A thin record prevents ruling on a thin copyright

Viann’K Mansur LLC v. Estiloisabella LLC, 2026 WL 952416, No. H-23-2914 (S.D. Tex. Feb. 26, 2026)

“The parties in this case sell elaborate ball gowns for quinceanera parties, the celebration of a Latin American girl’s fifteenth birthday.” Defendant Etilolsabella LLC, formed by a former employee of plaintiff, allegedly began advertising and selling copies of its “Leonora Dress” (a light blue gown with pink floral surface designs) and “Golden Train Dress” (a crimson gown with gold sequin appliques). Defendant Etilolsabella LLC’s social media accounts featured posts depicting allegedly infringing dresses advertised with various derivatives of “#viannkmansurexclusive.” Defendants argued that they acted in the reasonable belief that they had authority to use the mark due to various permissions plaintiff had previously given.

Copyright: “[W]hen comparators are not overwhelmingly identical or exact matches or the differences edge beyond the superficial, summary judgment is not appropriate because a reasonable juror could find no infringement.” Here, the parties agreed that the only protectable elements of plaintiff’s dresses were the surface design elements—the placement and shape of the sequin or floral appliques that adorn the dresses. The record didn’t show the Leonora dress and the accused dress with enough clarity to enable a substantial similarity analysis. An individual defendant expressly testified that “[i]t’s not exactly the same dress” and that the differences related to the floral appliques, which were the only protectable elements of the Leonora Dress.

plaintiff's Leonora dress

accused use

accused use

accused use

Meanwhile, the Golden Train dress and the accused dress designs were

far from identical. The Golden Train Dress has single-pointed crenelated edging with deep negative space and additional sequinning on the flounce layers on the sides of the dress. The allegedly infringing dress, on the other hand, has much thicker double-pointed edging with wide scalloped edges and while there is additional sequinning on the train itself, the layered flounces appear unadorned. In other words, these dresses are not “so overwhelmingly identical that no reasonable juror could reach a different conclusion.”

Plaintiff's Golden Train closeup

Plaintiff's Golden Train

Defendant's accused dress

On likely confusion, there were factual issues despite the use of a similar hashtag to an inherently distinctive mark. On intent, given that “[d]efendants paid taxes, rent, and electricity bills on behalf of the Viann’K Mansur brand, … there is a genuine dispute as to whether Defendants had a good faith belief, even if mistaken, that they had permission to use the Viann’K Mansur name.” And there was no evidence of actual confusion. One of defendant’s customers testified that, although she considered making an appointment with Plaintiff, she decided instead to purchase a dress from Defendants after viewing Defendants’ social media post,” but her “conscious choice of Defendants’ brand over Plaintiff’s brand implies her actual awareness of two distinct brands.” And these were “relatively expensive items of custom clothing and purchasing one requires making an in-person appointment with the seller.”

The court didn’t discuss the false advertising claims separately.

Reading list: The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment

Alisher Juzgenbayev, The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment, 120 Nw. U. L. Rev. 1449 (2026).

Abstract

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws and exercises coordinated enforcement discretion. When the Executive interprets this discretion so expansively as to effectively nullify enforcement of federal statutory schemes, Congress retains few tools to engage in meaningful lawmaking to advance policies across different domains. The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) offer a telling case study: as courts have systematically restricted private enforcement, particularly class actions, they have channeled enforcement toward the CFPB—theoretically positioning the agency to address systemic violations through enforcement, monitoring, and information gathering. While individual consumers may still access state courts or raise FDCPA violations defensively, addressing systemic violations requires robust administrative enforcement if the Article II justification for restricting private standing is to remain coherent. The possibility for such enforcement now faces mounting challenges from increased politicization of enforcement, executive disempowerment of agencies, and growing judicial skepticism about the propriety of independent agencies and their investigative and interpretative authority. The risk is that some consumer protection statutes will become effectively unenforceable as neither private litigation nor state alternatives can adequately fill the resulting enforcement gap.

court allows Lanham Act claims about allegedly deceptive Amazon product page grouping to proceed

Corsair Gaming, Inc. v. Choice Electronics Inc., 2025 WL 2822691, No. 5:25-cv-00045-BLF (N.D. Cal. Oct. 3, 2025)

There seem to be a couple of these cases out there. Corsair sells computer and gaming products under the “CORSAIR” brand; subsidiary Corsair Memory is the trademark registrant for “CORSAIR” for its products. US products are protected by a limited warranty, which by its terms is restricted to Corsair products purchased either directly through Corsair or an authorized t reseller. Both Corsair and Choice sell the products on Amazon through their respective Amazon storefronts.

Amazon allegedly permits vendors and third-party sellers to create “variation” relationships between substantially similar products that differ only in specific, narrow ways. A product detail page will display each product in the variation relationship as an alternative. “Owing to the close similarity of products within a variation relationship, the product detail page displays the total number of ratings and the average star rating for all products in a given variation relationship. For example, a product detail page for a shirt may offer for sale the same shirt design in various colors and sizes, displaying the total number of ratings and average star rating for the shirt across the range of colors and sizes offered.” To avoid consumer confusion, Amazon allegedly prohibits vendors from grouping together fundamentally different products within the same variation relationship.

Corsair initially sued Choice for violations of the Lanham Act and the California UCL, alleging that, though Choice isn’t an authorized reseller, it represented “that the Corsair products it offers for sale on Amazon are ‘new’ despite the fact that they are used, closed out, liquidated, counterfeit, and/or non-genuine product of unknown origin.” This opinion dealt only with the counterclaims for trademark invalidity and false advertising.

Choice sufficiently alleged that Corsair Memory abandoned the CORSAIR Mark because its “naked licensing and/or uncontrolled acquiescence of Corsair Gaming’s use of the CORSAIR trademarks has caused the marks to lose trademark significance, and as a consequence, the public no longer associates these marks with a single source of goods or services.” Corsair argued that this claim failed because Corsair and Corsair Memory are related entities. “While it is of course true that use by a trademark registrant’s related company inures to the benefit of the trademark registrant (and thus does not result in abandonment), the term ‘related company’ is specifically defined as ‘any person whose use of a mark is controlled by the owner of the mark with respect to the nature and quality of the goods or services on or in connection with which the mark is used.’” Thus, the corporate relationship alone was insufficient on its own to preclude abandonment; discovery would bear out the facts.

Lanham Act false advertising counterclaims: Choice alleged that Corsair “knowingly manipulates Amazon listings in order to show inflated and unwarranted reviews for its products by misleadingly listing new products as ‘variations’ of pre-existing products, instead of creating new listings for new products,” causing consumers to be “deceived and confused into believing that Corsair Products have amassed significant amounts of positive reviews and high ratings, when, in fact, such reviews and ratings merely relate to a prior product.”

This was plausible on a motion to dismiss. Choice alleged standing through direct competition in the sale of Corsair products. It further alleged that customers wrongly believe the accumulated reviews for the older products belong to, or otherwise endorse, a substantially different product. That sufficed to allege harm. Corsair argued that there was no redressability because Amazon controls the product pages, but the counterclaims specifically alleged that vendors like Corsair Gaming exert control over the variation relationships. And, even assuming that Rule 9(b) applied, the counterclaim sufficiently specified “how Corsair has allegedly created a variation relationship between three different computer monitors despite substantial technological differences.”

UCL unfair competition/NY GBL deceptive business practices: Sufficiently pled with respect to the same conduct covered by the Lanham Act, but not for Corsair’s allegedly unlawful warranty restrictions because Choice didn’t explain how the warranty harmed it. The allegations that “the purportedly unenforceable Corsair Warranty misleads consumers by creating the false impression that Corsair Products purchased through Choice’s Amazon storefront are not subject to the same protections and thus has ‘discouraged and dissuaded consumers from purchasing genuine Corsair Products from Choice Electronics’” were conclusory and wholly speculative.

Likewise, while Choice could refer to state and federal law for its UCL claims, it couldn’t use a violation of section 369-b of the New York GBL as the predicate violation for an “unlawful” UCL claim, because New York wanted only the NY AG to be able to enforce that law. That provision makes unlawful certain warranty restrictions such as those allegedly at issue here.

prefacing statements with "allegedly" or calling them "estimates" doesn't make them nonfalsifiable opinion

V Shred, LLC v. Kramer, 2026 WL 895614, No. 2:25-cv-01341-CDS-DJA (D. Nev. Apr. 1, 2026)

V Shred is a health and wellness company specializing in “online exercise training programs, exercise apparel, and nutritional supplements.”

Kramer is a social media influencer with millions of followers who promotes “online exercise training programs, exercise apparel, and nutritional supplements” and allegedly directly competes with V Shred.

V Shred sued for Lanham Act false advertising, alleging among other things that Kramer uses the catch phrase “Fuck V Shred” on his social media profiles as “a discount code consumers can use” for products promoted by Kramer.

The court found that the complaint alleged some provably false statements, while others weren’t identified specifically enough (though the court granted leave to amend).

As to a video titled “Mini Golf With V Shred in Las Vegas,” it was not enough to allege that this was false because V Shred was not present or in any way associated with the video. “Here, there was no unauthorized use of an image, but rather there was merely a tagline reference to V Shred. The leap from using a tagline to arguing that it equates to promoting the defendant’s products is not plausible. Here, as alleged, there were no products offered for sale and V Shred was not even discussed in the video.” Dismissed with prejudice.

As to an appearance on the “TSL Time” podcast, Kramer allegedly falsely stated “the company of V Shred isn’t owned by a health and wellness company. It’s owned by a marketing agency. Just a bunch of marketing dudes”; he also allegedly stated that V Shred “is a ‘cancer,’ ” “sells ‘crash diets,’ ” that “[principal] Sant is an ‘actor’ who ‘doesn’t know what the fuck he’s talk about,’ ” and that he plans to “knock the legs out from under [V Shred] because they are a garbage company.”  He also allegedly falsely stated that V Shred has “1,200 or 1,300 complaints filed with the Better Business Bureau this past year alone.”

Kramer argued that his statements about ownership were nonfalsifiable opinion, and that his claims about the BBB complaints were an estimate “based on memory.” The court found that both statements were falsifiable, and because he allegedly promoted his own products instead, they could be a commercial advertisement. The “estimate” defense “is essentially an admission that the BBB statements were indeed demonstrably false.”

Finally, Kramer allegedly posted a video stating that “they only pay their coaches $9 per client.” V Shred alleged this statement was false because they pay their coaches different amounts for different types of plans. The qualifier “allegedly” did not save this statement from falsifiability. This was also plausibly an ad; Kramer spent 58 of the 93-second video criticizing V Shred before promoting his own company and attempting to recruit customers, including that he will pay his coaches “double the market standard.”

two cases reach opposite results over whether "health" claims are misleading if products are lead-contaminated

Lopez v. Mead Johnson Nutrition Co., 2026 WL 788492, No. 24-cv-03573-HSG (N.D. Cal. Mar. 20, 2026)

Lopez alleged that Mead infant formulas’ packaging contains deceptive statements that imply that they are generally nutritious and have “no detrimental, harmful, or genetically engineered ingredients.” For example, the challenged labels state that the formulas are “brain building” or “support[ ] brain... development,” and are “recommended” or “trusted” by experts and pediatricians. Others contain statements that the formulas promote immune health, bone health; eye health; were inspired by breast milk; and do not contain artificial colors, flavors, sweeteners, or growth hormones. But independent testing allegedly revealed a presence of arsenic, cadmium, or lead in each of the formulas, and that other infant formulas may be manufactured without detectable levels of heavy metals. She also alleged that consumer surveys revealed that people would expect a company to test for those substances and disclose whether “detectable levels” were found, and that consumers would understand the formulas’ packaging to imply there were no heavy metals.  

The court disagreed, although it rejected Mead’s primary jurisdiction argument and arguments that Lopez couldn’t sue over products with different ingredients from those she purchased (there are milk-based, soy-based or amino-based options), because they were substantially similar in the relevant characteristics to the products she did purchase.  

Lopez did fail to plead that damages would insufficiently compensate her for the alleged overpayment, so her restitution and disgorgement claims failed.

More importantly, her UCL, FAL, and CLRA claims failed. She didn’t allege that any of Mead’s claims were literally false, but rather that “each challenged statement speaks directly to the quality and nutritional benefits of the Products” without mentioning the potential presence of heavy metals. “[T]his argument is based on implausible assertions about what a reasonable consumer would understand the challenged representation to say about the Products…. There is nothing that logically connects an expert’s recommendation or the presence of certain substances in an infant formula with the absence of some other substance.” [Would an expert really recommend feeding a baby cadmium and lead?]

The survey didn’t help. Over 91 percent of a subset of parents answered “yes” to the questions “Do you expect a company to test for arsenic, cadmium, lead, and/or mercury in infant formula that will be fed to infants?” and “Would you expect a company to disclose if there were detectible levels, or risk, of arsenic, cadmium, lead, and/or mercury in an infant formula?” And 77 percent of consumers would not “expect arsenic, cadmium, lead, and/or mercury in the infant formula” after seeing the label. “But these generalized questions to an undisclosed number of people, detached from any legal standard, fail to support the plausibility of Plaintiff’s reasonable consumer allegation.”

Nor did Lopez plead that Mead has a “duty to disclose” because the suppressed facts are “contrary to a representation actually made by the defendant.” The challenged statements read together didn’t represent that the products didn’t contain any detectable levels of heavy metals. “It is not enough for the disclosure to only provide more information about the product.” This defeated all the claims.

Meanwhile: The Court directed defense counsel to show cause why they should not be sanctioned for including a non-existent quotation from Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). The required response indicated that the quote was actually from a district court case that cited Becerra whose citation was inadvertently deleted. The filing included a screenshot purporting to show that counsel had previously accessed that district court case on Westlaw and specifically disavowed any generative AI use, which was clearly part of the court’s suspicions. “Counsel for Mead Johnson apologizes for the mistake and has informed Mead Johnson of both this error and the Court’s Order.”  

Pellegrino v. Procter & Gamble Co., 2026 WL 880573, No. 23-CV-10631 (KMK) (S.D.N.Y. Mar. 31, 2026)

Plaintiffs brought claims under New York General Business Law §§ 349 and 350, New York Agriculture and Markets Law § 199-a, and negligence per se based on P&G’s marketing of Metamucil, a psyllium fiber supplement.

Plaintiffs alleged that “[t]he labels on the Products suggest ... that [they] are generally healthy and safe for consumption and provide specific health benefits ....” and that they “have been inspected and sealed to ensure each is safe for human consumption” and free from tampering. P&G’s website has a dedicated “Product Safety” section, which discusses the “rigorous safety process” it uses “to analyze every ingredient” used in its products and claims to “go beyond regulatory compliance to ensure every ingredient’s safety through a four-step, science-based process” used by various regulatory agencies, including “US FDA, [the] EPA, the EU, the WHO, and others.” P&G “reassures consumers it ‘define[s] the safe range of every ingredient’ by ‘apply[ing] the same science-based approach as regulatory agencies around the world.’ ” The website specifically states that it does not use “[h]eavy metals” such as “[a]rsenic, [l]ead, [and] [c]hromium” as ingredients in its products.

But the products allegedly “contain dangerous amounts of the heavy metal lead[,]” supported by the results of “[i]ndependent laboratory testing completed in July 2023 by an ISO-accredited laboratory.” P&G allegedly knew this since 2021, when “Consumer Lab published a report concerning the lead content of various psyllium fiber supplements, showing up to 14.6 μg of lead per serving in Metamucil Sugar Free Orange Flavored.”

P&G argued that plaintiffs didn’t allege facts sufficient to show that the products they purchased actually contained dangerous amounts of lead. The court agreed in part; it didn’t think there was enough detail in most of the independent testing allegations.

“To validly assert an injury under a price-premium theory, a plaintiff must ‘allege[ ] facts demonstrating it is at least plausible that a plaintiff purchased a misbranded product.’ ” Plaintiffs can test the products they personally purchased, but “[c]aselaw in this Circuit recognizes ... that it may not always be possible to test the actual product purchased by a plaintiff.”

John v. Whole Foods Mktg. Grp., 858 F.3d 732 (2d Cir. 2017), accepted the results of a third-party investigation, which found the defendant’s pre-packaged foods were mislabeled 89% of the time. “[T]he samples in the independent investigation included the particular type of products that the plaintiff bought from the two store locations where he bought the products during the same time period in which the plaintiff made his purchases.” John requires plaintiffs to “meaningfully link the results of their independent testing to the product actually purchased.” This can be done, for example, “by showing that the mislabeling was systematic and routine.”  Relevant factors include temporal proximity, geographic proximity of the testing to the plaintiff’s purchases, the number of samples tested, and the name and testing methodology of the tester. “The pleading also should disclose the number of samples tested, and the testing should involve more than a small number.”

Only one plaintiff’s claims survived this inquiry. The court declined to dismiss those claims on the grounds that plaintiffs didn’t show that the amount of lead was dangerous: what constitutes too much lead is a fact question, and plaintiffs alleged that “[t]here is no level of exposure to lead that is known to be without harmful effects” and “[t]here is no known safe blood lead concentration.”

P&G argued that “[s]everal of the representations Plaintiffs challenge are structure/function claims that are authorized by the [Federal Food, Drug, and Cosmetics Act (the “FDCA”),]” which “expressly preempts Plaintiffs’ attempt to attack these structure/function claims as deceptive under state law.” The Second Circuit hasn’t weighed in on the relevant preemption provision, but the court here applied the rule that “there are two ways plaintiffs may escape preemption under that provision: (1) if their claims seek to impose requirements that are identical to those imposed by the FDCA; or (2) if the requirements plaintiffs seek to impose are not with respect to the sort described in [that part of the statute].”

Plaintiffs do not assert that Defendant failed to adhere to the labeling requirements posed by the FDCA, nor do they quarrel with the effectiveness of the Products or the primary ingredients that are in the Products. Instead, Plaintiffs claim that the representations Defendant made about the Products are false and misleading because the Products contain undisclosed amounts of lead….  Because “Plaintiffs’ argument is that the representations Defendant has made about its Products are false and misleading, ... Plaintiffs do not attempt to impose any additional requirements on Defendant other than those already imposed by the [FDCA].”  

The issue wasn’t whether the structure/function claims were false in the abstract, but whether these products were contaminated with lead.

Stating a claim under GBL §§ 349 and 350: Plaintiffs alleged that various statements on the Products’ packaging “suggest to reasonable consumers that the Products are generally healthy and safe for consumption[ ] and provide specific health benefits,” but these “statements and suggestions ... are false and misleading because the Products’ high lead content means the Products are, in fact, neither healthy nor safe for regular consumption.”

P&G argued that the challenged statements didn’t explicitly say the Products are healthy and safe for consumption and “courts have rejected efforts like Plaintiffs’ to ‘allege[ ] that a consumer will read a true statement on a package and will then ... assume things about the products other than what the statement actually says.’ ”

But the reasonable consumer test is usually a question of fact unless a plaintiff’s proposed reading is “patently implausible and unrealistic.” So the court proceeded to evaluate specific package statements.

“#1 Doctor Recommended Brand”: Bates v. Abbott Lab’ys, 727 F. Supp. 3d 194 (N.D.N.Y. 2024), aff’d, No. 24-CV-919, 2025 WL 65668 (2d Cir. Jan. 10, 2025) (summary order), rejected an argument “#1 Doctor Recommended Brand” was actionable under the GBL because the product—a nutrition drink—had added sugar. But “[a] consumer who agrees that any added sugar in a nutrition drink undermines its health benefits can obtain that information from the label,” which listed sugar as an ingredient, so “#1 Doctor Recommended Brand” was not misleading. But “the deception alleged here is different in kind than that alleged in Bates, both in terms of the scope of the omission (some disclosure about the sugar versus none about the lead) and the danger presented by the ingredient at issue (lead versus sugar). And, this difference is dispositive because the complete failure to mention the presence of a harmful substance such as lead makes any claim about the Products’ brand being doctor recommended plausibly misleading since it suggests that ‘the Products have been evaluated and approved by doctors as healthy and safe when taken as directed.’”

However, it was not plausible that claims that the packaging was tamper-evident misled reasonable consumers by “reassur[ing] [them] that a product is free from toxic adulterants like lead.” This wasn’t a case about tampering.

So too with the “Better Choices for Life” statement that appears as part of the American Diabetes Association seal on the packaging. When viewed in context of the logo in which it appears, no reasonable consumer could read “Better Choices for Life” as anything other than an endorsement by the American Diabetes Association.

“Helps Support: Appetite Control* ... [and] Digestive Health*”: Even though the challenged statement refers to “the specific effects of consuming fiber” and not the overall ingredients, deceptiveness was a fact question.

Omission: P&G argued that, because a March 2021 Consumer Lab report revealed that lead was found in various Metamucil products, plaintiffs couldn’t allege that its presence was “material information” that was exclusively within P&G’s control. Some courts interpreting NY law have gone so far as to require plaintiffs to plausibly allege they “could not ‘reasonably have obtained the [omitted] information[,]’ ” with “[o]ne example—though not the only example—of how to meet that standard is if the defendant ‘alone possesses [the omitted] information.’ ” Figuring out whether the information was discoverable by a reasonable consumer would require factual development.

"carbon neutral" not plausibly misleading where D bought offsets from 3d-party certifiers, despite methodological disputes

Bell v. R.J. Reynolds Vapor Co., 2026 WL 915295, No. 25-cv-04521-TLT (N.D. Cal. Feb. 20, 2026)

Bell brought the usual California claims based on RJR’s alleged misrepresentation of its products’ carbon neutrality. The court dismissed the complaint.

RJR labeled its Vuse as the “first carbon neutral vape brand,” based on the purchase of carbon-offset credits created from projects that aimed to reduce their carbon emissions. RJR purchased credits through certification by third-party organizations such as Verra and Vertis, mostly reforestation and forest protection projects between 2021 and 2024. Bell alleged that these projects “do not provide genuine, additional carbon reductions” because “forestry activities that would have occurred anyway” or lands were “already at minimal risk of deforestation.” The complaint alleged both consumer surveys and confirmation of the lack of impact through publicly available data, news reports, project documentation, satellite imagery, and third-party evaluations.

Bell’s price premium theory properly alleged standing, but that was it. There’s no statutory definition of “carbon neutrality.” “Merriam-Webster provides a dual definition for the term as (1) having or resulting in no net addition of carbon dioxide to the atmosphere; or (2) counterbalancing the emission of carbon dioxide with carbon-offsets.” And plaintiffs failed to plausibly allege that a reasonable consumer would adopt an interpretation that carbon neutrality must mean no additional carbon emissions to the atmosphere and that RJR must have conducted an independent, primary-source verification of the carbon-offset project. RJR truthfully disclosed its reliance on the third-party verification. “The third parties are allegedly independent organizations that have operated for decades and manage leading standards in the global carbon market.” Though Bell disagreed, disagreements over “statistical methodology and study design” are generally insufficient to allege a materially false statement. Although Bell alleged consumer surveys and studies showing that a significant portion of consumers prefer carbon-neutral products, the complaint failed to plausibly allege how these consumers would reject third-party certifications. “Given the complexity of carbon emission and the fact that Defendants explicitly described achieving carbon neutrality through third-party certifications that further described how underlying projects achieve offsetting carbon emission, the Court finds that a reasonable consumer would not view Defendants’ conduct as inherently counterfactual nor unreasonable.”

the continuing merger of TM and the right of publicity: court can't tell the defenses apart

Upper Deck Co. v. Pixels.com LLC, No. 3:24-cv-00923-BAS-DEB, 2026 WL 776227 (S.D. Cal. March 19, 2026)

Eric Goldman’s discussion. Upper Deck makes sports memorabilia (including sports player trading cards), and has exclusive licensing agreements with various athletes, including famous basketball player Michael Jordan, to use their names, images, and likenesses. Pixels is an online company, selling print-on-demand décor, photographs, wall art, prints, and other similar products. Pixel allows people to upload images and to sell physical prints of those images on its sites. Those included framed prints of Upper Deck’s trading cards featuring Jordan, and other prints displaying Jordan’s likeness. Upper Deck sued for false affiliation/endorsement, false advertising, and unfair competition; trademark dilution; trademark infringement; and right of publicity claims. The court mostly allowed the claims to proceed, with some subtractions.

Those subtractions included the dilution claim: Upper Deck’s registered hologram mark was not sufficiently famous among the general consuming public. However, trademark infringement claims based on the use of (non-hologram) reproductions of the hologram mark survived, despite Pixels’ argument that the one product containing the Upper Deck Hologram Mark listed on its website was never actually sold. Also, a copy of the 1986-87 Fleer Michael Jordan Rookie Card was sold at an auction for $840,000, while the framed print of that card offered for sale on Pixels’ website was priced at $70.

The same result occurred for Lanham Act false advertising and false affiliation claims based on Pixels’ advertisement and sale of products displaying Jordan’s trademarks on its website.

False advertising: The court found that Upper Deck identified a “false statement of fact” by Pixels in a “commercial advertisement about its own or another’s product,” via Pixels’ advertising of products containing Jordan’s trademarks on its website. The court analogized to the use of a kosher certification mark, which doesn’t seem to be analogous in materiality terms. Also, “the fact that some of the images are accompanied by the names of the persons uploading the images on Pixels website does not undermine the misleading nature of Pixels’ use of Jordan’s trademarks in advertising its products.” No further explanation.  

False association: “To establish proximate cause for false association claims, it is sufficient to demonstrate misuse of the relevant mark is likely to cause consumer confusion.” No materiality or harm requirement.

Upper Deck, as licensee for Jordan’s publicity rights, was also able to bring its publicity rights claims, including a publicity rights violation as a predicate violation for UCL claims (if there was no adequate remedy at law).

There were statute of limitations issues. The analogous limitations period for Lanham Act violations in California is four years; two years for the common law right of publicity; and four years for the statutory right of publicity, statutory unfair competition, and common law unfair competition. The specific images that fall within those time frames could be addressed by motions in limine.

I often tell my students that courts interpret the federal and state dilution laws as closely together as they can (with the partial exception of fame) because no one wants to do two dilution analyses, no matter whether the laws are written differently. I predicted that this would also become true of post-JDI Rogers/right of publicity defenses and here I am proven right: Apparently unable to recognize that, in theory, Rogers is the Ninth Circuit test for First Amendment limits on trademark and transformativeness is the Ninth Circuit test for First Amendment limits on the right of publicity, the court here rejects them both because Pixels is supposedly making trademark use of Upper Deck’s marks (that is, the basis recognized by JDI, but until now not part of transformativeness). And it does so because … Upper Deck’s trademarks, including Michael Jordan’s likeness, appear in the images and are thus serving as source indicators. “The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.” Bad reasoning all around. Pixels could still argue expressive use “insofar as it is relevant to the likelihood of confusion analysis at trial.” But ROP violations don’t require confusion—so I guess Pixels just loses?

CDA 230: Pixels is a “publisher or speaker” for advertising and curating content on its websites, but not for selling and distributing physical products. “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” This gets rid of display-only ROP and other state law violations (because the Ninth Circuit says state-law ROP claims aren’t exempted IP claims), but keeps the rest (e.g., claims based on Pixels’ contracting with vendors to manufacture and ship products, facilitating product returns, and offering a money-back guarantee).

Washington Supreme Court rejects private standing for discount misrepresentations

Montes v. Sparc Group LLC, 2026 WL 900481, No. 104162-4, --- P.3d ----, 2026 WL 900481 (Wash. Apr. 2, 2026)

Interpreting the Washington Consumer Protection Act, the state supreme court held, over a dissent, that buying products that are falsely advertised as discounted doesn’t cause actionable injury if the products aren’t worth less than was paid for them. This answered a question certified by the 9^th Circuit. (California law is otherwise.)

“Any person who is injured in his or her business or property” may sue to enforce the CPA. Only economic losses count as injuries to “business or property” under the CPA—noneconomic losses, such as “personal injury, ‘mental distress, embarrassment, and inconvenience,’ ” do not count. 

Montes alleged that she purchased $6.00 leggings at their advertised $6.00 price because they were discounted from the advertised regular price of $12.50; but in fact the leggings had rarely sold for $12.50. Since she received the product she sought to obtain, and didn’t allege that its non-price qualities differed from those advertised, she had no claim even if the reason for her purchase was that the seller misrepresented the product’s price history.

The court rejected three theories of injury: (1) the class “would not have purchased the items at the prices they paid had they known the items had not been regularly offered at the higher list price” (the “purchase price” theory); (2) they didn’t receive the benefit of the bargain: they “did not enjoy the actual discounts Aéropostale represented and promised them”; and (3) the deceptive pricing scheme inflated demand, which in turn inflated prices: “[b]ut for the false advertising scheme, Aéropostale would have had to charge less money for its products in order to enjoy the same level of demand for its products.”  These were just disappointed expectations. “Without more, the mere fact of a retail transaction does not imply economic loss.”

The majority followed the New Jersey Supreme Court: “even though Aéropostale’s alleged practices violated the state’s CFA, even though those practices violated a specific state regulation barring false discount advertising, and even though New Jersey consumer protection law recognizes the purchase price and benefit of the bargain theories of loss, plaintiffs failed to establish that the violation caused an ascertainable loss under either of those theories.” The AG could act, but not a private plaintiff.

And the complaint’s allegations didn’t support the theory that the deceptive pricing scheme inflated the market price of the leggings she bought. Plaintiff conceded the leggings had the monetary value that she paid for them: “the Leggings that Ms. Montes received had an actual value of between $5.00 and $6.00—the price range Aéropostale regularly offered them for sale.”

The dissent would have read the CPA more broadly. Montes could establish injury through a “price premium” theory by proving that the deceptive or misleading price history artificially increased demand for the leggings, causing an increase in the product’s market price. “The Ninth Circuit does not ask us whether Montes will prevail in her CPA claim, specifically whether she can quantify and prove damages. The majority imports a requirement for such proof into its injury analysis and in doing so narrows the scope of cognizable injuries under the CPA”:

Taking the allegations in the complaint as true, Montes would not have spent $6 on this pair of leggings if she had known the product’s true price history. To view this as a pure causation question would “render absurd conclusions” because it is Aéropostale’s affirmative misrepresentation that led Montes to purchase the leggings, and it is the purchase itself that constitutes a cognizable injury in these circumstances. Stated differently, Montes’s property interest was diminished because Aéropostale’s misrepresentation prevented her from, for instance, spending $6 elsewhere on another item; she is not required to prove that the leggings are not worth $6.

Beyond the Dog's tactics in employment dispute may have been beyond the pale

Beyond The Dog, LLC v. Salzer, 2026 WL 884140, No. 3:24-cv-1439 (VAB) (D. Conn. Mar. 31, 2026)

Plaintiffs (BTD) sued defendants Salzer and Canine Behavioral Blueprints, LLC over a failed working relationship, resulting in claims for trade secret misappropriation, breach of contract, unjust enrichment, unfair competition, and related counterclaims. I’m going to focus on the advertising-related claims, but some breach of contract claims survive for trial.

Beyond the Dog is a Missouri dog-training business. Dr. Salzer signed its Trainer Non-Compete Agreement /Employment Agreement, which contained restrictive covenants, confidentiality provisions, and a carveout for “[a]ctivities solely for academic purposes and not-for-profit.” During her employment, plaintiff Echterling-Savage supervised Salzer and worked with her on dissertation-related research. The dissertation was published through the University of Kansas. The relationship deteriorated after Salzer moved to Connecticut, started working with a local SPCA and a business called Our Companions, and opened Canine Behavioral Blueprints (CBB).

Plaintiffs took steps to protect contractual and confidentiality interests they believed remained in effect, including sending a letter to the MSPCA, communicating with a third party about CBB, and attending a public Our Companions seminar presented by Salzer. This allegedly interfered with Salzer’s professional opportunities and contributed to the cancellation of her lecture series and the end of her work with Our Companions.

If you want to know how this litigation is going: Previously, the court granted a preliminary injunction against plaintiffs’ use of agents to pretend to be potential clients of defendants in order to obtain defendants’ business documents, or any other covert corporate espionage activities; communication with the MSPCA and Our Companions or with any other of Salzer’s employers or business relationships regarding Dr. Salzer or the claims of this litigation except for the purposes of discovery; or following, or engaging agents to follow, Salzer, park outside her house, places of employment, or at her clients’ houses, or otherwise communicating or speaking with Salzer; telling any third party that Salzer breached her contract with Beyond the Dog or misappropriated trade secrets or confidential information; and “initiating or otherwise promoting further proceedings with the University of Kansas regarding the issues of this litigation.”

Common-law unfair competition under Missouri law: This requires passing off. Here the allegations were, in essence, reverse passing off, and Dastar has much to say. [Although Dastar was federal law specifically interpreting the word “origin” in the Lanham Act, its rationale supports the idea that state laws are preempted by copyright if they don’t follow Dastar.]

Beyond the Dog argued that its unfair competition claim “targets deceptive marketplace conduct non-attribution in credentialing and promotion,” because “CBB’s intake process mirrors BTD’s distinctive two-part system (front-end prompts and non-public back-end scoring that generates a protocol-oriented report), reinforcing a false impression of origin and distinctiveness in the services Defendants sell.” That did not get the job done. “The Supreme Court foreclosed this type of non-attribution or methodology-based claim … in Dastar.”

CUTPA counterclaims: The Connecticut Unfair Trade Practices Act provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” and gives a private right of action to a person who suffers an “ascertainable loss of money or property, real or personal.” Defendants argued that their acts targeting Salzer arose from “employment-relationship enforcement, not marketplace conduct.” They also argued that there was no actionable harm because their letter to the MSPCA “did not accuse Dr. Salzer of any wrongdoing,” that it was sent “to ensure non-disclosure, not to interfere with her employment,” and that MSPCA “has continued to employ Dr. Salzer and has even given her a raise.”

Although an employment relationship doesn’t constitute trade or commerce under CUTPA, a jury could find that the acts of which plaintiffs are accused didn’t arise solely from an employment relationship. After all, Salzer’s non-profit work was “specifically excluded from the scope of her Agreement with BTD,” but they targeted the MSPCA anyway. Likewise, plaintiffs allegedly attended Salzer’s seminar, sought access to her presentation materials, and attempted to interfere with Dr. Salzer’s teaching activities and her relationship with Our Companions. Repeatedly dangling the prospect of a recommendation letter, then refusing to provide it unless she agreed to relocate and work for them in Dallas, Texas, allegedly harmed Salzer’s ability to obtain certification and referrals in Connecticut. And the “mystery shopper” activity could be justified pre-suit investigation or instead conduct that a reasonable factfinder could deem deceptive or unfair under CUTPA.  In addition, sending a takedown notice to the University of Kansas could be part of the counterclaim, given that the dissertation was allegedly “used ‘solely for academic purposes’ and thus ‘exempt’ from Dr. Salzer’s non-disclosure agreement with BTD,” and allegations that “BTD made demonstrably false allegations to protect non-existent legal rights knowing that an academic misconduct investigation into Dr. Salzer’s dissertation could be reputationally ruinous.”

For similar reasons, the tortious interference counterclaims survived, as did defamation per se (accusations of theft can be per se defamatory), subject of course to proof and potential defenses like truth or privilege. Connecticut common-law unfair competition is narrower than CUTPA, but that claim also survived. A reasonable jury could find “justified, limited enforcement conduct,” or “fraud, misrepresentation, intimidation or molestation, or that the defendant acted maliciously, in interfering with the plaintiff’s business prospects.” Similarly, negligent infliction of emotional distress survived because it targeted conduct “beyond an ordinary employment-termination dispute or distress arising solely from litigation.”

Netflix's promotion of fictional team does not constitute trademark use

Pepperdine University v. Netflix, Inc., No. 2:25-cv-01429-CV (ADSx) (C.D. Cal. Mar. 31, 2026)

After denying the motion for preliminary injunction, the court finally tosses Pepperdine’s lawsuit based on use of a fictional Waves team in a Netflix show. Rogers applies to content, even prominent content, in a TV show.

Pepperdine claimed, and the court assumed, its rights in “Waves” for its athletic teams, along with a blue and orange color scheme “in conjunction with athletic programs and athletic merchandise, and/or in conjunction with other symbols that are associated with and identify the university—including the ‘Waves’ team name and the number ‘37.’”

Defendants made and distributed Running Point, “a series about a woman who is unexpectedly appointed president of a basketball franchise named the Los Angeles Waves.” The LA Waves allegedly use a mark similar to Pepperdine’s Waves trademark and similar colors to Pepperdine’s colors: a similar font, the color orange for the lettering, white outlining, a blue border, and the use of the word “Waves” in a similar context—on athletic-style clothing.

Pepperdine alleged that the use of the Waves marks is “pervasive” in the series, and appears throughout the series—on jerseys, shirts, stadiums, etc., including a logo that is similar to Pepperdine’s Waves mark, with a blue and white wave next to the orange “WAVES” text. “The show also includes a framed jersey in a conference room with the number 37 on it.”

Pepperdine alleged that defendants (or others) promoted Running Point with Waves references: Actors have posted pictures of themselves in “Waves” jerseys, with the caption “SIGNED to the Los Angeles Waves! . . . Check out my dunks on Running Point now on Netflix.” Another actor posted an image which prominently states “Los Angeles WAVES.” Defendant Kaling International’s official Instagram profile previously showed its founder, Mindy Kaling, wearing a “WAVES” shirt, and included a biography reading “Home of the Los Angeles WAVES.”

Pepperdine alleged that the team name is thus “essentially synonymous with the show’s identity and its source.” Also, third parties are allegedly now selling variations of Waves-branded merchandise under the description “Running Point.”

The court looked to the cases discussed in JDI to identify the appropriate situations to use the Rogers test: the “Barbie Girl” case, University of Alabama Board of Trustees v. New Life Art, Inc., 683 F.3d 1266 (2012) and Louis Vuitton Malletier S. A. v. Warner Bros. Entertainment Inc., 868 F. Supp. 2d 172 (S.D.N.Y. 2012). The court also pointed to the Rogers-based dismissals in Haas Automation, Inc. v. Steiner, No. 24-CV-03682-AB-JC, 2024 WL 4440914 (C.D. Cal. Sept. 25, 2024) and JTH Tax LLC d/b/a Liberty Tax v. AMC Networks Inc., 694 F. Supp. 3d 315 (S.D.N.Y. 2023). In the former, a book included plaintiff’s mark on its front cover, back cover, and on several pages, but the mark was “not used to tell the consumer who published the book or the source of the book.” Rather, the mark told the consumer what the book was about and who the author worked for. In the latter, the defendant’s TV series included a fictional tax preparation business called “Sweet Liberty Tax Services.” In both cases, defendants had not used the marks “as their own identifying trademark.”

By contrast, post-JDI, courts have rejected Rogers as applied to the name of a news website and the title of a film.

Netflix argued that its uses were not source-identifying and that defendants were clearly identifying themselves as the source of the TV series.

The court agreed. It was insufficient to allege “extensive use of the Waves mark in the show, Defendants’ use of the Waves mark to market the show, consumers’ connection of the Waves mark with the show, and Defendants’ previous pattern of obtaining trademarks for fictional entities within their television series.” That’s because the question is whether defendants “used the Waves mark as a designation of source for their own product—Running Point.”

Just as “Barbie Girl” repeated Barbie’s name and imitated her voice, pervasive use of the Waves “mark” “does not explicitly mislead as to the source of the work,” and does not “explicitly or otherwise, suggest that it was produced by [Pepperdine].” That didn’t change with allegations that the use in the content was so pervasive as to be “essentially synonymous with the show’s identity.” Nor did the court accept conclusory allegations that the use was source identifying.

At most, Pepperdine alleged that the Waves mark is “immediately recognized” to identify the Running Point series, and that its use is synonymous with the series. But use to “identify the show” is not itself use “as a designation of source.” Identifying the show can include content! An actor who posts themselves in a “Waves” jersey saying “Check out my dunks on Running Point now on Netflix” is pretty clearly identifying Netflix as the source of the show. Use in marketing wasn’t inherently trademark use, nor was it relevant that “Defendants have obtained trademarks in fictional businesses central to their shows in the past.”

The use was artistically relevant and not explicitly misleading. The court noted that the parties did not, as alleged, use the Waves marks for the same “purpose”; while you could call both “sports-related entertainment,” Pepperdine uses the Waves mark to identify its collegiate sports teams, and defendants use it in a TV series for a fictional sports team.

Although Pepperdine alleged that third parties sell Running Point Waves merchandise, they didn’t explain how defendants could be liable for the acts of these third parties.

Nor did statements like “home of the Los Angeles WAVES,” equate to claims like “‘Nimmer on Copyright,’ ‘Jane Fonda’s Workout Book,’ or ‘an authorized biography’” as a statement that misstates who authored or endorsed the series. The question was whether defendants were misleading consumers as to the source of the Running Point series. To the contrary, they were explicitly claiming to be the source of the series, rather than claiming “brought to you by Pepperdine,” or even “brought to you by the WAVES.” A fictional professional sports team “can clearly be distinguished by consumers from the Pepperdine Waves—a real collegiate sports team.”

naked licensing could constitute false advertising of origin

Epson America, Inc. v. Global Aiptek Inc., 2025 WL 4631973, No. 8:23-cv-00222-FWS-DFM (C.D. Cal. Dec. 17, 2025)

Epson alleged that defendant GAI purposefully and deceptively inflated the lumen and brand specifications of its projectors in violation of the Lanham Act and California’s UCL. The court mostly granted Epson’s motion for summary judgment.

As alleged: “Within a particular projector category, such as portable consumer projectors, the quality and corresponding price of a specific projector are largely determined by its resolution and light output.” Lumen rating is a key product feature; more is more expensive and lumen ratings are prominently advertised and displayed on packages. Online, sellers list a projector’s lumen rating in the product description, title, and even in the product name.

GAI purportedly entered into a trademark agreement with HP in 2017 to “use, reproduce and display the HP Trademarks” on “the HP Branded Products” including LED based projectors. It allegedly used the HP mark on packaging and advertising, and on GAI’s employee business cards. “HP has not manufactured projectors for sale under its own brand since at least 2011.” “GAI desired to use the HP name because HP has a ‘huge global presence and track record.’ ”

ISO sets the internationally recognized standard for scientific measurement of white brightness in a laboratory setting.” GAI advertised its projectors with various lumen values. For example, it advertised its HP BP5000 model as having various light output specifications, including “6000 Laser Lms (2500 ANSI);” “4500-Lumen; “2000 ANSI Lm;” “2000-lumen;” and “200 ANSI Lumens; 6000 Laser Source lumens.”

However, “GAI does not conduct any testing to confirm the brightness specifications of its projectors.” A principal “claims that he uses his own ‘personal perception’ and ‘instinct’ to look at the projectors with the naked eye and determine whether it is ‘fitting [his] expectation’ and ‘whether this is a match to the data sheet or not.’ ” “GAI has no internal definition of ‘laser lumen’ and cannot distinguish it from a ‘lumen.’ ”

Epson had two false advertising claims: (1) GAI inflates the lumen values of the projectors, and (2) GAI misrepresents who manufactures its projectors, which I find a much more interesting argument!

Epson’s evidence demonstrates that the lumen claims were literally false, based on its independent testing. Each of the models tested produced results evidencing light output significantly below the brightness values claimed by GAI, e.g., the HP BP5000 model produced “an average light output of 1655 lumens, testing as low as 1598 lumens, and nothing above 1732 lumens.” “That each projector is advertised so far above its highest tested output demonstrates literal falsity.”

Although GAI relied on test reports commissioned from Shenzen Circle Testing Certification Co., it did not produce an expert witness to opine on the veracity of these test reports. “Without expert corroboration, the test reports do not create a battle of the experts on the truth of GAI’s advertisements.”

GAI also argued that ISO standards “account for normal manufacturing variances” and that projectors can comply with that standard “as long as its measured light output at the time of shipment is no less than 80% of the value stated on its specification sheet.” But Epson’s unrebutted testing shows that GAI’s projectors produce lumen values at well below 80% of their advertised values. Independently, GAI didn’t show why compliance with ISO standards “would somehow allow an entity to avoid liability under the Lanham Act.”

GAI then argued that it uses the term “ANSI lumens” or “LED lumens” to notify consumers that GAI is describing the internal brightness of the projector rather than the light that exits the projector. “GAI’s explanation, when viewed in context, does not make sense,” given that “GAI has no internal definition of ‘laser lumen’ and cannot distinguish it from a ‘lumen.’ ” “Moreover, there is no reason to believe a consumer would understand GAI’s advertisements to be referring to the internal brightness of a projector.”

HP manufacture: Epson argued that a “trademark license does not permit a licensee to represent itself as the brand owner or to trade on the licensor’s goodwill as if the products originated from that licensor.” It cited mainly naked licensing cases like Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., which said that it was “inherently deceptive” for a licensor to fail “to exercise adequate quality control over the licensee.”

The court decided that this question was for the jury. A naked license might not show literal falsity, and, given the Ninth Circuit’s caution that it is “difficult, if not impossible” to define “how much control and inspection” the licensor need exercise, whether there was a naked license was ill-suited to summary judgment. “That is especially true here where GAI provides at least some evidence that HP has not completely abdicated oversight of manufacturing and quality control.”

But GAI didn’t contest the materiality of lumens or direct competition between the parties. Online “retailers often create their own comparison of the specifications of the specifications of competing brands’ models, with the lumen rating at or near the top of the list.” GAI argued that there was no injury because GAI’s most popular projector retails for $150 while Epson’s cheapest model starts at $300. That didn’t let GAI createa triable issue as to injury. “That one projector might differ from another in price to some degree does not mean that those projectors do not compete at all because consumers evaluate other factors such as performance and brand when purchasing projectors. GAI’s argument is better suited for the damages phase, where a difference in price could demonstrate the degree to which sales were diverted from Epson to GAI.” Epson was still entitled to summary judgment on liability.

lack of harm allegations beyond "direct competition plus customer inquiries" insufficient for false advertising standing

Kalmbach Feeds, Inc. v. Purina Animal Nutrition, LLC, 2026 WL 598608, No. 2:25-cv-00617 (S.D. Ohio Mar. 4, 2026)

Previously. Kalmbach sued Defendant Purina for false advertising under state and federal law in connection with its Farm to Flock chicken feed, which Purina represented as helping to defend against viruses such as avian influenza.

Although Kalmbach received a preliminary injunction because of the misleadingness of Purina’s claims, it didn’t sufficiently allege injury, so the court granted Purina’s motion to dismiss with leave to amend.  

Kalmbach alleged that deceived consumers asked why Kalmbach has not also produced a feed that defends against avian influenza. And it argued that direct competition plus customer inquiries satisfied the zone of interest test. The court disagreed. There was no allegation of reputational harm in the operative complaint, so Kalmbach had to allege injury to its sales. Allegations that “[c]ustomers have...been misled by Purina’s false claims – to Kalmbach’s direct detriment” were conclusory. “Put differently, Kalmbach must plead that Purina’s false claims actually hurt it, rather than simply confused customers. Kalmbach does not allege that these confused customers would otherwise have purchased Kalmbach’s feed—Kalmbach just presumes injury.”

Now do trademark infringement!

Commemorating 50 Years of the Copyright Act, part 3

STLR Panel 2: Litigating Fair Use in Copyright

Zahr Said: Substantial similarity is confused. Sedlik is a good example. Laudable for concurrences to recognize need for reform in this crummy, confusing test, but that’s not reflected in the case itself.

First, because the court’s diagnosis of what went wrong is mistaken. Second, the case didn’t go wrong: it was correctly decided. Third, this is a really unusual case, not a run of the mill © case.

Court confused copying and substantial similarity. It made a number of errors along those lines, ignoring intermediate copying—“it’s the photo tattooed on an arm.” P’s counsel encouraged the conflation of the photo and tattoo, even though Ds only conceded that the reference photo Kat von D used was 100% identical to the Sedlik photo. This matters b/c it’s calling for reforms, and the court said it was representative of a too defendant-favorable standard, and that’s wrong. If you treat the unusual as the common, we’ll be mired in further doctrinal mud.

Court thinks the outcome is wrong for the right reasons. But it was right! (I agree and filed an amicus focused on this.)

The timing was also weird—Warhol came down in the middle of it and the court had to revise its analysis. What to do: don’t build reforms on a landfill! Change the language; stop relying on Nimmer’s treatise and use Goldstein on infringement instead—precise, clear, elegant. Clearer thinking.

(or?) Dispense with the test! That’s what the concurrences were thinking about doing anyway.

Daniel Goldstein: Represented blind scholars & National Federation of the Blind in HathiTrust. Kudos to Peter Jaszi. Early commercial ebooks were inaccessible; not interested in the market. University of Michigan, by contrast, considered accessibility key to the digitization of their library, even before Google got the message. Librarians are the best. Intervened as a defendant in the litigation, and university didn’t oppose even though he’d sued universities for ADA violations in the past; publishers didn’t oppose, probably because they didn’t want to lose the first motion in the case.

The romance of the case was important; lots of excitement about blind researchers being able to access works for the first time. And the fair use argument was strong: dicta in Sony about accessible books for the blind being fair use; Chafee amendment; etc.

The publishers wanted to impound the entire library; the National Library Service can only generate about 2000 accessible books/year but publishers never suggested just giving it a copy. ADA was also relevant as a clear & comprehensive national mandate for accessibility/against discrimination against people with disabilities—universities have to offer the same experience when feasible and this was a way for schools in HathiTrust to make the research program available to blind/print disabled students. Why didn’t the publishers ask for the digitization program to pause during settlement discussions? Not sure—seems like a bad call. Their arguments consisted of saying that the Chafee Amendment/Sony dicta was only about making a single book for a single blind person accessible and that universities weren’t authorized to make accessible copies.

Corynne McSherry: Public Resource v. ASTM: Teeny nonprofit that makes government information available online in an accessible way. Conflict with ASTM over building standards. National Archive has a copy of every standard incorporated by reference in the Federal Register; or you might find a copy in the library; or you might buy a copy. Public Resource decided to change that. Eventually won on fair use; thinks this should have been decided on copyrightability. The law that governs us cannot be copyrightable. Fair use is more complicated.

Also, all the creative work in standards is done by volunteers who want to create good standards for their industries; the work done by the profit-seeking entities is not creative. © is not needed.

Fair use is bearing too much weight. Rights holders think fair use is too big, but the expansion of copyright is what creates the need for fair use (as Jessica Litman wrote). But it shouldn’t have to bear so much weight. 102 should have prevented copyrightability of standards enacted into law. We should also have digital first sale, but we had to use—and lose—on fair use instead.

Samuelson: very interested in fact issue v. legal issue in fair use cases. Court said the overall fair use inquiry was mostly law, but what is it that can be found as a fact? Although fair use isn’t tried to juries very often, and Sedlik is an outlier, as is GvO, that is something that not many practitioners have focused on.

Goldstein: in HathiTrust, there was good evidence that publishers had no interest in creating a market for the blind/print disabled, and they donated books to the National Library when they did. That was the key factual part from his POV; the rest was law and policy.

Sprigman: Restatement of © picks up on this—the parties’ interests are relevant. Emphasized in SCt Public Resource case—they resolve it on protectability; some affected parties will be willing to roll the dice on fair use. The less bold among us would have to think twice before using the law that belongs to all. Fair use isn’t just framed as a defense, it’s case-specific.  Maybe the Court has signaled to lower courts that they should be relying on copyrightability.

McSherry: UpCodes cases—ASTM keeps pushing the idea that commercial uses are fundamentally different. They’ve mostly lost in dct, but not entirely. It shouldn’t matter: it’s the law! Make the law more available!

Said: it’s troubling to give the jury an idea/expression instruction unless they have some understanding of the caselaw—they’ll interpret it according to lay understandings. That’s led her to worry about transformativeness. Sometimes it’s a factual question, but Kelly v. Arriba Soft is not the kind of case where a jury would have been able to figure that out.

Fisher: 107 makes explicit that the four factor list is nonexhaustive. Puzzling how few cases press a fifth factor. E.g., shouldn’t it matter for social justice that we provide access to the blind? We’ve known since Rousseau at least that the rule of law requires accessibility. We don’t need to frame that in constitutional terms. [I teach that courts find a way to stuff considerations like this into the four.]

Said: why isn’t that public benefit?

Fisher: that’s controversial as an extension of factor 1. Breyer is willing to do it in GvO, but Sotomayor is not in Warhol. It would be a way to address ambiguity if we had a more sensible allocation of what you were trying to show. [I’m not sure that would help with ambiguity. It’s not the numbering that’s the problem.]

McSherry: we’re always framing it one way or another, including “consider four factors in light of the public interest in …” She doesn’t like good faith as a fifth factor.

Goldstein: could put all his considerations in factor one b/c they were about the accessibility purposes of the use; not transformative, but still a fair use.

Said: Trevor Reed, Fair Use as Cultural Appropriation—interesting argument about factor two, considering whether the work was being appropriated from an indigenous culture—judges are sociologically conservative (but maybe can be invited).

STLR Panel 3: The Role of Fair Use in Copyright

Trevor D. Lohrey: Should we have factors?

Christopher Sprigman: predictability is an issue. Leg history frames fair use as an equitable rule of reason. Court is supposed to be doing something synthetic, not considering factors like in a “test.” A platform for thinking about the individual case with attention to ©’s progress-promoting purpose. Predictability is often a virtue, but not always—like patience. I don’t think we should be looking for a rule.

Laura Heymann: doesn’t fault judges for going through factors in an atomized way. The synthesis is challenging. It’s really about giving more weight to the “fair” in fair use. But judges don’t want to be unmoored.

Peter Henderson: we have examples of conflicting holdings in what looks like the same case. We don’t want to have bright lines.

Heymann: consider folk knowledge that develops around areas of law. “You can copy 300 words or less.” That suggests that people want those kinds of sub-rules.

Henderson: you can also see a desire for that in AI training—don’t output more than 300 words w/o a license, etc.

Barton Beebe: Appellate reversal rate for fair use cases is about 1/3, which is almost exactly the same as for other civil litigation. The dissent rate is 1 in 10, almost exactly the same as for other civil litigation. The hard cases are hard, which is why they’re being litigated—that’s why there’s unpredictability in the individual litigated case; fair use is not that special.

Heymann: though there also effects on nonligitation decisions.

Lohrey: change over time?

Sprigman: The use of the “purloined” manuscript in Nation: a journalist would think that’s how the system works, while a lawyer thinks it’s bad; a lawyer thinks it’s good to keep secrets for your clients while a layperson might object. O’Connor failed to see outside of her bubble. Leval and others helped erode the idea of “good faith.” Fair use is about market competition now. Restatement focuses on how the factors can aid in assessing whether the defendant is undermining fair competition. That’s something that takes time and has slowly matured.

Heymann: shortcut for judges can be “is this tech analogous to tech we’ve encountered in the past?”

Sprigman: what Congress meant to do was to take a snapshot of judicial creativity in fair use, but in a way that didn’t freeze it and rather spurred that creativity. In some areas of the Act Congress said very distinctly what it wanted and in others it approved continued judicial innovation—to keep development going. So when people complain we’ve gotten away from the purpose of fair use, I want to ask: what did you think that purpose was?

Lohrey: is fair use now too market-focused and about battling economists?

Sprigman: your answers depend on your priors. He thinks it’s a good development b/c he came from antitrust where those issues are asked every day and there are tools. If the bete noire of © is substitution, he thinks that the question of substitution can be answered much more accurately than a general fairness inquiry.

Heymann: that devolves into fights over market definition, which seems pretty hard. Does milk compete with Coke? [Sprigman says it’s surprisingly difficult to answer that question—which to me doesn’t make the point he thinks it does. I’m not sure that you can solve the difficulties by switching the terms of debate—you just get different difficulties that you might only notice after a bunch of cases.]

Sprigman: hypotheticals can help—it’s theoretically tractable to ask whether the market for one work affects the market for another. In fairness, we have to figure out whose interests count and for how much.

Henderson: you still have to choose your models, components of your models—it constrains degrees of freedom but not infinitely. In the latest evolution of market dilution theory, some of those models aren’t really couched in anything particularly data-grounded. [E.g., the Court’s claims about derivative markets in Goldsmith.] We will often not have data, especially about potential future market harms.

Beebe: one hypothesis—when a court finds fair use it will find that it’s a question of law, and no fair use will be a question of fact.

Heymann: you see some cases saying that there’s no market because the corporation could have exploited it but didn’t and that means there must be none, whereas cases like Monge say that the © owner might change her mind. [I think these can be made more coherent by thinking about the idea of corporate rationality versus individual caprice. But I admit that this doesn’t cover cases like the Seinfeld Aptitude Test case.]

Beebe: don’t ask “is this conduct fair use”; instead ask “should this conduct be fair use?” There is no “is” in fair use in cases of this nature. It’s all “should.” There’s no preexisting rule that we apply to the facts.

Sprigman: many opinions leave lots unresolved. AI cases: One of the Cal. cases finds fair use might give the rule “don’t use pirated datasets”? The other Cal case says: “this is terrible—this shouldn’t be fair use but it is, b/c Ps are so inept. I know in my bones that market dilution harm is happening.” But competition for an industry—w/a class of human authored works—is not something we have experience with. As a matter of © law I think the answer is that © shouldn’t recognize that as a theory of harm, but we can think about how to address it as a different kind of harm—labor law, tax law. © is a poor vessel for that.

Beebe: A human supremacist view: more and more stuff is not the goal. The processes of creativity are important to human flourishing, not the consumption of stuff. The solidarity of sharing it with others. Humans over machines and corporations! Fair use should be resisting both, not just machines.

Ochoa: if fair use is a “should,” are we getting things systematically wrong?

Sprigman: thinks general fairness concerns interesting but not central; fair use law holds up pretty well. Mistakes always exist and don’t seem directional or pernicious.

Beebe: Clarification: Lots of fair use questions aren’t that hard. 80% of the time fair use is an “is.” District judges don’t have time for a lot of “should.” We need is or it will be chaos. But for LLMs/AI training, there is no “is.” The hard questions are at the edges.

Sunder: don’t romanticize what our © has wrought—women as naked models/objectified subjects, not creators. Hollywood gives us sequel after sequel, movies based on commercial products like Lego and Labubu. The cheerleading uniform! The human creator supposedly fostered by this law deserves a closer look. Possibility of hybrid innovation/cyborg creativity—good with human flourishing, not supremacy.

Beebe: fair! Romanticism: thinks of American romanticism of mid-19^th century, very folk-oriented, not the heroic muscular unusual author. But fair to point out that lots of people were not enjoying the mid 19^th century!

Sprigman: Readers should be important in our theories—the people shaped by creativity as well.

Commemorating 50 Years of the Copyright Act, part 2

The 1976 Copyright Act: Mostly Evolutionary, Not Revolutionary Tyler Ochoa

1790 Act adopted the Statute of Anne—not radical even though it was the first for the US. Similar here—major changes, but not radical. Expanded subject matter; protection on creation/fixation instead of publication and preemption of state law; automatic protection without preconditions (by amendment), reduced formalities, codified idea/expression.

But 1909 Act covered “all the writings of an author.” “Original works of authorship” aren’t that different. Likewise, lawyers didn’t necessarily take common-law copyright as seriously as federal copyright, but there was common-law copyright before the Act preempted it for fixed works. Moving the federal protection back to the date of fixation isn’t a huge change.

Formalities: some change.

Codifying idea/expression: It’s a good thing that we wrote it down because of the textualist turn, but it was an existing principle. Not a radical break.

Fair use: same thing.

Exclusive rights: again, evolutionary.

WFH: a reasonably big change in defining what can be WFH, rejecting instance & expense test (which he thinks was a mistake by the courts in the first place).

Duration/renewal: Motion pictures and musical works were heavily renewed, and most other things weren’t. Life plus 50 isn’t just an extension, it’s a fundamental change in measurement. And it’s a change that we haven’t felt the full impact of yet b/c we’re only 50 years out. None of the © granted in 1978+ have yet entered the PD (w/exception of some unpublished works by deceased authors).

Terminations: same idea as renewal term, but new opportunity b/c of unitary term.

Compared to what happened since the 76 Act: rise of computer programs, though the definition of literary works was written to allow them. BCIA: elimination of formalities; elimination of registration requirement for foreign works (subject to limited remedies). Architectural works; VARA; automatic renewal for works 1964-1977—works no longer go into public domain for failure to renew. NAFTA; TRIPS; Uruguay Round restoration—a radical change. Public performance rights for sound recordings. Term extension; DMCA adding 512, 1201, and 1202. Cumulatively this is a radical break with the past, but mostly after 1976. The 1976 act did change from incentives to publish towards natural right of author, but that was a change in principle with fewer radical changes than came later.

Moral Rights, 50 Years Later Xiyin Tang

Poised for a resurgence among concerns for human creators in a world of AI slop. Entrepreneurs are using TM, even trade secret, to protect rights far beyond VARA. Monty Python case is a classic example using TM—but the cause of action was a stand-in for moral rights, by the court’s own admission.

VARA has had limited success—limiting to fine arts likely fell well short of Berne requirements. Also US rights are waivable, though nonassignable. Only 84 adjudications of VARA claims, 71.4% of which dismiss the claims, often on procedural grounds. More concerning are cases that effectively chip away at the scope altogether, further neutering it. First Circuit held that VARA didn’t protect site-specific works of art at all—where the location is integral to meaning—based on the public presentation exception. But this was the type of art that formed the basis of the public justification for VARA in the first place—Richard Serra’s Tilted Arc. SDNY denying injunctive relief in Five Pointz; money is not a good remedy. And the 7^th Circuit found that site-specific art wasn’t just ineligible for VARA, but ineligible for © generally. But site-specific art is the exemplar of postmodern artistic practice.

Nonetheless, predicts that moral rights are posed for a resurgence. AI has led to a new insistence on human creation. Private deals w/AI: authors don’t just get a per-generation payment for summarizing their work, but a link to purchase—attribution. Decision holding that Wu-Tang Clan’s album was a trade secret—independent economic value comes from ability to exploit exclusivity to create an experience that competitors can’t. Secret art could therefore be trade secret art.

Terry Fisher: what about fan fiction and other interventions?

A: Artists care about originals. Maybe expansion of moral-esque rights could impinge on what people do w/a copy of the original, but the Wu-Tang example is about works that exist in an edition of one, and that’s what she’s concerned about.

Keynote Address: Authorship in the Shadow of the 1976 Act Paul Goldstein

AI challenges: believes that transaction costs are the key and that private or public deals can achieve them. But copyright dilution—competition with AI-generated works—should not be actionable because the ideal is that works should be priced as low as they can be without destroying incentives.

Points out that Jane Ginsburg showed that French copyright was initially utilitarian/incentive concerned; moral interests became important later. US: the author-protective provisions that Congress introduced in 1976 are important—a shift in the philosophical base of ©, according to Barbara Ringer, to make the primary beneficiaries of © individual authors.

What do authors want? To be recognized as the authors of their works. Consider Creative Commons, which found that attribution was so commonly desired that attribution became the default. Audiences also want this, which is why they go to concerts instead of watching from the comfort of home. They also want community—shared passion—but the main desire is authenticity, the knowledge that the tiny well-lit figure on the stage is their favorite performer, not a hologram. Authenticity is the consumer-side counterpart of the desire for attribution. Author & audiences meet and form a bond. But aura can be attached to multiple copies of identical objects—ubiquitous reproduction hasn’t led to the withering of aura, but strengthened our desire for it and created new strategies to produce aura.

But TM may overprotect attribution at the expense of popular culture—missing limited term and public interest exceptions. It’s not enough to exclude protection for generic elements; its exceptions for parody and the like aren’t vigorous enough. Presumably this was a concern in Dastar.

So now we need attribution in ©. 106A (VARA) should be replaced w/an exclusive right for all authors to claim authorship and object to distortion/mutilation/modification of the work, taken from Berne. Generative AI: a user who asks for a story in the style of Raymond Chandler justifies an attribution right. [Hunh? Doesn’t the user, by definition, know?] Style is not copyrightable, but we could draw the line more generously if there was only an attribution right, not a control right; the limited term would avoid the parade of horrors and parody would be allowed.

Lemley: there are lots of circumstances in which creativity requires that you not keep integrity. Tang’s answer was focused on individual copies/single copy works. But your moral right is broader. What do you do about fan fiction?

A: look to what other countries do. They valorize commentary and individual creation as much as the US does. French law has a robust exception for parody and pastiche.

RT: I don’t think that would work. Litigation culture is a big deal.

A: the motion picture studios are why we don’t have a moral right in this country. France, Germany, Canada etc. have moral rights and moviemaking—but the answer was the litigation culture in the US. Would love to see some empirical work on that. On the attribution right, would love to see a full-fledged empirical study of asking © litigants why they sued; integrity touches on vital interests. Turns in part on what the remedies are. One could fiddle with remedies like injunctive relief rather than monetary relief, though then you lose the contingent fee bar.

Barton Beebe: Scalia dismissed tracing the origin of Nile and all its tributaries—what if we recognized moral rights of author and all of those who preceded her and put a burden on her to state her sources? Religious traditions might support this.

Sprigman: other attribution systems exist, but Earth is for the living: part of art’s responsibility is to free itself from the past despite its influence. You are taking a side on what art should do; our perspective is from writers, but may not serve readers very well.

Panel 1: The Copyright Act and Technological Change

R. Anthony Reese: legislative response to digital technologies was the key in the midpoint period; last couple of decades saw less of that other than Music Modernization Act. Focusing on civil, not criminal, amendments. In 1980 we added a definition of computer program; not a big change. We’ve only added one exclusive tech based right—digital audio public performance for sound recordings. Not a response to tech but to political failure of the 1976 Act.

Some expansions to limitations—110 for distance education (not very helpful in pandemic); 111 Family Movie Act allowance for skipping naughty scenes hasn’t created a flourishing business model. But 114’s limits on nonsubscription broadcast transmission enabled HD over the air radio. Also bars on record rental, etc.

We’ve done a bunch of compulsory licensing, mostly tinkering to provisions already there like adding low-power TV to the cable ones already there. DAT licensing; some compulsory license for the digital sound recording public performance right; satellite retransmission licenses; modernization of mechanical licenses to include a blanket license for streaming & download. Copyright Office was not a fan of compulsory licenses but Congress is enamored of them in specific circumstances.

Remedies: 512 limits have been incredibly important. 408 preregistration, maybe has some effect (about 700 works/year); 504(c) allows willfulness to be presumed if you provide false domain name contact info in connection with © infringement.

Sui generis provisions: AHRA (desuetude/written so narrowly as to exclude general purpose computers just as they were about to become the way music was enjoyed), 1201/1202.

Amendments motivated as much by political/legal/market/social developments as by the new technologies themselves. Record Rental Act passed not b/c of CDs but because of shops that rented out tapes and encouraged copying; the worry was that it would get worse w/CDs but the business model already existed. Similarly, low-power TV was added not b/c it was new but b/c the FCC hadn’t previously authorized its deployment.

Jessica Litman: substantive approach is shaped by drafting method—to invite many of the stakeholders who know they’re interested to work out their differences and embody their compromises in statutory language. Overreliance on compulsory license is b/c it’s easier to reach a compromise. Even in the 1909 Act, courts had devised separate rules for different kinds of works; they wanted to incorporate exclusive rights shaped to works, but then that turned out to work really badly when new tech like movies came around. So 1976 Act tried for one size fits all rights, but then everyone needed bespoke exceptions to continue doing the legitimate things they’d done every day. They tried to make exceptions as narrow as possible so they couldn’t be used for anything else (e.g., jukebox exceptions). Insiders make the rules that they and © outsiders will have to follow—unfriendly to outsiders.

How does this method work for insiders? Their efforts make a lot of assumptions that may not pan out. DMCA is a good example. Implicitly incorporate promises about how insiders will treat one another. But none of the promises are legally or morally enforceable, so many get broken. Promises of publishers & distributors to creators turned out to be particularly vulnerable to breakage. Also: If you exclude outsiders from negotiations for as long as you can, you’ll miss important issues on the horizon that aren’t central to anyone sitting around the table.

Result: insiders came out believing that they’d significantly fortified themselves against scary new technologies, and as those have failed, we’ve seen © insiders adopting more combative negotiating postures & developing deep resentment about the interests they believe are eating more of the pie than they should be permitted to eat. Legacy © owners are earning more money than they ever have. But they are nonetheless looking at © with grievance and resentment b/c technical services delivering material are also earning a ton of money—instead of saying “big pie, wow, awesome!” they want that whole pie. That’s led some to believe they’re entitled to hoard rights, money, control, and market share by any means they can manage.

When you call © insiders together to write a statute to fix things, you get the MMA. Has some good things and some bad things buried in the middle—but most of this hoarding is currently coming at the expense of creators. They’re earning less, unlike the legacy industries. When we tell them to compromise on AI, this is also what we may expect.

Pam Samuelson: A happy story on the scope of software copyrights. Wasn’t initially clear whether machine executable code was copyrightable. Initial attacks on copyrightability had to be overcome, but scope was unclear—Paul Goldstein wrote early article expressing concerns about risks of monopolizing functionality. Suggested borrowing patent misuse doctrine.

Whelan v. Jaslow then gave super-broad © protection—early expectations about thin © to avoid protecting functionality were totally ignored. All of the “structure sequence and organization” was protectable if there was a modicum of creativity; everything should be protectable unless there was only one way to achieve it.

6 years of effort followed (Samuelson in the lead!) to get the results right. David Nimmer also wrote an article suggesting that more filtration was required. 2d Circuit adopted this in Altai requiring abstraction, filtration, and comparison. Filtering out unprotectable elements was a really significant advance and got us back to a relatively thin scope. Compatibility is unprotectable.

Fed. Cir. agreed w/dct that we should have © hearing like Markman hearing to do claim construction—another important development. So © turns out to accommodate software well, after struggle.

Mark Lemley: Imagine a collection of model weights that gives a possibility, but not a certainty, of generating an infringing copy: is that a copy? The statute’s answer is incoherent. The right to reproduce the work in copies; copies are copies when they’re fixed; fixed means the copyright owner authorized it. That doesn’t make any sense so nobody pays any attention. We use the same definitions for protectability and infringement, causing the problem. But we do use the part that says fixation means it has to be perceived, reproduced, or otherwise communicated.

The parties in AI cases take some extreme positions—models don’t include content; output is just a collage of intputs—neither of these things are true. Can extract Harry Potter verbatim w/a four word prompt from Llama 3.1. Extraction is possible for some works/parts and some models but not others. New work shows you can expand extraction if you go beyond verbatim extraction.  But again it depends.

Jane Ginsburg shows that you can retrain models to force them to regurgitate a work, and that makes it more likely that they’ll regurgitate other works, suggesting other works are latent.

Is a work latent in a model a tangible copy? It’s complicated. Models don’t store works directly, but encode weights reflecting relationships b/t words or syllables. You can make a copy of a picture using ones and zeros even though the ones and zeros aren’t the picture—deterministically, these are copies. But Microsoft Word doesn’t encode War and Peace even though all the necessary parts are in Word waiting to be put in the right order.

Information theory: can the work be extracted with less than the same information you already have? Compression algorithms: sometimes we can store less than all the info & use it to generate a work. Lossless compression is clearly a copy; lossy compression probably creates non-identical copies that are nonetheless still copies. Compression algos are still deterministic, though—same imperfect copy every time.

AI extraction is rarely deterministic. We can get a result 10% of the time; are the other 90% also stored in the model? That means more works are in the model than there are atoms in the universe. © hasn’t dealt much with nondeterministic copies. Kelly v. Chicago Park District comes closest—a garden is not ©able b/c it’s not deterministically fixed. Compare to video game output cases: you infringe by making a map used w/existing video game to cause it to be played in a new map even though the images aren’t contained in the map.

Kelly is probably wrong: most people would say a garden could be sufficiently replicable to be fixed. Game cases: predictable and replicable—the same map and characters would show up. Though now there are procedurally generated games where the map changes on the fly, but that still involves output. Not all the possible maps exist already in the game.

Challenge: sometimes it’s easy to get out—high degree of predictability and replicability. Sometimes it’s not really possible. Sometimes it requires a lot of work but can be done.

We should say that if it’s easy to get a work out, it’s probably worth saying it’s in the model. But if you have to know what you’re looking for, and keep trying until you get it, then we probably should not call it a copy.

Why this matters: if a copy is in the model, then making a copy of the model infringes the copyright in the underlying work. Meta is distributing the model weights to lots of people.

Maybe those models are fair use—probably be the right result, but harder to reach, especially after Warhol. Fact of intermediate copying might be important (even though he doesn’t think it should be).

In response to Tony Reese: maybe we could say they’re unfixed but derivative works which don’t require fixation. Reese” points out that the RAM copy cases about duration of presence in computer—not a great way to do it but we did do it. Also compare Google Books: how much of a book you can assemble by doing searches was relevant to the fair use analysis.

A: maybe that functional approach is practically the best way to go. If I can prove that it’s in there somewhere but it costs $10,000s to do that each time, that’s not a real way to get a “copy.” It is also really hard to resolve such questions as a matter of class actions—courts would like to have an answer, and an answer depending on a work by work, model by model analysis is not going to be desirable to them. Even if it’s the truth.

Tang: incidental copies in the course of streaming music, for example, raise similar questions.

Samuelson: a new round of cases about using YouTube performances—allegations of 1201 violations to say that scraping the video to use that data for training. Even if the stream itself wasn’t a copy, if you can make a copy from it, what to do? Should there be a meaningful distinction b/t access controls and copy controls? Reese said yes! (And he was right.)

Gellis: is vibe-coded software copyrightable?

Lemley: depends on how vibey you were! Maybe a selection and arrangement ©, though for code that will be less broad.

Samuelson: divinely authored works cases are also relevant.

RT: For Samuelson: courts often seem to divide over whether there are 2 ways to have a thin ©: the first way is that anyone who does the same thing can make a nearly identical work, but they can’t engage in reproduction; but the second and more controversial one is that anyone can copy chunks of the work as long as they don’t copy nearly the whole thing: Sedlik concurrences and Thomas’s dissent in GvO. Do you think that these are both examples of thin ©?

Samuelson: we’re close to a thin © but not as thin as Goldstein suggested (which was an exact copying standard). Dennis Karjala suggested a rule of exact copying being needed for infringement; emulating functionality is really important for freedom. Lotus v. Borland—that’s actually a case allowing copying the interface (that is, a chunk) as a method of operation. You still have to write/code the functionality independently. Fed Cir ©ability ruling in GvO was a real step backwards—wrong as a matter of law.

Lemley: Thin ©: if the test is virtual identity, one way to test is for really close identity (99% or close), but © in general protects protectable expression. One approach would be to say that identical copying of even a small fragment is infringing under this virtual identity standard; the other approach would require copying the whole work verbatim or close to verbatim. That will matter a lot where most of what I copied was not protectable.

Reese: part of the problem is that most courts dealing with this look to Feist, but Feist isn’t about either of those things. In these kinds of cases, not very much of what you put into your work is ©able, b/c you’re using facts/all you get is selection, coordination, and arrangement. Infringement means parsing carefully which thin part of your work is protected by ©, but that doesn’t say anything about whether partial copying infringes a thin ©. There’s no original understanding to look back to!