October 14, 2025
By Emily Poler
I previously wrote about the US Copyright Office’s policy on works created with AI and the decision in Thaler v. Perlmutter, which denied copyright registration for a work listing an AI platform as its sole author. In that post, I predicted we’ll soon see litigation over which elements of work created with AI can be copyrighted.
While I’m pretty sure those suits will start to pop up, right now I want to talk about another case where the Copyright Office decided that a work created with AI was ineligible for copyright protection. This case, Allen v. Perlmutter, also raises some of the issues I noted in another recent post where I suggested it might be time to reconsider some of the policies underlying US copyright law in light of how much has changed since the US Constitution and the first copyright law were created in the 18th Century.
The story: Jason Allen created an image titled Théâtre D’opéra Spatial using Midjourney AI and entered it in the 2022 Colorado State Fair’s annual fine art competition, where it won a prize. The US Copyright Office, however, was less impressed and denied his application for copyright protection, finding that it was created by Midjourney. Allen then filed suit challenging that decision. (Before diving in, two notes. One, H/T to Paul LiCalsi for pointing this case out to me. Two, in case you’re wondering, Shira Perlmutter, the defendant in both Thaler and Allen was, until recently, the Director of the US Copyright Office).
Some background. To be eligible for a copyright, a work must be “original” and have an “author.” Of course, the law has long recognized that humans create copyrightable materials using machines all the time. In 1863’s Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court found Napoleon Sarony’s photograph of Oscar Wilde was eligible for copyright protection, rejecting Plaintiff’s argument that photography is a mechanical process devoid of human authorship. The Court ruled that Sarony’s numerous creative choices in composing the photo meant he was the author of the work and, therefore, should be treated as such under the Copyright Act. Since then, courts, including the Supreme Court, have repeatedly held that only a minimal degree of creativity is required for something to be copyrighted.
In this present case, Allen created his artwork by inputting many, many text prompts (over 600!!) into Midjourney to get the result he wanted out of the AI. Also, once he finished creating that initial image, he tweaked and upscaled it using additional software like Adobe Photoshop. The Copyright Office, nonetheless, denied registration for this work, finding that it lacked the “traditional elements of authorship” because Allen “did not paint, sketch, color, or otherwise fix…” any portion of the image.
However, as Allen’s attorney points out in his lawsuit, there is no legal definition of the “traditional elements of authorship” and, what’s more, creativity, not the actual labor of producing a work, is the hallmark of authorship under the Copyright Act.
What to make of this case? Well, for starters, I’m curious to see the Copyright Office’s response regarding its narrow and archaic “traditional elements of authorship.” I imagine it’s going to be hard, if not impossible, to claim those can’t include use of a machine because, well, most everything that is obviously eligible for copyright protection in the 21st Century (music, movies, photography, etc.) uses hardware and software. Also, I wonder the extent to which some of the issues in this case reflect a basic uncertainty about how to characterize and appraise the skills (conceiving and refining detailed prompts) Allen employed to get Midjourney to create the work, compared to what we traditionally think of as visual art skills (painting and drawing). And, elaborating on that last point, how do we define creativity in light of all of the crude AI slop out there? (One example: check out the chair in this clip when the reporter retakes her seat.) Do we need to make some big decisions about what qualifies as helping “to promote the Progress of Science and useful Arts” (the purpose of the Copyright Act) by taking into account that some created work is good, borne of inspiration, purpose and ever-evolving skills, while a lot of stuff that gets made is just plain lazy, bad and crudely functional? Tough calls lie ahead.
October 7, 2025
By Laura Trachtman
I started this series because, at first glance, I was irritated and vexed at how nonsensical and idiotic this Executive Order was. Now that I’ve dug in and really spent time thinking about it, I’ve realized that this is an incredibly dangerous EO, as through its issuance, President Trump usurped the power of the Legislative and Judicial Branches, and has declared open war on Americans. Friends, if you aren’t worried, you should be.
In my previous posts about President Trump’s Executive Order, we discussed his blatant hypocrisy and pandering to bigots in determining that sex is a binary construct. We’re going to continue our examination of the third part of this policy, how it is perverting the Equal Employment Opportunity Commission’s mission, and how the Executive Branch has failed to respect the Judicial Branch’s authority to interpret laws and set precedent as well as the Legislative Branch’s authority to enact laws and dictate their purpose.
Section 3 states in pertinent part:
(d) The Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management, shall implement changes to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex, as defined under section 2 of this order; and the Director of the Office of Personnel Management shall ensure that applicable personnel records accurately report Federal employees’ sex, as defined by section 2 of this order.
(e) Agencies shall remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.
(f) The prior Administration argued that the Supreme Court’s decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.
(g) Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.
While Section 3(d) isn’t the main thrust of today’s post, I cannot let it pass uncommented upon. What this does is it misgenders those individuals who have already corrected their gender identity. As a brief reminder, Section 2 forces individuals to identify with the gender they had “at conception”; as another brief reminder, this exposes this policy as written by idiots as everyone is female at conception (which is why everyone has nipples). The practical effect of this policy is that individuals who present and identify as female, although assigned the male gender at birth, will be forcibly reclassified as male, and those who present and identify as male, although assigned the female gender at birth, will be forcibly reclassified as female. In an ironic twist, this will force trans men to use female bathrooms – which, as we discussed in an earlier post on this topic, will force men into women’s bathrooms and into women’s domestic violence shelters, which are two issues that this Executive Order allegedly sought to correct. As I said, this was written by idiots.
However, Sections 3(e) and (g) this Executive Order are significantly more dangerous than I initially anticipated, as they serve to declare war on the trans community. This is eloquently and briefly described in the resignation email of Marc Byron Seawright, former Director of Information Governance and Strategy, which can be found here. In this email, Mr. Seawright noted that:
As a transgender and queer man, I have experienced direct and escalating harm in the form of open hostility toward LGBTQ+ people along with internal agency actions that undermine my credibility, diminish my role, and isolate me from decision-making. Until now, my accomplishments have been consistently praised and highly rated. Now, I am systematically devalued. I have been excluded from discussions where my expertise was once sought, and my professional recommendations have been disregarded without justification. I endure passive exclusion, professional isolation, and a hostile work environment because who I am does not align with the anti LGBTQ+ rhetoric of this interim [EEOC] administration.
This is wildly alarming. The EEOC, the executive agency specifically tasked with prosecuting discrimination, has itself become the catspaw of this transphobic Administration. This transformation of the EEOC defeats the purpose of the legislation that created it and fails to accord trans Americans their Constitutionally guaranteed rights to equal protection and thus takes power from Congress, which enacted this legislation.
But wait, there’s more. President Trump’s directive in Section 3(f) to ignore the decision issued by the Supreme Court of the United States in Bostock v. Clayton County (2020) is nothing less than a usurpation of the power of the Judicial Branch and an affront to our system of government. Critically, this also underscores the Trump Administration’s declaration of war on queer and trans individuals by allowing employers to fire individuals simply for being queer or trans, which SCOTUS in Bostock v. Clayton County determined was a violation of Title VII of the Civil Rights Act, and thus illegal. Now, per President Trump’s Executive Order, that’s actually totally fine.
So now, where does a trans person turn should they be discriminated against in employment? They have no protections under the EEOC, the federal agency tasked with preventing and remedying illegal discrimination. We can hope that our trans friend lives in a state (or city) which has enacted strict anti-discrimination laws and can turn to that entity for assistance, but with this Administration challenging the foundation blocks of our very government, I am left to wonder how long until the Trump Administration takes aim at the Tenth Amendment. So far, President Trump has issued this Executive Order which has disregarded the powers of the Judicial Branch and the Legislative Branch; how long until President Trump takes aim at the powers reserved to the States?
September 30, 2025
By Emily Poler
Both kinds of people — lawyers and non-lawyers — often tell me they could never be a litigator. Why? Because they hate confrontation. Well, here’s a secret for you: Notwithstanding my 20-plus years litigating difficult disputes, I don’t enjoy it much myself. But of course, it comes with the territory. So how do I deal with confrontation? And, also, why be a litigator if I’m not so keen on the conflict part of my job?
First, let me make one thing clear: Not every relationship with opposing counsel is contentious. There are many cases when I have a good working relationship with opposing counsel, at least most (or some) of the time. In such cases, there will certainly be moments where opposing counsel and I push and shove or throw an elbow. However, there is usually a level of mutual respect that keeps things relatively cool. Plus, we usually share the understanding that our respective clients naturally have opposing views and, despite that, it’s our job to move the case toward a resolution.
Unfortunately, however, those occasions when I have an amicable working relationship with opposing counsel make up the minority. Matters are usually more antagonistic, and while I certainly try to be respectful of my adversaries in those cases, I’m only human — and if someone tries to dunk on me, I will give as good as I get.
However, that doesn’t mean that I hit back the same as how they come at me. Or, put bluntly, when an opponent acts unprofessionally, shouting and threatening, I don’t play like that.
One of the best ways I’ve found to deal with cranky opponents is to be true to who I am. I realize the word “authenticity” has been overused to the point of meaninglessness, but it’s pretty apt here. I am not a screamer. It’s just not how I communicate. There are a couple of reasons for this, and maybe an exploration of why could be a post for another time, but basically, any attorney who aggressively rants and raves makes me embarrassed for our profession. And I am not going to pile on that kind of undignified behavior.
As a result, I deal with unpleasant adversaries on my terms. If someone screams at me, I will respond calmly and in a measured way. If they keep banging on, and particularly if they insult me or my client, I will hang up the phone or walk away from the meeting.
Similarly, as will surprise nobody alive in the year 2025, some people are more comfortable bending facts or ignoring them all together. Again, I am not one of those. Instead, being a great big nerd, my approach is to show up to every interaction, negotiation and trial 100 percent more prepared than my adversary, in touch with reality, equipped with foreknowledge of potential problems and armed with an arsenal of viable solutions.
While an obnoxious adversary can drive anyone to distraction, throughout the battle I really, really, really try to keep my eyes on the ultimate prize my client is after. And that is what I view as being at the heart of my role in every case and, to answer the question I raised in the first paragraph, the heart of why I’m a litigator. I’m here to help people, doing a job, representing my clients, and bringing my experience and expertise to achieve their desired goal. Pettiness, anger, and loud, loathsome behavior won’t get us to the results we want.
And, to quote Mr. Dylan, it ain’t me, babe.
September 23, 2025
By Laura Trachtman
In my previous post about President Trump’s Executive Order, we discussed his blatant hypocrisy and pandering to bigots in determining that sex is a binary construct. We’re going to continue our examination of the second part of this policy, and how it is just plain wrong.
Now, in full disclosure, this is going to be a post addressing mostly science and history/sociology, but the idiocy of it all continues to vex me, so bear with me. Or, tune in soon for part three, where I return to the law.
The Executive Order reads:
Sec. 2. Policy and Definitions. It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality. Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality, and the following definitions shall govern all Executive interpretation of and application of Federal law and administration policy:
(a) “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.”
(b) “Women” or “woman” and “girls” or “girl” shall mean adult and juvenile human females, respectively.
(c) “Men” or “man” and “boys” or “boy” shall mean adult and juvenile human males, respectively.
(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.
(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.
(f) “Gender ideology” replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex. Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.
(g) “Gender identity” reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.
You’ll note that I have highlighted Sections 2d and 2e above. Why? Because even as an indifferent science student, I remember that at conception, every single fetus is female. This is why men have nipples, because fetuses develop nipples before the biological sex is determined by chromosomes.
Knowing that simply because I say something doesn’t make it true, this book, Understanding the Biology of Sex and Gender Differences; Wizemann TM, Pardue ML, editors. Washington (DC): National Academies Press (US); 2001, confirms my recollection (emphasis supplied):
All human individuals—whether they have an XX, an XY, or an atypical sex chromosome combination—begin development from the same starting point. During early development the gonads of the fetus remain undifferentiated; that is, all fetal genitalia are the same and are phenotypically female. After approximately 6 to 7 weeks of gestation, however, the expression of a gene on the Y chromosome induces changes that result in the development of the testes. Thus, this gene is singularly important in inducing testis development. The production of testosterone at about 9 weeks of gestation results in the development of the reproductive tract and the masculinization (the normal development of male sex characteristics) of the brain and genitalia. In contrast to the role of the fetal testis in differentiation of a male genital tract and external genitalia in utero, fetal ovarian secretions are not required for female sex differentiation. As these details point out, the basic differences between the sexes begin in the womb, and this chapter examines how sex differences develop and change across the lifetime. The committee examined both normal and abnormal routes of development that lead individuals to become males and females and the changes during childhood, reproductive adulthood, and the later stages of life.
Obviously, this disproves President Trump’s assertion that gender is immutable, as all festus are female at conception, and only later do they transform into males (or others!).
President Trump also asserted in Section 2a that gender is a binary. Please note that aside from confirming that all humans are female at conception, this article also acknowledges that there exist atypical sex chromosome combinations, thus defying the assertion that gender is a binary.
We’re going to move on to gender ideology and gender identity. Not only are there myriad examples of trans people in today’s society, there have been trans individuals since society began. Before you scoff at the ignorant pre-historical people and say that they don’t count, Generals Casimir Pulaski (1745-1779), who saved George Washington’s life at the Battle of Brandywine in 1777 and who died fighting for the Revolution, and James Barry (1789-1865), who served across the British Empire and fought to improve living conditions for the soldiers who served under him, were both trans men. Many Americans know about two-spirit American Indians, and Zapotecan muxes, but there are also other people as well across the globe. To insist that, because our American culture does not celebrate a third gender, there is no third gender, is just ignorant.
If you take away nothing else from this post, please read this: it’s no one’s business, especially our government, what’s in anyone else’s pants. If you are a believer in any of the Abrahamic religions, please review Genesis 1:27. If you find yourself wondering whether someone you interact with is male or female or trans or something else, you can politely ask them what their pronouns are, or you can remind yourself that it is truly none of your business.
September 16, 2025
By Emily Poler
Will they never learn? Yet another chapter has opened in the ongoing follies of lawyers using AI. This time, it’s in a putative class action against OnlyFans’ parent company — Fenix International Ltd. — for, among other things, civil violations of the Racketeering and Corrupt Organizations (RICO) Act. Putting the merits of Plaintiffs’ claims aside, a very unwise and/or unfortunate contract attorney working for one of the law firms representing Plaintiffs used ChatGPT to generate four briefs filed in federal court in California. It turns out that those briefs contained dozens of AI-generated hallucinations, including 11 made-up citations (out of a total of 18) — fictional cases, rulings and precedents that are embarrassing the guilty attorneys and threatening to derail a potentially legitimate lawsuit.
Oops.
In case you don’t know, OnlyFans is an Internet platform in which individual creators get paid via subscriptions and pay-per-view for the video content they generate (yes, there’s a lot of porn on it). The suit was filed on behalf of OnlyFans users who allege the site employs professional “chatters” (including AI) to impersonate content creators in their interactions with users, without disclosing that users aren’t messaging with the actual personalities they pay to talk with (let’s not get into how this is a RICO violation).
Just by way of background, whenever I submit something to a court, either I or our paralegal goes through every citation, whether it’s to a case or to an underlying document, and makes sure (1) it says what we say it says, and (2) we have the citation and the name of the case right. Obviously, the point of this exercise is to avoid making misrepresentations and damaging our client’s case, while also embarrassing ourselves in front of a judge. Both are things that I really, really try to avoid. Also, one of my jobs as an attorney is to try to avoid calling attention to myself and, instead, keep the focus on the merits of my client’s arguments (or the lack of merits of the other side’s arguments).
Yet one of the firms representing Plaintiffs in the OnlyFans suit, Hagens Berman Sobol Shapiro LLP, seems to have not taken these basic steps. That firm hired a contract attorney as co-counsel. Apparently, she was dealing with a family crisis at the time and turned to AI as a shortcut in preparing the briefs. AI — predictably — generated all the errors and invented citations. As if that’s not bad enough, after Skadden Arps Slate Meagher & Flom LLP, the lawyers defending Fenix, discovered the issue and brought it to the court’s attention, Hagens Berman tried to explain it away rather than simply admitting their screwup and begging for forgiveness. As a result, the firm now finds itself in a fight to have the judge let them redo the AI-generated briefs, asserting the corrected briefs are essential to their case. Fenix, meanwhile, is seeking to dismiss, arguing there is no way to “correct” fictional citations, adding that Plaintiffs blew their chance to fight the dismissal by using the AI hallucinations in the first place.
A couple of issues worth highlighting. The attorney who used AI may have been under stress because of her personal problems, but that’s no excuse for her actions. It’s also a reminder that attorneys should never take on more work than they can handle, as it is a grave disservice to their clients and, ultimately, to their own reputation — and potentially their career.
Also, while this attorney was hired as an independent contractor by Hagens Berman, the actual materials submitted to the Court were signed by one of the firm’s attorneys without first checking her work. This is an absolute no-no. The fact that the contract attorney had reportedly done good work in the past doesn’t make it ok.
What is the proper punishment here? A hearing is set for September 25 to determine whether the court should issue sanctions. Regardless of any discipline meted out to the law firm, the real losers would ultimately be the Plaintiffs if their case is damaged or dismissed because of their attorneys’ negligence.
Stepping back from this specific case, is it time for broader standards on the use and disclosure of AI in legal work and court papers? For me, the larger question is, are specific rules necessary, or should the failure to catch wrong or false materials created by AI fall within existing codes of conduct mandating that attorneys provide the level of “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” of clients? In the OnlyFans case, the attorneys clearly did not not meet that standard, and while the issue of AI usage is novel, deception of courts is not.
While all this is being hashed out, some courts have already begun to require attorneys to disclose when they use AI. And the decision in this case, which is being watched by many in the legal community, may well set a precedent for how courts deal with AI hallucinations in the future.
