Copyright

Many headlines were generated on September 24, 2021, when Marvel Characters, Inc. filed a series of lawsuits against many former Marvel Comics illustrators.¹ The suits, filed in New York and Los Angeles, all have the same basic fact pattern and asked for the same relief. The suits sought a declaratory decree that the termination notices served on Marvel by the authors and heirs of the former Marvel illustrators were invalid. At stake are the characters Iron Man, Spider-Man, Daredevil, Ant-Man, Hawkeye, Dr. Strange, Black Widow, Falcon, Thor and more.²

When the Copyright Act was re-written, eventually enacted in 1976, for the first time, the right of an individual author to terminate a grant of copyright, and reclaim ownership, was added. But to make matters even more confusing, there were two different termination schemes enacted, one for post-1978 grants³ and one for pre-1978 grants.⁴ Yet, both systems have the same legal trap, the author cannot terminate a work that was prepared as a “work made for hire.” That is the central dispute in the suits that were filed. Yet, what constitutes a work made for hire after 1978, is largely governed by the Copyright Act. For pre-1978 works, it is largely a question of court decisions on the topic. Unfortunately for the Marvel illustrators, the case law does not favor their position.

The case law on the subject indicates that a pre-1978 creative work is “made for hire” when it is prepared at the “instance and expense” of the hiring party. This is the rule in the Second, Ninth and Fifth Circuits, and cited as controlling by a Bankruptcy Court ruling involving, interestingly enough, Marvel Comics.⁵

“If the employer can meet its burden to show some credible evidence that an employee worked at the ‘instance and expense’ of the employer, then the court will presume that the employer holds the copyright to the material produced.”⁶

The Second Circuit defines “instance and expense” as “when the ‘motivating factor in producing the work was the employer who induced the creation.’”⁷

The Fifth Circuit adds that another factor is “whether the employer had the right to direct and supervise the manner in which the work was being performed. Actual exercise of that right is not controlling, and copyright is vested in the employer who has no intention of overseeing the detailed activity of any employee hired for the very purpose of producing the material.”⁸

According to the Second Circuit: “[t]he ‘expense’ component refers to the resources the hiring party invests in the creation of the work. We have, at least in some cases, continued the tradition of treating the incidents of a traditional employment relationship as relevant to the analysis. (Citation omitted) We have, moreover, suggested that the hiring party’s provision of tools, resources, or overhead may be controlling…In other cases, however, we seem to have focused mostly on the nature of payment: payment of a ‘sum certain’ suggests a work-for-hire arrangement; but ‘where the creator of a work receives royalties as payment, that method of payment generally weighs against finding a work-for-hire relationship.’”⁹

The last quote is telling, as it came in a lawsuit bearing what Marvel calls “virtually identical circumstances,” Marvel Characters, Inc. against former Marvel illustrator Jack Kirby.

That case described in detail “The Marvel Method”:

“Under the Marvel Method, [Stan] Lee would not write a detailed script for a story before assigning an artist to draw it. Instead, at a ‘plotting conference,’ or in a ‘plot outline,’ Lee gave the artist the general contours of the story he had in mind: an outline of the plot, a description of the hero, and suggestions for how the story should look. The artist would draw the story along the lines of Lee’s ‘main theme.’ After an artist completed the pencil drawings, Lee edited his work and added dialogue and captions. Use of the Marvel Method allowed Lee to keep multiple artists working on assignments simultaneously.”¹⁰

Here’s where it starts to get sticky. Stan Lee was certainly an employee of Marvel. Whatever his contributions to the creation of a character were certainly works for hire which would remain with Marvel. Even though individual authors can terminate individual author’s shares, the questions then become “who created what” and “is this still relevant today”?

Let’s take Daredevil for example. His original costume was yellow. Who decided to change it to all red? So does the termination notice apply to “yellow” Daredevil or “red” Daredevil?

Or let’s look at Iron Man, whose suit of armor and look have changed vastly over the years:

Does the termination only apply to the original Iron Man? Who gets authorship over the changes? Or, let’s take on the character of Tony Stark. For the most part, Stark has been Iron Man. Sometimes Iron Man has been other characters, most notably James Rhodes.¹¹

This is important because despite termination, Marvel gets to keep the derivative versions of the character made while they held the copyright.¹²

And then we get to the problems of proof on these issues. Stan Lee is dead. So are Gene Colan, Don Heck and Don Rico.¹³ Stan Lee was deposed extensively in the Jack Kirby litigation, but these may not have any bearing on the creation of Iron Man or Spider-Man. While it is true that Marvel as Plaintiff has the burden of proof, how are the various defendants going to introduce evidence to the contrary?

Then there is the ruling on how “the Marvel Method” results in a decision of “work made for hire.”

“In the work-for-hire context, ‘an essential element of the employer-employee relationship is the right of the employer to direct and supervise the manner in which the [artist] performs his work.’ (citation omitted) If the hiring party ‘took the initiative in engaging [the artist]’ and had ‘the power to accept, reject, or modify her work, then the work is a work for hire. (citation omitted) It is undisputed that at all times between 1958 and 1963 Lee had complete editorial and stylistic control over all work that Marvel published…. If Lee did not approve of the artist’s work, it was not published. (citation omitted) Kirby was no exception. Lee edited Kirby’s work and reviewed and approved all of his work prior to publication. (citation omitted) Lee’s testimony is consistent with the recollection of Kirby’s daughter, Susan Kirby, who testified that Lee asked her father to ‘redo pages.’ (citation omitted) Neal Kirby testified about one instance where Lee rejected a ‘cover’ created by Kirby.”¹⁴

In affirming, the Second Circuit wrote:

“Understood as products of this overarching relationship, Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the artist, is therefore what induced Kirby’s creation of the works…Marvel’s inducement, right to supervise, exercise of that right, and creative contribution with respect to Kirby’s work during the relevant time period is more than enough to establish that the works were created at Marvel’s instance.”¹⁵

As to the “expense” prong:

“The facts underlying the expense component are not in dispute. Marvel paid Kirby a flat rate per page for those pages it accepted, and no royalties. It did not pay for Kirby’s supplies or provide him with office space. It was free to reject Kirby’s pages and pay him nothing for them. The record contains anecdotal evidence that Marvel did in fact reject Kirby’s work or require him to redo it on occasion, if less often than it did the work of other artists, but with what frequency is unclear… In the final analysis, then, the record suggests that both parties took on risks with respect to the works’ success—Kirby that he might occasionally not be paid for the labor and materials for certain pages, and Marvel that the pages it did pay for might not result in a successful comic book. But we think that Marvel’s payment of a flat rate and its contribution of both creative and production value, in light of the parties’ relationship as a whole, is enough to satisfy the expense requirement.”¹⁶

Given that the facts surrounding the current dispute are bound to be the same, how does the Marvel illustrator’s cases succeed?

According to the Marvel illustrator’s attorney, “At the core of these cases is an anachronistic and highly criticized interpretation of ‘work-made-for-hire’ under the 1909 Copyright Act that needs to be rectified.”¹⁷

Except that in this instance the appellate court in both jurisdictions where the suits have been filed have both affirmed the “instance and expense” test.

And if they succeed, what do they get? Certainly not total ownership of the copyrights at issue, since, as noted, Stan Lee was definitely an employee of Marvel. Co-ownership?

Co-ownership of a copyright means all parties own the copyright equally. And being a co-owner means that you can license a work without the permission of the other co-owners, subject to your duty to account for all the compensation one would receive. Could this happen?

Doubtful. The movie business is not like other businesses and thrives on exclusivity. Would a movie company really make a deal for one of the Marvel characters knowing that they would not have exclusive rights and that Disney would in essence be looking over their shoulder?

All likely outcomes point to a settlement at some point. This is what happened to the Kirby case even after the affirmance by the Second Circuit.¹⁸

Notes:

1. The suits are Marvel Characters Inc. v Lieber, 21-cv-7955; Marvel Characters Inc. v Ditko, 21-cv-7957; and Marvel Characters Inc. v Dettwiler, 21-cv-7959, all in U.S. District Court, Southern District of New York (Manhattan); Marvel Characters Inc. v Solo, 21-cv-5316, U.S. District Court, Eastern District of New York; and Marvel Characters Inc. v Hart-Rico, U.S. District Court, Central District of California (Los Angeles.)
2. Marvel Suing to Keep Rights to ‘Avengers’ Characters From Copyright Termination, Marvel Sues to Prevent Losing Copyrights to ‘Avengers’ Characters, Disney sues former Marvel artists over Iron Man and Spider-Man rights
3. 17 USC 203
4. 17 USC 304(c)
5. In Re: Marvel Entertainment Group 254 B.R. 817 (D. Del 2000)
6. Id. at 828
7. Sigel v. National Periodical Publications 508 F.2d 909 (2d. Cir.1974) at 914
8. Murray v. Gelderman, 566 F.2d 1307, 1310 (5th Cir.1978) at 1310
9. Marvel Characters Inc.v. Kirby 726 F.3d 119 (2d. Cir. 2013) at 140
10. Marvel Worldwide v.Kirby 777 F.Supp. 2d 720 (SDNY 2011) at 732
11. Wikipedia – Iron Man
12. 17 USC 304 (c) (6) (A)
13. Disney sues former Marvel artists over Iron Man and Spider-Man rights
14. Marvel Worldwide v.Kirby 777 F.Supp. 2d 720 (SDNY 2011) at 740
15. Marvel Characters Inc.v. Kirby 726 F.3d 119 (2d. Cir. 2013) at 141
16. Id. at 142
17. Disney sues former Marvel artists over Iron Man and Spider-Man rights
18. Id.

The late Sonny Bono now adds his name to another chapter of copyright law. The first, of course, was the Sonny Bono Copyright Term Extension Act, The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It's Not Really Shocking) which extended copyright protections for an additional 20 years. Now, his name gets attached to a very novel copyright fight: can the copyright termination provisions of Section 304 trump the terms and conditions of a State marital property settlement agreement? The facts of the case are simple and largely not in dispute. Sonny Bono was half of the very popular 1960's musical group "Sonny and Cher,"[ref]Wikipedia - Sonny Bono[/ref] who in the 1970's had their own TV Variety Show.[ref]Wikipedia - Sonny Bono[/ref] After their divorce, Cher became the far more popular and successful of the duo and is better known to modern audiences than Sonny. Indeed, Cher is so popular that she is now legally known only as "Cher" as the headings to this case indicate.[ref]Cher v. Mary Bono LA Cv21-08157 JAK (RAO) U.S. District Court for the Central District of California (Slip Opinion)[/ref] Sonny went into politics before dying in a skiing accident in 1998.[ref]Wikipedia - Sonny Bono[/ref] The epitaph on his gravestone is "And the Beat Goes On," a nod to Sonny and Cher's 1967 hit single "The Beat Goes On."[ref]The Beat Goes On (Sonny & Sher song)[/ref] As a result of their 1978 divorce, Sonny agreed that Cher would continue to receive "an undivided 50% interest" in the continuing royalties derived from sales and performances of their songs, less an administrative fee.[ref]Cher v. Mary Bono LA Cv21-08157 JAK (RAO) U.S. District Court for the Central District of California (Slip Opinion)[/ref] In 2016, Sonny's widow Mary Bono served termination notices under section 304(c) of the Copyright Act to reclaim ownership of Sonny copyrights on "various music publishers to which Sonny had granted a transfer or license of copyright in musical compositions that had authored or co-authored."[ref]Id. at 2[/ref] When the termination notices took effect, Mary stopped paying the royalties to Cher and in 2021 informed her that she no longer was entitled to any further royalties under the Marital Settlement agreement.[ref]Id. at 2-3[/ref] Cher sued in 2021 for declaratory judgement that "the notice of termination does not affect her royalty rights or approval rights under the [Marital Settlement Agreement]."[ref]Id. at 9[/ref] Both sides moved for summary judgement. On May 29, 2024, the District Judge sided with Cher, ruling that the MSA entitled Cher to a royalty stream, not necessarily an ownership interest in the copyrights themselves to which Section 304(c) termination would apply. "Consequently, Plaintiff's rights under the MSA are linked to the musical compositions and Sonny's corresponding property interests. Because in granting the royalty and approval rights at issue, the MSA did not refer to a "grant of a transfer or license" of the underlying copyrights, Plaintiff's rights under the MSA arise solely under state law. Further, because section 304(c) expressly provides that it "in no way affects rights arising under any other Federal, State, or foreign laws" (Citation Omitted) the Notice of Termination cannot affect Plaintiff's contractual right to receive financial compensation in exchange for the release and permanent discharge of any and all claims arising out of her marital relationship with Sonny. Notwithstanding the plain language of the MSA, Defendant argues that, under 17 U.S.C. § 304(c)(5), "[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant," and the MSA constitutes such an "agreement to the contrary." (citation omitted) However, the only rights that are terminable under section 304(c) are copyright grants. (citation omitted). Therefore, an "agreement to the contrary" under section 304(c)(5) is only a "contractual device that purports to divest" authors and successors of the right to "terminate copyright assignments." (citation omitted) Because the MSA does not refer to the underlying copyrights, it did not affect the ability of Sonny's heirs to terminate the copyrights. Therefore, it is not an "agreement to the contrary."[ref]Id. at 10-11[/ref] In rendering this decision, the Judge has side-stepped one of the more thorny issues of copyright law: marital community property. Under the laws of States that recognize "community property," all assets acquired during the marriage belong equally to the parties to the marriage. This would include all copyrights to works created by one of the spouses during the marriage. So here, absent an agreement, Cher would be a 50% owner of all of Sonny's copyrights due to the laws of community property. What the MSA agreement did was merely formalize this into an agreement where Sonny would keep 100% of the ownership of the copyrights, subject to Cher's right to receive 50% of all future income. If the Judge were to side with Mary Bono, it would mean that parties to a divorce proceeding could agree to a similar arrangement, only to have one party renege on that agreement years later, using the Copyright Act termination provisions of section 304. "The MSA … assigned to Plaintiff a right to the "contingent receipts ... from musical compositions and interests therein" in exchange for the release of "any and all claims ... arising out of the marital status of the parties." (citation omitted) Consequently, the conclusion "that an author-spouse in whom a copyright vests maintains exclusive managerial control of the copyright but that the economic benefits of the copyrighted work belong to the community while it exists and to the former spouses in indivision thereafter ... is consistent with both federal copyright law and [California] community property law and is reconcilable under both."[ref]Id. at 11[/ref] So, the beat goes on – and so do the royalty payments.

On May 9, 2024, the Supreme Court definitively ruled that damages in a copyright infringement suit were unlimited. In other words, as long as the suit was timely filed, damages for infringement could be recovered, no matter how old they might be.[ref]Warner Chappel Music, Inc. v. Nealy 2024 WL 2061137[/ref] What they failed to answer was when a copyright lawsuit was "timely filed." The case arose from a copyright lawsuit brought by Sherman Nealy against Warner Chappel Music and other defendants. He claims his works were infringed multiple times dating back to 2008.[ref]Id. at 3[/ref] Normally, one must file suit within three years from when the claim "accrues."[ref]17 USC 507 (b)[/ref] The question is, when does the claim accrue? There are two different rules applied by the Courts. The first is three years from when the infringement starts. The other is the "discovery" rule: that the claim accrues when the copyright owner knows or should have known that an infringement has occurred. As to this case, the Plaintiff has a pretty good excuse for not knowing about the infringements sooner: he was in prison for over 22 years. During that period, his songs made it into a good many recordings, including FloRida's "In The Ayer" which went to number 9 in the Billboard charts and sold over a million copies.[ref]Nealy at 3[/ref] In the suit, Warner agreed that Nealy could use the "discovery rule" for the purposes of deciding whether the claim was timely filed, but argued he was limited to damages only for the three years preceding the filing of the suit.[ref]Id.[/ref] The trial court agreed, but the 11^th Circuit reversed, citing the Ninth Circuit's decision in Starz v. MGM, a case I wrote about previously.[ref]Court of Appeals Rules That a Timely Filed Copyright Infringement Lawsuit Can Recover All Damages, No Matter How Long Ago They Occurred[/ref] "[T]he plain text of the Copyright Act," the Eleventh Circuit stated, "does not support the existence of a separate damages bar for an otherwise timely copyright claim." [citation omitted] And imposing such a bar, the court reasoned, "would gut the discovery rule by eliminating any meaningful relief" for the very claims it is designed to preserve."[ref]Nealy at 4 citing 60 F.4^th 1325 (11^th Cir. 2023)[/ref] And now, the Supreme Court of the U.S. agrees. "The text of the Copyright Act answers that question in favor of copyright plaintiffs. The Act's statute of limitations provides in full: "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." [citation omitted] That provision establishes a three-year period for filing suit, beginning to run when a claim accrues—here, we assume, upon its discovery. And that clock is a singular one. The "time-to-sue prescription," as we have called it, establishes no separate three-year period for recovering damages, this one running from the date of infringement. [citation omitted] If any time limit on damages exists, it must come from the Act's remedial sections. But those provisions likewise do not aid a long-ago infringer. They state without qualification that an infringer is liable either for statutory damages or for the owner's actual damages and the infringer's profits. [citation omitted] There is no time limit on monetary recovery. So a copyright owner possessing a timely claim for infringement is entitled to damages, no matter when the infringement occurred."[ref]Nealy at 4[/ref] And: "The…contrary view, on top of having no textual support, is essentially self-defeating. With one hand, [it] recognizes a discovery rule, thus enabling some copyright owners to sue for infringing acts occurring more than three years earlier. And with the other hand, [it] takes away the value in what it has conferred, by preventing the recovery of damages for those older infringements. As the court below noted, the three-year damages bar thus "gut[s]" or "silently eliminate[s]" the discovery rule. [citation omitted] Or said another way, the damages bar makes the discovery rule functionally equivalent to its opposite number—an accrual rule based on the timing of an infringement."[ref]Id.[/ref] But, as the dissent points out, the Court fails to rule on the prerequisite: should the "discovery rule" be allowed at all? For if a Court rules that the three-year limitation begins when the infringement occurs, discovered or not, then the damages extension granted by the SCOTUS means nothing. It's at best half of a full resolution of the issue. Also, even though the Court may accept the "discovery rule," it could refuse to apply it given the "relative sophistication" of the Plaintiff. As this Court stated: "Plaintiff's relative sophistication as an experienced litigator in identifying and bringing causes of action for unauthorized uses of [Plaintiff's] copyrighted works leads to the conclusion that it should have discovered, with the exercise of due diligence, that the Rose Photographs were posted within the three-year limitations period. In this respect, as Defendants persuasively argue, this case is akin to Minden Pictures, Inc. v. Buzzfeed, Inc., {citation omitted] ("Minden"). In that case, although the plaintiff alleged that it had been unable to discover infringing activity until many years after it began, the court nevertheless dismissed the copyright claim as time-barred, reasoning that a "reasonable copyright holder in Minden Pictures' position—that is, a seasoned litigator that has filed 36 lawsuits to protect its copyrights, beginning as early as [seven years before the complaint]—should have discovered, with the exercise of due diligence, that its copyright was being infringed within the statutory time period." [citation omitted] The same logic applies with equal force here, where Plaintiff had filed 134 separate copyright infringement cases between 2010 and early 2022."[ref]Michael Grecco Productions, Inc. v. RADesign, Inc.678 F.Supp.3d 405 (SDNY 2023)[/ref] So as with the Plaintiff here, the Court could accept the "discovery rule" but still rule that Nealy should have discovered it sooner. 22 years is a long time.

Earlier in the year, the maker of artificial intelligence program OpenAI made this statement to the UK Parliament: "Because copyright today covers virtually every sort of human expression–including blog posts, photographs, forum posts, scraps of software code, and government documents–it would be impossible to train today's leading AI models without using copyrighted materials. Limiting training data to public domain books and drawings created more than a century ago might yield an interesting experiment, but would not provide AI systems that meet the needs of today's citizens."[ref]OpenAI-written evidence[/ref] Then, as reported by Isaiah Portiz of Bloomberg Law, last week at the Vanderbilt University Music Law Summit OpenAI, attorney Sy Damle had this to say: "If you were to do private negotiations for every piece of content that you need to train one of these models," they wouldn't exist… "We just have to accept that as a fact in the world, and then we can start having a conversation about what are the right policies that we build, given that we want these tools to exist."[ref]OpenAI Attorneys Say Licensing All Training Data Is Impossible[/ref] Two problems are immediately obvious. OpenAI has identified a crucial component to the functioning of their product (copyrighted materials) that they are unwilling to pay for.  Then, notice the underlying assumption that somehow there is a NEED for these programs to exist, that we WANT these programs to exist, and that somehow copyright is standing in the way. To which I ask, where is the glaring need? There are over 100 million music tracks available on Spotify. So many that Spotify is changing its payout policy and will only pay royalties on music tracks that have 1,000 streams or more in the previous 12-month period.[ref]Digital Music News[/ref] So, is there really a burning need for more songs? This company seems to think so: "[GenericAI company] is your copilot for music creation. Use AI to make music by simply typing in your ideas and [AI Product] will generate copyright and royalty free music for you instantly. …[AI Product] is for all levels of musicians, content creators and everyone looking for beats audio effects…and music!"[ref]Please note I am deliberately not naming the companies in question so as to not give them free publicity[/ref] This also reveals the hubris of the AI companies. They tell you by typing in a few commands into a computer program that you are now some kind of "music creator." And, by the way, I am not sure if the reference to "copyright free" means that it is not infringing (hopefully) or a recognition that as an AI created work it is not capable of copyright protection. But I digress. There are 3,600 movies on Netflix, plus over 1,800 television shows.[ref]Top 10 Movies & TV shows on Netflix[/ref] There are 1,200 movies on Hulu along with 1,300 TV shows.[ref]Top 10 Movies & TV shows on Hulu[/ref] Over at Disney+ there are 500 movies and 15,000 TV episodes.[ref]Getting started with Disney+[/ref] So again I ask, where is the great burning need for more content? There isn't. For the real purpose of AI is to put creative artists out of work. Lately, my FaceBook feed has been awash in ads for AI product. What is their pitch? Don't pay for creative works. "Never Pay for Voiceovers!" says one. OK, let's put voice actors out of work. "Save hundreds of dollars and hours of your time with [Company] AI Headshot Generator." and  "No Photoshoot/ Photographer Needed!" says another. OK, let's put headshot photographers out of work too. "Because with it you can create training videos in 60+ languages in minutes. Without actors, cameras, microphones & voiceovers." Yep. Let's put them out of work as well. "Replace expensive spokespersons, voice artists and multiple videos apps." OK, goners. "Hey, with [Company] AI, you can generate realistic looking images, even if you've never drawn more than a crooked line before." Again, type a command, and you're an instant creator. Except now there is an AI program that if you upload a photo or piece of art, it will generate the command prompt for you. So, what AI represents is a massive campaign to drive revenue away from human artistic creators to the makers of AI programs, which were all trained on the work of the very artists they now want to put out of business. All without compensation. Because that would be "impossible." So what you have is a business model where your business is 100% dependent on obtaining your raw materials for free. And obtaining these raw materials for free is probably against the law. Is this a good business model? As my colleague David Newhoff over at the Illusion of More website wrote: "If I were an AI investor asking about potential liability, and the founders told me, ‘Don't worry, what we're doing is fair use,' my immediate response would be to ask whether there is sufficient funding for major litigation, to say nothing of predicting the outcome of that litigation. Because simply put, the party who conjures the term ‘fair use' has effectively assumed that a potential liability for copyright infringement exists. And if that assumption is a bad business decision, then that's the founders' problem, not a flaw in copyright law. No matter what the critics say, or how hard certain academics try to alter its meaning, the courts are clear that fair use is an affirmative defense to a claim of copyright infringement, which means that building a business venture on an assumption of fair use is tantamount to assuming that lawsuits are coming. And if it's a multi-billion-dollar venture that potentially infringes millions of works owned by major corporations, then the lawsuits are going to be big—perhaps even existential."[ref]"Fair Use" is Not a Great Business Plan[/ref] These lawsuits, many of them filed as class actions, have already started. But we can look beyond the mere enormity of the amount of money that might be owed. One of the remedies available to the copyright owners is: "(b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced."[ref]17 USC 503(b)[/ref] So, the Plaintiffs could request not only that all copies of the AI program be recalled, but that the AI companies remove all copyrighted works from their training data set. And if we take the statement of Open AI above to be true, this would render their product an "interesting experiment" that was not commercially viable. In other words, a bad business model is being rammed down the throats of the artistic community so it can be profitable. This follows in the footsteps of Spotify, which gained its market dominance through streaming songs it did not have a license for. To this date, Spotify has never, ever, turned an annual profit.[ref]Spotify Passes 600 Million Users, Expects Profitable 2024 Start[/ref] Another tech "innovation" with a bad business model. It also follows from the long line of tech "innovations" which were created by ripping off musicians and artists. The logic is "infringe first, duke it out in court later." It worked for Google and YouTube. Not so good for Napster, Grokster, Re-Digi, Grooveshark, TV Eyes, VidAngel and others. So, in the words of Elton John and Bernie Taupin, artists can say "I've Seen That Movie Too." The days of artistic giveaways to big tech companies in the name of "innovation" can be, and should be, over.

• Plaintiff Philpot is a professional photographer whose specialty is concert photos of rock musicians
• He took and registered a photograph of guitarist Ted Nugent and registered same with the Copyright Office
• He made the photo available through a Creative Commons license, which required that all uses provide Philpot with attribution
• Defendant IJR republished the photograph of Nugent to accompany the article "15 Signs Your Daddy Was a Conservative"
• Defendant did not alter the photo except slight cropping to eliminate negative space
• Defendant did not provide the required credit, instead linking to Nugent's Wikipedia page[ref]Id. at 1-2[/ref]