The U.S. Copyright Office’s January 2025 report on AI and copyrightability reaffirms the longstanding principle that copyright protection is reserved for works of human authorship. Outputs created entirely by generative artificial intelligence (AI), with no human creative input, are not eligible for copyright protection. The Office offers a framework for assessing human authorship for works involving AI, outlining three scenarios: (1) using AI as an assistive tool rather than a replacement for human creativity, (2) incorporating human-created elements into AI-generated output, and (3) creatively arranging or modifying AI-generated elements.
Continue Reading The Copyright Office’s Latest Guidance on AI and Copyrightability

A UK court has ruled that Getty Image’s lawsuit against Stability AI for copyright infringement over generative AI technology can proceed. Stability had sought to have the case dismissed, alleging in part, that the AI models were trained in the US. However, the court relied on seemingly contradictory public statements by Stability’s CEO, including that Stability helped “fast track” UK residency applications of Russian and Ukrainian developers working on Stable Diffusion. This suggests that at least some development occurred in the UK. A similar case involving the parties is pending in the US. One significance of where the case is heard…
Continue Reading Getty Image’s AI Model Training Lawsuit in UK Against Stability to Proceed 

In August 2023, the New York District Attorney’s (NYDA) Antiquities Trafficking Unit, which specializes in investigating looted artifacts, seized a headless statue valued at $20 million from the Cleveland Museum of Art (CMA) under a search warrant issued by a New York court. The NYDA announced that the seizure was linked to a criminal investigation targeting a smuggling ring that trafficked antiquities looted from Turkey through Manhattan. It further asserted that since the alleged traffickers were primarily based in New York, it provided them with the legal authority to seize the statue from another state, deeming New York as the…
Continue Reading Titleless Tales of the Headless

In 1966, an ancient bronze bust found its way to the Worcester Art Museum in Massachusetts. Believed to depict the daughter of the Roman emperor, Marcus Aurelius, it was titled “Portrait of a Lady (A Daughter of Marcus Aurelius?),” and sat on display in its new home for decades – until now.[1]…
Continue Reading Busted: Manhattan Prosecutors Seize an Ancient Roman Bust from the Worcester Art Museum

On June 8, 2023, the Supreme Court in a unanimous decision held that a trademark claim concerning “a squeaky, chewable dog toy designed to look like a bottle of Jack Daniels whiskey” which, as a play on words, turns the words “Jack Daniels” into “Bad Spaniels” and the descriptive phrase “Old No. 7 Brand Tennessee Sour Mash Whiskey” into “The Old No. 2 On Your Tennessee Carpet” does not receive special First Amendment treatment where the accused infringer used the trademarks at issue to designate the source of its own goods and that, with respect to a Lanham Act dilution…
Continue Reading Supreme Court Rules “That Dog Don’t Hunt”: Bad Spaniels Toy’s Use of JACK DANIELS Marks is a Poor Parody and Dilution Act Applies

On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2] The…
Continue Reading Supreme Court Finds Warhol’s Commercial Licensing of “Orange Prince” to Vanity Fair Is Not Fair Use and Infringes Goldsmith’s Famed Rock Photo

The appreciation of works of art is subjective, and rightfully so as the experience of viewing art, and what it makes one feel is personal. This seems to guarantee that no artist or piece is left out of the realm of consumption, so long as there is a person who can appreciate the expressive work.
Continue Reading To Be, or Not to Be? Considerations for A.I.- Generated Art

The assumption that artists love credit is challenged when an artist appears to repudiate their authorship. Sometimes repudiation arises from personal animus while in other instances an artist might feel that their work is no longer “up to snuff.”[1] In some extreme circumstances, artists can be involuntarily thrust into a claim to repudiate their alleged authorship, which happened in the case of Fletcher v. Doig. [2]…
Continue Reading “Not My Work”: When Artists Dispute Authorship

The strength of the US dollar against the British pound – at present, the pound has dropped nearly 18% since the beginning of 2022 – would appear to make the purchase of art and other cultural property in the UK and Europe far less expensive for Americans. But the tumultuous state of the world has thrown a multitude of wrenches into British art exports to the US. The (not over yet) pandemic, (nor over yet) Brexit crisis, growing inflation, expanding regulations to prevent anti-money laundering, frustrating global supply chain backups and other issues have made it maddeningly difficult for US-based…
Continue Reading For US Art Collectors Shopping in the UK, the Dollar’s Strength is Deceiving

The artworks stolen by the Nazis are the last prisoners of World War II.

 – Ronald Lauder, Woman in Gold

Ferdinand Bloch-Bauer was a wealthy sugar magnate in Vienna, Austria where his six Gustav Klimt paintings were housed. His wife, Adele Bloch-Bauer, was the subject of two of the paintings. On March 12, 1938, the Nazis invaded and claimed to annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, the Nazis took over his home and seized his artworks, which included the…
Continue Reading NY Museums Required to Label the Last Prisoners of World War II

When Christie’s Auction House first entered the secondary art market of mainland China in 2005, it licensed its brand to a local auction house and received a total of RMB 97,000,000 (roughly $12,100,000) for its inaugural sale.[1] With eight years of experience in this nascent market, Christie’s started its independent business by establishing a branch in Shanghai and obtaining an auction license shortly afterward. Early March this year, Christie’s realized a total of RMB 222,030,200 (roughly $35,000,000) in its inaugural sale, selling 95% by lot and 90% by value, at its new gallery, BUND ONE, a century-old historical building…
Continue Reading Unroll the Scroll Painting: Inside the Chinese Art Market and Its Regulatory Landscape

Everything is being tokenized these days, including art, games, collectibles and much more. The record prices being fetched have created an NFT frenzy. This distribution model has created a new channel for monetization of creative IP. Given some of the unique aspects of NFTs, IP owners need to rethink their IP protection and licensing strategies. IP protection strategies should include specific protection relating to NFTs. Due to some of the unique aspects of NFTs, various new considerations need to be addressed when licensing IP. NFT creators need to be mindful of potential infringement issues when using third party IP and…
Continue Reading NFTs and Intellectual Property: What IP Owners and NFT Creators Need to Know

Many things are being tokenized, but the growth of NFTs for digital art is booming. This, in part, is due to the recent headline news that Beeple’s iconic digital art work was sold at auction by Christie’s for $69 million. Other digital art is being created to leverage pre-exiting IP and physical art. This boom is creating great opportunities for IP owners who want to license their IP for use in NFTs. However, for those just entering the space, there are many things to consider given some of the unique aspects NFTs and digital art.
Continue Reading Protecting IP and Limiting Liability When Licensing IP for Digital Art and NFTs