The Briefing by the IP Law Blog Weintraub Tobin

Delve into the complexities of vicarious infringement and DMCA violations in AI training. Scott Hervey and James Kachmar from Weintraub Tobin dissect the recent district court ruling on OpenAI's copyright infringement allegations on this installment of “The Briefing.” Watch this episode on the

Weintraub YouTube channel here or listen to this podcast episode here.















Show Notes:

Scott As we have previously reported, in 2023, several authors, including the comedian Sarah Silverman, filed putative class action lawsuits against OpenAI's ChatGPT, alleging various copyright infringement claims. On February 12th, 2024, a district court in the Northern District of California issued its order and ruled on the OpenAI defendants' motion to dismiss various claims in the two pending putative class action lawsuits. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my partner, James Kachmar, and we're going to discuss the Court's order on this installment of "The Briefing by Weintraub Tobin. James, welcome back to "The Briefing."

James Thanks, Scott. It's good to be back.

Scott So, James, could you give us some background on these cases?

James Sure, Scott. The author plaintiffs alleged that OpenAI infringed on their published works by using these works to help train its Large Language Model or LLM. Basically, OpenAI is alleged to have scanned the books into their system to help train the language models. The authors claim that because these books are protected by copyright law, using them in this training and the output generated by OpenAI, which the app is known ChatGPT, by summarizing their books, constituted an infringement of their copyright protections in their works. The plaintiffs in the two separate lawsuits alleged similar claims against OpenAI for both direct and vicarious copyright infringement under the Copyright Act, as well as violation of Section 1202(b) of the Digital Millennium Copyright Act or DMCA, which is removal of copyright management information. The OpenAI defendants moved to dismiss all the claims alleged by the author plaintiffs, with the exception of the first cause of action for direct copyright infringement. It's a bit unclear from the Court's order as to why the defendants did not move to dismiss that claim as well.

Scott Yeah, I found that to be interesting. The Court began by recognizing the general rules that govern motions to dismiss in federal actions. In essence, to survive such a motion, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. In essence, the plaintiff must allege sufficient factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

James That's correct, Scott. Let's first look at the vicarious copyright infringement claim. The Court noted that the Copyright Act grants the copyright holder exclusive rights to reproduce the copyrighted work and any copies thereof, to prepare derivative works, and distribute copies of the copyrighted work to the public. However, the Court noted that the mere fact that a work is copyrighted does not mean that every element of the work may be protected.

Scott That's right. To allege a valid copyright infringement claim, the plaintiff must show that one, he or she owns a valid copyright in the work alleged to be infringed, and two, that the defendant copied aspects of protectable aspects of his or her work.

James That's right, Scott. The Court was really focused on this second prong, which really contains two separate components: copying and unlawful appropriation of a copyrighted work. Generally,

ELVIS Act —Breaking down the Ensuring Likeness, Voice, and the Image Security Act of 2024. Scott Hervey and James Kachmar from Weintraub Tobin discuss its impact on AI audio technology and how it protects musicians in the next installment of “The Briefing.”

Watch this episode on the Weintraub YouTube channel here or listen to this podcast episode here.















Show Notes:

Scott: Tennessee's ELVIS Act isn't what you think. The acronym stands for Ensuring Likeness, Voice, and the Image Security Act of 2024. It's about protecting a musician's voice from AI clones. The bill was signed into law on March 21st, 2024, amid a growing concern by the music industry and musicians over AI soundalikes and deep fakes. I'm Scott Hervey from Weintraub Tobin, and I'm joined again by my partner, James Kachmar, to talk about this bill and its impact on the nascent AI audio space in this episode of "The Briefing" by Weintraub Tobin. James, welcome back to "The Briefing."

James: Thanks, Scott.

Scott: So, James, let's dive right into this bill and see what it does and doesn't do. So, this bill amends Tennessee's existing right of publicity statutes. Tennessee's existing law has previously provided that individuals, or in the case of a deceased individual, their estate, have a proprietary right in the use of that person's name, photograph, or likeness in any medium, in any manner. Now, one could probably have argued that likeness included voice, but this bill now makes it clear that a person's voice is among the personal property rights this statute now protects. James: Right, Scott. And in the bill, voice is defined as a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual. So essentially, a soundalike.

Scott: That's right. So, let's talk about what this bill protects against. Tennessee's right of publicity statute now protects against the use of a person's name, photograph, voice, or likeness for the purpose of advertising products, merchandise, goods or services, or for the purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services. The bill also adds new language which provides that a person will be civilly liable If they publish, perform, distribute, transmit, or otherwise make available to the public an individual's voice or likeness with knowledge that the use of the voice or likeness was not authorized by the individual.

James: So, Scott, I assume that this bill is going to put a target on AI voice companies for possible lawsuits?

Scott: Yeah, it does. It absolutely does. The bill provides for civil liability for any person that distributes, transmits, or otherwise makes available an algorithm, software tool, or other technology, service, or device, the primary purpose or function of which is the production of an individual's photograph, voice or likeness without authorization from the individual.

James: Scott, do I understand the bill correctly that not only the individual performer will have a cause of action, but it also gives record labels a right to sue for violations?

Scott: Yeah, absolutely. That's right. The bill adds a paragraph to the section that discusses remedies for violations of the section. This new paragraph states that well where a person has entered into a contract for an individual's exclusive personal services as a recording artist or an exclusive license to distribute sound recordings that capture an individual's audio performances, an action to enforce the rights set forth, and this part may be brought by the person or in...

Safeguard your brand in the world of social media marketing, from IP infringement risks to FTC guidelines compliance.  Scott Hervey and Jessica Marlow from Weintraub Tobin continue the discussion on legal risks brands face in part 2 of our social media marketing series on “The Briefing.” Make sure to catch Navigating the Legal Risks for Brands in Social Media Marketing - Part 1.







Watch this episode on the You Tube channel here







Show Notes:

Scott: Brands spend a lot of money on social media marketing, and that amount continues to grow. According to a recent survey, ad spend on social media is projected to reach 129 billion in 2024. However, social media marketing presents unique legal issues, not generally present in more traditional advertising. Last week, we discussed the legal risks for the celebrity endorser in social media marketing. This week, I'm joined again by my partner, Jessica Marlow, and we're going to discuss the legal risks for brands in social media marketing. I'm Scott Hervey with Weintraub Tobin; this is "The Briefing." Jessica, welcome back.

Jessica: Pleasure to be back.

Scott: Last week, we discussed the risks celebrities or influencers face in social media marketing. Today, we're going to talk about the risks brands face in social media marketing. Let's first talk about FTC compliance. Like influencers, brands have FTC compliance requirements. As you mentioned last week, Jessica, we did an entire episode on this.

Jessica: Right, but let's review a few points because it seems that this can be one of the biggest blind spots for brands.

Scott: Sure, you're right because this really is the biggest blind spot for brands. Previously, the FTC would hold an advertiser liable for misleading or unsubstantiated statements made through endorsements when there is a connection between the advertiser and the endorser. Now, the FTC has recently deleted the wording when there is a connection between the advertiser and the endorser. So generally, there's always a connection between an advertiser and an endorser because it is, after all, a marketing or a promotional message. However, the FTC pointed out that a connection is not always needed for an advertiser to be liable for an endorsement. If, for example, an advertiser retweets a positive statement made by an unrelated third party or publishes in an advertisement a positive review by an unrelated third party, those statements or reviews become endorsements for which an advertiser may be liable. The despite the lack of any connection.

Jessica: Right. Then, there are performance claims. Performance claims must be for the typical result. If the results being hyped are atypical, then the advertiser must clearly and conspicuously disclose the generally expected performance in the depicted circumstances. To be effective, the disclosure must alter the net impression of the advertisement so that it's not misleading. Scott: If the brand is reposting content from a paid endorser or someone who received anything of value to make that initial post, the brand must make sure that the material connection between the brand and the endorser is conspicuously disclosed.

Jessica: In boosting, upvoting, reposting, pinning, or liking consumer reviews of products, a brand should not take action that have the effect of distorting or otherwise misrepresenting what consumers think of their product. This includes suppressing or deleting negative reviews or comments.

Scott: Like risks with FTC compliance,

Delve into the legal terrain of influencer marketing from IP infringement risks to FTC guidelines compliance. Scott Hervey and Jessica Marlow from Weintraub Tobin navigate the complexities of brand deals with expert insights on safeguarding your brand partnerships on this episode of “The Briefing.”



Watch this episode on the Weintraub YouTube channel here.





Show Notes:

Scott:

Influencer social media marketing is big business, whether it's a brand integration on Instagram by an influencer or a long-term brand endorsement deal by an A-list movie star. Each deal is different, but there are similar issues that are apparent in all brand deals. I'm Scott Hervey with Weintraub Tobin, and I'm joined today by my partner, Jessica Marlow. Today is part one of our profile on understanding and navigating risks in brand marketing deals on today's installment of "The Briefing" by Weintraub Tobin.



Jessica, welcome back to "The Briefing."



Jessica:

Thank you. Happy to be back.



Scott:

This is something we both deal with frequently from both the brand and the talent side. There are certain risks that celebrities and brands have to navigate in these types of deals. Making these risks more prevalent is the fact that we're talking about digital marketing, where things tend to move quicker. And for whatever reason, people, even marketing professionals, may sometimes believe that the laws applicable to terrestrial or regular advertising don't apply to the Internet. Let's talk about our top general risks from a talent perspective and how to deal with them. Now, we have a bunch of lawyers that listen to our podcast, and you might have a different list, and we would love to hear from you if you think we should have covered something that we didn't. But this is what we think are the top legal issues in a talent brand deal.



Jessica:

One of the major risks is IP infringement. Now, this is multifaceted, and the risk of infringement comes from a few different places. First, there is infringement risks that the celebrity or influencer imposes on themselves, which can happen in a few ways. The first way is by using content where the copyright is owned by a third party, for example, where a celebrity or influencer posts an image that they don't own. You've covered a few cases on "The Briefing" about this.



Scott:

That's right. One of the more well-known case is what is O'Neill versus Ratajkowski. While that case didn't necessarily involve brand marketing, it's a perfect example of this type of risk. In 2009, O'Neill, who was a professional paparazzi, took a photo of Ratajkowski outside of a flower shop in downtown Manhattan. Now, the photo showed Ratajkowski with her face covered by this bouquet of flowers. O'Neill subsequently registered his photograph with the Copyright Office. Now, shortly after O'Neill posted the photo online, Ratajkowski posted the photo on her own Instagram account. The photo she posted was the same, except that she added the words "Mood Forever" to the bottom of the Instagram post. Now, O'Neill, of course, sued Ratajkowski and her loan-out company for copyright infringement.



Jessica:

Right. And Ratajkowski tried to get out of the case on a fair use defense on a motion to dismiss, but she was unsuccessful. And this case was before the Supreme Court ruling in Warhol versus Goldsmith. Under the new fair use analysis, it's almost certain that Ratajkowski would not have had a fair use defense.



Scott:

Yeah, that's true. And this type of liability isn't just limited to cases where the photo ...

In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss a defamation dispute between Rachel Williams – a victim of con artist Anna Sorokin – and Netflix, over her portrayal in the docudrama “Inventing Anna.”



Watch this episode on the Weintraub YouTube channel here.





Show Notes:

Scott: Netflix finds itself mired in yet another defamation and false light lawsuit, this one brought on by its portrayal of Rachel Williams, the Vanity Fair photo editor who’s friendship with Anna Delvey –  who passed herself off as German heiress Anna Sorokin.  Williams’ complaint raises some interesting questions about the portrayal of Williams in the program.  We are going to discuss this lawsuit on the next installment of the Briefing by the IP Law Blog



Scott: Rachel Williiams does not come across well in the Netlix program, Inventing Anna.  Rather, she comes across as a privileged, freeloader, who sponges off of Sorokin and then abandons Sorkin when Sorkin’s real situation comes to life. So, let’s talk about what Williams will have to establish in order to move her claim forward.



Josh:  Williams. brings claims for   defamation and false light.  For her defamation claim Williams will have to establish: that the statements were defamatory; that the statements were published to third parties; that the statements were false; and that it was reasonably understood by the third parties that the statements were of and about herf.  Since Williams is a public figure – she published a story in Vanity Fair and a book about her experiences with Sorkin – she must also prove by “clear and convincing evidence” the statement was made with “actual malice” meaning that the defendant knew the statement was false, or had serious doubts about the truth of the statement. In most states, libel is defined similarly.



Scott: A false light claim is a type of invasion of privacy, based on publicity that places a person in the public eye in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the aggrieved person would be placed.  A false light claim is equivalent to a libel claim, and its requirements are the same as a libel claim, including proof of malice.



So, in order for Williams to prevail on both her false light and defamation claims, she would have to demonstrate that her portrayal in Inventing Anna was (1) assertions of fact, (2) actually false or create a false impression about her, (3) are highly offensive to a reasonable person or defamatory, and (4) made with actual malice.



Josh:  Actual malice would be established by showing that Netflix deliberately portrayed Williams in the hope of insinuating a defamatory import to the viewer, or that Williams knew or acted in reckless disregard as to whether her portrayal would be interpreted by the average viewer as a defamatory statement of fact.



Scott: So, let’s take a look at the various portrays of Williams she claims to be actionable.  Williams notes a scene in episode 2 where Sorokin’s friend Neff Davis states or implies that Williams used to be Sorokin’s best friend, but Williams dropped her as a friend because she was



jailed and could not pay for Williams’ social life and clothes.  Williams claims that these scenes are false.   Williams was friends with Sorokin because she liked her, not because Sorokin would pick up the tab, and she did not drop Sorokin as a friend because Sorokin was no longer able to pay for her social life and clothes, but rather because she discovered that Sorokin had made ...

Discover how truth became the ultimate defense in the legal battle between Cynthia Love and Kanye West. Join Scott Hervey and Eric Caligiuri from Weintraub Tobin as they unpack the court's ruling on whether displaying historical footage amounts to defamation on this episode of 'The Briefing'.



Watch this episode on the Weintraub YouTube channel here.





Show Notes:

Scott:

Truth is a defense to a defamation claim. So, it would be no surprise to think that displaying a recording of the way someone actually behaved at some past date would also not be defamation. That assumption was put on trial, literally, in the case of Cynthia Love versus Kanye West in the Central District of Illinois. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by Weintraub lawyer and frequent guest of "The Briefing," Eric Caligiuri, to talk about this case and the court's ruling on today's episode of "The Briefing."



Eric, welcome back to "The Briefing."



Eric:

Good to be here again, Scott. So, Scott, can you tell us a little bit about the history of the case?



Scott:

Sure. Absolutely. So, in 2003, Cynthia Love appeared in a Kanye West music video for "Talking Through The Wire." Love apparently does some short dance number in a barbecue restaurant before asking West for some change. She, according to the complaint and according to the court documents, she looks unsteady and sounds slurred. Fast forward to 2022, when Netflix released a docuseries called "Jeen-yuhs," a Kanye trilogy, which included clips of Love from that music video, plus previously unreleased footage, all totaling about two minutes of screen time. Love took issue with how she was portrayed in the clips taken in that barbecue restaurant decades ago, and so she sued.



Eric:

The basis of her claim is that the documentary captures Love at her darkest moments, and that is not who she is now. Love bases her defamation claims on the grounds that she is not the same person now that she was in 2003 when they made the music video.



Scott:

That's right, Eric. That's the basis of her complaint for defamation, false light, and other causes of action. On the defendant's motion to dismiss, the court analyzed Love's defamation claim. Now, under Illinois law, to state a defamation claim, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages.



Eric:

Similar to California law, in Illinois, truth is an absolute defense to defamation. True statements cannot support a defamation claim.



Scott:

That's correct. And the court found that any allegations about Love in the "Jeen-yuhs" docuseries were true. The docuseries included real-world, real-life clips of Love without doctoring the content or adding any false material. It shows true clips of a real event. The court noted that the docuseries makes clear that the footage is from 20 years ago, and the fact that Love later turned things around does not make the footage from years earlier false.



Eric:

So, a defamation claim fails if the allegedly defamatory statement is a historical truth, even if it's not necessarily the current truth.



Scott:

That's right. If a defamatory statement is a historical truth, even if it's not currently true, it's true, and the defamation claim must fail. The "Jeen-yuhs" video accurately portrayed Love in a moment of time several decades ago. The video does not suggest that Love in this day remains in an intoxicated state or anything of that sort. The video shows a past truth without suggesting that the past is the present.