Here is our latest review and assessment of major AI-related disputes in the media and entertainment sectors.
Our AI Litigation Tracker is prepared by McKool Smith principal Avery Williams.
1. Sarah Andersen et al. v. Stability AI, et al.
Current Status: Ongoing discovery disputes. Last week, the Court granted Plaintiffs’ request for the issuance of letters rogatory so that they could depose Nikolay Surovenko and Georgii Trofimov of DeviantArt. This week, the main dispute in the spotlight appears to be in relation to Midjourney’s concept of a “style reference model.” On Wednesday, the Court ordered Midjourney to produce “up to five illustrative documents that support its proposition that ‘the style reference model has nothing to do with emulating artists or their work.’”
Midjourney complied with this order the following day, submitting five documents, one of which was filed publicly. It is a capture of a Midjourney webpage showing how the concept of a “style reference” relates to Midjourney’s ability to take a source image (the style reference) and use it to inform the style of generated output:
The document does not define “style reference model,” which may refer to a particular model responsible for processing style reference inputs and applying them to an image during generation. If that were the case, it would also not be clear how this document would illustrate that the “style reference model” had nothing to do with emulating artists or their work. Of course, an artist’s “style” isn’t copyrightable outside of limited trade-dress applications. We’re interested in where this argument will go.
2. Concord Music Group, et al. v. Anthropic
Current Status: More amicus briefs incoming. The past two weeks have involved no notable new filings. The most recent major event was the filing of several amicus briefs in support of Anthropic. The briefs, if they are accepted by the Court, will come from (1) “copyright law professors,” (2) Chamber of Progress and Engine Advocacy, (3) The Electronic Frontier Foundation, and (4) The Computer and Communications Industry Association, AI Progress, Inc., and NetChoice, LLC.
Although each proposed amicus brief addresses a variety of fair use issues, each one includes a section directly taking on the question of market dilution. In particular, the copyright professors argue that the proposed market dilution theory, if adopted by courts as a means for maintaining infringement, would constitute a violation of the First Amendment. The argument is twofold. First, the professors argue that—in the context of this case—dilution would discriminate based on content, i.e., song lyrics. They also argue that dilution would divide people into two categories: those who generate lyrics “the old-fashioned way” and (2) those who use an LLM to do it and claim that discriminating between the two is impermissible. These arguments appear, on their face, questionable. Dilution is not related to lyrical content, as the professors were no doubt aware since they cited Kadrey, which relates to books. Likewise, copyright law inherently divides people into two groups to accomplish its purpose (i.e., “those who actually made the artistic work” and “those who did not and so require a license to copy it”). It does not appear likely that a First Amendment-based restriction on how copyright can apply to AI would be consistent with existing copyright law.
3. Richard Kadrey, et al. v. Meta
Current Status: Cognella and associated cases related. As discussed last week, Plaintiffs in Cognella, Inc. v. Meta Platforms, Inc. filed a motion to consider whether their case should be related to this one. This week, Judge Chhabria granted that motion. As a reminder, Entrepreneur Media, LLC v. Meta Platforms, Inc. was recently related as well, meaning that the outcome of summary judgment in this case will apply to more than just the Kadrey Plaintiffs. The parties filed a joint case management statement at the end of the week as well.
4. SDNY Multi-District Litigation
Current Status: The Court rules on straggler discovery issues. The Court held a discovery status conference on May 12th during which it evaluated some of the issues that remain after the close of fact discovery. In a single ruling, the Court ordered the parties to continue meeting and conferring regarding “Project Giraffe” documents, ordered OpenAI to log all of the recently clawed back documents which might require in camera review, and denied Microsoft’s motion for New York Time brand tracker survey data, directing the parties to meet and confer further before renewing the motion.
5. Hendrix v. Apple
Current Status: Case referred to magistrate judge Ajay Krishnan for discovery. This case has seen little movement since Plaintiffs filed their consolidated complaint followed by Apple filing their answer. This week, the Court referred the case to Magistrate Judge Ajay S. Krishnan for discovery, which may indicate that further discovery activity is in the future.
6. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: No major substantive developments this past week. About a month ago, the Court denied Defendants’ motion to dismiss based on the meaning of 17 U.S.C. § 1201, finding that the factual record was too incomplete to evaluate how YouTube’s rolling cipher works. This week included no notable new filings.
7. UMG Recordings v. Suno
Current Status: No major substantive developments this past week. This case mirrors Sony v. Uncharted Labs in many respects, including claims of circumvention of technological measures based on YouTube’s rolling cipher. As such, Plaintiffs submitted a notice of supplemental authority regarding the denied motion to dismiss in Uncharted Labs. About a month ago, Defendants submitted their own letter arguing that the Uncharted Labs decision was wrong because it allowed Plaintiffs’ claims to proceed despite finding that they had not adequately explained how the rolling cipher worked. It seems unlikely that the Suno court will dismiss the claim where the Uncharted Labs court allowed it but check back soon to find out.
8. Reddit v. Anthropic
Current Status: No major substantive developments this past week. Following several months of dispute, this case has been remanded to state court in San Francisco County. Not much has happened yet in state court, although the Court set a case management conference for July 22nd (continued from May 20th). Additionally, the parties jointly filed a petition to designate the case as “complex” under the local rules.
9. Disney, Universal, and Warner Bros. v. Midjourney
Current Status: No major substantive developments this past week. As discussed recently, Midjourney filed a motion seeking documents related to the development of Disney’s own Generative AI development and its in-house use of such technologies. In response, Disney argued that in-house development and use of AI tools was irrelevant to any claim or defense in the case, accusing Midjourney of attempting to distract from its own unlawful behavior. The Court set an informal discovery videoconference for May 12th, but nothing has resulted from that hearing yet.
10. Disney et al. v. MiniMax & Hailuo AI
Current Status: No major substantive developments this past week. few weeks ago, Defendants filed two motions to dismiss Disney’s claims. The first motion concerns MiniMax and Shanghai Xiyu Jizhi Technology (“SXJT”). According to the motion, MiniMax is not a legal entity at all (it is, apparently, a brand name) and thus a Court cannot exercise jurisdiction over it. With respect to SXJT, the motion argues that the Court does not have personal jurisdiction because SXJT is a Chinese company and has not directed any of its activities to the United States. Instead, according to the motion, any US contacts stem from Nanonoble.
The second motion concerns Nanonoble and argues failure to state a claim. Its first major argument is that Disney has not demonstrated that it has registered copyrights on its characters (as opposed to the works in which those characters appear) and, further, that Disney has failed to demonstrate that it even could copyright those characters under Ninth Circuit law. Second, the motion argues that any copying related to Disney’s direct infringement claim did not occur in the United States because the associated models are trained in China. Third, the motion argues that Disney’s secondary infringement claims should be dismissed because (among other reasons) their contributory infringement claims fail the Cox Communications, Inc. requirement that a service be tailored to infringement or that a Defendant affirmatively induced infringement. With respect to induced infringement, Nanonoble argues that Disney failed to plausibly allege that they actively encouraged any users to infringe Disney’s works.
Two weeks ago, Disney filed opposition to Defendants’ motions, arguing that it had adequately plead secondary liability and that Defendants’ vague arguments regarding extraterritorial copying did not merit dismissal. This week, Defendants filed their replies regarding their motions, which largely double down on existing arguments.