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Copyright Cases Roundup
Copyright Infringement Action Over Servant TV Series Withstands Defendants’ Summary Judgment Motion
The U.S. District Court for the District of California denied a defense motion for summary judgment in a copyright infringement action brought over the first three episodes of the supernatural-themed TV series Servant. Gregorini v. Apple Inc., 2:20-cv-00406. Plaintiff Francesca Gregorini, who developed the award-winning independent film The Truth About Emanuel, alleges that co-defendants Apple, production companies and executive producers copied key elements of her work in creating the Servant series. In her recent ruling, District Judge Sunshine S. Sykes found, among other things, that Gregorini’s copyright registration for her work was valid. The district judge noted: “Defendants claim Gregorini’s application is inaccurate because it did not disclose that Sarah Thorp, a friend of Gregorini’s, provided the initial idea for Emanuel. … Defendants state Gregorini’s application [should] have disclosed ‘any preexisting work or works that it is based on’ to be accurate. However, that is only true if Emanuel is a ‘derivative work’ or ‘compilation.’ 17 U.S.C. §409(9). Defendants do not allege or point to facts establishing that Emanuel is either.” The district judge added: “Thorp only provided a ‘very basic one liner,’ or a mere idea [i.e., ‘indie thriller about a woman who creates a delusion in which she believes her child is still alive’], to Gregorini, who then expressed and augmented that idea to form a screenplay.” Judge Sykes then determined there is a genuine issue of material fact as to whether the defendants had access to The Truth About Emanuel. On whether there had been circumstantial access based on “widespread dissemination” of Gregorini’s film, the district court found: “Emanuel’s notoriety in the independent film scene during the same time Defendants consumed independent films, and when Servant itself was in development, demonstrate a reasonable possibility Defendants had the chance to view Emanuel.” And on whether the defendants had direct access to Emanuel, the district judge surmised: “While ‘distinguishing a “bare” possibility from a “reasonable” possibility’ that Defendants viewed Emanuel ‘present[s] a close question,’ ‘[o]ne must remember that the issue this Court must address is not whether Plaintiff has proven access by a preponderance of evidence, but whether reasonable minds could find Defendants had a reasonable opportunity’ to have viewed Gregorini’s work before creating Servant. … Taking the record as a whole, the Court finds a reasonable mind could conclude Defendants had access to Emanuel.” Also finding a genuine issue of material fact exists on the issue of substantial similarity, Judge Sykes explained: “Here, both Servant and Emanuel contain a string of elements that form a unique and substantially similar story. In both works, a mother loses her only baby. … To cope with her grief, the mother cares for a hyper-realistic doll that she believes is her alive child. The mother hires an 18-year-old nanny to take care of the doll in support of the mother’s delusion. … Finally, both works depict the doll becoming a real baby. This is far from ‘random similarities scattered throughout the works.’”
Updates In Creative Content Lawsuits Challenging Generative AI Programs
On November 22, the U.S. District Court for the Southern District of New York denied OpenAI generative programs’ defense motion to compel that included the production of The New York Times plaintiff’s “use of nonparties’ generative artificial intelligence (‘Gen AI’) tools” and “the Times’s position regarding Gen AI (e.g., positions expressed outside of litigation, knowledge about the training of third-party Gen AI tools using the Time’s works).” The New York Times Co. v. Microsoft Corp., 1:23-cv-11195 (S.D.N.Y.). In the ruling, Southern District Magistrate Judge Ona T. Wang noted the litigation “is not a referendum on the benefits of Gen AI, on Plaintiff’s business practices, or about whether any of Plaintiff’s employees use Gen AI at work. The broad scope of document production sought here is simply not relevant to Defendant’s purported fair use defense. For example, if a copyright holder sued a video game manufacturer for copyright infringement, the copyright holder might be required to produce documents relating to their interactions with that video game manufacturer, but the video game manufacturer would not be entitled to wide-ranging discovery concerning the copyright holder’s employees’ gaming history, statements about video games generally, or even their licensing of different content to other video game manufacturers.”
On November 25, in Kadrey v. Meta Platforms Inc., 23-cv-03417 (N.D. Calif.), one of several class-action lawsuits book authors have filed alleging generative AI defendants are liable for copyright infringement for the unlicensed feeding of the plaintiffs’ works into large language models, Magistrate Thomas S. Hixon of the U.S. District Court for the Northern District of California in part granted and in part denied plaintiffs’ discovery motions to compel. Among these, on the motion to compel “Communications Concerning any licensing copyrighted works that were used to train the Meta Language Models,” the federal magistrate ordered Meta “to produce responsive documents regardless of whether the communications successfully resulted in a license ….” Magistrate Hixon also ordered Meta to produce: “All Documents and Communications sufficient to show Your actual or projected income from the sale or licensing of the Meta Language Models” and “All Documents and Communications Concerning any income statement, balance sheet, or statement of cash flows, Concerning any of the Meta Language Models” — though Meta claims it has already handed over the last two document categories. But the magistrate denied the Kadrey plaintiffs’ motion to compel “Documents and Communications sufficient to show each instance within the last three years where You have licensed copyrighted works for Meta's commercial use.” “The Court agrees with Meta that this [Request for Production] is unreasonably overbroad,” Magistrate Hixon explained, “because it seeks information concerning each instance in which Meta licensed a copyrighted work for Meta’s commercial use, regardless of whether the commercial use had anything to do with AI or any issue that is relevant to this case. This would include, for example, licensing a song to use in an advertisement.”
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