May 27, 2025
By Emily Poler
Following up on my last post in which we, in part, discussed the United States Copyright Office and its developing standards for determining whether works created with artificial intelligence are eligible for copyright, we can now dive deeply into the recent “pre-publication” release of a report detailing that Office’s thinking on the topic of AI and fair use. A final version of the report is supposed to be published in the near future; however, the Trump Administration’s termination of the Director of the US Copyright Office, which, according to some, is linked to the Office’s issuance of this report, makes me wonder if this time frame might change.
Why is this important? Given the Copyright Office’s role as the government body to which someone who wants to register a copyright goes to file an application, as well as advising Congress on matters related to copyright, its reports are likely to influence the judges currently considering the lawsuits against the tech companies that own OpenAI and its ilk.
As a reminder, the fair use doctrine (some background here) allows use of copyrighted material under certain circumstances to be considered non-infringing (i.e., fair). Where a use is fair, the entity repurposing the copyrighted materials does not have to pay a license fee to the original creator. Courts have developed a four-part framework for determining if a new use furthers the ultimate goal of copyright — the promotion of the “Progress of Science and useful Arts,” U.S. Constit., Art. I, Section 8 (and yes, that capitalization is in the original). This involves considering things like the degree to which the new work transforms the original and the extent to which the new work can substitute for the original work.
Overall, the Copyright Office’s report is quite interesting, replete with good background for anyone wanting to understand generative AI, and to absorb the issues related to AI and copyright. Here are some highlights (and my thoughts):
- Different uses of copyrighted materials should be treated differently. (Okay, that’s maybe not so surprising). For example, in the Copyright Office’s analysis, using copyrighted materials for initial training of an AI model is different from using copyrighted materials for retrieval augmented generation, where AI delivers information to users drawn from scraped original works. This makes sense to me because, as with many (most?) things, context matters. Moreover, numerous cases (including the Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith) stress the importance of analyzing the specific use at issue. However, the Copyright Office also noted that “compiling a dataset or training alone is rarely the ultimate purpose. Fair use must also be evaluated in the context of the overall use.” Which leads us to the next point…
- The report describes how “training a generative AI foundation model on a large and diverse dataset will often be transformative” because it converts a massive collection of copyrighted materials “into a statistical model that can generate a wide range of outputs across a diverse array of new situations.” On the flip side, to the extent a model generates outputs that are similar to the original materials, the less likely those outputs are to be transformative. This could represent trouble for AI platforms that allow users to create outputs that replicate the style of a copyrighted work. In those cases (every case?) where an AI platform allows users to generate entirely original works as well as ones that are similar or identical to copyrighted materials, courts will have to figure out what constitutes fair use.
- There is a common argument advanced by AI platforms that using copyrighted materials to train AI models is “inherently transformative because it is not for expressive purposes” since the models reduce movies, novels and other works to digital tokens. The Copyright Office isn’t buying this. It says changing “O Romeo, Romeo! Wherefore art thou Romeo?” into a string of numbers does not render it non-expressive because that digital information can subsequently be used to create expressive content. This makes a lot of sense. Translating Shakespeare into Russian isn’t transformative, so there’s no good reason that converting it into a “language” readable by a machine should be any different.
- The use of entire copyrighted works for training weighs against a finding of fair use; however, the ingestion of whole works could be fair if a platform implements “guardrails” that prevent a user from obtaining substantial portions of the original work. Again, courts are going to need to examine real world uses and draw lines between those that are ok and those that are not.
- When an AI platform produces work based on its training on copyrighted materials, even if that output lacks protectable elements of the original (for example, the exact melody or lyrics of a song), output that is stylistically similar to an original work could compete with that original work — and this weighs against a finding of fair use.
While at first blush there’s nothing particularly new or revelatory in the report, it is nonetheless effective at concisely synthesizing the issues raised in the various AI copyright-related lawsuits in the courts at the moment (and to come in the future). As such, it highlights the many areas where courts are going to have to define what does and does not constitute fair use, and the even trickier questions of where precisely the lines between will need to be drawn. Fun times ahead!
May 20, 2025
By Laura Trachtman
There are times when you’ve brought a motion before a judge, and you strongly believe that the judge wrongly ruled against your client. When this happens, you have a couple of options. You can notice an appeal (which must be done within 30 days of the filing of the Notice of Entry), you can make a motion to reargue, and you can make a motion to renew. Please note that these are conjunctives, not disjunctives, so you can take all of these steps if you can satisfy the requirements.
Why are there so many different options? Great question. Each serves a different purpose.
The appeal is simple – you’re going to ask the appellate court to review the lower court’s decision and see if it was properly decided.
- The pros of appealing is that your claim will be reviewed by a panel of appellate division judges, and I have usually been fairly impressed with their legal acumen.
- The cons are that it’s both expensive and time consuming. I once waited for 18 months to have an appeal decided after it was fully briefed and oral argument was made before the panel.
- Also, if you request oral argument, you’d better bring your A game, because the judges on the appellate division do not play around and the oral arguments are livestreamed, so you can make a fool of yourself in front of everyone tuning in to spectate.
The motion to reargue is based on CPLR § 2221(d), and applies where a judge misapprehended a matter of fact or law. In other words, if you think the judge misunderstood something in their Decision + Order, you can make this argument and see if this second bite at the apple helps them to better understand the point you’re trying to make.
- The pros of making a motion to reargue is that it costs no more than the filing fee for the motion.
- The cons are that I find making a motion to renew to be a bit awkward. You’re literally telling the judge that you think they were wrong, which doesn’t always go over so well – especially if you’re going to continue to appear before the same judge.
- The other sticky wicket on a motion to reargue is that there’s no appeal from the decision on a motion to reargue, so your best bet is to both file an appeal and a motion to reargue as a belt-and-suspenders approach, and withdraw the appeal if you win the motion to reargue.
The motion to renew is based on CPLR § 2221(e), and is based on new information not previously known to the movant at the time the motion was made: either the law has changed or new facts have emerged. In other words, if you learned new information after you submitted your motion, you can make a motion to renew. You must also provide a reasonable justification for why the new information included in the motion to renew was not included in the prior motion to ensure that the new information is actually new.
- The pros of a motion to renew are that it can be very effective, and in my experience, a judge is more likely to grant a motion to renew than one to reargue. Like its statutory sibling, the motion to renew is also cheap: the cost of a motion filing fee.
- The cons are that elements of a motion to renew are much more stringent than a motion to reargue. You must have new information — either a new legal argument or new facts, and you must be specific in both making your argument about the new information and explaining why this information had not previously been submitted. In fact, the court lacks discretion to grant renewal without a justifiable excuse for the failure to present new facts on the prior motion – in other words, the court literally cannot grant renewal if you haven’t satisfied the prerequisites.
- You can appeal the decision on a motion to renew, which gives you a little extra time to pull yourself together if you end up losing and you haven’t submitted an appeal on the underlying motion.
Both the motion to renew and reargue must be clearly labeled by the movant, and that can be a bit tricky composition-wise, as often facts pertain to both a motion to renew and one to reargue. I personally love drafting CPLR § 2221 motions because they are so persnickety, and I find rising to the challenge of clear and careful drafting eminently satisfying.
May 13, 2025
By Emily Poler
We’re well into the first round of litigation over copyright infringement, with cases like the one brought by the New York Times against OpenAI (which I first wrote about here) now well into discovery. Meanwhile, a recent report from the U.S. Copyright office indicates it has, to date, registered more than 1,000 works created with the assistance of artificial intelligence. Obviously, this is just the beginning. Which leads me to, what’s the next front for disputes involving AI and copyright law?
To me, the clear answer is this: How much human authorship is needed for a work created with AI to be copyrightable, and what implications does that have for the defense of AI against copyright infringement claims? And how will courts sort out what is protectable (human created) from what’s not protectable (AI created)?
First, some background.
Dr. Stephen Thaler is a computer scientist who developed an AI he dubbed the “Creativity Machine” (not the most creative name, if you ask me). According to Thaler, his Machine autonomously generated this artwork titled “A Recent Entrance to Paradise.”
Thaler submitted a copyright registration to the U.S. Copyright Office for the image, listing himself as the owner and the Machine as the sole author. (He subsequently changed tactics in an attempt to claim that the artwork was created under the works made for hire provision of the Copyright Act, claiming that the image was a work for hire because he employed the AI that created the artwork.)
The Copyright Office denied the application, saying that only works authored by humans are eligible for copyright protection.
Thaler then filed suit in the U.S. District Court for the District of Columbia against the Copyright Office and its director, Shira Perlmutter. That court sided with the Copyright Office, finding that “human authorship is an essential part of a valid copyright claim.” Most recently, the Court of Appeals for the District of Columbia affirmed the District Court’s finding. The Court of Appeals based its conclusion on a number of provisions in the Copyright Act that reference human attributes — an author’s “nationality or domicile,” surviving spouses and heirs, signature requirements, and the fact that the duration of a copyright is measured with reference to an author’s lifespan — when discussing who is an author. The Court wrote: “Machines do not have property, traditional human lifespans, family members, domiciles, nationalities… or signatures.”
The Court also rejected Thaler’s claims that the artwork was a work for hire, pointing to the requirement in the Copyright Act that all works be created in the first instance by a human being.
This brings me back to where I think we’re going to see copyright litigation. As noted above, the Copyright Office has registered a lot of works created by some combination of human and artificial intelligence. So, what is enough human authorship to make something created in part by AI copyrightable? Where is the line drawn? It’s pretty intriguing. Here’s a crude example: if you prompt an AI with, “create a fantasy landscape with unicorns and dragons,” is the image generated copyrightable? If you give it a detailed list of 47 specific prompts, will the Copyright Office approve? Somewhere in between? How can you calculate the percentage of a creative work attributable to human intervention, and the percentage that is computer processing?
And then there’s the flip side, which I think is even more interesting. If an AI creation isn’t copyrightable, what happens when someone (something?) sues for copyright infringement based on a work that was partially AI generated? Will courts have to ignore the AI-created portion of the work and how do you even figure out what that is? Enterprising defendants (and their counsel) will come up with some interesting arguments, enterprising plaintiffs (and their counsel) will push back, and courts will have to sort it all out.
And that starts to sound, however tentatively, like we’re getting into Terminator territory. So with that, all I can sign off with is, “hasta la vista.”
May 6, 2025
By Laura Trachtman
The Trump administration has claimed to have taken steps to “reverse the role of DEI in hiring.” Specifically, President Trump published an Executive Order related to DEI, and his administration has issued a fact sheet concerning the same. Is it my understanding that the Trump administration feels that DEI hiring is discriminatory towards a certain demographic of the population, that is, cisgendered, heterosexual, Protestant, white men (“CHPWM”), based on the theory that DEI promotes otherwise unqualified individuals to take positions that CHPWM would otherwise have occupied.
There are two main problems with the Trump administration’s position. The first is the position that DEI hires are unqualified for their positions and are only hired because of their membership in a protected class, and the second is the position that new policies were needed to correct the first problem. We’ll tackle these one at a time.
First, to assume that only CHPWM are qualified for roles, and everyone else is unqualified, is an intolerant and ignorant assumption. And yet, this is the assumption that the Trump administration relies upon to promulgate these policies. Personally, I find the Trump administration’s position to be incredibly offensive, idiotic, prejudiced, and just plain wrong. I worry that this will have long-standing effects on the American population, which I will not get into here due to time restraints. But, with a Republican majority in Congress, I fear that we are stuck with these policies – for now.
Second, legally speaking, DEI-related discrimination doesn’t exist, just like reverse racism doesn’t exist. In other words, there’s not one type of discrimination protection for white people and another for people of color: it’s all covered under the same law.
Regardless, the Trump administration provided guidance for employees who feel that they have been discriminated against due to DEI policies; some examples can be found here and here. The long and the short of these publications is that an employer (and others, but for our purposes, we’ll stick with employers) cannot discriminate against an employee based on a protected characteristic, which includes race. While the Equal Employment Opportunity Commission correctly summarized that in its publications, this is nothing new. Since the passage of Title VII in 1964, it has been illegal to discriminate based on race – any race. Many individuals operate under the mistaken belief that it is only illegal to discriminate against someone if they are not white. This is wrong.
Title VII states: “It shall be an unlawful employment practice for an employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
What does this mean? It means that you can’t discriminate against someone based on their race, no matter what that race is.
Why do people think that you can only discriminate based on race if someone is a person of color? This question requires a much longer answer than I have time or space for here, but suffice it to say, people of color are generally treated less favorably than white people in the United States and thus find themselves needing the protection of the law more frequently.
Why the attack on DEI if discrimination based on any race is prohibited? My own theory is that white people are starting to feel that their position as the “preeminent” race in America is threatened. The unique privilege that white Americans have enjoyed for centuries is starting to erode as American employers have finally begun to realize that encouraging diversity, equity, and inclusion in hiring makes a stronger workplace and is better for business. The upshot is that Americans of all races are starting to reach some level of equality; the downshot is that white Americans are feeling insecure and need reassurance that they’re still #1. That’s where President Trump steps in.
By declaring DEI policies discriminatory, President Trump sought to assuage the worries of white Americans regarding their crumbling status in American society. The problem is that it has always been illegal to discriminate based on protected characteristics under Title VII. And while President Trump has claimed that this a big victory for [gestures vaguely], the fact remains that he has made absolutely no changes to the law, and he’s shamming everyone who believes that President Trump has provided any additional protections to white Americans whatsoever.
Special thank you to the creators and writers of Mean Girls for the phrase “Gretchen, stop trying to make fetch happen.”
April 29, 2025
By Emily A. Poler
Over the past few years, I’ve had a bunch of conversations with attorney friends about growing a business, whether it’s building a small firm like mine or increasing a client list (a “book of business”) within a larger firm. Despite the fact that these friends work for organizations that are either “BigLaw” or a lot closer to “BigLaw” than my (now) two-person firm, there is a lot of overlap between what I do and what they do (or want to do) in their workplaces. When we’re talking, I inevitably end up recommending business books that I’ve found helpful. And now, I’m sharing them with you!
First, a caveat: I am generally not a fan of “self-help” books; most, if not all, spend hundreds of pages regurgitating a basic premise that could be easily conveyed in a single chapter. Each of the books below could most definitely be shorter. However, if you can wade through the dreck, you will find valuable nuggets of wisdom in each of these.
- Traction by Gino Wickman – This book introduced the “Entrepreneurial Operating System” and is closely associated with the Entrepreneurs Organization. I have problems with both of those things. As a result, this book sat unread on my shelf for years. But I finally pulled it out, and I was glad I did — it’s a classic for good reason. If you’re running your own business this book has some really indispensable points about figuring out and setting your goals, and how to use them to guide a whole range of business activities. It’s similarly useful if you’re running or developing your own area within a larger organization because defining goals that drive you forward is equally important in that environment.
- Book Yourself Solid: The Fastest, Easiest, and Most Reliable System for Getting More Clients Than You Can Handle Even if You Hate Marketing and Selling by Michael Port – Yes, the title is awful. The book, however, is pretty good, despite being somewhat similar to Traction in its focus on identifying and setting goals. For me, this was the book that finally convinced me to not try a little bit of this area of law and a little bit of that, but instead focus on the types of work I really want to handle and the clients I really want to work with.
- Deep Work: Rules for Focused Success in a Distracted World by Cal Newport – As the title suggests, this book is for anyone, not just those trying to develop their businesses. That said, it is particularly useful for anyone in a position of selling their own expertise and experience because, at its heart, Deep Work is about slowing down, putting your phone aside, and not jumping to respond to every email as it flies in. Instead, this book encourages you to focus on thinking about the bigger questions and solving the problems we all face in our work and personal lives — the more important things that require the “deep work” of the book’s title and that ultimately lead to greater business (and personal) growth.
- Four Thousand Weeks: Time Management for Mortals by Oliver Burkeman – The book’s title comes from the fact that the average human lifespan is about 4,000 weeks (gulp!). It uses this jumping off point to talk about how “efficiency” and “time saving strategies” are myths and that life, including how you use your time, requires hard choices about what is and isn’t important. The main lesson: Focus on what’s actually important instead of frantically trying to do everything that comes one’s way.
That final point is one I cannot emphasize enough. Focusing on the big things has been invaluable for me the past few years. It’s helped my business grow in ways that made me more satisfied, engaged, and successful, which of course has made every aspect of my life better. For that lesson, and many others, I heartily recommend these books.
