USA Trends and Developments Contributed by: Steven Schindler, Katherine Wilson-Milne, Thomas Kline, Eden Burgess and Aaron Haines, Schindler Cohen & Hochman LLP
suggested licensing copyrighted materials as a solu - tion, noting that fair use is disfavoured when licensing options are available. Copyright infringement litigation In multiple lawsuits pending against AI companies, claimants contend that these companies are using copyrighted materials to train their AI programs. They further allege that AI companies use copyrighted material to provide the AI programs with raw material that the programs then repackage into new images without the copyright holder’s consent. Andersen et al v Stability AI Ltd. et al, No 23-00201 (Northern District of California) In a class action brought by a group of artists against Stability AI, DeviantArt, Midjourney, and Runway AI, the plaintiffs allege that these companies are “scrap - ing” plaintiffs’ copyrighted material from the internet to train their AI platforms, which then create works that appear to be original works by the plaintiffs. The plaintiffs also allege that the AI company defendants are violating the Digital Millennium Copyright Act by removing or modifying the plaintiffs’ copyright man - agement information (CMI), which designates the plaintiffs as the copyright owners of the images they created. On 12 August 2024, the court dismissed several of the plaintiffs’ claims, but not the copyright infringe - ment or Lanham Act claims. The court held that any determinations regarding the defendants’ fair use arguments were evidentiary and therefore could not be tested until summary judgment. The parties are currently engaged in discovery, and pretrial motions are currently scheduled for autumn 2026. Disney Enterprises, Inc. v Midjourney, Inc., No 25-05275 (Central District of California) Multiple entertainment giants – including Disney Enter - prises Inc, Universal City Studios Productions LLLP and Twentieth Century Fox Film Corporation – recently joined the fray by filing a lawsuit against AI company Midjourney. The plaintiffs allege that Midjourney is infringing copyrights in several popular characters such as Princess Elsa, Darth Vader, Iron Man and the Simpsons. At the time of writing, Midjourney had not yet filed a response.
Getty Images (US), Inc. v Stability AI, Ltd. et al, No 23-00135 (District of Delaware) Stability AI, in addition to the Andersen case, is a defendant in two other significant lawsuits – both brought by Getty Images – in the UK where Stability AI is headquartered and in Delaware where it is incorpo - rated. Getty Images houses a database of millions of photographs that users may browse for free, but must purchase a licence to use or download them. To dis - suade unlicensed use, the images have a watermark that is removed only after a licence has been obtained. In its US lawsuit, Getty Images claims that Stability AI has been scraping images from Getty Images’ pub - lic online database without permission and using the images on Stability AI’s platforms. With its complaint, Getty Images submitted numerous examples of imag - es generated by Stability AI that still bear the Getty Images watermark, demonstrating that the image was copied directly from the database without a licence. Getty Images claims that these works prove copy - right infringement and false CMI. It also alleges that Stability AI is violating trade mark law by falsely rep - resenting that Stability AI has Getty Images’ consent to use the images. Getty Images argues, in addition, that Stability AI’s activities corrode the goodwill that Getty Images has invested in its trade mark. As of writing, the parties have not yet presented substantive arguments on these points. Conclusion The Office’s extensive Report on copyright and AI pro - vides much-needed guidance in this nascent area of law. It remains to be seen whether the Office will revise and expand upon its guidelines as new questions of copyright registration and infringement arise, and how the courts will apply the Report. Meanwhile, cases of copyright infringement and AI continue to move forward, providing early precedent for this burgeoning body of law. The Manhattan District Attorney One noteworthy development in repatriation and res - titution is the involvement of the office of the Manhat - tan District Attorney’s ATU, led by Assistant District Attorney Matthew Bogdanos. The ATU has reached into the collections of a wide swathe of museums (and
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