Author: George A. Wright

Court Examines Whether AI Images May Receive Copyright Protection

11.06.2023

Under the Copyright Act of 1976, copyright protection “subsists in any original work of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived or otherwise communicated, either directly or with the aid of a machine or device.”^ The Act goes on to state that works that may receive copyright protection are not limited to script or printed material but may include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”^

Throughout its history, and despite the Act’s somewhat archaic language, copyright law has proven to be adaptable enough to cover all manner of works created with new and emerging technologies. However, the traditional understanding of copyright law is being challenged by the advent of artificial intelligence (AI) and its ability to produce new creations.

The US District Court for the District of Columbia. recently ruled that works created autonomously by AI are not susceptible of copyright protection. In Thaler v. Perlmutter, Stephen Thaler appealed an administrative decision by the United States Copyright office denying his application to register the copyright for an image generated by an AI program he developed. The court’s decision examined the meaning of what it means to be an “author,” as defined by the Copyright Act and held that only works of human authorship are susceptible of copyright protection under U.S. law.*

The court compared the issue to a case from 1884 that examined whether copyright protection could extend to the then-cutting edge field of photography. In Burrow-Giles Lithographic Co. v. Sarony, it was argued that a photograph should not qualify as a protected work because it was created by a camera. The US Supreme Court disagreed and held that while a camera may generate a “mechanical reproduction” of a scene, it does so only after the photographer develops a “mental conception” of the photograph^^. The court reasoned that the technology used to create the work was immaterial so long as there was human involvement in and creative control over the work.

In a later case, the US Ninth Circuit examined a case in which a crested macaque monkey took a photograph of himself, and various parties attempted to file suit on the monkey’s behalf to confirm copyright protection for the monkey’s photograph.** While the case was decided on standing grounds, the court considered whom the Copyright Act was designed to protect and concluded that the act was designed solely to protect humans.

The Thaler court identified no authority supporting copyright protection in any work originating from a non-human.* However, the issue presented in Thaler was limited to copyright protections for a work created solely by an AI, absent any human input. Therefore, it remains to be seen how courts will address issues related to copyright protection for images that blend human and AI origins.

We stand in a new frontier in both technology and copyright law. As artists and developers increasingly use AI as a tool, the increased distance between human creativity and the final product will present challenging questions regarding how much human input is necessary to afford these creations protection under copyright law.*

References:

^17 U.S.C § 102(a)

* Thaler v. Perlmutter, No. 22-CV-01564-BAH, R. Doc. 24 (Filed 08/18/23).

^^ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884).

** Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

Louisiana Court Considers Defamation in Context of “New Media”

07.21.2022

The country was recently captivated by the Johnny Depp and Amber Heard trial, arguably the most high-profile defamation case in recent history. Following a colorful trial, a Virginia jury found that a 2018 Washington Post op-ed by Heard defamed Depp. As a result, Depp was awarded $10 million in compensatory damages and $350,000 in punitive damages. At the same time, the jury awarded Heard $2 million dollars in compensatory damages for defamatory statements made by one of Depp’s attorneys, ostensibly on Depp’s behalf. The trial had millions of people asking a number of different questions, including the basic question “What is defamation?” Recent Louisiana cases such as Yanong v. Coleman, 53-933 (La. App. 2 Cir. 5/17/21), 317 So. 3d 905, 911, reh’g denied (June 24, 2021), writ denied, 21-01107 (La. 11/10/21), 326 So. 3d 1249 help to provide an answer.

As explained in Yanong, a party claiming defamation in Louisiana must prove four elements:

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication to a third party;

(3) fault (negligence or greater) on the part of the publisher; and

(4) resulting injuries.

**To prove the third element of “fault,” malice must be shown.

The Yanong court explained that claims of defamation must be balanced against the right to free speech found in the state and federal Constitutions.

Louisiana recognizes two categories of defamatory words: (1) words that are defamatory per se and (2) words that are defamatory in meaning. Id. at 9. Words that are defamatory per se “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances.” Id. When words are deemed defamatory per se, there is a presumption of fault on the part of the defendant that may be rebutted by showing that the statement was true or protected by a privilege such as fair commentary on a matter of public concern. Id. Words that are defamatory in meaning are words that, when taken in context, “a listener could have reasonably understood the communication to have been intended in a defamatory sense.” Id. at 9-10. Proof of words that are defamatory in meaning creates no presumption of fault.

Louisiana defamation suits frequently arise in the employment context. However, defamation claims in the employment context face obstacles. Such cases sometimes fail on the second element, publication to a third party, because “inter-corporate communications…[are] merely a communication of the corporation itself,” meaning an employer may need to communicate the alleged defamatory statement to an outside third party outside for it to be considered “published to a third party.” Cook v. Par. Of Jefferson, 2022 WL 19350, at *11 (E.D. La. Jan. 3, 2022). However, defamation claims do not always fail on the publication element and they are not limited to “A-list” celebrities or multi-million dollar cases.

In Yanong, the Louisiana Second Circuit affirmed a $15,000 compensatory damage award to a plaintiff who successfully proved that statements made by defendants on a podcast show and on Facebook were defamation per se. Yanong, p. 8. Under the facts of the case, the defendants on a live “podcast” expressed on multiple occasions their belief that the plaintiff was a victim of sex-trafficking and that she was purchased by her much-older husband. Id. at 1. The defendant(s) also labeled the plaintiff’s marriage as “legalized prostitution,” and stated that they had contacted foreign authorities to inform them the plaintiff was a victim of “trafficking.” Id. at 2. The statements continued onto social media, where one defendant insinuated the plaintiff’s husband purchased her from a catalogue or an internet matchmaking site. Id.

On appeal, the defendants argued the plaintiff did not prove the publication element of her case. Id. at 5. The appellate court found this contention meritless. The defendants “were fully aware they were engaging” in communications with third parties, they were recoding a podcast, were “shown onscreen on all the broadcasts,” and made comments that showed “they were aware that they had an audience and third parties were engaged in the interactive broadcast.” Id. at 17-19. Thus, the Second Circuit found Plaintiff met her burden on the publication element and affirmed the trial court’s judgment. Id. at. 20.

While the publication element can present a hurdle in some cases, the publication need not be in a national media source as featured in the Depp-Heard case. The Yanong decision reminds that statements made on social media and podcasts can meet the required standard.

A Decade Old Article Finds New Life: Televised Testimony – Keogh Cox.

Limitation of Liability under the LPLA: Can Internet Retailers be Manufacturers?

02.10.2020

The Louisiana Products Liability Act (“LPLA”) contains the exclusive theories of recovery against a manufacturer for damages caused by its product. The term “manufacturer” within the LPLA includes “the seller of a product who exercises control over or influences a characteristic of the design, construction, or quality of the product that causes damage.” The rapid growth of e-commerce raises a unique question – how do we classify internet retailers?

Internet retailers generally act as a middleman for third party manufacturers and online consumers. In this respect, they are not technically “sellers” as defined by the LPLA because they typically do not have control over the design or construction of the products they sell. Nevertheless, the proper categorization of internet retailers may become important when someone is injured by a product, as was the case in State Farm Fire and Casualty Company v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) — F.Supp.3d —.

In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.

If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy?  For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.

Nursing Home Liability: Big Brother is Watching Granny?

04.01.2019

    As an integral theme to his best-selling novel Nineteen Eighty-Four, George Orwell once used the slogan: “Big Brother is Watching You.” This slogan embodied the idea that a person’s actions and intentions are being monitored by the government as a means of controlling and suppressing the will of the populace.

    Although not as extreme as Orwell’s dystopian novel, Louisiana families will now be able to install video monitoring systems in their loved ones’ nursing home rooms pursuant to Act 596 of the 2018 Regular Session of the Louisiana Legislature. According to the “Nursing Home Virtual Visitation Act,” nursing homes can not prohibit the cameras or retaliate against residents who want to install them. The video systems will monitor residents who often cannot speak for themselves.

However, several requirements must be met to abide by the Act:

  1. The resident, or family if the resident lacks capacity, must provide notice of installation to the facility;
  2. Visual recordings must include date and time;
  3. The device must be stationary and fixed, not oscillating;
  4. Residents must pay all costs for installation, upkeep, and removal;
  5. Written consent is required from all roommates;
  6. Room changes are required if a roommate does not consent;
  7. Residents and applicants cannot be retaliated against for authorizing devices; and
  8. Signage must be installed at the front door of the facility (at the facility’s cost) and at the resident’s room (at the resident’s cost) advising of surveillance in the rooms.

    Furthermore, nursing homes must provide forms to nursing home residents, or their legal guardians, outlining the ways the cameras can be installed. Under the Act, surveillance should be addressed at admission as a resident right. To promote compliance, the Act prohibits the use of any recordings in litigation when the device was installed or used without the nursing home’s knowledge or used without adherence to the required forms. Additionally, compliance with the Act is a complete defense against lawsuits brought purely because monitoring devices are in use.

    Nursing facilities and the families of residents and patients should take care to comply with all of the requirements in the act to ensure that the video footage is actually admissible and that the facilities are not opening themselves to privacy lawsuits from other residents.  “Big Brother” might not be watching, but the increase in affordable, high quality, surveillance cameras, coupled with the Virtual Visitation Act, means nursing facilities should anticipate that someone could be watching very soon.