November 11, 2026
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.”
October 27, 2026
By Emily Poler
Alert! If you plan to watch You Can See Everything, the documentary about disgraced entrepreneur Elizabeth Holmes and haven’t yet, some very mild spoilers ahead. Otherwise, read on.
In case you’ve missed the cultural hoopla, the film crew basically moved into the house Holmes shared with her partner, Billy Evans, and their children for the month before Holmes went to prison for defrauding investors in Theranos. (If you’ve forgotten, Theranos was a mult-billion dollar health technology company founded by Holmes. She claimed the company invented a revolutionary mechanism for performing blood tests. However, it was all a bunch of B.S., she was convicted of fraud, and sentenced to 11 years in prison.)
There were sooooo many interesting things about the doc! It focuses on Holmes’ world and her relationship with Evans just before going behind bars in May, 2023, and follows up two years later while she’s doing time and Evans is raising their two kids. But the film is also about the relationship between documentary film crews and their subjects, what’s truth and what’s a lie, and, most fascinating, how people’s minds work.
Is talking about a documentary an unusual topic for this blog? I suppose so, but there are a couple of legal, or at least legally adjacent elements to it, that I think are worth discussing. Plus, it’s my blog!
So first off, unlike many documentary films where the crew is unseen or appears only as a disembodied voice asking questions of the subject, the crew here and co-director Nathan Fielder, are very, very present throughout. As a lawyer, I found Fielder’s manner fascinating. He frequently would ask Holmes or Evans questions and, after they finished answering, Fielder would say nothing. Eventually Holmes or Evans would start to talk again with both, and Evans in particular, revealing more than was in the initial answer.
This tactic is similar to something I and many other litigators do in depositions. We ask a question, get an answer, and then pause. There are a couple of reasons for this but a big one is that most people are uncomfortable with silence and when faced with it, they will start babbling. As in You Can See Everything, leaving awkward silences can lead to getting your best information.
Also, Fielder spoke in a completely deadpan, cool manner, as if he had no idea his difficult or embarrassing questions might make the subject uncomfortable. Again, this is really similar to what many litigators do in depositions. When questioning a witness, I need to get a great deal of information, much of which is banal, but some of which the witness might not want to divulge. So I need to dispassionately ask questions that get the easy answers while also not tipping the witness off to where I’m going in quest of the hard stuff. I also can’t show any emotion when he or she divulges something that’s great for my client’s case (or display my frustration when the witness is less than truthful). Those “gotcha” moments are, of course, critical to the process, but while I get the sense that a lot of non-lawyers (and maybe some lawyers who aren’t litigators) think litigation is just a series of “gotcha” moments, it’s really not (at least for me). They’re one piece of the overall gathering of necessary data.
If you watch the movie, you’ll see Fielder did a great job using those techniques to draw unexpected revelations from Holmes and Evans, which is a big part of why the doc is so amazing and it seems like everybody is talking about it right now.
Finally, a question for any criminal defense attorneys out there: How does the law handle profits generated by a book or film for people who have been convicted of crimes when they participate in the production? I don’t want to go into too much detail here, but part of the film delves into whether Holmes or her partner, Evans, will make money from the doc, which has already grossed $45 million in the two weeks since release. Given that Holmes owes millions of dollars in restitution, is there any chance that she would ever receive that money or would it go (relatively) straight to her victims?
If anyone has any idea, can you let me know?
October 13, 2026
By Emily Poler
One thing I find sooooo satisfying is a copyright case where the judge starts by saying, “hey, yeah, the litigants are asking us to figure out infringement related to new technology, but no matter the fancy-sounding jargon you’re throwing at me and what you claim are the earth-shattering stakes, this is JUST a copyright case. And I’m going to apply copyright law the same as I would if you brought a copyright case involving an old-fashioned book.”
Ok, it’s not a direct quote, but it’s the gist. So why does this get me so excited? Regardless of what I think of the outcome of a case, and as much as I like diving into new tech, for me, what I really love about being a lawyer and a litigator is reasoning by analogy. And, in the Third Circuit’s recent decision in Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence, Inc., (which I first wrote about here) the Third Circuit gave me what I love. “Under ROSS’s framing, this case appears to concern the future of AI legal technology. But appearances can be deceiving. In truth, this is no more than an ordinary copyright case,” said Judge Tamika Montgomery-Reeves.
For those of you who aren’t lawyers, we use a Thomson Reuters product called Westlaw for legal research. One of the things that, IMHO, makes Westlaw so useful is its West Key Number System, which is more or less like the Dewey Decimal System (without, at least as far as I know, the racism and misogyny of Melvil Dewey). The system organizes United States law into a structure of topics and key numbers that lawyers use to find cases relevant to specific legal issues and look for other cases that address the same issues. Most cases on Westlaw include a short summary called a headnote, which are generated by Westlaw editors.
ROSS Intelligence was (it no longer exists) a Westlaw competitor that “created an AI legal search engine that would respond to plain-language legal questions with relevant passages of text from judicial opinions.” To build this, ROSS hired a company to create training data for its AI, which consisted of questions and answers called “Bulk Memos.” Those Bulk Memos were based on — and quoted directly from — Westlaw’s headnotes. ROSS clearly intended its product to be a substitute for Westlaw; it even ran ads comparing its product to the Thomson Reuters database.
Not surprisingly, Thomson Reuters was none too happy about all this and sued ROSS. In response, ROSS claimed that Westlaw’s headnotes were not subject to copyright protection. It also argued its use of headnotes was an “intermediate” step and referenced a line of cases finding copying of computer code at an intermediate step to be fair use, where such copying was necessary to access purely functional elements of a computer program.
After some back and forth, the District Court found that headnotes were sufficiently original to be copyrighted. It also denied ROSS’s claim of fair use, noting that ROSS was not copying computer code. Late last month, the Third Circuit affirmed this holding.
It’s something of a landmark decision, since by my count it is the first case involving an AI platform to be decided by a Federal Appellate Court. And there are a couple of things especially noteworthy about the Court’s conclusions.
First, since ROSS’s end use — to assist with legal research — was the same as Westlaw’s, the Third Circuit found that ROSS’s use wasn’t particularly transformative, which weighed against a finding of fair use. The Court was also not particularly impressed with ROSS’s reliance on precedent that “intermediate” copying of computer code was fair use because, in contrast to those previous cases, ROSS didn’t NEED to copy the materials. ROSS simply chose to do it because it was the easiest way to train its AI. In addition, ROSS copied headnotes and not computer code.
The Third Circuit also found that, even though Thomson Reuters hadn’t yet licensed its headnotes, ROSS’s conduct could harm the potential market for Thomson Reuters to do so. (When considering fair use courts look at the impact on the potential market for the work being infringed.) This is interesting because earlier this year, the judge in the Meta copyright case found that this factor weighed in favor of fair use because the plaintiffs (authors, in that case) hadn’t presented evidence of harm to the licensing market. Obviously, the Third Circuit saw things differently.
What does Thomson Reuters’ victory mean for other AI-related copyright cases going forward? In my view, its impact may be limited because the use at issue here is so specific, and ROSS’s product was clearly directly competitive with Westlaw. In contrast, the LLMs at issue in cases involving Meta and Anthropic can be used for a wider range of tasks. For example, if an author’s novel is ingested into an LLM that is used to create materials that are not novels — say, an email to opposing counsel — the new use is less clearly competitive. Nonetheless, the ROSS case represents another step in the ongoing journey of AI through the courts, the epic saga of our legal (and cultural) times that we will continue to watch with bated breath.
September 29, 2026
By Emily Poler
Most copyright disputes you hear about — and most that I write about — question whether a work has been infringed or whether an infringement constitutes fair use. But that’s not every case! There are pretty interesting and obscure provisions in the Copyright Act that sometimes come into play, like that at the crux of a current lawsuit brought by old-school hip-hop artists Salt-N-Pepa against the record label that owns the music from their golden age as the First Ladies of Rap.
This provision, section 203 of the Copyright Act, allows artists to reclaim their copyrights and/or sound recordings from an entity to whom they transferred ownership after 35 years. The thinking behind it is that throughout the history of pop music, artists often got screwed when they signed their first contracts because they had less bargaining power than they eventually gained after becoming successful (and having the wherewithal and cash to hire attorneys). Imagine the difference, say, in Dolly Parton’s ability to favorably negotiate her first record deal when she was an unknown teenager from eastern Tennessee versus the imperial powers the Queen of Country wielded at the time of her death (RIP Dolly 😢).
That said, this right of reclamation only exists where there was (a) a grant of a transfer or license of copyright, and (b) that grant was executed by the author. Notably, the statute specifically says this right to terminate a transfer or license does not apply to works for hire. This makes sense because when someone creates something as a work for hire, that person isn’t legally the author of the work; the company they work for is.
And all that is the problem for Salt-N-Pepa. In 1986, the group’s members, which include Cheryl James (Salt) and Sandra Denton (Pepa), entered into a couple of agreements with Noise in the Attic Productions, Inc. (NITA), a company owned by their producer and manager Hurby Azor. (As an aside, shout-out to the third member of the group, Deidra Roper a/k/a Spinderella, their DJ, who is not involved in the case. But we should never forget Spinderella.) That contract names NITA as the “sole and exclusive owner” of the master recordings and all copyrights. Azor subsequently assigned those rights to the Next Plateau Records label in an agreement that James and Denton were not signatories to (the pair only signed an attached “inducement letter”). The years went by, record labels were bought and sold, the industry consolidated and today, the rights to the four albums Salt-n-Pepa recorded between 1986 and 1993 are owned by entertainment behemoth Universal Music Group (UMG).
James and Denton now say that those agreements are subject to termination under the Copyright Act. In keeping with this, in 2022 they served UMG with notices of termination. UMG responded saying the 1986 agreements did not amount to a transfer of copyright based on how those original agreements were structured, and that Salt-N-Pepa’s recordings for NITA were also works for hire. Either way, says UMG, James and Denton weren’t eligible to get their copyrights back.
As will surprise no one who reads this blog, James and Denton filed suit. However, the District Court judge agreed with UMG and dismissed the case. In her dismissal, the judge wrote “the 1986 agreements do not indicate that Plaintiffs ever owned the copyrights to the sound recordings or that they granted a transfer of those rights to anyone else.” Basically, the judge determined that the only assignment of ownership was NITA’s transfer to Next Plateau and no contract James and Denton executed indicated otherwise. Crucially, the judge said that James and Denton had failed to expressly assert copyright ownership in their original agreement with NITA. Thus, according to the judge, James and Denton never held any copyrights in the work they created. While the judge didn’t issue a decision on whether the recordings were works for hire, she did note that the original copyright registrations described NITA as “employer for hire.”
Last week, the Second Circuit heard the appeal of this matter. Salt-n-Pepa’s attorneys argued that the 1986 agreements they signed with their producer transferred rights that are subject to the Copyright Act’s termination section. They also argued that the District Court judge erred by insisting that artists expressly assert copyright ownership in their contracts. According to Salt-n-Pepa’s attorneys, by doing so the judge invented a “new requirement out of whole cloth” where the Copyright Act has no such rule.
UMG, for its part, said that the 1986 agreements were clear that Salt-n-Pepa hadn’t granted or licensed their copyrights to their producer. Therefore, according to Universal, there was no agreement to be terminated under Section 203 of the Copyright Act.
As with all things litigation, we’ll have to wait and see where the Second Circuit comes out. If I had to guess, I’d say that there’s a chance the Second Circuit reverses the District Court’s opinion, but not because the District Court’s conclusion was necessarily wrong. Rather, I think the Second Circuit may find that the 1986 contracts are a bit of a mess and, therefore, the case shouldn’t have been dismissed at a very preliminary stage.
While this gets sorted, we can all kick back and bop down memory lane to Salt-N-Pepa classics like Push It, Shoop, Whatta Man, or Let’s Talk About Sex, right? NOPE! UMG has removed the old albums from streaming platforms, claiming the question of who could license the music was unresolved; James and Denton allege the action is retaliation against their efforts to reclaim their work. So if you want to hear the original hits, you’ll have to dig out your old CDs. Assuming you still have something to play them on; if not, ask your kid, because apparently CD players are back in vogue among Gens Z and A.
September 15, 2026
By Emily Poler
Labor Day has come and gone, commercials for Starbucks Pumpkin Spice Latté (blech) are flooding the streaming platforms, and all those fresh-faced (for now) first-year associate attorneys are marching off to their new lives. Which puts me in mind of my early days in the legal arena, and specifically, the first trial I ever participated in. Well really, it was an arbitration hearing in a conference room, not a courtroom, but close enough to the real thing for young me. I was a super junior lawyer, a year or so out of law school, and it was just me and one of my firm’s partners representing our side. A lot of what went down was well above my pay grade, but I could work a photocopier and put papers into folders, so that was pretty much my role. Nonetheless, there were a bunch of things that day that have stuck with me.
Our client’s only witness was a woman. As the hearing went on, every time my colleague was concerned about what she might say or how well she was prepared to testify on a particular topic, he would send me and her to the ladies room. Why? Because we were literally the only two people using it so there was absolutely zero risk of anyone overhearing our potentially privileged conversations. Cone of silence! I suppose nowadays some might cry sexism (“they made you act like girls at a nightclub going to fix your makeup together!”), but it made sense at the time and worked perfectly.
More to the point of this post, however, I was amazed by the way my colleague just absolutely badgered the other side’s lead witness. At one moment the witness even swiveled his chair, turning his back for a temporary respite from the brutal cross-examination. (The arbitrator in the room exercised absolutely no control over the proceedings; he definitely dozed more than once during the hearing.) The other side must have had counsel, but I remember absolutely nothing about him or her and have no recollection of any effort to try to stop our side’s super aggressive questioning.
At the time, I was shocked at my colleague’s performance (and it was most assuredly a performance). I also remember thinking that, particularly as a young woman, there was absolutely no way in a million years I would ever be able to treat a witness like that.
Such lawyerly steamrolling comes to mind as a result of some recent dealings I’ve had with opposing counsel. In one case, the attorney was insistent that we have discussions on the phone, with the clients joining. I agreed to it — once. On that first call it immediately became clear that what opposing counsel really wanted was to go around me and speak directly to my client. That call ended VERY quickly. Since then, all calls have been without clients and I’ve been very careful to send him notes in follow-up emails. My reward? He has made it clear he thinks I’m out of my mind for refusing to have our clients talk to him, and for daring to memorialize our discussions in writing. Fine, he can be as aggressive as he likes, such behavior has no effect on me anymore. I’m doing what I know is right for my clients and myself.
Flipping the situation, in another case the opposing firm has, for better or worse, put the proceedings in the hands of a very, VERY junior lawyer without much of a clue. Now, I could be an absolute jerk to her because she would have no idea of how to respond. An easy win and power move for me, right? But obviously I’m not going to beat her down because that’s not my game. I know I can get what I need for my client without torturing opposing counsel, nor do I need to fuel my ego by performing like a gladiator — a need that seems to drive too many in my profession.
All these thoughts boil down to the simple tenet that just because your opposing counsel is doing something in a particular way, you don’t have to do it that way. Nor should a client expect — or want — their attorney to be overly antagonistic when it does nothing to advance the cause (even if it can make for entertaining theater).
