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.
April 22, 2025
By Laura Trachtman
A Notice to Admit is, IMO, a largely overlooked litigation device that can be very useful. It has some particular uses that can lighten an attorney’s load and ease the general prosecution or defense of a client’s case.
First: what is a Notice to Admit? A Notice to Admit, which is authorized by CPLR § 3123, is a written request for the other side to admit something. It is designed to put to rest smaller factual issues, such as questions relating to dates, or the genuineness of documents, including photographs.
So why am I talking about it?
We all know that discovery takes up the most time, effort and expense of any litigation, excepting trial. Due to the 2021 updates to the CPLR and the NYCRR, a party may now only take 7 hours to depose another party or another witness, absent good cause shown. By serving a Notice to Admit upon the other party, you can supplement the Interrogatories (which are now also limited to 25 per party) and Requests for Discovery and Inspection without taking valuable time in a deposition that could be spent on more important issues. This is particularly the case if a party has served documents with conflicting information. For example, if the other side produced documents memorializing different dates for a contract, for example, or the date of hire, the Notice to Admit can be submitted to clear up the misunderstanding.
The true beauty of the Notice to Admit, however, is that unlike other discovery devices, if opposing counsel doesn’t timely respond, all topics contained within the Notice to Admit are automatically deemed admitted. So, if opposing counsel doesn’t seem to be as diligent as she should be, this device can be incredibly useful. Also, it can be served any time up until 20 days before trial, which is great because if there’s something you forgot to ask about during discovery and trial is coming up, you can still resolve the issue.
If opposing counsel does respond and denies, for example, the genuineness of a document, and the document is later determined to be genuine, the statute authorizes a motion for the expenses incurred, including attorney’s fees, in resolving this dispute. Furthermore, this remedy is available regardless of whether your client prevails on the merits.
Naturally, it does have its limits. You cannot use a Notice to Admit to get to the issues at the heart of a dispute: If you serve a Notice to Admit stating “Plaintiff admits that it breached its contract with Defendant” and Plaintiff’s counsel fails to respond within the statutory time period, the Court won’t allow the entire case to be resolved. The Notice to Admit can only be used for the matter in which it was served; it won’t serve as the basis for a res judicata motion down the line.
In sum, the Notice to Admit is a very handy device that can be used at basically any point in a litigation before trial, and that has potentially very high benefits at a very low cost.
April 17, 2025
By Emily Poler
My approach to this blog has been to keep it fairly light by writing about celebrity defamation cases and tech-related copyright infringement with an occasional dip into my experiences growing a business. However, right now, there are way more important and disastrous things going on in the United States. For me, as a lawyer, I am particularly concerned about the rule of law, lawyers’ role in protecting the rule of law, and President Donald Trump’s attacks on the rule of law.
If you’ve been under a rock lately and haven’t heard about this, lucky you! Can I join you?
To bring those of you not following along up to speed and to share my pain, the Trump administration has taken aim at the rule of law in a whole bunch of different ways. Among other things, it is ignoring clear court orders, and trying to punish law firms that represent clients whom Trump doesn’t like or employ lawyers who, at one point, represented clients that Trump doesn’t like. In some cases, Trump has issued executive orders calling for the termination of government contracts with these firms and with companies represented by these firms, while also attempting to bar their attorneys from even entering federal buildings — a big problem if you’re a lawyer representing clients in federal courts.
Three firms — Perkins Coie, WilmerHale and Jenner & Block — have fought back and obtained an order blocking Trump’s executive order against them. I have to applaud the work of Williams & Connolly, the firm that has represented Perkins Coie, for some really excellent advocacy. If you’re at all curious about what really stellar legal briefs look like, I’d recommend checking out the materials they’ve submitted on behalf of their law firm client because they’re really well written. As they wrote, “The [executive] [o]rder is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration, whether those views are presented on behalf of paying or pro bono clients.”
The judges hearing these cases have, thus far, uniformly ruled that Trump’s executive orders are blatantly unconstitutional because, among other things, they punish lawyers and/or law firms for their speech which, you know, is in direct violation of the First Amendment. (There are other huge issues as well, but I’m trying not to get too in the weeds here.)
Depressingly, several firms, including Skadden, Arps, Slate, Meagher & Flom and Paul Weiss, have chosen not to fight back against Trump’s executive orders and have, in fact, caved to Trump’s demands. Indeed, these firms have, among other things, agreed to donate their attorneys’ legal services to Trump’s pet causes. In the case of Skadden, which appears to have signed on without Trump even threatening them, this agreement requires Skadden to provide $100 million in pro bono services to the Trump administration and supposedly is in effect both while Trump is in office and beyond (at least this is what Trump says, so who knows how literally true it is). If you want to see something horrible, go to their website to see how they now proudly proclaim their role as Trump’s legal attack dogs.
Let me just start by saying, even though of course it should go WITHOUT saying, that none of this should be happening, especially in the United States where we have a Constitution that is clearly written to prevent such dictatorial actions. Moreover, while I’m furious and disgusted at the firms that caved to Trump, this should not be read as blaming the victim; they’re obviously terrified of having their businesses crippled. I think we all know where the real blame lies.
With that said, what are these firms thinking? How can they agree to these types of “deals” that are blatantly against the law, instead of standing up and fighting for the very laws that their attorneys promised to uphold? Moreover, how exactly does the leadership of these firms think they’re going to make money if laws don’t matter anymore? What would even be the point of having lawyers?
Does this sound extreme? Ok, maybe. Nonetheless, as has been VERY evident these past few weeks, constraints on unpredictable behavior and government corruption are important for a flourishing economy, because it is only in a healthy economy that businesses and individuals are able to do the kind of deals for which they hire attorneys like those at Skadden Arps and Paul Weiss. If everything goes to hell, there won’t be any work for them anyway.
