The Columbia Journal of Law & the Arts

Cover and Front Matter

Columbia Journal of Law & the Arts — Wed, 12 Mar 2025 00:00:00 +0000

Copyright and the Training of Human Authors and Generative Machines

Robert Brauneis — Wed, 12 Mar 2025 00:00:00 +0000

There are many limitations on copyright of which human authors can and do take advantage as they are learning. However, there is no blanket fair use immunity for use of copyrighted works to educate human authors, even though those authors typically do not go on to create substantially similar works. Human authors typically end up paying, directly or indirectly, for most of the copyrighted works from which they learn. Should it be different when human beings use copyrighted works to train generative AI models? This article concludes that it should not, in spite of two prominent arguments to the contrary.

The first argument is that such training involves “nonexpressive use” of those works. Under the only definition of that term that distinguishes generative AI training from human learning, a “nonexpressive use” is one that does not result in an aesthetic or hedonic reaction to a work. However, copyright should be and usually has been considered to protect not just the entertainment value of works for passive and unchanging human beings, but the educational value of works for human beings who want to learn and change, both individually and collectively.

The second argument is that generative AI training is functionally equivalent to human reading, viewing, or listening – activities outside the scope of copyright’s exclusive rights. However, the distinctions between and limitations on exclusive rights presuppose limited human memory and cognition, and current and future generative models are not subject to those constraints. Moreover, the very inability of computers to have any hedonic or aesthetic reactions to the works they are processing, and their inability to remember and act on those reactions, make computer processing fundamentally different than human experience of works.

Litigating Fair Use

Dale M. Cendali — Wed, 12 Mar 2025 00:00:00 +0000

This Article’s topic is “Litigating Fair Use.” What follows is a discussion of techniques a litigator can use to win a case and in so doing, help shape the development of fair use law.

Fair use is well-recognized as one of the “most troublesome” doctrines in all of copyright. There are many famous cases where the district court wrote a compelling opinion holding that something was or was not fair use, and then was reversed by a court of appeals in an equally certain-sounding and compelling opinion holding the opposite. Sometimes we have seen the Supreme Court take yet another view, or multiple views, where there is a dissent and perhaps a concurrence as well. Court after court has noted that fair use requires “case-by-case analysis” that carefully balances the four statutory fair use factors—plus sometimes other considerations as well—rather than rigid application of “bright-line rules.” The overall intent is to help judges reach a result that furthers the bedrock constitutional principle that copyright laws “promote the progress of science and useful arts.” The flexible nature of fair use provides an opportunity—and perhaps a challenge—for a copyright litigator to not only figure out how best to apply existing precedent to create a persuasive argument, but also how to invite the creation of new precedent.

Copyright law, and fair use specifically, starts from Congress’s statutory text, is informed by the Copyright Office’s guidance, is interpreted by the courts, and is analyzed by law professors. But litigators are not passive in this process; rather, they play an important role as well. In fact, the modern litigator often is in a uniquely good position to affect the development of fair use. These days, litigators practice all around the country, with admissions in many courts and pro hac vice appearances before others. This cross-country practice creates the opportunity—and in fact the necessity—to keep abreast of trends and splits across the various circuits, to figure out what best to argue in a given case, and thereby to hope to advance the law and their clients’ interests. Simply put, if the law of fair use is developed by case precedent, then the people whose arguments impact cases—that is, litigators—can help shape the law.

How do litigators do it? In this Article, I will discuss three of the primary tools in the litigator’s proverbial tool kit: law, facts, and persuasion. At the end of the day, these three things determine every fair use outcome. The art of litigating fair use is found in the gaps between precedent, when a litigator’s cutting-edge case is one about which reasonable minds may disagree. It is in those gaps where the litigator shines, because the law there is at its most malleable and the ability to persuade is most important. And with fair use, there are a lot of those gaps.

Full Issue

Columbia Journal of Law & the Arts — Wed, 12 Mar 2025 00:00:00 +0000

Sense and Separability: Clarifying Star Athletica Amongst Lower Court Confusion

Collier N. Curran — Wed, 12 Mar 2025 00:00:00 +0000

Copyright law is designed to protect the artistic, the creative. For centuries, courts have been careful to avoid granting copyright protection to systems or processes better suited to patent protection. For instance, in a book explaining how to build a house, the text of the book as creative expression would be copyrightable. However, copyright protection would not extend to the actual system or process for building the house. This idea-expression dichotomy becomes more complicated in cases of useful articles with design elements. In the 1954 case Mazer v. Stein, the Supreme Court first addressed the need to physically and/or mentally separate the utilitarian and ornamental elements to determine which aspects, if any, may be copyrighted. This case led to the codification of separability in the Copyright Act of 1976; § 101 requires that a copyrightable pictorial, graphic, and sculptural work (“PGS work”) contain “sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Despite this attempt at clarification, a nine-way circuit split emerged, with courts— as well as the Copyright Office itself—taking various approaches to the separability analysis. In fact, the Second Circuit developed three different approaches itself, each attempting to identify the supremacy of the artistic or creative elements over the utilitarian aspects of a work in order to award it copyright protection.

The Children Are Not for Sale: Stamping Out the Monetized Sharenting Entertainment Industry and Rehabilitating Parental Rights

Gabriella Cory — Wed, 12 Mar 2025 00:00:00 +0000

Saving the children is once again on the sociopolitical docket, and the legislature has an opportunity to enact legislation that might actually save children. A pertinent child welfare concern shared by psychologists, child advocates, and the Federal Government today is an increasing youth mental health crisis and overwhelming evidence that social media use is a primary cause. Meta has even joined the cause, launching a public relations campaign voicing its openness to congressional reform. Additionally, the bipartisan “Kids Online Safety Act,” is pending in both the Senate and House of Representatives as parallel bills S.1409 and H.R. 7891, respectively. This is a bipartisan effort to pass evidence-based regulation aimed at protecting children by supporting parental rights. Despite this progress, there is one extremely big gap in this piece of legislation that runs the risk of undermining it entirely, a generational gap.

Children who were raised on the internet are now parenting on the internet. When a parent posts pictures, videos, or publicly discusses their child in detail online, this is called “sharenting.” In practice, sharenting can refer to a range of content. Some forms include high levels of child participation, such scripted skits with their parents. Others involve passive participation, such as parent incorporating filming into their daily routines. Online posts divulging stories with identifiable information or repurposing of already existing photos of the child is a common form of sharenting. Scholars in law and psychology problematize excessive sharenting for contributing to harm already associated with general childhood internet use: reputational harm, privacy risks, vulnerability to harassment and cyberbullying, or simply amplified general embarrassment. Although those sound like harms a parent would intuitively avoid, the unregulated rollout of the internet is likely to blame for the public’s unhealthy relationship with it.

As technology rapidly developed over the past several decades, the social role of the internet has been a loose cannon. Sociological shifts in internet use impacted different age demographics at different developmental moments. For example, the Millennial generation ranges from people born in roughly 1981 through 1996, and Generation Z (“Gen Z”) ranges from people born in 1997 through 2012. At-home computer use increased in the 1990s at a fast pace with two percent of American households having internet access in 1992 and twenty-six percent in 1998. By 2007, sixty-four percent of teens ages 12-17 reported to engage in some form of content creation, ranging from blogs to online communities to publishing works of art. That same year, Facebook started incorporating user data into a user-targeted advertising structure and YouTube introduced in-video advertisements and its paid Partner Program. The average teen’s diary and locker room discussion became a marketplace overnight without any real means of understanding the implications of this shift. This same cohort is now in their 20s, 30s, and 40s. Many still use social media as a form of diary or group discussion, but now the topics of discussion include their children. Although this narrative thread is not the only explanation for the proliferation of sharenting, a successful legislative agenda that aims to protect children’s online safety needs to take the history of the internet into account.

An unregulated internet helped create a generation of parents primed to share an unsafe amount of information about their family life and seamlessly transitioned into an infrastructure that facilitates monetizing that habit. Increasingly, parents who post pictures and videos of their kids are gaining lucrative mass followings for the content they post. Parents can profit off of this following by teaming up with a given social media platform to get a share of related ad revenue from the platform, or get paid directly by companies to discuss their products in their family posting. Parents can also use a subscription model in which followers pay to get bonus content, though Meta announced efforts to crack down on this specific method in response to criticism that its predominant content and clientele sexualize children. When follower counts start reaching the thousands or millions, children can turn into an online celebrities. Child-rearing is becoming a form of self-expression in an era in which online self-expression is a viable career option, all while more and more commerce is online. The result is a new entertainment industry in which parents combine their parental liberties and freedom of expression to commodify their parent-child relationship: the Monetized Sharenting Industry.