Generative AI – Intellectual property cases and policy tracker

A number of news publishers, including the Guardian, have brought proceedings in The US District Court for the Southern District of New York against Cohere, in relation to its 'Command Family' of LLM AI systems. The complaint particularly focuses on Cohere's 'heavy reliance' on 'retrieval augmented generation' (RAG), a term coined by a researcher now working at Cohere, which supplements a user's prompts with additional information from external data sources. The Complaint contains an exhibit which identifies over 4000 articles, said to be a non-exhaustive, illustrative list of the works that have been allegedly infringed, together with specific examples in another exhibit of copyright-infringing outputs, and examples of misleading outputs where Cohere is alleged to have passed off its own hallucinated articles as from the publishers. Cohere is also alleged to have disregarded do-not-crawl instructions via the robots.txt protocol.

The Complaint is for direct copyright infringement, secondary copyright infringement, trade mark infringement, and false designation of origin.

This highly publicised case has been brought by The New York Times against Microsoft and OpenAI in the US District Court Southern District of New York, relating to ChatGPT (including associated offerings), Bing Chat and Microsoft 365 Copilot. It follows a period of months during which the NYT said it attempted to reach a negotiated agreement with Microsoft/OpenAI.

The Complaint raises arguments of large-scale commercial exploitation of NYT content, through the training of the relevant models (including GPT-4 and the next generation GPT-5), noting that the GPT LLMs have also 'memorized' copies of many of the works encoded into their parameters.  There are extensive exhibits (69 exhibits, comprising around 2000 pages) attached to the Complaint. Exhibit J in particular contains 100 examples of output from GPT-4 (as a 'small fraction') based on prompts in the form of a short snippet from the beginning of an NYT article.  The example outputs are said to recite NYT content verbatim (or near-verbatim), closely summarise it, and mimic its expressive style (and also wrongly attribute false information - hallucinations - to NYT).

The Complaint also focuses on synthetic search applications built on the GPT LLMs which display extensive excepts or paraphrases of contents of search results, including NYT content, that may not have been included in the model's training set (noting that this contains more expressive content from the original article than would be the case in a traditional search result, and without the hyperlink to the NYT website).

The claims are for direct copyright infringement, vicarious copyright infringement, contributory copyright infringement, DMCA violations, unfair competition by misappropriation, and trade mark dilution.

On 26 February 2024, OpenAI filed a Motion to Dismiss in relation to parts of the claim to direct copyright infringement (re conduct occurring more than 3 years ago), as well as the claims relating to contributory infringement, DMCA violations and state common law misappropriation. In particular, OpenAI alleges that the 'Times paid someone to hack OpenAI's products' and that it took 'tens of thousands of attempts to generate the highly anomalous results' in Exhibit J to the Complaint, including by targeting and exploiting a bug (which OpenAI says it has committed to addressing) in violation of its terms of use. OpenAI goes on to categorise the key dispute in the case as to whether it is fair use to use publicly accessible content to train generative AI models to learn about language, grammar and syntax, and to 'understand the facts that constitute humans' collective knowledge'. The New York Times has categorised OpenAI's motion as grandstanding, with an attention-grabbing claim about 'hacking' that is both irrelevant and false.

Microsoft filed its Motion to Dismiss parts of the claim on 4 March 2024 focusing on (1) the allegation that Microsoft is contributorily liable for end-user infringement (2) violation of DMCA copyright management information and (3) state law misappropriation torts. Drawing an analogy with earlier disruptive technologies, the Motion states "copyright law is no more an obstacle to the LLM than it was to the VCR (or the player piano, copy machine, personal computer, internet, or search engine)"- its point is that the US Supreme Court has previously rejected liability merely based on offering a multi-use product that could be used to infringe. It further states that Microsoft "looks forward to litigating the issues in this case that are genuinely presented, and to vindicating the important values of progress, learning and the sharing of knowledge".

The Plaintiffs filed an Amended Complaint on 12 August 2024 (the amendments add a further approximately 7 million works to the suit).

The case has been consolidated with The Daily News complaint and also with the claim brought by The Center for Investigative Reporting.

OpenAI and Microsoft have filed Motions to Compel The New York Times to produce documents relating to the valuation of and market/s for the works in suit including in relation to subscription losses, effects on advertising revenue, web traffic documentation and high level economic and financial reporting data.  These documents are said to be critical to assessing the fourth fair use factor, the effect of the use upon the potential market for or value of the copyrighted work.

The opening words of the complaint stress the importance of independent journalism for democracy - and the threat to the NYT's ability to provide that service by the use of its works to create AI products. It further highlights the role of copyright in protecting the output of news organisations, and their ability to produce high quality journalism.

The NYT website is noted in the Complaint as being the most highly represented proprietary source of data in the Common Crawl dataset, itself the most highly weighted dataset in GPT-3. Given the previous attempt at negotiations referred to in the complaint, it will be interesting to see if the launch of this complaint will lead to more fruitful licence negotiations, or whether this case will continue to trial (in which case, it should be tracked alongside the other complaints against OpenAI and Microsoft).

OpenAI's position is that 'training data regurgitation' (or memorisation) and hallucination are 'uncommon and unintended phenomena'. Memorisation is a problem that OpenAI say that they are working hard to address, including through sufficiently diverse datasets. Meanwhile, it points to its partnerships with other media outlets.

This complaint has been issued in the US District Court Southern District of New York by a number of regional and local newspapers (such as the New York Daily News and Chicago Tribune) and their publishers against OpenAI and Microsoft.

As with the complaint brought by The New York Times, examples are given of the GPT LLMs having 'memorised' copies of training data, as well as alleged hallucinations.  The complaint is for direct copyright infringement, vicarious copyright infringement, contributory copyright infringement (including in relation to end users, to the extent end users are liable as direct infringers), removal of copyright management information, common law unfair competition by misappropriation, trade mark dilution (in branding outputs generated by OpenAI's GPT-based products), and dilution and injury to business reputation.  

OpenAI and Microsoft have filed Motions to dismiss the ancillary claims (but not the core issue of whether using copyrighted content to train a generative AI model is fair use). The case has been consolidated with The New York Times and The Center for Investigative Reporting complaints.

Describing themselves as a 'rare breed in America' in terms of providing local news coverage, the Plaintiffs cite the new threat posed to them by GenAI products.  But, they also stress that this this is not a battle between new and old technology but one that is based on alleged use of copyrighted newspaper content, without their consent and without what they see as fair payment.  

The Center for Investigative Reporting (CIR) has brought a complaint against OpenAI and Microsoft in the US District Court Southern District of New York. The CIR, founded in 1976, describes itself as the oldest nonprofit newsroom in the US, reporting investigative stories about under-represented voices (its brands are Mother Jones, Reveal and CIR Studios). It alleges that tens of thousands of its articles have been copied as part of the training process of the Defendants' products, and that they memorize/regurgitate material or abridge it unlawfully.

The complaint alleges direct copyright infringement, contributory copyright infringement, and DMCA violations. CIR seeks actual damages and profits, or statutory damages of no less than $750 per infringed work, and $2500 per DMCA violation.  

OpenAI and Microsoft have filed Motions to Dismiss various of the claims. These include the claims under the DMCA alleging that Microsoft removed copyright infringement information from CIR's works or distributed works with the copyright management information (CMI) removed. They have also filed to dismiss the claim for contributory copyright infringement. In its Motion to Dismiss, OpenAI also seeks to dismiss the count of copyright infringement to the extent it relies upon CIR's 'novel' claim relating to 'abridgments' of CIR's copyrighted works. It argues that this claim should fail as, to constitute an infringing derivative work, an 'abridgment' must do more than just recite facts about an existing work, i.e., it would have to reprise the original's protected expression.

The case has been consolidated with the other newspaper claims, brought by The New York Times and Daily News.

CIR notes that the Defendants greatly benefit from its distinct voice in the marketplace as an investigative news outlet  – if the Defendants were limited to a more homogenous dataset, their LLMs would be "stunted in growth and power".

This complaint has been brought in the US District Court Southern District of New York by news organization The Intercept Media against OpenAI and Microsoft for breaches of the Digital Millennium Copyright Act, including relating to removal of copyright management information.

In November 2024, Microsoft's Motion to Dismiss was granted in full and with prejudice, whereas certain claims against OpenAI have been allowed to proceed.

This case has been consolidated with Alter v OpenAI. 

Following other class actions brought by authors against OpenAI, this case is particularly significant for a number of reasons. First, one of the plaintiffs includes The Authors Guild, alongside 17 well-known Authors Guild members such as John Grisham, Jodi Picoult, Jonathan Franzen, George RR Martin, David Baldacci and Scott Turow. Secondly, unlike the other claims, this one has been brought in the Southern District of New York. Thirdly, whilst there is overlap in relation to the claims (in relation to direct copyright infringement, vicarious copyright infringement, contributory copyright infringement), other claims that have featured in the other cases against OpenAI have not been included.

On 5 February 2024, the Plaintiffs in this action, and in the Alter action, filed a consolidated class action complaint.  The Plaintiffs in the ChatGPT litigation have filed a Motion for this case, and others filed in the Southern District of New York, to be dismissed, or stayed/transferred to the Northern District of California but this application has been rejected.

The complaint tackles the question of 'fair use' head on noting that there is "nothing fair" about what OpenAI has done, adding that its "unauthorized use of Plaintiffs' copyrighted works thus presents a straightforward infringement case applying well-established law to well-recognized copyright harms".  Whilst the other cases may be expected to settle, given that this case involves The Authors Guild, that seems much more unlikely here.

This case has now been consolidated with Authors Guild v OpenAI (see Authors Guild entry for further updates).

This complaint is brought by a number of authors, on their own behalf and on behalf of a class against OpenAI and Microsoft, in the US District Court Southern District of New York. The claim is for infringement in the training of OpenAI and Microsoft's GPT models, as well as for contributory infringement by certain of the defendants.

On 2 February 2024, the Plaintiffs in this action, and in the Authors Guild action, filed a consolidated class action complaint. 

The initial complaint's opening paragraph stated that "the basis of the OpenAI platform is nothing less than the rampant theft of copyrighted works".  The complaint also noted that it asked ChatGPT if one of the authors' work had been included in its training data to which it answered "Yes, Julian Sancton's book 'Madhouse at the End of the Earth' is included in my training data". 

This case has now been consolidated with Authors Guild v OpenAI (see Authors Guild entry for further updates).

This class action complaint has been brought by two non-fiction authors/journalists against Microsoft and OpenAI in the US District Court Southern District of New York. The complaint makes reference to that of the New York Times and is for direct copyright infringement, vicarious copyright infringement, and contributory copyright infringement.

This class action claim has been brought by two authors as individual and representative Plaintiffs against OpenAI relating to its ChatGPT large language model (LLM). The claim has been brought in the US District Court for the Northern District of California (Mona Awad voluntarily applied for the dismissal of their claim on 11 August 2023).

The Plaintiffs allege that, during the training process of its LLMs, OpenAI copied "at least Plaintiff Tremblay’s book The Cabin at the End of the World; and Plaintiff Awad’s books 13 Ways of Looking at a Fat Girl and Bunny" without their permission. Further, they argue that "because the OpenAI Language Models cannot function without the expressive information extracted from Plaintiffs’ works (and others) and retained inside them, the OpenAI Language Models are themselves infringing derivative works, made without Plaintiffs’ permission and in violation of their exclusive rights under the Copyright Act". The complaint also notes that, when prompted, ChatGPT generates summaries of the Plaintiffs' works.

Of particular relevance in this case is the datasets which OpenAI used in training its GPT models (with OpenAI having confirmed it had used datasets called Books1 and Books2 though it has not revealed the contents of those datasets).

In addition to direct and vicarious copyright infringement, the class action alleges violations of the Digital Millennium Copyright Act, unjust enrichment, violations of the California and common law unfair competition laws, and negligence.

OpenAI's motion to dismiss was heard on 7 December 2023. In an order of 12 February 2024, the Court dismissed a number of claims in the Complaint, but with leave to amend in relation to the claim to vicarious infringement and the copyright management information (CMI) claim (the claim to direct infringement was not included in the motion to dismiss).  

The First Consolidated Amended Complaint filed by the Plaintiffs alleges direct infringement and unfair competition. OpenAI has filed its Answer to the complaint, and also applied to dismiss the unfair competition claim.

The Court has put in place an inspection protocol in relation to OpenAI's training data which will be made available for inspection at OpenAI's San Francisco offices or other secure nearby location, subject to certain strict protocols and conditions. This is seen as particularly significant as it will be the first time that this information has been made available for inspection.  

The case has been consolidated with the Silverman and Chabon actions against OpenAI.

As Open AI puts it in its Reply document, "the issue at the heart of this litigation is whether training artificial intelligence to understand human knowledge violates copyright law. It is on that question that the parties fundamentally disagree, and on which the future of artificial intelligence may turn".

This case has now been consolidated with Tremblay v OpenAI – see Tremblay entry for future updates.

Comedian Sarah Silverman, and other Plaintiffs as individual and representative plaintiffs have brought proceedings against OpenAI relating to ChatGPT in the US District Court for the Northern District of California.

The Plaintiffs allege that, during the training process of its LLMs, OpenAI copied "at least Plaintiff Silverman’s book The Bedwetter; Plaintiff Golden’s book Ararat; and Plaintiff Kadrey’s book Sandman Slime." without Plaintiffs' permission. Further, it is argued that "because the OpenAI Language Models cannot function without the expressive information extracted from Plaintiffs’ works (and others) and retained inside them, the OpenAI Language Models are themselves infringing derivative works, made without Plaintiffs’ permission and in violation of their exclusive rights under the Copyright Act".

In addition to direct and vicarious copyright infringement, the class action alleges violations of the DMCA, unjust enrichment, violations of the California and common law unfair competition laws, and negligence.

OpenAI's motion to dismiss was heard on 7 December 2023. In an order of 12 February 2024, the Court dismissed a number of claims in the Complaint, but with leave to amend in relation to the claim to vicarious infringement and the copyright management information (CMI) claim (the claim to direct infringement was not included in the motion to dismiss).  

This case has now been consolidated with Tremblay v OpenAI – see Tremblay entry for future updates.

This claim has been brought in the US District Court for the Northern District of California by a group of authors, playwrights and screenwriters (on both an individual and representative basis), including Pulitzer Prize winning author for fiction, Michael Chabon.

As with the other claims against OpenAI, the claims include direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment.  

This class-action brought in the US District Court for the Northern District of California targets both Copilot and OpenAI's Codex tool, which provides the technology underlying Copilot. Copilot helps developers write code by generating suggestions based on what it has learned from code in the public domain.  

The complaint (as originally filed) focuses on four key areas:

• An allegation that Copilot violates provisions of the Digital Millennium Copyright Act by ingesting and distributing code snippets (copyrighted information) without including the licence terms, copyright notice and author attribution.
• An allegation that, by not complying with open licence notices, Copilot breaches the conditions of such licences by which the original code had been made available to Copilot/Codex.
• An allegation that Copilot passes off code as an original creation and therefore GitHub, Microsoft and OpenAI have been unjustly enriched by Copilot's subscription based service. This is a claim for unlawful competition.
• An allegation that Github violates the Class's rights under the Californian Privacy Act, Github Privacy Statement and/or the Californian Constitution by inter alia sharing the Class's sensitive personal information; creating a product that contains personal data GitHub cannot delete, alter nor share with the applicable Class member; and selling the Class's personal data.

The Plaintiffs are seeking damages and injunctive relief.

The Defendants have alleged that the complaint lacks standing and have filed for the complaint to be dismissed. After being granted leave to amend their complaint, the Plaintiffs filed an amended complaint in June 2023, which largely resembled their initial complaint but including examples of licensed code owned by three of the Plaintiffs that has been output by Copilot, arguing that this demonstrates the Defendants removed their Copyright Management Information and emitted their code in violation of their open-source licences. On 3 January 2024, the Court granted GitHub's motions to dismiss in part. In particular, the Judge held that the remaining two Plaintiffs had not established a 'particular personalized injury' to confer standing for damages, though this was satisfied for the three Plaintiffs referred to above. The Judge also held that the state law claims of intentional and negligent interference with prospective economic relations, unjust enrichment, negligence and unfair competition are pre-empted by the Copyright Act. The claims under the DCMA were also dismissed with leave to amend.

On 24 June 2024, the Court granted an order granting in part the Defendants' Motion to Dismiss in relation to the remaining claims in the Second Amended Complaint. The Court has dismissed the DMCA complaint (with prejudice) and their complaint for unjust enrichment and punitive damages.  However, it has allowed the Plaintiffs' breach of contract claim for violation of open-source licenses to proceed.

The Plaintiff's petition for permission to appeal has been granted by the US Court of Appeals for the Ninth Circuit.

This complaint, brought by two news organisations in the US District Court Southern District of New York, is unusual because it does not include claims for copyright infringement. Instead, it alleges violations of the Digital Millennium Copyright Act in that thousands of the Plaintiffs' works were included in training sets with the author, title, and copyright infringement removed.

On 7 November 2024, Justice McMahon granted OpenAI's Motion to Dismiss the complaint that removal of copyright management information (CMI) prior to training ChatGPT is a violation of Section 1202(b)(i) of the Digital Millenium Copyright Act for which the Plaintiffs are entitled to damages and/or injunctive relief. The Court agreed with OpenAI that the Plaintiffs lack Article III standing to pursue the relief sought, in that the Plaintiff has not shown that it is suffered concrete harm.

It was noteworthy that this case did not include copyright infringement claims. As the Judge points out what was 'really at stake' was not exclusion of CMI from the Defendants' training sets, but the Defendants' use of the Plaintiffs' articles to develop ChatGPT without compensation to the Plaintiffs, but that was not the question before the Court. The Plaintiffs are seeking leave to amend their complaint.

This class action complaint has been brought in the US District Court Northern District of California against OpenAI (there are separate claims against Google/YouTube and Nvidia – the three cases have been related). The Plaintiff is a YouTube user and video creator and the complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products. The complaint refers to a New York Times report that claimed Whisper (OpenAI's automatic speech recognition system, released in 2022) is capable of transcribing audio from YouTube videos, and that an OpenAI team had transcribed more than one million hours of videos from YouTube. The claim is for unjust enrichment and unfair competition.

OpenAI has filed a Notice of Motion to Dismiss the complaint on both counts. It argues that the complaint is a 'carbon copy' of pleadings filed in other actions and that state law claims of unfair competition and unjust enrichment have been addressed in a number of judicial opinions in the ongoing cases – to the effect that the use of copyrighted materials to train AI models is exclusively governed by federal copyright law, and that state law claims are pre-empted by the Copyright Act.

On 18 October, the complaint was amended to bring in a new plaintiff and to add complaints of breaches of the Massachusetts Unfair and Deceptive Business Practices Act, and for direct copyright infringement.

It is notable that the complaint, as initially filed, did not include one of copyright infringement. It is assumed (as asserted by OpenAI) that this is because there will have been no registrations of some of the works in issue in this case.

In February 2025, the Plaintiffs filed a Statement of Non-Opposition to OpenAI's Motion to Dismiss in relation to the state law claims for unjust enrichment and unfair competition. The statement of non-opposition does not impact the claim for direct copyright infringement.

This class action complaint has been brought in the US District Court Northern District of California against Google/YouTube (there are separate claims against OpenAI and Nvidia – the three cases have been related) concerning Google's Gemini products. The Plaintiff is a YouTube user and video creator. The complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products. The complaint refers to a New York Times article that reported that Google had transcribed YouTube videos to harvest text for its language models, having changed its terms of service in 2023. The claim as originally drafted was for unjust enrichment and unfair competition.

Google has filed a Motion to Dismiss on the grounds that the claims are pre-empted by the Copyright Act. 

The complaint has been amended to bring in claims under Massachusetts Unfair and Deceptive Business Practices Act, and for direct copyright infringement (by a new Plaintiff, and on behalf of a copyright class).

Google has filed a Motion to Dismiss the Amended Claim on the grounds that it is a 'carbon copy' of the first-filed complaint, and 'recycles state-law' claims that have been dismissed at the pleadings stage in analogous circumstances.

This class action complaint has been brought in the US District Court Northern District of California against Nvidia (there are separate claims against Google/YouTube and OpenAI – the three cases have been related) concerning the training of Nvidia's Cosmos AI software.  The Plaintiff is a YouTube user and video creator and the complaint relates to the "surreptitious, non-consensual transcription of millions of YouTube users' videos" to train the Defendants' AI software products in violation of YouTube's terms of service and at the expense of video creators.

Nvidia has filed a Motion to Dismiss on the grounds that the Plaintiffs lack standing (for not asserting that the Plaintiff has suffered or will suffer a concrete, particularised injury) and that the claims are pre-empted by the Copyright Act. 

The complaint has been amended to bring in claims under Massachusetts Unfair and Deceptive Business Practices Act, and for direct copyright infringement (by a new Plaintiff, and on behalf of a copyright class). Nvidia has filed a Motion to Dismiss the Amended Claim.

This class action was brought in the US District Court Northern District of California by an initially anonymised group (comprising an author/journalist, as well as users of Gmail/Google search engines etc including some minors, and users of social media services) against Alphabet Inc, Google Deepmind and Google LLC, in July 2023 in relation to the training of Bard (now Gemini) and other Google AI products. The claim is now proceeding only against Google LLC. The original claim alleged a number of claims including violation of competition laws, negligence, invasion of privacy, intrusion upon inclusion, larceny/receipt of stolen property, conversion, unjust enrichment, direct copyright infringement, vicarious copyright infringement and violation of the DMCA.  

Following the Defendants' Motion to Dismiss the Complaint, the Plaintiffs filed an Amended Complaint in which they made a number of changes to the complaint, including adding new causes of action. In relation to the copyright claims, they removed the vicarious copyright infringement and DMCA claims and revised the direct infringement claim to allege that "Bard's outputs were necessarily derivative" of the Plaintiffs' works (including the work of the author Jill Leovy) used to train the model. Google filed a Motion to Dismiss arguing that the complaint was a "shotgun pleading", alternatively to dismiss other than the claim of direct infringement in relation to the work of Leovy (except to the extent that it was based on the argument that every output was a derivative infringing work).

On 6 June 2024, the Court granted Google's motion to dismiss with leave to amend. On 27 June 2024, the Plaintiffs filed their Second Amended Complaint which comprises solely a claim for direct copyright infringement. The Complaint relates how Gemini was initially built on the LaMDA LLM – with certain of the data used to train LaMDA coming from the C4 dataset which contains copyrighted materials.

The case has been consolidated with Zhang v Google and named In re Google Generative AI Copyright Litigation. A consolidated complaint was filed in December 2024, bringing in new Plaintiffs. Google and Alphabet have filed a Motion to Dismiss the consolidated complaint and to strike the class allegations.

This class action complaint has been brought by a number of visual artists against Google (and its parent company Alphabet) in relation to its text-to-image diffusion models Imagen (announced in May 2022 but not immediately released to the public), Imagen 2 (released in December 2023) and multi-modal models trained on both images and text (such Google Gemini). The complaint is (only) for direct copyright infringement against Google and vicarious copyright infringement against Alphabet.  The complaint is based on an argument that the key source of Google's training data is the LAION image datasets.

The Defendants have filed a Motion to Dismiss in relation to works not named in the complaint, or not validly registered; the copyright infringement claim based on the theory that the Defendants' AI models are an infringing derivative work; and the vicarious infringement claim against Alphabet in its entirety.

The case has been consolidated with Leovy v Google  and named In re Google Generative AI Copyright Litigation (see above for updates).

Plaintiffs have brought a class action against Meta relating to its LLaMA (Large Language Model Meta AI) product in the US District Court for the Northern District of California. The claim notes Meta's statements that LLaMa was trained using books including from the Books3 section of ThePile dataset (assembled from content available in 'shadow library' websites (including Bibliotik)), which the Plaintiffs content includes their copyright works.

The claims (as originally drafted) included direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment. 

Meta filed a Motion to Dismiss parts of the claim – the Motion to Dismiss only applies partially to the claim of direct infringement. On this, Meta's Motion states: "Use of texts to train LLaMA to statistically model language and generate original expression is transformative by nature and quintessential fair use—much like Google’s wholesale copying of books to create an internet search tool was found to be fair use in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)." Clearly, the issue of fair use is going to be central to this debate.

On Thursday 9 November 2023, US District Judge Vince Chhabria indicated that he would grant Meta's motion to dismiss the claims that content generated by Meta's LLaMA tool infringes their copyright (and also that LLaMA is itself an infringing work), but would give the plaintiffs permission to amend most of their claim.

On 11 December 2023, the Plaintiffs filed their amended Complaint, on the basis of direct copyright infringement.

The Plaintiffs filed a Second Amended Complaint on 9 September 2024.

Meta had sought to challenge its CEO Mark Zuckerberg being deposed but the Court denied its motion on 24 September 2024. The Plaintiffs had established that he was the chief decision maker and policy setter for Meta's generative AI brand and the development of the large language models at issue in the action.

The claim has been consolidated with that brought by a number of authors including Michael Chabon, and also with the Huckabee action against Meta which has been transferred from the US District Court for the Southern District of New York to the US District Court for the Northern District of California.

In December 2024, the Plaintiffs filed a Motion to file a Third Amended Consolidated Complaint, which was granted in January 2025. The Plaintiffs brought the Motion on the basis that Meta had produced "some of the most incriminating internal documents it has produced to date" shortly before the end of the discovery deadline. The Third Amended Consolidated complaint includes new claims under the California Comprehensive Computer Data Access and Fraud Act and DMCA, as well as copyright infringement claims relating to seeding of the Plaintiffs' works during an alleged process by Meta of torrenting pirated files from the LibGen dataset.

Meta has filed a Motion to Dismiss the Third Amended Consolidated Complaint, arguing that the case should be focused on the fair use arguments as opposed to the Plaintiffs' attempts to 'distract' from that core issue with their new claims. The Plaintiffs have responded that the new claims are predicated on facts that strike at the heart of Meta's 'fair use' defence.

This case has been consolidated with Kadrey v Meta – follow that case for updates

The same set of authors, playwrights and screenwriters in proceedings against OpenAI have also brought a claim against Meta in the US District Court for the Northern District of California.  This case focuses on Meta's LLaMa (Large Language Model Meta AI) and noted Meta's statements that LLaMa was trained using books including from the Books3 section of ThePile dataset (assembled from content available in 'shadow library' websites (including Bibliotik)), which the Plaintiffs contended includes their copyright works.

The claims include direct and vicarious copyright infringement, violations of the DMCA, violations of California unfair competition law, negligence and unjust enrichment. 

This complaint has been brought in the US District Court Northern District of California San Francisco Division by a fiction author, Christopher Farnsworth, against Meta relating to its LLaMa tools, which were trained using books including from the Books 3 section of The Pile data set, which the Plaintiff argues included his works. The complaint is for copyright infringement.

The complaint has been consolidated with the Kadrey v Meta proceedings (follow Kadrey v Meta for updates).

Former Presidential Candidate and former Governor of Arkansas Mike Huckabee and a group of other plaintiffs brought a class action against Meta, Bloomberg, Microsoft and The Eleutherai Institute in the United States District Court Southern District of New York. The complaint focuses on EleutherAI's dataset called 'The Pile' which includes in its data sources, 'Books 3', a dataset of a large collection (said to be approximately 18,000) of pirated ebooks. The complaint notes that The Pile, and specifically Books3, was a popular training data set for companies developing AI technology, including the Defendants in this case.

As in other cases, the complaint alleged direct copyright infringement, vicarious copyright infringement, DCMA claims (removal of copyright management information), conversion, negligence, and unjust enrichment.

The Plaintiffs have since voluntarily dismissed the complaint against The Eleutherai Institute, and the complaints against Meta and Microsoft were severed and transferred to California. In the Amended Complaint filed in January 2024, the Plaintiffs withdrew their indirect copyright infringement, DCMA and state-law claims, leaving the direct copyright infringement claim to be argued. 

This is the first case involving Bloomberg, which the complaint notes launched the world's first LLM built from scratch for finance. The complaint notes that Bloomberg had stated that it would not use the Books3 dataset used to training future versions of BloombergGPT, but further notes that LLM training is iterative and builds on prior versions, with the Plaintiff's works 'baked in' already. 

This is a case brought against Stability AI (and other AI tools such as Midjourney), this time by a group of visual artists acting as individual and representative plaintiffs. The claim was filed in the US District Court for the Northern District of California.

The Plaintiffs have filed for copyright infringement, Digital Millennium Copyright Act violations, and related state law claims. They allege that the Defendants used their (and other artists’) works to train Stable Diffusion without obtaining their permission. According to the Plaintiffs, when the Defendants’ AI tools create "new images" based entirely on the training images, they are creating an infringing derivative work.

The Plaintiffs seek to bring their suit as a class action on behalf of "millions of artists" in the U.S. that own a copyright in any work that was used to train any version of the AI tools. 

On 19 July 2023, Judge Orrick indicated in a tentative ruling that he would dismiss almost all of the claims against the Defendants but would give the Plaintiffs leave to amend. Of particular note is that the Judge stated that the Plaintiffs need to differentiate between the Defendants and elaborate on what role each of the Defendants played with respect to the allegedly infringing conduct. The Judge was sceptical as to the extent the AI tool relied on the Plaintiffs' works to generate the output images as the AI model contained billions of images. He also expressed doubts as to whether the output images were substantially similar to the Plaintiff's original works.

On 30 October 2023, Judge Orrick's order was published, dismissing parts of the claim. However, the Plaintiffs were given leave to amend, with the Judge requiring them to clarify their infringement claims. Stability AI's motion to dismiss the claim against it for direct copyright infringement was denied.

On 29 November 2023, the Plaintiffs filed their Amended Complaint, which included a number of new plaintiffs joining the complaint.

On 8 February 2024, Judge Orrick denied the Defendants' motion to strike under California's anti-SLAPP (strategic lawsuits against public participation) statute which had been directed solely at the Plaintiffs' right of publicity claims, on the basis that the Complaint and Amended Complaint fell within the anti-SLAPP statute's public interest exception.

On 7 May 2024, Judge Orrick issued a number of tentative rulings in advance of a hearing on 8 May.

On 12 August 2024, Judge Orrick issued his ruling in which he confirmed the following:

• The allegations of direct and induced copyright infringement are sufficient to proceed. The Plaintiffs alleged that Stable Diffusion is built to a significant extent on copyrighted works and that the way the product operates necessarily invokes copies or protected elements of those works. The plausible inferences were that Stable Diffusion by operation by end users creates copyright infringement and was created to facilitate that infringement by design.
• All DMCA claims are dismissed with prejudice (including in line with the opinion of Judge Tigar in Doe I v GitHub, Inc).
• The claims for unjust enrichment are dismissed but the Plaintiffs have been given leave to make one last attempt to state an unjust enrichment claim.
• Midjourney's motion to dismiss false endorsement and trade dress claims is denied.
• The breach of contract claim against DeviantArt is dismissed with prejudice.

On 31 October 2024, the Plaintiffs filed their Second Amended Complaint.

Getty Images has brought proceedings in the US District Court of Delaware against Stability AI (as well as proceedings in the UK, see below).

Getty Images' complaint is for copyright infringement, providing false copyright management information, removal or alteration of copyright management information, trademark infringement, unfair competition, trademark dilution, and related state law claims.

In response to Getty Images' amended complaint, Stability AI filed a motion to dismiss for lack of personal jurisdiction, inability to join a necessary party, and failure to state a claim, or alternatively, a motion to transfer the lawsuit to the US District Court for the Northern District of California.

This case should be tracked alongside the action in the UK, though different issues may arise for consideration given potential divergences e.g., in relation to defences to copyright infringement.

This complaint has been filed in the US District Court Southern District of New York by Dow Jones and NYP Holdings (corporate parent, News Corporation), the publishers of The Wall Street Journal and the New York Post, against Perplexity, which is described in the complaint as a platform that allows users to access up to date news and information by 'skipping the links' to the original publishers' websites. The complaint focuses on both the input stage, and also the outputs of Perplexity's products, arguing that sometimes Perplexity's answers contain full or partial verbatim reproductions of the Plaintiffs' copyrighted articles. The complaint also highlights that Perplexity allegedly generates made-up text in its outputs and attributes that text to the Plaintiffs' publications using Plaintiffs' trade marks, which is argued to be likely to cause dilution by blurring/tarnishment.

The claim is for copyright infringement (arising out of Perplexity's alleged copying of the copyrighted works to create inputs for its RAG Index and to generate outputs to user queries) and false designation of origin and dilution of trade marks.

The Plaintiffs have filed a Second Amended Complaint with a number of amendments, including in relation to jurisdiction and venue. Meanwhile, Perplexity has filed a Motion to Dismiss based on a lack of jurisdiction and improper venue or, in the alternative, to transfer the case to the Northern District of California on the basis that there is an overwhelming nexus between its activities in San Francisco and the Plaintiffs' allegations.

In 2020, Thomson Reuters sued Ross alleging that (after failing to agree a licence from Westlaw), Ross used so-called 'Bulk Memos' prepared by lawyers working on behalf of LegalEase Solutions which, it is alleged, were created using Westlaw headnotes (rather than the underlying judicial opinions themselves). Ross used the headnote content to train its machine learning model to create a competing product – so, the Ross tool does not generate new content but "spits back relevant judicial opinions that have already been written".

In a change of heart from a 2023 Memorandum Opinion, the Judge has issued a new Memorandum Opinion, granting most of Thomson Reuters's motion for partial summary judgment on direct copyright infringement and related defences, and granting its motion for partial summary judgment on fair use.  Contrary to the previous Opinion, the Judge concluded that there was no genuine dispute that the relevant headnotes and Thomson Reuters's Key Number System met the originality threshold, both as a compilation of headnotes, and on an individual basis. The Court noted that a headnote can "introduce creativity by distilling, synthesising, or explaining part of an opinion". Further, there was actual copying and substantial similarity in relation to some 2,243 headnotes in the case. The Court also found that various defences relied upon by Ross failed.

Most significantly, Ross could not establish the fair use defence. The Court's findings on this aspect are of particular interest in the context of the various cases in the US concerning generative AI, where fair use defences are being run in relation to the training and development of those models. 

The Court decided as follows on the four factors in the fair use test:

1. Purpose and character of Ross's use – this factor was in favour of Thomson Reuters. Ross's use was commercial and non-transformative, even though the copying occurred at an intermediate step (not as part of the final product Ross put forward to consumers): "Ross took the headnotes to make it easier to develop a competing legal research tool".
2. Nature of the original work – this factor was in favour of Ross. Westlaw's material had more than the required minimal spark of originality but it was not that creative.
3. How much of the work was used and how substantial a part relative to the whole – this factor was also in favour of Ross. Ross did not make Westlaw headnotes available to the public.
4. The most significant factor, how Ross's use affected the copyrighted work's value or potential market – this final factor, the most important, was in favour of Thomson Reuters. Ross meant to compete with Westlaw by developing a market substitute, and this also had an effect on a potential market for AI training data.

Balancing the factors, the Court granted summary judgment to Thomson Reuters on fair use. There remain some issues that go forward to a jury trial but the Court's findings on fair use are particularly significant (though may be subject to appeal).

This class action complaint has been issued in the US District Court Northern District of California by two authors (Rebecca Makkai and Jason Reynolds) against MosaicML and its parent company Databricks. Makkai owns registered copyrights in a number of books including The Hundred Year House, while Reynolds owns registered copyrights in books including As Brave as You.

The plaintiffs allege that their copyright works were included in the training dataset for MosaicML Pretrained Transformer (MPT) a series of large language models created by MosaicML and distributed by Databricks (including MPT-7B launched in May 2023, and MPT-30B launched in June 2023).  MosaicML has noted that a large quantity of data in the MPT training datasets comes from a component dataset called "RedPajama – Books". The complaint asserts that this is hosted on the Hugging Face website and its Books component is a copy of the Books3 dataset, which is itself a component of The Pile, which is derived from the Bibliothik shadow library comprising approximately 196,640 books.  The complaint against MosaicML is for direct copyright infringement.  The complaint against Databricks is for vicarious infringement (Databricks having acquired MosaicML in July 2023).

The case as been consolidated with O'Nan v Databricks (which should be tracked for updates) and re-titled In Re Mosaic Litigation.

In this class action filed by three authors against MosaicML (and its parent company Databricks) in the US District Court Northern District of California San Francisco Division, the Plaintiffs have brought a claim of direct copyright infringement relating to the training of MosaicML's Pretrained Transformer (MPT) models including MPT-7B and MPT-30B.  The complaint alleges that the MPTs were trained on a large quantity of data taken from a component dataset called 'RedPajama – Books' which was a dataset hosted on Hugging Face and in respect of which the 'Books' component is a copy of the "Books3 dataset", which is itself a component of The Pile dataset. The complaint also alleges vicarious infringement against Databricks.

The case has been consolidated with the Makkai claim against Databricks and re-titled In Re Mosaic Litigation.

In this class action complaint filed by three authors against Nvidia in the US District Court Northern District of California San Francisco Division, the Plaintiffs have brought a claim of direct copyright infringement against Nvidia relating to its NeMo Megatron LLM series released in September 2022.

The complaint alleges that the Plaintiff's registered copyrights were included in the training dataset used by Nvidia to develop its models. Each of the models is hosted on a website called Hugging Face, with a model card that provides information about the model, including its training dataset, in which it is stated that the model was trained on 'The Pile' dataset prepared by EleutherAI (the complaint therefore alleges that the LLM series was trained on one or more of the Plaintiffs' works).

The case has been related to Dubus v Nvidia.

This class action complaint has been issued in the US District Court Northern District of California by two authors owning registered copyrights in certain books that were alleged to be included in the training dataset Nvidia used to train its NeMo Megatron models, released in September 2022.  The complaint alleges that each of the NeMo Megatron models is hosted on a website called Hugging Face and each has a model card that provides information about the model, including its training dataset – for each of the NeMo Megatron models, the model card states that "the model was trained on 'The Pile' dataset prepared by Eleuther AI" (which includes the Book3 dataset, derived from the Bibliothik shadow library). The complaint is for direct copyright infringement.

The case has been related to Nazemian v Nvidia.

A number of music publishers (comprising Concord, Universal and ABKCO) brought an action against Anthropic in the United States District Court for the Middle District of Tennessee Nashville Division (the case was ordered to be transferred to the United States District Court for the Northern District of California). The complaint was brought in order to "address the systematic and widespread infringement of their copyrighted song lyrics" alleged to have taken place during the process of Anthropic building and operating its AI models referred to as 'Claude'.  In particular, the complaint notes that when a user prompts Claude to provide the lyrics to a particular song, its response will provide responses that contain all or significant portions of those lyrics. Further, when Clause is requested to write a song about a certain topic, the complaint alleges that this can involve reproduction of the publishers' copyrighted lyrics – for example, when asked to write a song "about the death of Buddy Holly", it responded by generating output that copies directly from the song "American Pie".

The complaint contains claims relating to direct copyright infringement, contributory infringement, vicarious infringement, and DCMA claims (removal of copyright management information).   

In its response to the Plaintiffs' motion for a preliminary injunction, Anthropic argues that the Plaintiffs devised 'special attacks' in order to evade Claude's built-in guardrails and to generate alleged infringements through 'trial and error'. It also relies upon the use of copyrighted material as inputs as 'fair use'.

Anthropic has filed a Motion to Dismiss a number of the claims (the claims of contributory copyright infringement, vicarious copyright infringement and removal/alteration of copyright management information). It has not sought to dismiss the claim of direct copyright infringement.

The preliminary injunction application has been partially settled by Anthropic agreeing to maintain its already implemented guardrails in its current AI models and offerings (and will also apply them in a consistent manner to any new LLMs and new products). Other aspects of the preliminary injunction application await determination following oral argument in November 2024.

This was the first case involving the music industry, and also the AI tool developer Anthropic. There are a number of websites which currently aggregate and publish music lyrics – however, this is through an existing licensing market by which the publishers license their copyrighted lyrics.

This class action has been brought in the US District Court Northern District of California by three authors of fiction and non-fiction against Anthropic. The claim of copyright infringement relates to Anthropic's Claude model which is also the subject of proceedings brought by a number of record companies. The Plaintiffs allege that, whilst Anthropic has been 'particularly secretive' about the sources of its training corpus for Claude, it has admitted to using The Pile dataset.  Anthropic's Answer to the Complaint includes reliance on the defence of fair use, amongst other affirmative defences.

The complaint notes that it has been reported that Claude has been used to generate cheap book content with it being reported that one man had "written" (their use of quotation marks) 97 books in less than a year using Claude (as well as ChatGPT).

This action has been brought in the US District Court for 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.  Udio allows users to create digital music files based on text prompts or audio files. As with the complaint against Suno (see below), the 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 strongly resembling copyrighted recordings. For example, using the prompt "my tempting 1964 girl smokey sing hitsville soul pop" and excerpting lyrics from the band The Temptations led to Udio generating a digital music file called "Sunshine Melody" which would allegedly be instantly recognised as resembling the song "My Girl". 

The claim is for direct copyright infringement.

In its Answer to the Complaint, Udio highlights the fact that the Plaintiffs do not allege that outputs generated by Udio infringe copyright. Whilst it accepts that the "many recordings that Udio was trained on presumably included recording whose rights are owned by the Plaintiffs" it argues that copies used in the training process, given that they are "never seen or heard by anyone", are not infringing. This is because it is argued to be "quintessential fair use" to copy the Plaintiffs' works as part of the process of developing a new technology in the service of creating an ultimately non-infringing new product. Udio further argues that the Plaintiffs, comprising major labels, have an aversion to competition but that "no owns musical styles".  

The Recording Industry Association of America (RIAA) issued a press release in relation to the claims brought against both Udio and Suno. Noting that the music community has embraced AI, the RIAA argues that unlicensed services set back "the promise of genuinely innovative AI for us all".  Both complaints seek to deal head on with the likely claim of fair use:  “[The services] cannot avoid liability for [their] willful copyright infringement by claiming fair use. The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances, but [the services] offe[r] imitative machine-generated music—not human creativity or expression.”

In its response to the Answers to the Complaint filed by Udio and Suno, the RIAA issued a statement on X highlighting the "major concession" in relation to "massive unlicensed copying of artists' recordings" and rejecting the reliance on fair use as a defence.

This action has been brought in the US District Court for the District of Massachusetts by a group of major record companies against the company behind Suno, a generative AI service launched in July 2023.  Suno allows users to create digital music files based on text prompts. As with the complaint against Udio, the 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 Suno's product to generate music files strongly resembling copyrighted recordings. For example, Suno's service has generated 29 different outputs that contain the style of Chuck Berry's "Johnny B. Goode" – using the prompt "1950s rock and roll, rhythm & blues, 12 bar blues, rockabilly, energetic male vocalist, singer guitarist" and the lyrics from the original, one output titled "Deep down in Louisiana close to New Orle" replicates the highly distinctive rhythm of the original's chorus, and uses the same melodic shape on the phrases "go Johnny, go, go".

The claim is for direct copyright infringement.

As with the Udio Complaint, in its Answer to the Complaint, Suno highlights the fact that the Plaintiffs do not allege that outputs generated by Suno infringe copyright.  Whilst it notes that "it is no secret that the tens of millions of recordings that Suno's model was trained on presumably included recordings whose rights are owned by the Plaintiffs in this case" it also argues that copies used in the training process, given that they are "never seen or heard by anyone", are not infringing. This is because it is argued to be "quintessential fair use" to use a back-end technological process, invisible to the public, in creating "an ultimately non-infringing new product". Suno also argues that the Plaintiffs, comprising major labels, have an aversion to competition but that "no owns musical styles".  

The Recording Industry Association of America (RIAA) issued a press release in relation to the claims brought against both Udio and Suno. Noting that the music community has embraced AI, the RIAA argues that unlicensed services set back "the promise of genuinely innovative AI for us all".  Both complaints seek to deal head on with the likely claim of fair use:  “[The services] cannot avoid liability for [their] willful copyright infringement by claiming fair use. The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances, but [the services] offe[r] imitative machine-generated music—not human creativity or expression.”

In its response to the Answers to the Complaint filed by Udio and Suno, the RIAA issued a statement on X highlighting the "major concession" in relation to "massive unlicensed copying of artists' recordings" and rejecting the reliance on fair use as a defence. In relation to the argument that the "apparent attempts to misuse the tool to generate renditions of pre-existing songs" is "unrepresentative of what real people do with Suno", the RIAA notes that in a presentation to venture capitalists, its co-founder was shown on video using "Hendrix" as a prompt.  

This complaint has been brought in the US District Court Southern District of New York by two voice actors and by a John Doe Plaintiff (in relation to all plaintiffs, individually, and on behalf of a class of voice actors). The complaint is against AI firm LOVO in relation to the alleged cloning and use of the actors' voices without their permission in LOVO's AI-generated voice technology (Genny). The complaint was filed in May 2024 and has now been amended to incorporate copyright claims, in addition to claims relating to violations of rights of publicity, deceptive business practices, fraud, and breach of contract. The copyright claims are for copyright infringement of the original voice recordings made by the actors and contributory copyright infringement.

The Defendant has filed a Motion to Dismiss all of the claims.

Unauthorised use of performers' likenesses and their voices has been a particularly controversial aspect of genAI technology, and has been a key issue for members of the SAG-AFTRA union in the US. There have also been a number of high profile complaints raised by celebrities such as Scarlett Johansson.

This case concerns whether copyright can be registered in a creative work made by artificial intelligence – specifically a piece called 'A Recent Entrance to Paradise' which was created autonomously by an AI tool (the AI tool, Creativity Machine, was created by Dr Thaler who listed the system as the work's creator and himself as the 'Copyright Claimant' as 'a work-for-hire to the owner of the Creativity Machine').

The work was denied registration by the US Copyright Office on the basis there was no human author to support a claim to copyright registration. The proceedings in the US District Court for the District of Columbia seek to overturn the USCO refusal to register. The case was therefore a judicial review hearing of the Copyright Office's decision as a final agency decision.

Following cross motions for summary judgment, on 18 August 2023, Judge Beryl A. Howell issued an Order (and accompanying Memorandum Opinion) dismissing the Plaintiff's motion for summary judgment and granting the Defendants' cross-motion for summary judgment.

The Judge concluded that the Registrar had not acted arbitrarily or capriciously in reaching its conclusion that the copyright registration should be denied.    Thaler's argument is that AI generated works deserve copyright protection as a matter of policy. The Judge said that "copyright has never stretched so far, however, as to protect works generated by new forms of technology absent any guiding human hand … human authorship is a bedrock requirement of copyright".

Dr Thaler filed a Notice of Appeal to the US Court of Appeals for the District of Columbia Circuit. In its Reply Brief, the US Copyright Office asserts that human authorship is a basic requisite to obtain copyright protection, based on a straightforward application of the statutory text, history and precedent.  The Brief argues that the Copyright Act's plain text and structure establish a human authorship requirement. In terms of precedent, since the 19th century, the Supreme Court has recognised human creativity as the touchstone of authorship. It further argues that Dr Thaler has offered no sound reason to depart from these 'bedrock principles'.

Oral argument was heard by the US Court of Appeals for the DC Circuit on 19 September 2024.

The position on whether content created by AI generators is protectable differs from country to country (as noted below re the position in the UK as compared to the US). We have written about this here. 

This claim has been brought by Getty Images against AI image generator Stability AI in the UK High Court.

Getty Images' claim (as summarised in its press release when commencing the claim) is that, through its Stable Diffusion model (under the name DreamStudio), Stability AI has "unlawfully copied and processed millions of images protected by copyright and the associated metadata owned or represented by Getty Images absent a license to benefit Stability AI's commercial interests and to the detriment of content creators".

The claims relate to copyright infringement, database right infringement, and trade mark infringement and passing off.

In brief, Getty Images claims that Stable Diffusion was trained using various subsets of the LAION-5B Dataset which was created by scraping links to photos and videos and associated captions from various websites: Getty Images claims that Stable Diffusion 1.0 was trained using around 12 million visual assets (of which around 7.3 million are copyright works) from Getty Images websites. It further claims that Stable Diffusion 2.0 was trained using around 7.5 million visual assets (of which around 4.4 million are copyright works) from Getty Images websites.

Getty Images also claims that in some cases the synthetic image produced by a user comprises a substantial part of one or more of its copyright works and/or visual assets, suggesting that Stable Diffusion sometimes memorises and generates very similar images to those used to train it. In some cases, the synthetic images produced bear the GETTY IMAGES and ISTOCK signs as a watermark.

Getty Images seeks to restrain the Defendant from doing a number of acts in the UK, without a written licence or agreement from Getty Images.

Stability AI applied for summary judgment / strike out in respect of certain aspects of Getty Images' claim. In particular, it argued that, as the evidence indicated that the training and development of Stable Diffusion took place outside the UK, the claim relating to copyright and database right infringement in that process was bound to fail. On 1 December 2023, the Court rejected Stability AI's application. Whilst the evidence referred to would on its face provide strong support for a finding that no development or training had taken place in the UK, there was other evidence pointing away from that conclusion, as well as a number of unanswered questions and inconsistencies in the evidence. Accordingly, the Court allowed that claim to proceed to trial, alongside a claim for secondary infringement of copyright which again the Court concluded could not be determined on a summary basis. 

On 27 February 2024, Stability AI filed its Defence. In summary, it denies that:

• Development and training of the Stable Diffusion models infringed any of Getty Images' IP rights on the basis that the models were trained and developed outside the UK.
• Making the Stable Diffusion model checkpoints available for download on GitHub or Hugging Face, or for use via DreamStudio, involves any acts of secondary infringement (because Stable Diffusion is not an infringing copy, is not an article, and has not been imported into the UK by Stability).
• Use of Stability Diffusion by users gives rise to claims of infringement.  In particular, it argues that the examples of infringing outputs relied upon were generated by 'wilful contrivance using prompts corresponding exactly or substantially to captions' for Getty Images' works. It further asserts that the act of generating outputs is that of the user (over whom it has no control or knowledge of its prompts), not Stability; it has not made any use of the Getty trade marks in the course of trade; and it is entitled to rely upon caching and hosting safe harbours.

Interestingly, Stability AI also assert that to the extent that any images do include any element of a copyright work, it is possible to rely upon the fair dealing defence for the purposes of pastiche (a defence which has not yet been the subject of significant judicial commentary, other than in the Shazam case relating to Only Fools and Horses).

As part of the claim, the sixth Claimant brought a representative action on behalf of all the owners of artistic works and films licensed on an exclusive basis to the first Claimant. 

In a decision dated 14 January 2025, Mrs Justice Joanna Smith concluded that the representative claim should not be permitted to continue under CPR 19.8. The proposed class definition was "owners of … copyright … works … the copyright in which has been infringed … that can be identified on the basis that (i) they have entered into an exclusive license with the First Claimant…; and (ii) the … works include works which were used to train [the AI model]". However, that definition was dependent on a disputed issue (whether copyright had been infringed), and so it was not possibly to satisfactorily identify the members of the class before a judgment on liability. Further, while Stability had admitted that some images had been used to train the AI model, the question of which works had been used was not a question that could currently be determined. There was therefore no basis on which the Court could be satisfied that any particular person qualified as a member of the class proposed, or that it therefore had jurisdiction to permit the representative claim. Even if that was wrong, the judge was not persuaded that the claim should be permitted to proceed, given the absence of clear proposals as to how the representative claim should be dealt with at trial, whether samples would be used and extrapolated, and whether (and if so how) any individualised assessments required were to be bifurcated.

The judge went on to refuse permission for the action to continue under CPR 19.3(1) in the absence of joinder of owners of copyright works with whom the Claimants have concurrent rights of action (which provides that all persons jointly entitled to the remedy claimed by a claimant must be parties unless the court orders otherwise). Noting that there seem to be very few cases on the point, the judge rejected the submission that a failure in relation to CPR 19.8 necessarily precludes a party from relying on CPR 19.3 (and indeed, in this case the judge considered that an order under CPR 19.3 would, in theory, make very good sense). However, given the current absence of proper evidence as to the potential prejudice to Stability, it was not an application the Court could accede to at this stage. 

Subsequently, the Claimants applied for an order allowing a representative action under CPR 19.3 and s.102(1) of the Copyright, Designs and Patents Act 1988 on behalf of individuals who are parties to the exclusive licence agreements with Getty, without those individuals being joined as parties.  This order was granted on the basis that Getty undertake to indemnify Stability AI against all damages and legal costs that Stability reasonably incurs as a result of any subsequent copyright infringement proceedings against it by any copyright owner who is jointly entitled to the remedies claimed by Getty as a result of being party to any of the exclusive licence agreements. Getty has also undertaken to take reasonable steps to assert and enforce right to control claims clauses in the exclusive licence agreements.

The German collecting society, GEMA (which represents the interests of around 95,000 members in Germany), has issued proceedings against OpenAI in relation to the reproduction of protected song lyrics by German authors, without having acquired a licence or paid the authors. The proceedings have been issued in the Munich Regional Court and argue that, when simple prompts are entered into ChatGPT, it reproduces the original song lyrics with which "the system has obviously been trained".  GEMA has previously declared an opt-out from text and data mining on behalf of its members in accordance with the provisions in the Digital Single Market Copyright Directive.

In addition to unauthorised use of original texts, GEMA refers to unauthorised adaptations (hallucinations) and infringement of moral rights.

This is the first lawsuit filed by a collecting society worldwide against a provider of a genAI system and will therefore be watched very closely. GEMA presented a generative AI licensing model in September 2024 calling for a responsible approach to genAI, including protection of IP, fair participation of creative professionals in value creation, sustainability, and transparency and responsibility from AI providers.

Following its claim against OpenAI in relation to reproduction of protected song lyrics, Gema has filed a complaint against Suno Inc in the Munich Regional Court in relation to its core area, licensing of playable music titles. In its complaint, GEMA argues that using simple prompts, the system outputs 'obviously infringe copyright, in terms of melody, harmony and rhythm', providing examples such as Mambo No. 5 by Lou Bega and Daddy Cool by Boney M. It has provided sound files in its press release which it argues demonstrates the similarities between the original songs and those produced using Suno.

In its FAQ, GEMA notes that the aim of the lawsuits is to obtain a licence fee for the authors and music publishers who works have been trained (and has drawn up a licence model for these purposes). However, it is not seeking to prevent the use of GEMA works by AI systems in general. Neighbouring rights of performers and producers of sound recordings are also not the subject of the lawsuit.

In this case, the District Court of Hamburg in Germany was asked to consider infringement arising out of the use of images taken by photographer Robert Kneschke (which had been downloaded from Shutterstock which had terms and conditions prohibiting scraping etc) against LAION, during the creation of its LAION 5B dataset of image-text pairs made available free of charge (LAION is a not for profit organisation). The claim specifically does not cover further acts of training or development of AI models using the data set (by companies such as Stability AI, for example).

The Court delivered its decision on 27 September 2024. It found that there was an infringement of the Plaintiff's copyright work by reproduction in the creation of the dataset. The Defendant was not entitled to rely upon the defence of temporary reproduction as the act of reproduction was not transient or incidental. However, as a research organisation, the Defendant could rely upon the exception for text and data mining for non-commercial scientific research purposes (as provided for in Article 3 of the Digital Single Market (DSM) Copyright Directive, and implemented in German law) in relation to its acts of scraping and analysis in the creation of the data set. The data set had been published free of charge and made available to researchers in the field of artificial neural networks. It was irrelevant in the assessment of the creation of the data set that it was also used by commercial companies for training and further developing their AI systems.

The Court therefore did not need to decide whether the Defendant could also rely on the general text and data mining exception provided for in Article 4 of the DSM Copyright Directive. Unlike the exception in Art.3, a right holder can opt out of the TDM exception in Art.4 provided that its reservation of rights is in a machine-readable format. Whilst the Court did not need to decide on this issue, it suggested that a reservation of rights written solely in 'natural language' would be 'machine understandable' but this would need to be assessed depending on the technical development at the relevant time of use of the work.

As the first decision dealing with TDM exceptions and the temporary copying exception in relation to AI, this is an important case, albeit of limited scope, as the case focuses on the creation of the data set by LAION, and not on its subsequent use by AI tool developers to train their models.

This claim, brought by a range of leading Canadian media companies and news publishers, has been issued against OpenAI in the Ontario Superior Court of Justice. The claim is for a declaration that the various OpenAI defendants are jointly and severally liable for (i) infringing, authorizing and/or inducing infringement of copyright in various works published on the media companies' websites (ii) engaging in prohibited circumvention of technological protection measures; (iii) breaching the terms of use of the plaintiffs' various websites; and (iv) unjust enrichment at the expense of the plaintiffs.

This is the first case brought against OpenAI in Canada and represents a fresh jurisdiction where it is now facing allegations of copyright infringement and related claims. Proceedings have also been brought in Canada at the British Columbia Supreme Court by the Canadian Legal Information Institute against Caseway AI.

In March 2023, the US Copyright Office published a Statement of Policy setting out its approach to registration of works containing material generated by AI.

The guidance states that only the human created parts of a generative AI work are protected by copyright. Accordingly, only where a human author arranges AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship’ or modifies AI-generated content ‘to such a degree that the modifications meet the standard for copyright protection,’ will the human-authored aspects of such works be potentially protected by copyright. 

This statement follows a decision by the USCO on copyright registration for Zarya of the Dawn ('the Work'), an 18-page graphic novel featuring text alongside images created using the AI platform Midjourney. Originally, the USCO issued a copyright registration for the graphic novel before undertaking investigations which showed that the artist had used Midjourney to create the images. Following this investigation (which included viewing the artist’s social media), the USCO cancelled the original certificate and issued a new one covering only the text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. In reaching this conclusion, the USCO deemed that the artist’s editing of some of the images was not sufficiently creative to be entitled to copyright as a derivative work.

As part of its study of the copyright law and policy issues raised by AI systems, in August 2023, the USCO sought written comments from stakeholders on a number of questions. It had received over 10,000 comments by December 2023. The questions cover the following areas:

1. The use of copyrighted works to train AI models – the USCO notes that there is disagreement about whether or when the use of copyrighted works to develop datasets is infringing. It therefore seeks information about the collection and curation of AI datasets, how they are used to train AI models, the sources of materials and whether permission by / compensation for copyright owners should be required.
2. The copyrightability of material generated using AI systems – the USCO seeks comment on the proper scope of copyright protection for material created using generative AI. It believes that the law in the US is clear that protection is limited to works of human authorship but notes that there are questions over where and how to draw the line between human creation and AI-generated content. For example, a human's use of a generative AI tool could include sufficient control over the technology – e.g., through selection of training materials, and multiple iterations of prompts – to potentially result in output that is human-authored. The USCO notes that it is working separately to update its registration guidance on works that include AI-generated materials.
3. Potential liability for infringing works generated using AI systems – the USCO is interested to hear how copyright liability principles could apply to material created by generative AI systems.  For example, if an output is found to be substantially similar to a copyrighted work that was part of the training dataset, and the use does not qualify as fair use, how should liability be apportioned between the user and the developer?
4. Issues related to copyright – lastly, as a related issue, the USCO is also interested to hear about issues relating to AI-generated materials that feature the names of likeness, including vocal likeness, of a particular person; and also in relation to AI systems that produce visual works 'in the style' of a specific artist.

In July 2024, the USCO published Part 1 of its Report on Copyright and Artificial Intelligence, focusing on Digital Replicas (also called 'deepfakes'). Based on the input received, the USCO has concluded that a new federal law is needed to deal with unauthorised digital replicas, as existing laws do not provide sufficient legal redress. This would cover all individuals, not just celebrities. However, whilst the paper also notes that creators have concerns over AI outputs that deliberately imitate an artist's style, it does not recommend including style in the coverage of the new legislation at this time.    

Separately, a No Fakes Bill (Nurture Originals, Foster Art and Keep Entertainment Safe Bill) has also been proposed in the US Senate. The No Fakes Bill also proposes to enact federal protection for the voice and visual likeness of individuals. The Bill is endorsed by a number of associations representing performers and rights holders, and from within the creative community.

In January 2025, the USCO published Part 2 of its report, focused on copyrightability of outputs from using generative AI. The report concludes that outputs can only be protected by copyright where a human author has determined sufficient expressive elements. This can include situations where a human-authored work is perceptible in an output, or a human makes creative arrangements or modifications of the output. However, it will not apply in the case of mere provision of prompts. The report also confirms that the use of AI to assist in the process of creating/including AI-generated material in a larger human-generated work may be protected by copyright.

Introduced by Democratic Representative Adam Schiff, The Generative AI Copyright Disclosure Act would require a notice to be submitted to the Register of Copyrights prior to a new generative AI system being released, providing information on all copyrighted works used in building or altering the training dataset. It would also apply retroactively to existing genAI systems.

The Bill has attracted widespread support from across the creative community including from industry associations and Unions such as the Recording Industry Association of America, Copyright Clearance Center, Directors Guild of America, Authors Guild, National Association of Voice Actors, Concept Art Association, Professional Photographers of America, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America West, Writers Guild of America East, American Society of Composers, Authors and Publishers, American Society for Collective Rights Licensing, International Alliance of Theatrical Stage Employees, Society of Composers and Lyricists, National Music Publishers Association, Recording Academy, Nashville Songwriters Association International, Songwriters of North America, Black Music Action Coalition, Music Artist Coalition, Human Artistry Campaign, and the American Association of Independent Music.

The UK Government has issued its much-anticipated consultation on Copyright and Artificial Intelligence, with the deadline for interested parties to respond of 25 February 2025. This issue has been on the agenda since even before the surge of interest in generative AI following the public launch of ChatGPT in November 2022. Having consulted on the issue in 2021, the previous Government had initially decided to introduce a broad text and data mining exception to allow scraping of copyright-protected work for any commercial purpose (including training of AI tools), without providing any option for right holders to opt their works out. However, following significant opposition from across the creative industries, it later revised its approach to focus on attempting to broker a voluntary code of practice between AI tool developers and rights holder representatives.

With those code of practice discussions having failed to reach a resolution, the new Labour Government has now issued a fresh consultation in which it seeks to reach a balance between the competing interests, and to thereby unlock opportunities for AI training in the UK, whilst also ensuring protection for creative works (described by one Minister as a "win win"). Subject to the responses it receives to its consultation, the Government proposes again to introduce a text and data mining exception allowing copyright works to be used in training, but this time making it subject to rights reservation by right holders (i.e., an opt-out). This is intended to allow them to exercise control over their works by opting them out, or otherwise licensing them for AI training and obtaining payment for their use. Underpinning this would be a requirement of greater transparency from AI developers as to the material used to train their models, how they have acquired those materials and in relation to the content generated by their models. There would also need to be standardisation of opt-out mechanisms.

The consultation also considers a range of other issues such as protection for computer-generated works as well as infringing outputs, the temporary copies exception, the existing text and data mining exception for non-commercial research, labelling of AI outputs, use of AI in education, digital replicas, and other emerging issues. In relation to protection for computer-generated works, the Government's preferred position is for this protection to be removed, unless it is satisfied that there is evidence of the incentives this protection provides.

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We expect there to be a significant number of responses to the consultation, representing a broad range of viewpoints, with stakeholders having a range of both overlapping and diverging positions. It is likely to take some time for the Government to consider fully the responses it receives, to conduct further engagement with stakeholders, and to draft appropriate legislation where this is concluded as necessary.

On 12 July 2024, the EU AI Act was published in the Official Journal of the EU.  The Act entered into force on 1 August 2024 and will be fully applicable 24 months after its entry into force, i.e., on 2 August 2026 (though certain provisions will be applicable sooner, and others at 36 months). There are staggered dates for when different parts of the Act will take effect:

• 6 months after coming into force, provisions concerning banned AI practices take effect (i.e. 2 February 2025)
• 1 year after coming into force, provisions on penalties, confidentiality obligations and general-purpose AI take effect (i.e. 2 August 2025)
• 2 years after coming into force, the remaining provisions take effect (i.e. 2 August 2026)
• 3 years after coming into force, obligations for high-risk AI systems forming a product (or safety component of a product) regulated by EU product safety legislation apply (i.e. 2 August 2027)

In relation to copyright, the Act contains provisions relating to obligations on general-purpose AI systems around compliance with EU copyright law (including relating to text and data mining and opt-outs under the EU Digital Single Market Copyright Directive) and transparency around content used to train such models (in the form of sufficiently detailed summaries, which will be by reference to a form template to be published by the proposed AI Office). There is also a requirement that certain AI-generated content (essentially 'deep fakes') be labelled as such.

A draft of a proposed GPAI Code of Practice has been issued for consultation (a second draft was published in December 2024). In relation to copyright, the Code of Practice deals with the need for implementation of a copyright policy, together with both upstream and downstream copyright compliance, as well as compliance with the limits of the TDM exception provided for in the Digital Single Market Copyright Directive. In this regard, signatories are required to respect robots.txt (and to ensure that this does not negatively affect the findability of content, where relevant), make best efforts to identify and comply with other appropriate machine-readable means for effecting an opt-out, and to commit to collaborative development of rights reservation standards. They must also commit to not crawl piracy websites. In relation to transparency, signatories will be required to provide public information about rights reservation compliance, alongside provisions relating to communication and complaint handling, as well as record-keeping to fulfil their obligation to put in place a policy to comply with EU law on copyright and related rights.

The Commission has launched a call for tenders for a feasibility study on a central registry of opt-outs.