” went viral recently on social media with lead vocals sounding eerily similar to a certain crooner known for his lovelorn lyrics. The pantomimed artist was Drake, no stranger to thirsty pining, backed by R&B artist The Weeknd. The song, however, was credited to Ghostwriter977, the alias of an anonymous TikToker, and neither Drake nor The Weeknd participated in the track’s creation. Rather, the vocals were generated using artificial intelligence tools.

AI-generated music – adopting the vocal styles of popular musicians – has become ubiquitous on TikTok and other social media platforms, racking up millions of views and listens. Much of the music is gimmicky—a rapper singing a shoegazer ballad or the theme song to an anime. But Heart on My Sleeve was impressively convincing, which has suggested to many that Ghostwriter977 is a sophisticated user of producer tools and programs, not just some “kid in the basement.” Consequently, many listeners believed the track was authentic Champagne Papi (one of the numerous nicknames for Drake) and the track began to spread virally. Given that Drake and The Weeknd used to regularly team up but their collab has gone dormant, it even seemed like a welcome bit of fan service.

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Don’t let the Sun Go Down on EU: Changes to UK plans for Retained EU Law post Brexit

There has been considerable media coverage in the UK this week following the government’s announcement that it is to reduce the scope of its controversial Retained EU Law (Revocation and Reform) Bill (Retained EU Law (Revocation and Reform) Bill publications – Parliamentary Bills – UK Parliament).

Had this bill entered into law in its original form it would have resulted in all direct EU legislation such as EU Regulations and Decisions which is currently retained under UK law pursuant to post Brexit transitional arrangements (currently estimated to be around 4,800 laws) automatically cease to have effect on 31 December 2023 unless specifically retained or amended by a minister or devolved authority before then.

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The Subvertising Movement: Protecting your Brand from “Brandalism”

The authors would like to thank Eben Kurtz for his valuable contribution to this post.

Heard of the climate activists defacing advertisements, billboards and bus shelters? Brandalism is a recent anti-advertising movement which uses a brand’s own assets and marketing channels against the brand itself, through replacing legitimate advertisements with spoofs and parodies (known as “subvertising”).

A brand needs to be prudent in response to these acts and attuned – from a public relations perspective – to the sensitivities involved. Nonetheless, these are often unsafe acts of criminal damage which aim to shock the public and defame the brand targeted. It is important for a brand to be aware of its legal rights in response – from criminal damage and defamation laws, to advertising, IP/asset/real estate protections.

By their nature, these subverted advertisements are deliberately intended to look similar to the original advert, which means there could be an infringement of copyright or trade mark law if a brand’s name, logo or image is used. From an advertising law perspective, the activists are often in breach of consumer and business protection regulations because the claims they make are often untrue and/or unsubstantiated. Activists will trespass on private land, unlawfully interfere with goods and cause criminal damage to property in the process, all of which can be actionable.

For further information on Brandalism – and legal implications – please contact Carlton Daniel (IP / advertising) or David Holland (real estate).

Aftermath of Ironburg – Practice Pitfalls and Pointers

A number of district courts, as well as the Court of Appeals for the Federal Circuit, have weighed in on whether and to what extent a patent challenger in an inter partes review (IPR) before the Patent Trial and Appeal Board may be estopped from making prior art based challenges in a district court litigation. In Ironburg Inventions Ltd. v. Valve Corporation, the Federal Circuit has clarified that the patent owner, not the patent challenger, bears the burden of proof on estoppel.

In Ironburg, after the conclusion of an inter partes review (IPR), the patent owner, Ironburg, argued that the patent challenger, Valve, was estopped from relying in district court on prior art that was not at issue in the IPR.

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World IP Day 2023: Accelerating Inclusivity of our IP Systems

Every year, on April 26, intellectual property organizations around the world observe “World IP Day” – an event established by the World Intellectual Property Organization (WIPO) to raise awareness of patents, copyrights, designs, and trademarks, and to celebrate the creativity and contributions of inventors, authors, artists and entrepreneurs. The theme for 2023 is “Women and IP.” It is intended to highlight the accomplishments of many amazing women while also recognizing, and attempting to rectify, the low participation of women in IP Systems. Is there value in accelerating inclusivity of our IP systems? If so, you may ask yourself, “What can I do?”

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