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Last week the Fourth Circuit reversed a $1 billion copyright verdict against an internet service provider and ordered a new trial on damages allegedly arising from illegal music downloads by its subscribers.  In Sony Music Entertainment et al. v. Cox Communications Inc. et al.,[1] a group of music producers belonging to the Recording Industry Association of America brought suit against Cox for contributory and vicarious copyright infringement based on allegations that Cox induced and encouraged rampant infringement on its service.  In 2019, a jury found Cox liable on both theories for infringement of 10,017 copyrighted works and awarded $99,830.29 per work, for a total of $1 billion in statutory damages.  On appeal, the Fourth Circuit issued a mixed ruling – upholding the finding of contributory infringement but reversing the vicarious liability verdict and remanding for a new trial on damages. 

This week saw yet another California federal court dismiss copyright and related claims arising out of the training and output of a generative AI model in Tremblay v. OpenAI, Inc.,[1]a putative class action filed on behalf of a group of authors alleging that OpenAI infringed their copyrighted literary works by using them to train ChatGPT.[2]  OpenAI moved to dismiss all claims against it, save the claim for direct copyright infringement, and the court largely sided with OpenAI. 

In Punchbowl, Inc. v. AJ Press, Inc., the Ninth Circuit revived a trademark infringement case previously dismissed on grounds that the First Amendment shields “expressive” trademarks from Lanham Act liability unless plaintiff can show the mark (1) has no artistic relevance to the underlying work, or (2) explicitly misleads as to its source.[1]  This is known as the Rogers test, and effectively operates as a shield to trademark liability where it applies.  Last year, the Supreme Court limited application of the Rogers test in Jack Daniel’s Properties, Inc. v. VIP Products LLC, [2] holding that it does not apply where the challenged use of a trademark is to identify the source of the defendant’s goods or services.  In those instances, a traditional likelihood of confusion or dilution analysis is required. 

In a unanimous decision published on May 18, 2023, the U.S. Supreme Court invalidated two of Amgen’s patents for its cholesterol drug, Repatha, making it more difficult for patentees to obtain broadly worded patents.[1]  The case – Amgen Inc. v. Sanofi – involves a dispute between the two pharmaceutical companies over the “enablement” requirement of 35 U.S.C. Section 112,[2] specifically how much a patent must disclose in order to “enable” a skilled person to make and use the claimed invention without undue trial and error.  The Supreme Court held that Amgen failed to provide enough detail to recreate the full scope of its claimed invention, and that if a patent claims an entire class of processes, machines, manufactures or compositions of matter then the patent must include sufficient information that enables a person skilled in the art to make and use the entire class.

The U.S. Supreme Court affirmed the judgment of the Second Circuit in the case of Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith in a 7-2 decision issued May 18, 2023, authored by Justice Sotomayor.  The Court held that the first factor of the copyright fair use test favored respondent photographer, Lynn Goldsmith, rather than petitioner, Andy Warhol Foundation for the Visual Arts (“AWF”).  The decision was limited to AWF’s commercial licensing of a silkscreen image of Prince, based on Goldsmith’s underlying photograph, to Condé Nast.  Below, we have highlighted the key factual background in the case and some takeaways from the Court’s decision. For more information, please see Cleary Gottlieb’s client alert.