Don't Get Trapped In GenAI's Copyright Box (NILV, Privacy, Biometrics Also May Be Implicated, Experts Say)

Generative AI Scraping & Output/Display Issues Go Beyond "Fair Use"

Jan 13, 2025

Another CES is in the box. The week started fast and furious with my AI panel last Monday at the “Digital Hollywood” sessions - the calm before the firestorm.

Then everything changed in an unfathomable and tragic way.

LA’s pain - which is personal to me and so many others at CES (including many of you reading this) - overshadowed everything else beginning late Tuesday afternoon as the disaster unfolded and the news (and human pain) sunk in. Several of my closest friends — and likely several of you reading this — have lost everything. It’s horrific to watch. My heart goes out to all of you.

So here we are, and all we can do is “be there” for our family and friends who have been devastated both physically and emotionally. And we carry on. In that vein, first, this week’s “mAIn event” focuses on one of the major take-aways from my CES panel — i.e., media, entertainment and individual celebrity business and legal issues implicated by generative AI go well beyond copyright. Then, it’s the “mosAIc” — a collage of AI/media stories from the past week, including more AI, media and entertainment predictions. Finally, the “AI Litigation Tracker” is back with fresh updates on key GenAI/media legal cases by leading law firm McKool Smith.

I. The mAIn event - The Creative Community’s Claims Go Beyond Copyright

My four days of CES were full of meetings, events, and strategizing about generative AI opportunities and risks related to media and entertainment. And that was the topic of the expert panel I moderated titled, “AI and the Creative Community: Creative ‘Unlock’ or Existential Threat?” (which you can watch below). It featured key representatives from the Screen Actors Guild (SAG), Microsoft, and other experts on both sides of the equation.

40+ Court Battles (& “Fair Use” Decisions Coming Soon)

We discussed the 40+ ongoing litigations in the U.S. based on the fundamental copyright claims related to both the training and output/display of creative works when used without consent and compensation. The panel’s collective expectation is that federal judges will begin to weigh in on the central issue of “fair use” later this year. But none of us expects that issue to be conclusively resolved in the courts (especially the Supreme Court) for years. I’ve previously predicted that the courts will ultimately beat down tech’s “fair use” defenses in favor of rights-holders and the creative community, fundamentally altering the overall content licensing landscape (and the economics that go with it). And don’t forget that DMCA claims and traditional tort law are already part of several ongoing litigations. Those fall outside copyright.

More Than Copyright Is Implicated (NILV, Privacy, Biometrics)

Panelist Chad Hummel of leading rights-holder law firm McKool Smith went further to underscore critical business and legal points generally missing in discussions about GenAI’s inclusion of individuals (celebrities, pro athletes, etc.) in their training data sets and outputs/displays. Provocatively, Hummel argued that NILV (name, image, likeness, voice), rights of publicity, privacy, and biometric data protection are also implicated. He contends that GenAI companies are intentionally trying to limit business/legal discussions to copyright and “fair use” — and he cautions the creative community and rights-holders to “not get trapped in the copyright box.” He foresees significant court action on this broader battle.

Watch The Full Panel Discussion Here

You can watch the full panel discussion (including Hummel laying out the case for broader context) here via this link. Or you can click on the button below.

WATCH EXPERT PANEL DISCUSSION

My Great CES AI Panelists: Still Smiling After Our “Spicy” Discussion (from left to right): yours truly, Duncan, Moiya, Chad, Jenni, Paul and Lisa)

My panel (seen here post discussion) featured (i) Jenni Katzman, Sr. Director of Government Affairs at Microsoft, (ii) Chad Hummel, Principal at leading law firm McKool Smith, (iii) Duncan Crabtree-Ireland, National Executive Director & Chief Negotiator at SAG-AFTRA, (iv) Dr. Moiya McTier, Sr. Advisor to the Human Artistry Campaign (a collective of 200+ media/entertainment organizations), (v) Paul Lekas, SVP, Global Public Policy at Software & Information Industry Assn. (SIIA), and (vi) Lisa Oratz, Sr. Counsel at Perkins Coie.

II. The mosAIc — CES Quotables, 2025 Predictions & More

The “mosAIc” — more important stories and articles I curated for you.

(1) Oops He Did It Again. Mark Zuckerberg, That Is …

Meta CEO Mark Zuckerberg had quite a week. First, he did an “Elon” and ridded Meta/Facebook of all content moderation and ethics (perhaps we should rid ourselves of Facebook). And earlier, Zuck certainly didn’t help his own fair use “cause” in Meta’s AI-focused copyright litigation. In his deposition, he reportedly conceded that he personally ordered his generative AI teams — who had raised major copyright concerns — to damn the torpedos and forego content licensing because it would slow them down. Read this article that lays it out. Sounds pretty damning to me ….

I also recommend this great “Hard Fork” podcast episode about it all, which also covers recent significant developments in LLM models from OpenAI and Google — and why many experts (including yours truly) believe that later this year OpenAI will announce that it has achieved AGI (artificial general intelligence). CEO Sam Altman relentlessly wants to be first to clAIm that prize, no matter what may break in the process. Are we ready for it?

LISTEN TO "HARD FORK" EPISODE

(2) “Say, What?” Who Said This At CES

On a lighter note, here are some memorable quotes from my conversations at CES (don’t worry, I won’t reveal the sources!): (i) “Tech companies are willing to pay for content. They just aren’t willing to partner” (remember, the speaker’s words to me, not mine); and (ii) “I just had an AI massage” (yup, it happened at CES, and you can read about it here).

(3) TheWrap’s “8 AI Predictions for 2025”

Read my specific GenAI predictions, together with other experts weighing in, in this article in leading media and entertainment publication TheWrap via this link here.

(4) 5 Major Media & Entertainment Trends to Expect in 2025

TheWrap also just posted its 2025 preview that includes my thoughts about major themes/trends to expect in the world of media and entertainment this year (beyond AI). You can read them here via this link.

(5) ICYMI: My 10 Predictions for AI, Media & Entertainment in 2025

You can also read (or re-read) my 10 GenAI and media predictions for 2025 via this link from my recent newsletter. And watch and/or listen to me lay them out with significantly more context via this YouTube link. Then, after watching or listening, keep me honest throughout the year to point out when I’m right or wrong. Don’t hold back. I can handle it!

And follow me on BlueSky via this link.

FOLLOW ME ON BLUESKY

You can also continue to follow my longer daily posts on LinkedIn via this link.

III. AI Litigation Tracker: Updates on Key Generative AI/Media Cases (by McKool Smith)

Partner Avery Williams and the team at McKool Smith (named “Plaintiff IP Firm of the Year” by The National Law Journal) lay out the facts of — and latest critical developments in — the key generative AI/media litigation cases listed below via this link to the “AI Litigation Tracker”.