November 11, 2026

Dispatches from a Panel on Copyright Law

By Emily Poler

Last week, I moderated a panel discussion titled Litigation Update on the Music Front, at the New York State Bar Association’s Entertainment, Arts & Sports Law Section Fall Meeting 2026, Music Business and Law Conference (That’s a mouthful, eh?). It was my first time moderating a panel like this and stay tuned, because I’m going to try to do this more. 

Our four illustrious panelists analyzed developments and decisions in high profile cases with implications for copyright infringement cases across all media. I’ve written about some of these here before, and it was fascinating to hear other attorneys’ perspectives on these very significant lawsuits. Here are some highlights (Alert: It’s longer than my usual posts, but I’d like to think it’s worth a few extra minutes reading time) 

Lindsay Korotkin of ArentFox Schiff LLP started the panel off with a look at the Supreme Court’s 9-0 decision in Cox Communications, Inc. v. Sony Music Entertainment, which reversed a $1 billion verdict against Cox for the internet service provider’s failure to prevent subscribers from sharing pirated copies of Sony-owned media over Cox’s network. Lindsay explained how SCOTUS’ decision will significantly limit copyright owner’s ability to hold ISPs liable for contributory negligence. According to Korotkin, the only way an ISP can be found liable is if it “intended that its service be used for infringement,” she said. “One of the big takeaways is paying attention to how things are being marketed and advertised,” as in the current Disney Enterprises, Inc. et al. v. MiniMax et al, (which I wrote about here), where MiniMax’s Hailuo AI video generator was advertised with images of copyrighted characters and the tagline “A Hollywood Studio in Your Pocket.” 

Next, Joshua Graubart of Spencer West discussed Vetter vs. Resnik, a dispute between a songwriter and the company that owned some of his music publishing. The lower court’s opinion in favor of the plaintiff, which the Fifth Circuit affirmed, “shocked a lot of people,” Graubart said. Long story short, the District Court and the Fifth Circuit concluded that an artist exercising termination rights (which you can find out more about here) in the US extends worldwide because all of that artist’s copyrights flow from the US rights. That’s the shocking part because until this case almost everyone assumed that termination rights only applied domestically. For now, the Fifth Circuit’s decision is going to stand because the Supreme Court declined to take the case. Why? Apparently because four justices recused themselves, leaving SCOTUS without a quorum. The four justices didn’t explain their motives, but Graubart says the leading theory is that all have publishing contracts with Penguin Random House, a sister company of BMG. And thus, Graubart asks, “can BMG go to the Supreme Court on anything?”

Remember the Kat Von D case (if you don’t, fear not, you can catch up here)? That’s where photographer Jeff Sedlik sued the celebrity tattoo artist over inking a dupe of his portrait of Miles Davis on a friend’s arm while posting the process on Instagram. Our panel’s Nancy Wolff of Cowan DeBacts, Abrahams and Sheppard LLP covered that one, in which the District Court denied Sedlik’s motion for summary judgment and the jury found against him, concluding the works weren’t similar in their overall “total concept and feel” (the so-called “intrinsic test”). This seemed crazy to anyone who looked at the two images! “There’s complete unpredictability with the intrinsic tests,” said Wolff, which she explained often are based on a jury’s emotions: “It could have been that they thought [Sedlik] was maybe annoying, and [Kat Von D] was a really cool celebrity tattoo artist, and they didn’t want her to be sued. And then to make it worse, it’s completely unreviewable.” Which is one reason why summary judgment, in which a judge presumably takes a more common sense view, is so critical to creators. Another reason: “If you generally can’t win on summary judgment, a case will settle because it is just so expensive to have a jury trial,” Wolff said. Sedlik subsequently appealed the summary judgment denial before the Ninth Circuit, but that Court’s three-judge panel declined to review. And so Sedlik appealed for an en banc review, a rare event in which all 11 Ninth Circuit judges considered his case in September. 

Last, but certainly not least, Felicity Kohn of Pryor Cashman, took on the case of Allen v. Perlmutter, which I wrote about here. To me, this was the most interesting case of the day. In summary, Jason Allen created an image in Midjourney AI and the US Copyright Office denied his attempt to register a copyright in that work, finding it lacked the “traditional elements of authorship” because Allen was basically contributing ideas (not protectable), and did not control “expression” of the final work (protectable). Kohn talked about how after reading Allen’s brief, in which he described how he selected the scene, the elements, and the tone, and then refined the generated image over 600 times to get the output he wanted, she felt there was enough human intervention to qualify for copyright protection. But then Kohn read the US Copyright Office’s brief, and was surprised to have her mind changed. (I had the same reaction!) “Although he honestly revised the image using Photoshop and upscaling software,” Kohn said, “the Midjourney output indisputably remained part of the work.” Kohn was especially impressed by an example the Copyright Office pointed to, where the prompt “white bunny with low ears, rainbow background, love, cute, happy” produced four entirely different looking bunnies (and only one with low ears), illustrating, in Kohn’s opinion, “how much of this comes from Midjourney and not from Allen. If the same prompt can result in such vastly differing expressions, the prompter then can’t be the one to translate the idea into expression. And that’s why he can’t be the author.”