Copyright
April 14, 2026
By Emily Poler
I do not play mahjong. I do, however, have a whole bunch of friends who are very into the game. I sit with them and knit while they play — it’s a low-key, social way to spend a weekend afternoon.
Now, you might be wondering: what is mahjong? Well, mahjong (or mah jongg or mahjongg; they’re all correct) originated in China in the 19th century and is similar to a card game but played with tiles that look a little bit like dominoes. Players draw these tiles and, relying on skill, strategy and luck, try to arrange them into particular combinations to win. In the United States, those combinations are determined each year by the National Mah Jongg League, which publishes an annual card listing the winning hands.
By now, I bet you’re thinking there’s literally no way she’s going to be able to connect this to IP law or litigation. Wrong!
The first time I ever sat to the side of my friends’ mahjong game, I picked up one of the cards sold by the National Mah Jongg League card and was rather surprised to see this:
I was, of course, immediately curious and went to the Copyright Office’s website to look up whether the National Mah Jongg League does, in fact, have a copyright for the card. Yes, it does, and has for many years. And if you’re going to (legitimately) play mahjong in the US, you need to buy that card every year from the League.
Seems weird, right? After all, if you buy Monopoly or a deck of cards, you’re done spending on it. The rules of Monopoly or poker don’t change every year. It doesn’t matter if it’s 1996, 2016 or 2066: a flush always beats two pairs. Most of all, the rules of a game can’t be copyrighted; nobody owns the rules for chess, checkers, or blackjack. However, a book or pamphlet that describes how to play any of those games is absolutely copyrightable. Such is the case with the yearly mahjong card, which expresses the rules for playing mahjong by listing the winning combinations the League has established for that year.
For what it’s worth, I haven’t seen anything suggesting that the National Mah Jongg League has sued anyone who copies a card from a friend, although, if I had to guess, I bet they send plenty of cease-and-desist letters to people offering copycat cards on Amazon or Etsy. (Maybe not, because, according to Reddit, the group isn’t exactly super tech savvy, and their website is pretty 2003.)
Again, I’m an observer, not a player, but one of the fascinating things to me is that players seem really conscientious about actually buying the cards each year. The mahjong group text I’m on was recently awash with people touting they had acquired the 2026 card, even though any of them could just buy one and pass around copies.
In a world awash in so much digital piracy, I find this astoundingly honorable. That said, I suppose it’s not that surprising: for one thing, the card is an awkward shape and folds into several pages, and it would be a pain to copy it or play off a copy. Also, at $15, it’s not terribly expensive. Most of all, I imagine that for those who love the game, buying the card each year is something of a ritual, and it just wouldn’t feel right to use a copy on flimsy printer paper. All this seems like a pretty marked contrast from lots of today’s aggressively online culture, which prioritizes virtual sharing and remixing of non-physical media, and, unfortunately, not paying for stuff. Exhaustion with such probably explains why more and more people are shunning such soulless activity to get together in person and play a game with physical pieces and rules.
In any event, I’m looking forward to a spring and summer of sitting to the side, knitting needles in hand, listening to the murmur of my friends and the clicks of tiles being drawn and discarded.
March 19, 2026
By Emily Poler
The last few weeks have been crazy over here (and, obviously, everywhere), so this post will be relatively brief, but interesting nonetheless. It’s about a proposed class action lawsuit initiated by New York Times writer Julia Angwin against Superhuman Platform, the parent company of writing-assistant software Grammarly. While I haven’t had a lot of time to delve into the complaint, the basics are that beginning last August, Grammarly launched its “Expert Review” tool that offered users the ability to revise text according to recommendations from well-known authors like Ms. Angwin, Stephen King, and Neil deGrasse Tyson. Did Grammarly ask permission of these scribes to use their names and writing styles? Of course not!
As you might imagine, Grammarly’s tool is entirely AI-based, having digested the publicly available work of the writers so as to then spit out editing suggestions from what it determines are “relevant experts,” based on the subject matter of uploaded user text. For example, you submit an essay on technology (one of Ms. Angwin’s core subjects) and Expert Review offers improvements it says are “inspired by Julia Angwin.” Pretty amazing stuff, especially considering Grammarly didn’t involve Ms. Angwin in the process.
Even worse than the theft of her style and the use of her name, according to Ms. Angwin, is that the AI advice might (ha! “might”) be crappy. “[A] Grammarly user could become displeased with Ms. Angwin if they…received a negative result after taking that advice (such as a bad grade in school or a negative performance evaluation at work), even though Ms. Angwin had absolutely nothing to do with the advice that she purportedly gave,” the complaint says. Having tested Expert Review herself, Ms. Angwin was appalled by the edits peddled under her name. “Its editing suggestions were so bad that they could destroy my reputation,” wrote Ms. Angwin in a Times opinion piece.
Luckily for Ms. Angwin, even though current laws are, shall we say, in flux regarding the use of AI to digest, learn from, and replicate copyrighted material, her suit rests on far more solid and clearly defined right of publicity laws. These laws, which are on the books in more than two dozen states, bar the commercial use of another’s name or likeness. The authors here have a pretty strong case as Grammarly was using their names without permission. Moreover, it certainly is not crazy for the authors to argue that the use of their names implied that they endorsed Grammarly, which is exactly what the right of publicity is supposed to protect.
How will Grammarly respond? Well, it has already taken down the Expert Review tool “for a redesign,” claiming it had “very little usage.” As for defending itself against the suit, a Superhuman statement says the company “believes the legal claims are without merit.” If you ask me that’s rather optimistic, since it would be quite a stretch to deny that their use of these authors’ names implied endorsement. Grammarly could also try to argue that the authors haven’t been harmed by its use of their names, which might have some legs because reputational damages can be hard to establish. However, such arguments aren’t going to get rid of this case any time soon, nor will the mothballing of the review application which, as Ms. Angwin wrote, “doesn’t make up for the eight months that service was in operation, making money from all of our names without ever seeking our consent.”
February 17, 2026
By Emily Poler
Last week, of course, many of us watched or were at least in the presence of the Big Game (aka the Superb Owl), so I thought it would be appropriate to post today about something related to it. Alas, the only part I really paid attention to was the halftime show (who won the game? Who even played?), and as much as I’d like to unpack Bad Bunny’s many messages here, there’s no angle that’s really appropriate for a legal blog. (I’ll just say that as someone who grew up in a neighborhood that was heavily Puerto Rican, I loved his culturally celebratory performance.) But looking deeper, I did find something relevant to a very popular aspect of America’s favorite Sunday: the commercials! So, let’s talk about the dumpster fire that is Michael Bay’s lawsuit against Cadillac’s Formula 1 team and Translation, the creative agency it worked with to create an ad for the Super Bowl.
In case you’ve forgotten (or are a thinking adult), Michael Bay is a film director. Since the late-1990s he’s directed a slew of big budget action movies where lots of things go bang and boom, including “Bad Boys” I and II, “Armageddon,” and, yes FIVE Transformers films.
Formula 1, or F1, racing is the long-standing international auto racing league whose single-seat, open-wheel cars look like rockets with big fat tires on the outside of the futuristic bodies. F1 races are held on road and street tracks; if you’re not an aficionado, the most famous event you may have heard of is the Monaco Grand Prix. (By contrast with F1, NASCAR races the same cars you and I drive, just heavily modified and covered with logos, and mostly on oval tracks).
F1 teams belong to either automotive companies or very rich people like Dan Towriss, CEO of the group that owns the Cadillac F1 team. In late 2025, Towriss approached Michael Bay about developing a multi-million dollar commercial that would introduce Cadillac F1’s debut on the F1 circuit in an “American” way during the “most American” of events (the Super Bowl), with Towriss declaring he wanted to hire “the most American director [he] could find.” (Minor digression, but how exactly does making CGI-heavy movies based on kid’s toys where alien robots turn into cars make Bay “most American director”? I have some serious suspicions about the foundation for this claim, but that’s a story for another day.) Bay has made Super Bowl ads before and has also previously worked with General Motors (Cadillac’s parent company).
According to Bay’s complaint, he and his team of more than a dozen people spent time developing ideas for the commercial and presented them to Towriss who, at that point, allegedly told Bay to “get to work, with Bay’s producer documenting in writing that Towriss “hired Bay to conceptualize, produce, and direct the commercial.”
With the schedule super tight if they were going to finish in the mere two months before the Big Game, Bay and team immediately started creating mockups and schedules and identifying filming locations. But a week later, according to Bay, he was abruptly informed that the Cadillac F1 team wanted to “go in a different direction” and use someone else to complete the commercial — with no compensation for the time and work Bay put in. The reason, according to Cadillac F1, is that “after two meetings, it became clear he couldn’t meet our timeline, and there ultimately wasn’t a path forward.”
In his suit, which was filed hours before the commercial aired, Bay claims there was a verbal agreement between him and the Cadillac team pursuant to which the Cadillac team would pay Bay for his work, as well as the costs he and his team incurred. He also claims that the Cadillac team stole his ideas and engaged in fraud because they promised Bay to pay for certain goods and services even though they didn’t intend to abide by those promises. In response, Cadillac F1 says the concept and creative were already in place and they had only discussed hiring Bay as the commercial’s director.
Before I get into the merits (or lack thereof) of Bay’s case, let me point out the obvious: Don’t ever start work on a project without getting a written contract! Everyone involved here was a sophisticated actor with tons of experience; why did no one bother to say, hang on a sec, let’s sign an agreement? This applies not just to Bay but also to everyone on the Cadillac side as well, which apparently didn’t consider the possibility that halfway through the project Bay might abandon it or suddenly demand more money to finish it. The explanation for both sides’ mistakes, I suspect, is that Towriss was a loose cannon acting on his own in his discussions with Bay, instead of leaving things to the pros at the Translation agency who deal with this sort of thing every day, while for Bay’s part, he was aware of the time crunch and figured Towriss’ word was bond.
All that aside, Bay’s lawsuit is pretty flimsy. First, generally speaking, ideas are not protectable. Here, Bay’s idea for the commercial centered around an “overall, impressionistic, ‘dream’ theme, which would show the Cadillac F1 car as the engineers’ dream brought to reality.” This concept in and of itself can’t be protected, and neither Bay nor anyone else can own this idea. Once it’s produced as an actual commercial, that’s another story, of course: The actual commercial is protectable, but the underlying idea is not.
Meanwhile, Bay’s claim for fraud, based on his accusation that the Cadillac F1 team didn’t intend to honor its promise, is a waste of time. Fraud requires the plaintiff to allege and ultimately prove that the statement at issue was false at the time it was said. In other words, this means that Bay will have to show that the Cadillac team had a secret intention to not follow through on its promise to pay Bay for his services while intending not to ultimately work with him. Is it possible Cadillac F1 acted in such a manner? Sure. Can Bay prove it? Highly unlikely. Saying someone didn’t intend to abide by a contract is almost never fraud and such claims are almost always dismissed. In my view, they tend to make the party asserting them look silly and if I was Bay’s attorney, I would strongly urge him to avoid such an embarrassing claim.
Bay is seeking $1.5 million for his director’s and producer’s fees and the costs incurred by him and his team, as well as punitive damages. And if that doesn’t succeed, I’m sure he can take his revenge someday by crushing a Cadillac in “Transformers VIII.” On Mars. By a giant robot’s foot, most likely.
December 23, 2025
By Emily Poler
Why kick back and watch a documentary as a normal person would — to pass some time, maybe learn a few things — when you can analyze its legal issues as an IP litigator? Welcome to my world, where I recently watched Sean Combs: The Reckoning on Netflix, a four-part series that angered its subject, the rapper/producer/felon aka Diddy, enough to have his attorneys send a cease and desist letter to the streaming platform. Having seen the show, I have thoughts on the dispute.
The putative documentary, which premiered at the beginning of December, tells the story — or at least, a story — of how Diddy became one of the most powerful and successful men in hip-hop, his connection to the murders of rappers Tupac Shakur and Christopher Wallace (aka The Notorious B.I.G., aka Biggie Smalls), accusations of sexual assault and abuse, his trial for racketeering and sex trafficking, and his eventual imprisonment (Diddy is currently serving 50 months in jail).
In the letter, Diddy’s lawyers air a number of grievances about the series, and we’ll get to those in a minute. First, though, let’s talk about what Diddy demands: That “Netflix cease and desist from the publication of the so-called ‘documentary’ titled Sean Combs: The Reckoning.” My thought: that’s never, ever going to happen. As Diddy’s lawyers presumably knew when they sent the letter, prior restraint of the media — government action to prevent speech before it actually happens — is really, really, really, disfavored. That means that there was a close-to-zero percent chance that a court would direct Netflix to not air the documentary; as a result, there was little reason for Netflix to pull the plug.
As indicated above, Diddy claims the series is less a documentary and more of a “hit piece,” crafted by his longtime nemesis, executive producer Curtis “50 Cent” Jackson, as the latest salvo in his “irrational fixation on destroying Mr. Combs’s reputation.” What’s more, Diddy accuses Netflix CEO Ted Sarandos of abetting 50 in retaliation for Diddy’s refusal a few years ago to participate in a Netflix series about his life because Sarandos refused to give Diddy creative control over the project. Diddy’s lawyers call the new doc “corporate retribution.”
In a more specific accusation, and one that piqued my interest as an IP attorney, Diddy’s lawyers also claim that some of the footage of Diddy used in the series belongs to Diddy and was obtained in violation of contracts and copyright protections.
Netflix, naturally, has denied all of Diddy’s allegations. Now, whether or not that is honest, given the streamer’s past failures to adequately vet projects prior to release (see here and here), I have no reason to think that Netflix verified the truth of the contents of the series, or their legal rights to materials included in it, before its release. What does that mean? If I had to guess, it means that if (when?) Diddy sues Netflix, the complaint might survive a motion to dismiss. This seems particularly likely given 50 Cent’s involvement and their long, antagonistic history together.
So let’s talk about the accusations that some of the footage in the series was illegally obtained. For those of you who haven’t seen the documentary or any discussion of it on social media, the doc opens with video of Diddy on the phone with his lawyer and contains other footage of Diddy just prior to his criminal indictment. (The scene with Diddy literally taking a jacket off a fan’s back is so cringe.) It appears that this footage was filmed by a third party at Diddy’s behest, but, according to a Diddy spokesperson, “was created for an entirely different purpose, under an arrangement that was never completed, and no rights were ever transferred to Netflix.” The spokesperson implies there was a payment dispute between Diddy and whoever filmed him, and the footage ended up in the documentary producers’ hands without Diddy’s permission. Netflix responded claiming the footage was legally obtained, and presumably, in any lawsuit, they will also claim that their use of this footage was fair use and, therefore, non-infringing.
Even if there was some form of confidentiality agreement between Diddy and the third party who shot the footage, can Diddy use that agreement to stop Netflix from streaming the documentary? Short answer: nope. Longer answer: If he could wield the confidentiality agreement as such, he would have already sought a temporary restraining order.
Taking a broader view of the dispute, are the allegations against Diddy in the documentary defamatory? Among other things, the documentary claims that Diddy had some responsibility for The Notorious B.I.G.’s death in a Los Angeles drive-by shooting, alleging that Diddy had brought Biggie to LA despite warnings he would be in danger, and kept him there instead of letting him leave for a trip to London. If those allegations are false, then Diddy potentially has a claim for defamation, but if they’re true, then the documentary’s allegations aren’t defamatory. As a result, assuming Diddy does sue Netflix and/or 50 Cent, it will be really interesting to see which statements he claims are false.
And if Diddy does sue, this may be a situation where even if he wins, he loses, because he will have to produce evidence that the doc’s statements are false, while Netflix and/or the producers will get to counter with their own evidence. Moreover, because the purpose of defamation claims is to protect a person’s reputation and Diddy’s reputation is, ummm, pretty much in the toilet already, he could end up walking away with exactly zero dollars even if he was able to win on a defamation claim.
For now, the only shots fired are the letter and Netflix’s response, but if the matter does march on to a lawsuit, I’ll be back with updates.
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.
