The AI Litigation Tracker: Updates on Key Media and Entertainment Generative AI Infringement Cases (as of 3/8/25)
Here are the latest updates on the key generative AI focused copyright infringement-related litigations that impact media & entertainment (as of 3/8/25) — monitored, compiled, updated and tracked in depth by partner Avery Williams and the team at McKool Smith (just voted “Plaintiff Firm of the Year” by The National Law Journal and with the most “Top 100 Verdicts” in U.S.).The most significant developments for the week are listed first.
1. Kadrey et al. v. Meta
Background: Author Richard Kadrey, comedian Silverman, and others sued Mark Zuckerberg’s Meta on July 7, 2023 in the U.S. District Court (Northern District of California) for mass infringement - i.e., unlicensed “training” of their generative AI model on millions of copyrighted works, including their own. Meta’s defense is “fair use.” The judge assigned is Judge Vince Chhabria.
At first, in November 2023, the Court dismissed the bulk of plaintiffs’ claims against Meta. But the Court gave plaintiffs a chance to amend their complaint to add a more direct link to actual harm (and they filed their amended complaint in December 2023).
Current Status: Plaintiffs’ Victory in Motion to Dismiss Ruling! This week Judge Chhabria ruled on Meta’s Motion to Dismiss, largely preserving plaintiffs’ claims. With respect to the DMCA claims, the order tracked the reasoning of prior rulings in The Intercept Media and Raw Story Media (highlighted below), finding that the DMCA protected against the “kind of property-based harms traditionally actionable in copyright” and accordingly conferred Article III standing. The Court wrote that plaintiffs’ § 1202(b)(1) claims stood on shakier grounds. The order pointed to plaintiffs’ allegations that Meta’s removal of copyright management information was in part to prevent its models from regurgitating that CMI to users as raising a “reasonable, if not particularly strong, inference” that Meta did attempt to conceal copyright infringement. The Court did, however, dismiss plaintiffs’ California Comprehensive Computer Data Access and Fraud Act (“CDAFA”) claim as preempted by their copyright claims, which it found were not qualitative different since both rested on plaintiffs’ copyright interests.
Plaintiffs also got their way in the ongoing discovery dispute. Following his stern response to Meta’s discovery conduct last week, Judge Chhabria granted plaintiffs’ discovery proposal, granting them leave to serve a 9-page rebuttal expert report, take a single additional 30(b)(6) deposition on the torrenting of copyrighted works, serve one additional RFP, and perform one additional targeted search.
2. Thomson Reuters v. Ross Intelligence: The “Fair Use” Shot Heard Around The Litigation World
On February 11th, in a case that comes tantalizingly close to deciding the issue of “fair use” in generative AI model training (with many taking the position that now that issue is firmly decided, as laid out below), Circuit Judge Bibas of the District of Delaware ruled that the “fair use” doctrine does not protect the use of West Headnotes in determining what to display as a result of a user query. Thomson Reuters v. Ross Intelligence involves an AI search tool made by the now-defunct Ross Intelligence (“Ross”). Ross’ tool accepted user queries on legal questions and responded with relevant case law. To determine what cases to provide in response to user queries, Ross compared the user queries to “Bulk Memos” from LegalEase, which were written using Westlaw Headnotes. Boiling it down, when a user’s query contained language similar to a West Headnote, Ross’ tool would respond by providing the cases that the West Headnote related to.
While Ross’s tool was not a modern generative AI model (it didn’t use a transformer model or perform next-token prediction to generate unique output for queries), an important similarity exists between Ross’ use of West Headnotes and the way generative AI models train on other copyrighted materials. Ross’ tool did not actually reproduce the West Headnotes in response to a user’s query. Ross used the Headnotes just for “training,” that is, to determine what to produce in response to a user's query. It is easy to draw an analogy between Ross’ use of West Headnotes to determine what cases are responsive to a user’s query, and OpenAI’s use of The New York Times articles to determine how to respond to a question about politics (see the separate The New York Times case against OpenAI summary below). The technology is different, but the themes are similar.
In that context, the Court’s grant of summary judgment against Ross’ fair-use defense — as a matter of law — provides insight into how another court might rule in a generative AI training case. “Fair use” is based on four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the potential impact on the market. The Thompson Reuters Court found that factors two and three favored Ross because of the low degree of creativity involved in carving out headnotes from cases, as well as the fact that Ross did not output the headnotes themselves but rather judicial opinions. However, factor one favored Thomson Reuters because of the commercial nature of Ross’ product and the fact that it was not transformative. The Court noted that Ross’ product was not generative AI, suggesting that a generative AI product could be more transformative than the simpler lexical searching tool that Ross made. Finally, the fourth factor and “undoubtedly the single most important element of fair use” favored Thomson Reuters because of the potential impact on Thomson Reuters’ ability to sell its own data for use in training AI if Ross’ use was permissible. On balance, the Court flatly rejected Ross’ “fair use” defense as a matter of law. That question will not go to a jury.
AI developers will undoubtedly focus on the issue of transformative-use in generative AI fair-use battles to come, but the “commercial use” and “market impact” factors will continue to favor content owners over generative AI companies. We have already seen several massive licensing deals where companies like Reuters and Reddit are profiting from the sale of their own data. If courts continue to favor the “market impact” factor as we see in Thompson Reuters, then OpenAI, Sonos, and the like will have an uphill battle to prove their “fair use” defense.
3. The New York Times v. Microsoft & OpenAI
Background: This is perhaps the single most closely watched litigation involving copyright owners and generative AI tech companies.
On December 27, 2023, The New York Times sued Microsoft and OpenAI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. The Times alleges that the companies used “millions” of its copyrighted articles to train their AI models without its consent. The Times claims this has resulted in economic harm by pulling users away from their paywalled content and impacting advertising revenue. The complaint alleges several causes of action, including copyright infringement, unfair competition, and trademark dilution. In its pleadings, The Times asserts that Microsoft and OpenAI are building a “market substitute” for its news and further that their AI generates “hallucinations” based on The Times’ articles also substantially damage its reputation and brand. The Times seeks “billions of dollars of statutory and actual damages.” Microsoft and OpenAI assert the defense of “fair use” - i.e., no license, payment or consent is needed.
On September 13, 2024, the Court granted a motion to consolidate the case with another brought by the Daily News and other publications. The judge assigned to the consolidated cases i Judge Sidney Stein.
Current Status: No major substantive developments this past week. Last week we reported that Magistrate Judge Wang set a date for a second in-person settlement conference on March 7th following requests by both defendants and plaintiffs. So far, nothing has materialized from these discussions. In fact, there is nothing on the docket to suggest that the hearing even took place. Perhaps we’ll see an update early next week. It remains to be seen if the parties will be able to come to an agreement without further litigation.
4. In re OpenAI ChatGPT Litigation (the cases, Paul Tremblay v. OpenAI, Inc., Sarah Silverman v. OpenAI, Inc., and Chabon v. OpenAI were consolidated and recaptioned to this new moniker)
Background: Comedian Sarah Silverman and other artists filed this class action lawsuit in the Northern District of California on June 28th, 2023, asserting copyright infringement claims, in addition to unfair competition, negligence, and unjust enrichment. The plaintiffs alleged that OpenAI used their copyrighted written works to train its AI chatbot. In February, the Court dismissed most of the claims against OpenAI, rejecting plaintiffs’ argument that the content generated by ChatGPT (i.e., the “output”) infringes their copyrighted works because there is no “substantial similarity” on the “output” side of the copyright question (and, therefore, no meaningful harm). But the Court gave the plaintiffs an opportunity to amend their complaint to plead a more direct link of harm (which they later did). In July, the Court dismissed the unfair competition claim. The claim for direct infringement is the only main one that remains. The case is assigned to Judge Araceli Martinez-Olguin.
Current Status: Plaintiffs continue to face discovery pushback. This week brought more negative discovery outcomes for plaintiffs, as the Court ruled on additional discovery requests. The Court denied plaintiffs’ motion to compel production of documents from third party Reuters concerning its relationship with Meta. That Court found that plaintiffs failed to articulate why documents from OpenAI could not suffice to establish the existence of a market for copyrighted content as training data, and that third party documents were unnecessary.
With respect to plaintiffs’ analogous request for documents relating to Microsofts’ dealings with OpenAI, the Court maintained that Microsoft should produce documents relating to its agreement with OpenAI. However, the Court declined to order the production of any further documents from Microsoft.
5. UMG Recordings v. Suno
Background: The RIAA on behalf of the major record labels filed their lawsuit in the federal district Court in Massachusetts on June 24th, 2024, for mass copyright infringement and related claims based on alleged training on their copyrighted works. Suno is a generative AI service that allows users to create digital music files based on text prompts. This is the first case brought against an AI service related to sound recordings. In their answer on August 1st, Suno argued that their actions were protected by fair use. The judge assigned is Chief Judge F. Dennis Saylor, IV.
Current Status: No major substantive developments this past week. Still no progress since the parties’ February 21st discovery update to the Court. The parties disagree about which of Suno’s AI models are within the scope of discovery and need to further confer on electronic search methods relating to investor communications and training data. Suno wants discovery regarding UMG Recording’s asserted works but the parties have yet to meet in the middle. With the source-code protocol in place, UMG Recordings will soon be able to directly inspect some of Suno’s accused systems.
6. Concord Music Group, et al. v. Anthropic
Background: UMG, Concord Music and several other major music companies sued Amazon-backed OpenAI competitor Anthropic on October 18th, 2023 in the U.S. District Court (Middle District of Tennessee). The music companies assert that Anthropic is infringing their music lyric copyrights on a massive scale by scraping the entire web to train its AI, essentially sucking up their copyrighted lyrics into its vortex – all without any licensing, consent or payment. In its response, Anthropic claimed fair use. The case was transferred to the Northern District of California on June 26th, 2024 and closed in Tennessee. The judge assigned is Judge Eumi K. Lee. The parties have not yet had a case management conference.
Current Status: No major substantive developments this past week. Last week we reported that the parties had submitted their joint case management statements ahead of the upcoming case management conference before Judge Lee. This week, the Court reset the conference for April 23rd, so that conference is still forthcoming. In the meantime, the parties have continued exchanging joint letter briefs as they negotiate discovery disputes.
7. Dow Jones & Co, et al v. Perplexity AI
Background: On October 21st, 2024 The Wall Street Journal and The New York Post sued generative search company Perplexity AI in the U.S. District Court for the Southern District of New York for copyright infringement and other related claims. A new twist in this litigation is the focus on Retrieval Augmented Generation (“RAG”) AI. RAG GenAI not only uses an LLM trained on copyrighted material to respond to individual prompts, but also goes out to the web to update itself based on the relevant query. Perplexity even said the quiet part out loud, encouraging its users to “skip the links” to the actual sources of the copyrighted content. Based on Perplexity’s RAG model, the media plaintiffs allege that Perplexity is infringing on their copyrights at the input and output stage, sometimes reproducing copyrighted content verbatim. Plaintiffs cited their parent company News Corp’s recent licensing agreement with OpenAI in explaining that GenAI technology can be developed by legitimate means.
Current Status: No major substantive developments this past week. This case has been quiet for a few weeks. As we reported previously, Perplexity has moved to dismiss or alternatively to transfer venue to Northern California. In its motion, Perplexity presented itself as a champion of truth, prioritizing collaboration with news organizations and other publishers that was rebuked in its effort to partner with Plaintiffs in favor of litigation. Here, however, plaintiff moved to dismiss based on lack of personal jurisdiction in New York and improper venue or, alternatively, to transfer the case to Northern California.
According to Perplexity, although it has a handful of employees in New York, this is insufficient to give rise to the requisite contacts to subject it to personal jurisdiction there. Perplexity also rebuffed plaintiffs’ reference to its New York advertising activities as isolated instances that were not targeted at New Yorkers themselves. Perplexity likewise alleged that venue was improper under 28 U.S.C. § 1400 for the same reasons.
8. Sarah Andersen v. Stability AI
Background: Visual artists filed this putative class action on January 13th, 2023, alleging direct and induced copyright infringement, DMCA violations, false endorsement and trade dress claims based on the creation and functionality of Stability AI’s Stable Diffusion and DreamStudio, Midjourney Inc.’s generative AI tool, and DeviantArt’s DreamUp. On August 12th, 2024, the Court dismissed many of the claims in the plaintiffs’ first amended complaint, leaving the claims for direct copyright infringement, trademark, trade dress, and inducement. The assigned judge is Judge William H. Orrick.
Current Status: No major substantive developments this past week. The parties submitted a joint letter brief relating to deposition protocols on February 12th. Plaintiffs have requested up to 60 depositions of fact witnesses based on the need for witnesses to testify on core technical issues, corporate structure, and business operations. Defendant Stability AI maintains that this request is premature and that no more than the default limit of twelve total depositions is presently indicated.
9. Raw Story Media & Alternet v. OpenAI
Background: News publishers Raw Story Media and Alternet filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, claiming their articles were used to train the LLM that powers OpenAI’s ChatGPT. Rather than claiming copyright infringement, the plaintiffs alleged one cause of action for violating the DMCA (which is a separate provision of the Copyright Act related to Internet content). The plaintiffs claimed that OpenAI removed the CMI from their articles, which they argue is a violation of the DMCA.
Current Status: No major substantive developments this past week. As we reported last month, Raw Story Media submitted its reply in support of its request for leave to file an amended complaint. They assert that the removal of copyright management information (CMI) by OpenAI constitutes copyright infringement, which is a recognized harm under Article III. Additionally, they claim that OpenAI unlawfully profited from this removal, which is analogous to unjust enrichment, a common-law injury. If the Court finds that standing requires dissemination, Raw Story Media requests jurisdictional discovery to determine if OpenAI disseminated their articles. With their earlier complaint dismissed in its entirety for lack of standing, this is Raw Story Media’s last chance in this lawsuit.
10. UMG Recordings v. Uncharted Labs (d/b/a Udio)
Background: This case was brought on June 24, 2024, in the Southern District of New York, by a group of major record companies against the company behind Udio, a generative AI service launched in April 2024 by a team of former researchers from Google Deepmind. Much like Suno below, Udio allows users to create digital music files based on text prompts or audio files. And as with the complaint against Suno (see below), plaintiffs rely on tests comprising targeted prompts including the characteristics of popular sound recordings — such as the decade of release, the topic, genre, and descriptions of the artist. They allege that using these prompts caused Udio's product to generate music files that strongly resembled copyrighted recordings. The claims are for direct infringement and related causes of action. The judge assigned is Judge Alvin K. Hellerstein.
Current Status: No major substantive developments this past week. Discovery continued with few filings by the parties this past week. With the relatively recent appointment of a Special Master, it remains to be seen how discovery will develop.
11. Getty Images v. Midjourney and Stability AI
Background: Getty Images filed this lawsuit against image generator Stability AI on February 2nd, 2023, accusing the company of infringing more than 12 million photographs, their associated captions and metadata, in building and offering Stable Diffusion and DreamStudio. Getty’s claims are similar to those in The New York Times v. Microsoft & OpenAI case above, but here they are in the context of visual images instead of written articles - i.e., unlicensed scraping by their AI with an intent to compete directly with, and profit from, Getty Images (i.e., market substitution). This case also includes trademark infringement allegations arising from the accused technology’s ability to replicate Getty Images’ watermarks in the AI outputs. Getty filed its Second Amended Complaint on July 8th, 2024, and the parties are currently engaged in jurisdictional discovery related to defendants’ motion to transfer the case to the Northern District of California. The judge assigned is Judge Jennifer L. Hall.
Current Status: Still no update for Getty. Still no update for Getty. We continue to wait for the Court to rule on Stability AI’s jurisdictional arguments. With the prospect of this case showing up on the March six-month list, maybe we’ll get a ruling soon.
12. The Intercept Media v. OpenAI
Background: The Intercept Media, a news publisher represented by the same firm that represents the plaintiffs in the Raw Story Media litigation below, filed suit against OpenAI and Microsoft on February 28th, 2024 in the Southern District of New York, the same day Raw Story Media commenced their suit. Like the Raw Story allegations, The Intercept alleged that their articles were used to train ChatGPT and brought claims for the removal of the copyright management information (“CMI”) from the articles.
Current Status: No major substantive developments this past week. Nothing new since OpenAI filed their answer to The Intercept’s First Amended Complaint on December 6th. OpenAI presented 10 affirmative defenses, including fair use, several equitable doctrines, statute of limitations, lack of mitigation, and failure to state a claim.
13. The Center for Investigative Reporting v. OpenAI
Background: The Center for Investigative Reporting, which produces Mother Jones and Reveal, sued Microsoft and OpenAI for essentially the same claims made in The New York Times case above.
Current Status: Motion to consolidate recently granted! Microsoft and OpenAI asked the court to consolidate this case with NY Times v. Microsoft & OpenAI, and — and, as indicated above, the Magistrate granted the motion to consolidate on October 30th (refer to the activity discussed above).
14. The Authors Guild, et al. v. OpenAI
Case Background. The Authors Guild and seventeen individual authors (including John Grisham, George R.R. Martin and Nicholas A. Basbanes) filed a putative class-action suit against OpenAI on September 19th, 2023. The plaintiffs claimed that OpenAI trained its ChatGPT LLM by copying their copyrighted works. The complaint brings claims under 17 U.S.C. §501 for direct, vicarious, and contributory copyright infringement. The case is assigned to Judge Ona T. Wang.
Current Status: No major substantive developments this week. We are still waiting for the court’s decision on discovery consolidation. The case seems to be on ice until then.
15. INTERNATIONAL CASE TRACKED: Canadian News Media Companies v. OpenAI
In a case similar to The New York Times v. OpenAI, Canada’s major news organizations sued OpenAI for copyright infringement on November 28th. Filed in Ontario’s Superior Court of Justice, the news organizations are seeking billions of dollars in compensation for the “ongoing, deliberate, and unauthorized misappropriation of the Plaintiffs’ valuable news media works.” This is the first case of its kind in Canada, and presents a new front against OpenAI, after one was opened in Germany in Gema v. OpenAI as reported last week.
See https://litigate.com/assets/uploads/Canadian-News-Media-Companies-v-OpenAI.pdf
16. INTERNATIONAL CASE TRACKED: GEMA v. OpenAI
GEMA, a German association representing more than 95,000 composers, lyricists and publishers, filed suit in German court accusing OpenAI of reproducing their members’ song lyrics without a license. Gema claims this is a test case to clarify the law in Germany, and that it aims to establish a license model that would compensate music creators whose works are used to train AI models. The details of German copyright law are a bit beyond the scope of this blog, but we did think it noteworthy that the litigation trend is catching on worldwide. While we don’t plan to track this case closely, we will watch for any momentous developments.
