Category: Intellectual Property

Public Knowledge Post on AI & Fair Use Misses the Mark

fair use

Patrick Gallaher at Public Knowledge recently posted an article about AI training with protected works, proposing to distinguish between piracy and fair use. Not to begin on a pedantic note, but the article is subtitled “Words Matter” because it claims that piracy is a provocative, non-legal term, so I have to respond by saying this is wrong. Although we think of “piracy” today as enterprises like The Pirate Bay, courts have often used the term “piracy” to mean “copyright infringement.” For instance, the seminal fair use case Folsom v. March (1841) uses the word thirteen times as in this quote:

“….it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”

So, Gallaher is making a semantic fuss over nothing. If a contemporary court holds that AI training with protected works is copyright infringement, then this conduct may both legally and colloquially be called piracy.

As to the substance of the post, Gallaher asserts that AI training is inherently fair use, which is too broad a claim. The fair use doctrine defies generalization, and the facts in one case involving a particular AI and one type of work may have limited influence on the result of a case involving a different AI and different type of work. Or to put that another way, the incomplete fair use inquiry conducted in Bartz v. Anthropic, involving a class of literary works, likely predicts almost nothing about the eventual outcome in UMG et al. v. Udio or Disney et al. v. Midjourney, involving sound recordings and visual works respectively.

Gallaher states that AI training is transformative under fair use factor one (the purpose of the use). Indeed many articles of this nature rely on the assumption that this finding should be obvious and should carry the weight of the fair use analysis. “Copying for training is transformative: it uses the works for a fundamentally different purpose from the original, much like indexing websites for search engines or scanning books for text analysis,” he writes. And that’s all he writes about one of the most vexing doctrines in fair use weighing the most challenging technology ever confronted by copyright law.

Of course, even in one sentence, Gallaher manages to hide (or expose) the distinction that the purpose of many GAI products is to produce works without authors. This fact is highly distinguishable from the two analogies he cites and, as the courts will surely recognize, presents a novel challenge to the constitutional intent of copyright law. This is a consistent fallacy with every article of this nature—claiming that AI is the most revolutionary tech in history, but despite this novelty, we have ample case law to conclude that training is fair use.

Perhaps the courts will not wholly agree with my view that a purpose which does not serve the goals of copyright cannot favor fair use, but in Kadrey v. Meta, Judge Chhabria stated, “Courts can’t stick their heads in the sand to an obvious way that a new technology might severely harm the incentive to create, just because the issue has not come up before.”

Although that sentence prefaces a consideration of market dilution under factor four, the words “harm the incentive to create” allude directly to copyright’s core purpose and, so, implicates the purpose of the GAI to “create” in lieu of authors. And that goes to the question of transformativeness. So, no, it is not enough to say that a use which serves a different purpose is per se transformative, especially when that different purpose is to do exactly what creators do and, in the process, moot the utility of copyright law.

Notably, Gallaher masks the substitutional purpose of GAI by referring to it in general as technology that serves a “public good” and which provides “broad benefits.” The plain fact, though, is that we do not know this to be true. Simply because a product is new, being widely adopted, and/or has investors chomping at the bit is not evidence that its purpose is categorically beneficial. Far from it. We are already flooded with AI products causing serious harm, triggering liability claims for negligence and wrongful death, and launching emotional Senate hearings.

In this regard, I have argued that the courts have no factual basis for even defining the purpose of AI training. Although we should not talk about AI as a monolith, the counterpoint to that principle is that it’s generally the same process ingesting the same creative works, whether the AI product is used for scientific research, military applications, medical diagnosis, CSAM, social engineering attacks, or addicting children to establish dangerous “friendships” with machines.

Even if the courts are unwilling to apply such a broad sweep of uncertainty in a copyright context, it is sufficient to say that we have little reason to assume that AI is generally beneficial in the world of creative and cultural production.  And whether the folks at Public Knowledge know it, the courts are at liberty to look beyond the four factors in weighing fair use, especially when they are presented with considerations that have little or no precedent.

It is important to keep in mind that on fair use factor one, the often unwieldy transformative doctrine splits into two distinct branches of case law. The traditional purpose of fair use, dating back to English courts, is to allow new creative expression to flourish, particularly expression that comments upon the work being used. Fair use cases of this nature most often address one user of one work for one clear purpose.

The more contemporary branch of factor one considerations entails mass use of protected works for a technological purpose that can strain against the fair use doctrine. Simply put, fair use was not developed or codified into statute to provide raw materials for technological products, and as discussed in other posts, when the Second Circuit allowed scanning millions of books for Google Books, it stated that the case “tests the boundaries of fair use.” GAI products, whether used for good or ill, lie well outside those boundaries.

Articles like Gallaher’s are not really making a copyright argument but are instead drawing readers to conclude that copyright owners should be required to subsidize AI development whether they like it or not. Other than assuming that Public Knowledge is still a PR firm for Big Tech, I don’t know why an organization with that name takes such a position when countless parents, educators, artists, lawmakers, and medical experts are insisting upon guardrails and oversight for AI in recognition of social harm already being done. This same sober approach must apply to copyright rights and, at the very least, foster a licensing regime that avoids undermining foundational IP principles.

Image source: H9images

A Response to Post Humanist Copyright Paper by Matt Blaszczyk

human

If you follow copyright matters, it would be impossible not to read commentary proclaiming either that copyright is “dead” in the age of artificial intelligence or that confronting AI exposes copyright’s philosophical underpinnings as a convenient fiction. There is nothing new about copyright skeptics claiming that its humanist principles are a fiction, but now that machines can produce material that walks and talks like “works of expression,” this brave new world animates a lot of intellectual discussion beyond the normative question What is copyrightable? to the philosophical question What is copyright?

The Copyright Office has asserted, and the courts have thus far affirmed, that material generated entirely by AI is not a “work of expression,” a.k.a., not a “work of authorship,” because some degree of human creativity must exist in the work. That human-centric principle, combined with the low threshold of “originality” in American copyright law, undeniably conjures both metaphysical inclinations about creators and semantic imperfections in law describing the rights of creators.

For longer than the current copyright law has existed, doctrines, arguments, debates, and case law have been expressed in subjective and emotional terms like invention, genius, spark, personality, mental conception, and a rich lexicon of synonyms for creative balanced by myriad ways to describe that which is uncreative. And all that is matched with variations on the theme of the creator’s right to earn a living balanced with societal benefits derived from fostering a community of professional creators.

Of course, subjective or rhetorical language is not a unique feature of copyright. All law is expressed in words, and it is, therefore, a dangerous enterprise—indeed we are watching this peril unfold in real-time—to argue that rhetoric alone undermines, inverts, or swallows the principles expressed in law. It is only natural that semantic difficulties run amok in the AI debate, frustrating legal analysis and theory.  After all, the term artificial intelligence is itself a convenient analogy onto which the industry and its advocates have grafted their own lexicon of self-serving, often anthropomorphizing, rhetoric (see Sonja Drimmer A Dictionary of AI).

Meanwhile, even if we omit the pejorative neologism “AI slop,” whatever term we choose to describe that which AI produces, those outputs are not easily defined either by the familiar rhetoric or terms of art in copyright law. For instance, most experts will generally agree that the constitutional foundation for IP is incentive to “authors” to create, but if machines create some of the same stuff without incentive, does this a) obviate the need for copyright? or b) point to an underlying fallacy that the incentive purpose of copyright is, or always was, a rhetorical fiction?

AI Challenges the Underlying Humanism in Copyright?

Because confronting AI generated works has lately induced the Copyright Office and the courts to reaffirm the human authorship doctrine—and especially because the line between generative AI and assistive AI implies both doctrinal and administrative difficulties—this provides a fresh opportunity for skeptics to assert that U.S. copyright law is not human-centric in the first place. “Instead of a formalist rejection of AI assisted works, copyright should be willing to take up a truly humanist set of goals and answer difficult questions regarding its efficacy in promoting them for the last one hundred years,” writes Professor Matt Blaszczyk in a new paper titled Post Human Copyright:  AI, Copyright and Legitimacy.

From its title and abstract, I assumed Blaszczyk’s aim was to reject the human authorship doctrine in support of a case for the copyrightability of all material autonomously generated by artificial intelligence (AI). Although the paper could be cited to support that view, if I understand Blaszczyk correctly, he argues that confronting AI exposes an underlying fallacy that copyright has not served human authors for the last century and, therefore, needs reexamination to restore the humanist principle. He writes:

This Article argues that the USCO and the courts have recognized the requirement of human authorship and couched it in humanist rhetoric to preserve copyright’s legitimacy at a time of crisis, thus strengthening the institutional actors: the Office, the courts, and rightsholders….for copyright to be truly humanist, the law should refocus the doctrine and economic distributions on human, rather than corporate authors, adjust to new technological landscape, and reflect on its own purpose and efficacy.

Thus, Blaszczyk claims to want to rescue copyright’s true humanism from the mere rhetoric of humanism. But if that is the goal, his paper offers frail and unsupported premises to show that human-centric copyright is purely a creature of rhetoric. To be sure, the U.S. Copyright Act could be more author-centric—e.g., it could require attribution the way other nations’ copyright laws do—but tensions in copyright, or any other area of law, do not necessarily expose the core principles as mere illusions conveyed through “romanticism,” as Blaszczyk asserts.[1] In fact, considering the paper’s general criticism of rhetorical devices, the reliance on rhetorical conclusions about normative copyright law are noteworthy.

For instance, regarding copyright’s incentive purpose, Blaszczyk avers that copyright does not act as an incentive to individual creators. He states that the case Allen v. Perlmutter “…allows Allen’s lawyer, Ryan Abbott, to reframe the arguments made in Thaler and in relevant scholarship. Abbott argued that “copyright protection is for corporations that invest in creative content,” and not to provide an incentive “for people like J.K. Rowling and George R.R. Martin.” If I read Blaszczyk correctly, he agrees with Abbot’s reasoning and dislikes that it leads to an anti-humanist result. He writes:

… Abbott is right to point out what critical copyright scholars have long argued: copyright “plays very little role in motivating creative work” and instead its “purpose… is to enable the provision of capital and organization so that creative work may be exploited.

Yes, some copyright scholars have argued that copyright does not incentivize creative work by individuals, but this theme always reminds me of a poll asking the wrong question. Ask artists whether they want to earn a living for their work, and it is fair to say that the majority will answer yes, even though financial incentive to write or make fine art or films etc. is one part of a nuanced interplay of sentiments for most artists. If we are going to generalize, many artists are likely to say 1) that they create because they can’t not create; 2) that they feel grateful when an audience likes their work enough to be consumers; and 3) that they do not want their works exploited by anyone without permission and/or compensation.

Ask the same group to explain the relationship between those sentiments and their copyright rights, and the answers will vary. I work with independent creators all the time and would say that naivete about copyright law and corresponding failure to register works (in the U.S.) are more significant factors disenfranchising individual creators than Blaszczyk’s claim that the incentive principle is a rhetorical fiction.

Copyright Only Serves Corporations?

Blaszczyk relies substantially on the populist conclusion that normative copyright “primarily benefits corporate owners” and, therefore, exposes the illusion that the system serves human authors. But other than criticizing corporate wealth, which is a separate matter, Blaszczyk offers no evidence or rationale to show how, say, Disney’s vast and valuable copyright portfolio alters either the purpose or application of copyright for the independent illustrator, writer, or filmmaker.

Anecdotally, a quick list of recent cases that come to mind—Brammer, Sedlik, Goldsmith, Graham & McNatt, McGucken, Griner, and Westwood—all involve independent creators enforcing their copyright rights, and mostly against corporate defendants with more money and resources. Further, the court dockets neither reflect how many claims are settled before a complaint is ever filed nor provide any measure of copyright acting as deterrent to infringement of individual creators’ rights. If anything, mass, industrial-scale infringement by tech giants, rather than protection of corporate-owned works, poses the greatest threat to copyright’s purpose in both theory and practice.

My friend Bill Westwood’s settlement with a large medical publisher is garden-variety copyright law at work—the kind of straightforward case that would never make headlines or offer details of much interest for academics to examine. But in a medical illustration career spanning more than 60 years, Westwood has enforced his copyright rights about twenty times, and there is nothing remarkable about this except that he took copyright seriously as part of his business. So, if academics want to “interrogate” the purpose of copyright on the assumption that it no longer serves human creators, they should at least estimate and reckon with the number of Bill Westwoods availing themselves of the system.[2]

Work Made for Hire Doctrine is Anti-Humanist?

Related to the assertion that copyright serves corporate interests, Blaszczyk reprises the theory that the Work Made for Hire doctrine, codified in Section 201(b), is an anti-humanist doctrine supported by legal fictions. He cites a tension arising from the combination of the human authorship requirement, the low threshold of originality, and the employer as “author” of the employees’ works and states:

Attempting to do away with this tension and to strive for the legal legitimacy of the § 201(b) framework, and for the moral and popular legitimacy associated with human centrism, the court devised the fiction of the “author in the first instance” – of which the Act’s text is silent.

As discussed in other posts, I fail to see why WMFH fosters a tension of particular concern relative to imperfections of law in general. The human authorship rule is not merely a copyright matter, as demonstrated in Naruto v. Slater, where PETA’s claim to represent the alleged maker of the “monkey selfie” failed on standing alone because nonhumans do not possess rights that can be enforced in U.S. courts.

But in the same way that no rights exist in the first instance for a monkey, rights absolutely exist in the first instance for the human creator of a work. From there, it is hardly a strenuous leap of reasoning to hold that those rights may be transferred by operation of an employment agreement or contract. Consequently, I would argue that, as applied, WMFH doctrine generally affirms rather than belies the human-centric foundation for copyright.

Further, if it is fair to read Blaszczyk’s complaint as adjacent to skepticism of corporate personhood (a sentiment I tend to share), the WMFH doctrine is better founded than other matters of corporate “humanism.” That a corporate entity can practice religion (as held in Hobby Lobby) is a more fanciful adventure through metaphysical whimsy than the idea that a corporation can be defined under the term of art “author” in the copyright act. Yet, despite my own criticism of Hobby Lobby and the political power it implies, I would not advocate that precedent as a rationale to find that the Exercise right is not human-centric.

Copyright is Unpopular?

Next, while overlooking the number of independent creators served by enforcing their rights, Blaszczyk states as a matter of undisputed fact that litigation makes copyright unpopular—i.e., that a general consensus holds that copyright enforcement is “unjust.” He writes, “Aggressive litigation tactics against infringing users – ordinary people –have turned many against copyright law, and the early 21st Century saw a development of filesharing and piracy-oriented communities and even political parties.”

First, that description is outdated. The piracy apologists of 2011 are overwritten by the AI training critics of 2025. As a critique inspired by AI, this paper should acknowledge that AI has invigorated independent creators to care about and pay attention to their rights, some for the first time. Further, even if popularity were relevant to interrogating copyright’s human-centrism, it is a glaring omission on Blaszczyk’s part to ignore the billions in tech industry funding of anti-copyright scholarship, lawsuits, briefs, and zone-flooding PR designed to make copyright unpopular in the digital age.

As a general observation, it is more accurate to say that copyright litigation, like other matters of law, will draw a spectrum of public opinion, much of which has little to do with doctrine—or even the questions presented in a case. Most often, public opinion tends to favor one party over another more than it is persuaded by legal merit, which makes those opinions of little value to academics seeking to reexamine the purpose of the law. Again, off-the-cuff examples would include Eddie Grant v. Donald Trump, Jeff Sedlik v. Kat Von D, and Lynn Goldsmith v. Andy Warhol Foundation. All three of these cases have drawn opinions from both creators and non-creators, including sentiments that either misunderstand or do not address the copyright questions at issue.

Finally, in response to Blaszczyk’s intent, I remain concerned about broad implications every time someone says that copyright is “dead” or needs wholesale reexamination on the basis that it conjures tensions that expose it as a fiction. AI poses some unique challenges to copyright law for sure, but we should be wary of calling any right a mere fiction lest we discover that, in fact, all rights may be considered fictions because they are expressed by feeble words subject to interpretation.  Especially in the present climate, aberrations of law can make a mockery of underlying principles, but it would be an error to concede that such extremes transform civil rights into mere illusions. On the contrary, the present moment insists upon vigilant stewardship of core principles rather than allow whole frameworks of law to collapse into performative rhetoric.

[1] E.g., significant tension between the Establishment and Exercise clauses, even where courts might err, does not expose a fallacy in the Framer’s core reasoning in the First Amendment.

[2] One of the greatest barriers to copyright rights for independent creators is lack of understanding about their rights and the pragmatic means of enforcing them when necessary.

A Brand Divided: Trademark and the Legacy of Frida Kahlo

frida kahlo

In 2018, when Mattel introduced the Frida Kahlo doll as part of its “Inspiring Women” collection in the Barbie portfolio, some consumers saw a strong feminist statement, but many observers familiar with Kahlo’s life and work saw a commercial exploitation the artist would have hated. Indeed, Kahlo was a sharp critic of American capitalism and the kind of bourgeois sensibility that would presume to commoditize a plastic gloss on her complicated and painful story—let alone a false rendering of her likeness and traditional Tehuana dress.

In rejecting the label “surrealist,” Kahlo said that her famously tortured self-portraits (e.g., The Broken Column) were not expressions of haunting dreams but depictions of her reality—a reality largely defined by a shattered body. Kahlo was born with polio and then, at the age of eighteen, was impaled by an iron handrail when a trolley crashed into the bus she was riding in Mexico City. The near-fatal accident foreclosed her intended career as a physician, and Kahlo spent months of cast-entombed recovery painting in bed by means of an easel her mother rigged to allow her to work in a supine position. With the aid of a mirror also suspended nearby, her own face became her most consistent model.[1]

Although Kahlo said that she frequently painted herself because she was so often alone, it is paradoxically this abundance of self-portraiture that makes her, perhaps, the most widely recognized visual artist in the world. Relatively obscure between her death in 1954 and the 1983 biography by Hayden Herrera, Frida Kahlo’s story and artworks now comprise, for better or worse, a brand—and one that her family is trying to regain control of to prevent inappropriate applications like Kahlo Barbie.

Whether Frida Kahlo herself would have scorned the notion of becoming a brand, it is the inevitably careless uses of a famous artist’s name and likeness that emphasize both the value of protecting intellectual property and of having that IP managed by thoughtful stewards. Most often, this means family heirs, and in the eyes of Kahlo’s grandniece Mara Pinedo, the Frida Barbie was among the more offensive breaches of an already souring arrangement between Familia Kahlo, a Mexican entity, and Frida Kahlo Corporation (FKC), a Panamanian entity. [2]

The roughly thirty years between Frida Kahlo’s death and the explosion of interest in her story and work—the term Fridamania applies—emphasizes the role of trademark as a means for family heirs to control the artist’s legacy. In Kahlo’s case, the copyrights on the paintings have either expired or are controlled by other parties, and the right of publicity under Mexican law expired in 2004. But because trademarks are indefinitely renewable, these become the IP crown jewels that need to be enforced and protected.

In 1954, all rights descended under Mexican law to Kahlo’s niece, Isolda Pindeo Kahlo and subsequently to her daughter Mara Pinedo, presently owner and officer of Familia Kahlo. Under the terms of a 2005 agreement, Familia Kahlo transferred trademarks to FKC but states in court briefs that they conditioned FKC’s authority to make licensing agreements upon obtaining permission from the family for every deal. Oscar Gomez, attorney for the family tells me via email:

Over time, FKC repeatedly engaged in the commercial use of Frida Kahlo’s name, image and likeness without consulting the family or obtaining the approvals required under the 2005 agreement. Products and partnerships were launched — including consumer goods the family and general public found culturally insensitive or inappropriate — without the family’s knowledge or involvement. These actions were in clear disregard for the approval process intended to protect Frida Kahlo’s legacy.

Based on the alleged breaches of the 2005 agreement, Familia Kahlo seeks to revert all trademarks back to its exclusive control, and this matter is presently being litigated in Spain and Panama. “In Spain, the court is focusing its review on whether certain European trademarks were wrongfully revoked and otherwise who holds rightful ownership. In Panama, there is a separate legal action to resolve the corporate control of the FKC entity,” says Gomez.

Litigation in Florida Federal Court

Meanwhile, in 2022, FKC filed a lawsuit in a Florida district court alleging that Pinedo and Familia Kahlo were liable for tortious interference by attempting to prevent what FKC argues are its legal rights to exploit the marks it claims to own. The litigation was triggered by cease-and-desist notices sent by Familia Kahlo advising four FKC licensees of the ongoing litigations abroad and notifying these parties that they could be held liable for trademark infringement. Only two of the four letters were directed at U.S. entities operating in Florida, and all four were written and sent by Familia Kahlo general manager Alfonso Durán.

Without addressing the merits of FKC’s claim, the district court held in 2023 that it lacked personal jurisdiction over defendants Pinedo and Familia Kahlo—Pinedo is a Mexican citizen with no ties to the State of Florida—under both corporate shield doctrine and comportment with due process under the 14th Amendment. On that basis, the district court dismissed FKC’s claims, and in May 2024, the plaintiff filed an appeal to the 11th Circuit. In response, the family’s brief states, “Plaintiffs are attempting to bypass the laws of Mexico and the legal disputes ongoing in Panama and Spain by filing this action in Florida to try to gain some form of authentication for their false claims to the intellectual property rights of the Frida Kahlo mark.”

It would be a major project (and one well outside my wheelhouse) to attempt to unpack the contractual details applicable to trademark ownership in several jurisdictions. But Gomez states that “[The Spanish and Panamanian] proceedings could resolve key questions of ownership and standing before the U.S. case ever reaches the merits.” Consequently, he theorizes that FKC may be forum shopping, hoping that a U.S. court might be a more favorable venue to find that it rightfully controls the Kahlo brand. But unless the 11th circuit reverses, finding that the lower court erred in its holding on personal jurisdiction, the core matter of ownership will presumably be resolved outside the U.S.

Both Licensing and Enforcement at Stake

In addition to licensing uses of the Kahlo brand that both the family and the public find inappropriate, FKC also engages in legal enforcement actions against parties who may not be making inappropriate uses. For instance, in a long post about these ongoing disputes, Laurel Wickersham Salisbury for Center for Art Law, describes FKC’s action against folk artist Nina Shope. “Shope handmakes a variety of embroideries and dolls, many of which represent Frida Kahlo and are sold [on Etsy] using her name,” Salisbury writes.

Shope’s derivative works based on Kahlo’s paintings are legal if the paintings have fallen into the public domain, but whether a court would find that her use of Kahlo’s name, an unavoidable description, constitutes trademark infringement is a separate question. From a cursory review, I am not certain Shope’s use constitutes infringement under U.S. law, but more important for the moment is whether FKC or Familia Kahlo has the right to make that determination and pursue (or not) legal remedy.[3]

Two Different Futures

A recurring theme in Kahlo’s self-portraiture includes several depictions of herself as divided, as two Fridas simultaneously occupying two realities laden with symbols of her fraught and chronically painful life. In that light, it is notable that today the Frida Kahlo brand is divided between an entity that appears willing to capitalize on any use without regard to appropriateness and a family seeking to keep “Fridamania” within the bounds of respect for who Frida was rather than commoditizing any Frida people wish to see.

Although the U.S. case is currently procedural and one that may never affect ultimate control of the Kahlo brand, it raises important considerations for well-known artists and families contemplating management of a potential legacy. “We see it happening more frequently now that artists are seeking to reclaim the rights to their works and their brands from the parties who they hoped could help them grow,” says Gomez. Although Frida Kahlo’s biography is unusual, her posthumous fame, more than a half century since her passing, reveals the need for balancing legacy management between exploitation and reverence.

[1] Frida – documentary by Carla Gutierrez

[2] As a result of litigation in Mexico, the court there enjoined sale of the doll pending further proceedings.

[3] Notably, trademark, unlike copyright, is a use-it-or-lose it IP right. Failure to enforce can be a basis for loss of the mark.