the AI case tracker (updates on the key media and entertainment focused generative AI cases)

Here are the latest updates on the key generative AI focused copyright infringement-related cases that impact media & entertainment (as of 2/24/24).

(1) The New York Times v. Microsoft & OpenAI

Background: The Times filed its lawsuit in the federal courts of New York (Southern District) on December 27, 2023 for mass copyright infringement and other related claims), asserting that OpenAI “trained” its generative AI on “millions” of its copyrighted articles without consent and payment (and Microsoft enabled the infringement). In its pleading tour de force (one that serves as a master class for all future plaintiffs in these types of AI infringement cases), The Times also asserts that Microsoft and OpenAI are trying to build a “market substitute” for its news and, also notably, that their AI generates “hallucinations” based on The Times’ articles that substantially damage its reputation and brand. The Times seeks “billions of dollars of statutory and actual damages.” Microsoft and OpenAI will claim “fair use” - i.e., no license, payment or consent is needed.

Current Status: The Sarah Silverman plaintiffs in the OpenAI case discussed below (which is in the federal courts of California) are asking the judge here in this New York Times case to dismiss, pause or transfer it to California because similar issues are at play (and Silverman and the other artists believe the California court will be more sympathetic to their claims). Read my deep dive analysis of - and prediction for - the case and its ultimate resolution here.

(2) Sarah Silverman, et al. v. OpenAI

Background: Comedian Sarah Silverman and other artists filed this class action lawsuit in a California federal court (Northern District of California), asserting copyright infringement claims similar to those in The New York Times case (above) and in their separate California federal court case against Meta (below). As mentioned above, they are asking the judge in The Times’ New York case to put a halt to that case until this one plays out due to their similar issues.

Current Status: On February 12, 2024, the federal judge dismissed most of Silverman’s claims against OpenAI, rejecting her argument that the content generated by ChatGPT (i.e., the “output”) infringes her copyrighted works because there is no “substantial similarity” (and, therefore, no meaningful harm). But the court gave Silverman until March 13th to amend the complaint to plead a more direct link of harm to her and the other creators. Importantly, the court hasn’t yet ruled on the “input” side of the equation - whether OpenAI’s mass “training” of its generated AI on their copyrighted works without consent is infringement.

My prediction is that the judge here won’t change his mind and that he’ll permanently dismiss all claims on the “output” side of the equation. I also predict he will dismiss most, if not all, claims based on OpenAI’s unlicensed training on the “input” side. My advice to Silverman’s attorneys is to emulate The New York Times’ lawsuit against Microsoft and OpenAI. Read my deep dive analysis of the case, the court’s initial rulings, and what they portend here.

(3) Sarah Silverman, et al. v. Meta

Background: In this similar class action to her lawsuit filed against OpenAI, Sarah Silverman and others sued Mark Zuckerberg’s Meta on July 7, 2023 in another federal court (again Northern District of California) for mass infringement - i.e., unlicensed “training” of their generative AI on millions of copyrighted works, including their own. Not surprisingly, Meta’s defense is “fair use.”

Current Status: Much like in Silverman’s case against OpenAI, and for similar reasons, on November 2023, the judge dismissed the bulk of her claims against Meta. But much like in the OpenAI case, the judge gave Silverman a chance to amend her complaint to add a more direct link to actual harm (and Silverman filed her amended complaint in December). The re-hearing on Meta’s attempt to dismiss Silverman’s lawsuit is pending.

Much like in the OpenAI case above, my prediction is that the judge here won’t change his mind and most of Silverman’s case will be dismissed pre-trial. Read my deep dive analysis of the case, the court’s initial rulings, and what they portend here.

(4) Universal Music Group, et al. v. Anthropic

Background: UMG, Concord Music and several other major music companies sued Amazon-backed OpenAI competitor Anthropic on October 18, 2023 in a Tennessee federal 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. 

Current Status: Universal Music Group and the others have filed preliminary injunction motions (essentially asking the judge to stop Anthropic in its tracks from more non-consensual “training”), and Anthropic is asking the judge to dismiss their infringement claims. No hearings are yet scheduled on those motions, but the judge set the trial date for November 18, 2025 (no, that’s not a typo; 2025 it is). Read my deep dive analysis of - and prediction for - the case and its ultimate resolution here.

(5) Getty Images v. Stability AI and Midjourney

Background: Getty Images sued generative image AI companies Stability AI and Midjourney on February 3, 2023 in a Delaware federal court for mass infringement of its copyrighted photographic library. 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 fro, Getty Images (i.e., market substitution).

Current Status: Unlike in the two Silverman cases above, the judge here so far has denied the defendants’ motion to dismiss the case. But the judge gave defendants a chance to try again after some procedural matters are resolved. Read more about the case and its background and overall context here.

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If you would like to recommend a case to track - or offer your special insights to any of these cases - reach out to Peter Csathy at peter@creativemedia.biz. And reach out to Peter to explore his firm, Creative Media’s, legal and business AI advisory services