1. AI — “Fair Use” and the Creation of GenAI

In 2024, media and leisure companies will give attention to whether or not the longstanding tenet that content material is king has been disrupted by the “fair use” affirmative protection being deployed within the courts by synthetic intelligence (AI) expertise corporations working platforms that generate artistic works primarily based on a consumer’s prompts, referred to as generative AI (GenAI). Under the Copyright Law of the United States, truthful use is an affirmative protection to what would in any other case be copyright infringement. GenAI corporations, that are defendants in numerous copyright infringement lawsuits, assert they don’t want permission from media and leisure corporations to coach GenAI platforms on copyrighted content material owned by these corporations. They argue that the coaching constitutes truthful use below the Copyright Law and that works generated by GenAI platforms usually are not by-product works of the copyrighted content material on which the platforms are skilled. The focus will shine on choices the courts make concerning the deserves of the arguments of GenAI corporations.

2. AI — “Human Authorship” Requirement for Copyright Registration

A latest choice by the US Copyright Office Review Board might have far-reaching implications for artistic endeavors created partially by GenAI. On December 11, 2023, the Review Board affirmed a refusal to register a murals partially created by GenAI, concluding that the work lacked the “human authorship” needed to say copyright safety. This choice marks the third time in latest months that the Review Board issued a written opinion analyzing the affect of GenAI on copyright safety and continues a development of courts and the Copyright Office rejecting copyright safety for AI-generated works. This choice has important implications for rights house owners. If a piece comprises an excessive amount of GenAI content material, it might result in a lack of copyright safety for the work, both in complete or partially. Moreover, copyright candidates should disclose the inclusion of AI-generated content material of their copyright purposes. Failure to take action can result in cancellation of the copyright registration and, consequently, lack of entry to federal courts and the power to hunt statutory damages from infringers. General counsel will need to work intently with artistic groups to implement greatest practices and insurance policies to assist cut back the chance that any specific work product will likely be unprotectible below US Copyright legal guidelines.

3. Defamation — High Stakes, High Damages

The previous few years have seen an growing variety of extremely publicized, high-dollar defamation instances introduced towards media and leisure corporations or public figures. Already this 12 months, a jury has awarded creator E. Jean Carroll a big quantity in punitive damages in her defamation motion towards Donald Trump, and a New York court docket has denied Fox Corporation’s movement to dismiss in Smartmatic’s defamation motion towards it, which means that case will proceed to discovery. 

These instances underscore vital ideas for corporations within the media and leisure house. First, a mum or dad firm might be held chargeable for its subsidiary’s defamatory statements. Second, there seems to be an urge for food for elevated punitive damages the place a defendant continues to repeat their defamatory statements. To defend towards the chance of defamation legal responsibility, media and leisure corporations ought to take into account rigorously whether or not the statements that they publish — or statements printed by their brokers or subsidiaries — create a threat of defamation legal responsibility, and vigilantly defend towards repetition of these statements. 

4. AI — Expanding Protection for the Right of Publicity

The proper of publicity offers a star, musician, or different particular person the appropriate to stop unauthorized business use of his or her identify, picture, voice, likeness, or different elements of id. There is not any federal proper of publicity; as an alternative, the appropriate arises primarily based on various state legal guidelines and customary legislation. The rise of deepfakes and advances in GenAI have induced issues concerning the simple potential to imitate likenesses and voices. US Congress has taken discover. 

A dialogue draft circulated by US senators in October 2023, the NO FAKES Act of 2023, would create a civil motion for producing, publishing, distributing, or transmitting a “digital replica” of an actual individual’s picture, voice, or likeness with out consent (with some exceptions). A invoice launched within the House of Representatives in January, the No AI FRAUD Act, would create a civil motion for sure conduct involving “digital depictions” and “digital voice replicas” of actual individuals with out their consent. These proposed payments wouldn’t preempt current state legislation rights of publicity however create an extra treatment for sure unauthorized makes use of of an individual’s likeness. 

5. Essential IP Audit — IP Rights Should Reflect Technological Developments

As AI, digital content material, and the metaverse regularly evolve how items and providers are offered to customers, media and leisure corporations themselves regularly have to adapt their mental property (IP) rights and authorized choices to face these new challenges and alternatives. One such step is to assessment kind agreements — comparable to contracts with manufacturing corporations, expertise, licensees, and associates, on-line phrases of providers, and privateness insurance policies — to verify that they’ve secured their present and future pursuits for real-world eventualities and digital, digital, augmented, and digital platforms. Another step is to audit trademark portfolios for potential gaps in protection for digital items and/or providers and strategically fill these gaps. As a reminder, the US Patent and Trademark Office (USPTO) requires an applicant to at the least have a very good religion intent to make use of the trademark in reference to all items and providers in an software on the time of submitting. Failure to fulfill this requirement can render the appliance and any ensuing registration void.

6. Sports — Rise in Streaming

The sports activities media panorama is experiencing growing fragmentation with the rise in streaming providers and digital platforms. We have seen a decline within the conventional modes of broadcasting. Gone is the outdated mannequin of getting 82 video games broadcast on a mixture of over the-air and cable broadcasters. In 2024 and past, the competitors to broadcast skilled league content material will proceed to extend, with streaming providers and digital platforms keen to pay a premium for these rights. This development has already led to additional realignment of the sports activities media panorama, as evidenced by the 2023 chapter petition filed by Diamond Sports Group, which gives regional tv broadcasts for groups within the National Basketball Association (NBA), National Hockey League (NHL), and Major League Baseball (MLB). As leagues enter into partnerships, rights holders should rigorously take into account how one can allocate their rights to maximise income.

7. Fair Use — Post-Warhol Landscape

The US Supreme Court’s ruling towards artist Andy Warhol’s property within the copyright dispute over using {a photograph} of Prince for a Vanity Fair cowl continues to lift questions regarding the wide-reaching implications for brand spanking new media and GenAI in 2024. In a 7-2 choice, the Court discovered the “purpose and character” issue of the copyright truthful use evaluation didn’t weigh in favor of a discovering of truthful use the place using a brand new work encompassing an authentic work shares the identical objective as using the unique work and is commercially licensed. Although the addition of a brand new which means or message is a related consideration in assessing the aim and use of a piece for functions of figuring out truthful use, it’s not dispositive. As corporations and executives proceed to grapple with how one can use new AI applied sciences, this case is forcing management to extra rigorously take into account whether or not the brand new works created might qualify as transformative, and whether or not they transcend that required to qualify as a by-product work.

8. Publishing — Book Bans

Many states have enacted sweeping legal guidelines that broadly require the removing of books from public or faculty libraries. Often, these legal guidelines have restricted or no foundation in current constitutional jurisprudence, don’t present steering to educators concerning how one can implement the legal guidelines, and embody provisions that penalize educators for failure to implement the legal guidelines.

An ArentFox Schiff workforce not too long ago obtained a preliminary injunction stopping the enforcement of 1 such legislation, which offered for the removing of books from faculties and classroom libraries. In that case, our purchasers included the world’s largest commerce writer, Penguin Random House, 4 award-winning authors, the Iowa State Education Association, lecturers, a librarian, and a highschool pupil.

9. Data Privacy — Relevant to the Expanding Use of Technology

In 2018, the European Union’s (EU) General Data Protection Regulation (GDPR) took impact, and California enacted the California Consumer Privacy Act (CCPA), later amended by the California Privacy Rights Act of 2020 (CPRA). This was supplemented by 13 different new complete privateness legal guidelines across the United States. Since then, privateness points have taken a front-row seat for media and leisure corporations. The GDPR (and its counterpart within the United Kingdom (UK)), in addition to US state privateness legal guidelines, impose a slew of latest necessities on the business, from opt-outs for focused promoting and profile creation to assessments for high-risk knowledge makes use of, to honoring people’ requests to evaluate, appropriate, and even have their private info deleted, along with detailed contract necessities for sharing private info with distributors and different third events.

The GDPR and UK legislation additionally prohibit the cross-border switch of private info, even amongst associates. There can be a big and rising development involving personal privateness litigation and regulatory enforcement within the United States. Media and leisure corporations can discover themselves defending these instances the place they deploy third-party chatbots, cookies, pixels, and different monitoring applied sciences, movies, session replay expertise, biometric info comparable to AI-enabled facial recognition expertise or accumulate fingerprints (comparable to for wage and hour functions), and customary analytics and promoting providers.

Now, greater than ever, you will need to assessment your contracts and to establish and remediate these points in your digital properties to keep away from regulatory and personal privateness enforcement.

10. Trademarks — Post-Jack Daniel’s Landscape

The Supreme Court’s landmark choice in Jack Daniel’s Properties, Inc. v. VIP Products LLC (US 2023) has invited uncertainty about the way forward for the so-called “Rogers test.” This take a look at, usually relied on by media and leisure corporations when conducting title clearances, states that the unauthorized use of a third-party trademark within the title of an expressive work constitutes trademark infringement or false endorsement provided that (1) “the title has no artistic relevance to the underlying work whatsoever,” or (2) if there’s creative relevance, the place the title “explicitly misleads as to the source or the content of the work.” Media and leisure corporations ought to be conscious that titles that had been beforehand held defensible below the Rogers take a look at at the moment are being remanded for consideration below the Jack Daniel’s precedent, with some courts discovering that Rogers doesn’t apply. Under Jack Daniel’s, if a third-party’s trademark is used as a supply identifier for the defendant’s personal items or providers, even when the defendant’s use additionally has an expressive operate, the case won’t be reviewed below the edge Rogers take a look at. Instead, courts will now conduct normal probability of confusion evaluation to find out whether or not the use is infringing.

At the tip of the day, whereas many titles that arguably embody third-party logos can nonetheless be cleared to be used (e.g., primarily based on conventional probability of confusion and nominative truthful use evaluation), the price of defending trademark infringement claims concerning present and movie titles is prone to enhance. This is as a result of instances are much less prone to be resolved on the movement to dismiss stage given the fact-specific nature of figuring out whether or not a time period is used as a “source identifier” and whether or not there’s a probability of shopper confusion.

Additionally, corporations shouldn’t assume that the title of a single work, like a film or e book title, will at all times be analyzed below the Rogers take a look at. While the title of a single artistic work just isn’t registrable on the USPTO, some courts have discovered that the title of a single work can be utilized as a supply identifier, which means such titles wouldn’t be analyzed below Rogers, however would as an alternative be evaluated primarily based on conventional probability of confusion requirements.

Danielle W. Bulger, Adam Diederich, Matthew L. Finkelstein, D. Reed Freeman Jr., Dan Jasnow, and Andrew Sevanian additionally contributed to this text.