Year in review: Media and Entertainment Law in USA

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Year review

In the year 2023 marks a watershed moment for the impact of artificial intelligence (AI) on the media and entertainment industries in the United States. While AI is hardly new and has been impacting media and entertainment in many ways for years, the release of multiple, incredibly sophisticated AI models represents a significant disruption to how content is created, distributed, and licensed across various industries. These technological advances have prompted intense legislative and regulatory attention, with intellectual property rights holders suing when their works are used to train generative AI models without permission, and strikes by major unions representing writers and actors. In a world where AI is increasingly displacing human workers in entertainment content, a significant portion of the disputes arise over how to divide the spoils from digital streaming.

Some developers of generative AI tools have pledged to use third-party copyrights as permitted and are taking aggressive measures to prevent their tools from being used for “deep faxing,” political disinformation, and other forms of abuse. Others have taken the position that training copyrighted material for a generative AI model is protected as fair use of copyrighted material, even if multiple copies are made during the training process, as long as the model results are not too similar for any particular input, and in any case by third-party end-users. They are not responsible for the misuse of the equipment they provide. Cases that begin to answer the question of whether the latter approach will pass muster are now pending in courts around the country. The US Copyright Office has taken a major initiative to study generative AI and published a formal notice of inquiry in August 2023 that received more than 10,000 responses from affected businesses, industry groups, copyright scholars and concerned citizens. Congress has held a series of hearings on generative AI and much is expected as elected officials weigh whether more legislation is needed to regulate these emerging technologies.

There were several other interesting developments as well. To name a few:

  1. The U.S. Supreme Court granted permission to use Warhol’s artistic transformation photograph, upholding a lower court ruling that the Andy Warhol Foundation had infringed the photographer’s copyright on Prince’s photograph, reiterating the equitable defense to copyright infringement. magazine cover;2
  2. Authors and publishers have faced efforts to restrict books from schools and public libraries, particularly those dealing with racial and social justice, sexuality, and racial and gender identity.3 But courts to date have found these censorious efforts to be a serious interference with free speech.4
  3. Courts across the country continue to differ on whether website operators who host photos hosted on third-party servers violate the exclusive right of display granted to photo copyright owners.5 And
  4. A district court has blocked Penguin Random House’s purchase of Simon & Schuster, agreeing with the Justice Department that a merger of two of the world’s largest book publishers would reduce competition for best-selling books.6

These developments and others are discussed in more detail in the following sections.

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