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. Concord Music Group, et al. v. Anthropic
Current Status: Two new summary-judgment filings from Plaintiffs. This past week, Plaintiffs filed their response to Anthropic’s Motion for Summary Judgment and their reply in support of their own Motion for Summary Judgment. In both cases, the primary question is whether Anthropic’s use of Plaintiffs’ copyrighted song lyrics was fair use. Plaintiffs’ argue that every fair-use factor disfavored applying the fair-use doctrine in this case.
- Purpose and character of use: Plaintiffs argue that lyrics as training data are only useful for generating lyrics as output, which they argue is non-transformative. Plaintiffs point out that Anthropic’s problem-solving and computer-code generating models have no need for song lyrics as training data. Plaintiffs then lean heavily on Warhol to hammer home the argument that Anthropic’s highly commercial use of Plaintiff’s song lyrics disfavors fair use.
- Nature of the copyrighted work: Plaintiffs cite established case law that, as expressive works, song lyrics fall within the core of copyright protection.
- The amount and substantiality of the portion used: Plaintiffs note that Anthropic admittedly copied the entirety of the copyrighted lyrics. Plaintiffs add Anthropic’s admission that it did not need to train on Plaintiffs’ lyrics at all, eliminating the argument that Anthropic carefully took only what was necessary.
- Effect on the market: Finally, with respect to market harm, Plaintiffs argued that Anthropic’s copying harmed the online lyrics display market by displaying exact copies of the copyrighted lyrics. Plaintiffs further argued harm to the potential market for legitimately licensed lyrical training data. Invoking the market-dilution hypothesis discussed by Judge Chhabria in the Kadrey case, Plaintiffs argued that finding Anthropic’s use to be “fair” use would “leav[e] creators powerless to stop AI companies from using their creations to destroy their livelihoods.”
Anthropic’s brief makes some compelling arguments. The infringing output, the market impact for song-lyric webpages, and Anthropic’s admitted lack of need for Plaintiffs’ works are substantial differences between this case and other fair-use summary-judgment cases that we have seen. We’ll be watching the results here carefully.
2. UMG Recordings v. Suno
Current Status: The Court denies Plaintiffs’ motion to amend their complaint, but encourages the filing of a separate lawsuit. We’ve been talking for months now about how this case mirrors Sony v. Uncharted Labs in many respects, including Defendants’ filing of a similar motion to amend their complaint to add additional works. As in the Udio case, Suno argued here that Defendants would be prejudiced by the late addition of many new works. This past week, the Court issued an order denying Plaintiffs’ motion for leave to amend their complaint, much like in the Udio case discussed above. Nonetheless, the Court indicated that Plaintiffs would have the option of filing a new lawsuit that would then likely be designated as related to the present action. The Order continued, explaining that the newly related case could proceed on a different discovery schedule, allowing the fair use question to be resolved on summary judgment beforehand.
3. Richard Kadrey, et al. v. Meta
Current Status: No major substantive developments this past week. This case has seen relatively little development over the past several week. Nonetheless, last week, an order following a case management conference indicated that Mark Zuckerberg would be deposed by Plaintiffs in the near future for four hours. Whether or not much information from that deposition becomes public remains to be seen.
4. SDNY Multi-District Litigation
Current Status: No major substantive developments this past week. This week included no notable new docket entries. Last week, both OpenAI and Microsoft filed responses to News Plaintiffs’ motion for evidentiary sanctions based on OpenAI’s deletion of chat logs. OpenAI argued that Plaintiffs were attempting an end-run around their burden to prove their case by relying on adverse inferences in lieu of evidence of reproduction of copyrighted works. Casting itself as a “pioneer” for preserving the 50 billion user chats that it did not delete, OpenAI’s response maintained that it had complied with all orders of the Court and that any deleted chats were the result of it being technically infeasible to preserve them. Microsoft filed its own response, echoing OpenAI’s arguments and explaining that its response was necessary given the potential for spillover prejudice if OpenAI were subjected to sanctions.
5. Sony v. Uncharted Labs (d/b/a Udio)
Current Status: No major substantive developments this past week. This week included no notable new filings, with no new docket entries since late June. Months ago, the Court denied Plaintiffs’ bid to add 30,000+ new works to their complaint. By way of background, Plaintiffs moved to amend their Complaint to add additional works which they alleged were also infringed. The Court declined their motion, finding that such an addition would expand the scope of the dispute and delay the resolution of the central question in the case regarding whether Udio’s use of songs as training data was fair use.
6. Sarah Andersen et al. v. Stability AI, et al.
Current Status: No major substantive developments this past week. For the past few weeks, the docket has largely involved small discovery scuffles that do not touch on the major issues of the case, and this week included more of the same, with Runway AI filing a letter brief disputing the sufficiency of Plaintiffs’ interrogatory responses.
7. Reddit v. Anthropic
Current Status: No major substantive developments this past week. There have been few developments in this case since it was transferred back to state court. Around mid-June, Anthropic filed a motion to dismiss Reddit’s claims, in which it argued that Reddit’s breach of contract claims are preempted because they address the same harms that the Copyright Act seeks to protect against. Anthropic also questioned whether Reddit’s browsewrap agreement were sufficient to form contractual obligations in the first place. Last week, Anthropic filed a reply supporting its motion to dismiss, in which it broadly reiterated the argument that copyright claims should be heard in federal court and that Reddit’s other claims were deficient. This week included no notable new filings.
8. Disney, Universal, and Warner Bros. v. Midjourney
Current Status: No major substantive developments this past week. This week saw no notable new filings on the docket. Last week, Disney responded to Midjourney’s motion to dismiss Disney’s secondary copyright infringement claims, raising two core arguments. The first argument was that, because they allege vicarious infringement as part of the same claim that Midjourney seeks to have dismissed, Midjourney’s motion cannot succeed from the start. Additionally, however, Disney maintained that its theory of secondary copyright infringement could stand on inducement rather than contributory infringement. Given that Cox Communications has resulted in many parties discussed here dropping their secondary copyright infringement claims, it will be interesting to see whether the Court allows Disney to maintain its theories.
9. Hendrix v. Apple
Current Status: No major substantive developments this past week. This case has seen little movement since Plaintiffs filed their consolidated complaint followed by Apple filing their answer. However, about two months ago, the parties submitted a stipulated protective order to the Court which was subsequently granted. The order provides for the inspection and printing of source code, indicating that technical discovery is beginning behind the scenes. This week included no notable new filings.
10. Disney et al. v. MiniMax & Hailuo AI
Current Status: No major substantive developments this past week. This week saw no notable developments. Over a month ago, Plaintiffs filed their answer to counterclaims raised by the Defendants—namely that the accused services’ Terms of Use became binding on Disney when it performed initial research ahead of filing suit and that Disney therefore has indemnified Defendants or otherwise breached their contract. The Answer itself was short, with Disney largely denying all allegations related to the formation of a contract between the parties. This is a unique issue not yet seen in other copyright cases, so check back soon to see if the Court addresses the argument in the near term.
11. Elsevier et al. v. Meta
Current Status: No major substantive developments this past week. case saw no significant new filings on the docket this week. Recently, Meta recently filed its Answer to Elsevier’s complaint and raised a number of defenses, including its Sixth Affirmative Defense of copyright misuse and unclean hands. Several weeks ago, Plaintiffs filed a letter requesting to move to strike this defense, effectively arguing that the facts as plead cannot would be insufficient to support a finding of copyright misuse or unclean hands. Unclean hands is a defense that has been raised by several other defendants tracked here, but this is the first instance of a Plaintiff pushing back, making the resolution of this issue particularly interesting. If Plaintiffs succeed, we may see the defense challenged across other suits.
