Affirming a summary judgment in favor of defendant, the US Court of Appeals for the Eleventh Circuit determined that a copyright infringement lawsuit pertaining to the graphic design on a guitar made famous by a late heavy metal guitarist, was time-barred because the plaintiff’s copyright infringement claim was actually a claim of copyright ownership over the design. Buddy Webster v. Dean Guitars, et al., Case No. 19-10013 (11th Cir. Apr. 16, 2020) (Wilson, J.).
Affirming a district court’s summary judgment in favor of various defendants, including the vocal music director and parent volunteers at Burbank High School (whose competitive show choirs reportedly inspired the television series “Glee”), the US Court of Appeals for the Ninth Circuit examined issues of standing via copyright ownership and the copyright infringement defense of fair use. The Court, however, reversed the lower court’s denial of defendants’ attorneys’ fees and remanded for the calculation of an appropriate award in view of plaintiff’s “objectively unreasonable” arguments in the lawsuit. Tresóna Multimedia, LLC, v. Burbank High School Vocal Music Association, et. al., Case No. 17-56006 (9th Cir., Mar. 24, 2020) (Wardlaw, J.).
The Supreme Court of the United States issued a unanimous decision invalidating the Copyright Remedy Clarification Act (CRCA), a 1990 statute intended to provide copyright owners with the power to sue a US state government for infringement, and held that states cannot be sued for copyright infringement. Allen v. Cooper, Case No. 18-877 (Supr. Ct. Mar. 23, 2020) (Kagan, Justice) (Thomas, Justice, concurring) (Breyer and Ginsburg, Justices, concurring).
The US Court of Appeals for the Ninth Circuit affirmed that “lightly sketched anthropomorphized characters representing human emotions” were not copyrightable. Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.).
Denise Daniels created The Moodsters Company. The Moodsters were five named characters, each color-coded to an emotion. The Moodsters Company developed a pitchbook in 2005, a pilot episode for television in 2007, and toys and books of a second generation of The Moodsters by 2013. Daniels and The Moodsters Company also pitched The Moodsters to Disney. In 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out.
Daniels brought a claim of copyright infringement against Disney. After the district court granted Disney’s motion to dismiss, Daniels appealed.
Addressing for the first time the issue of implied copyright sublicenses, the US Court of Appeals for the First Circuit held that where a copyright license provides an unrestricted right to grant sublicenses, a copyright licensee may do so impliedly and without express language. Photographic Illustrators Corp. v. Orgill, Case No. 19-1452 (1st Cir. Mar. 13, 2020) (Kayatta, J.).
Ruling en banc, the US Court of Appeals for the Ninth Circuit reinstated a 2016 jury verdict, finding that the rock band Led Zeppelin and the opening notes of its hit song “Stairway to Heaven” did not infringe the 1967 song “Taurus” by the band Spirit. Michael Skidmore v. Led Zeppelin et al., Case No. 16-56057 (9th Cir., March 9, 2020) (en banc) (McKeown, J.) (Bea and Ikuta, JJ., dissenting).
The en banc decision addressed a “litany of copyright issues”—the most critical being the interplay between the 1909 and 1976 Copyright Acts and the Court’s reversal of its own precedent in rejecting a doctrine occasionally referred to as the “inverse ratio rule”—when it concluded that, regardless of a copyrighted work’s fame, all plaintiffs must satisfy the same standard of proof in showing that an allegedly infringing work is substantially similar to the copyrighted work.
On an issue of first impression in a copyright infringement dispute out of the Southern District of Texas, the US Court of Appeals for the Fifth Circuit confirmed that failure to mitigate is not a complete defense to copyright or Digital Millennium Copyright Act (DMCA) claims for statutory damages. Energy Intelligence Grp., Inc. et. al., v. Kayne Anderson Capital Advisors, LP, et. al., Case No. 18-20350 (5th Cir., January 15, 2020) (Higginson, J.).
In 2014, energy industry publisher Energy Intelligence Group, Inc. and its affiliated entity in the United Kingdom (together, EIG) filed suit against energy securities investment firm Kayne Anderson Capital Advisers (KA), alleging copyright infringement and abuses of the DMCA based on a KA partner’s violation of US copyright law and violation of his subscription agreement for EIG’s Oil Daily newsletter, which provides news and analysis about the North America petroleum industry. The jury in the district court proceeding found that EIG could have reasonably avoided almost all of the alleged copyright and DMCA violations through real-time investigations and enforcement efforts, and thus awarded EIG just over $500,000 in statutory damages for the infringement of 39 works of authorship. The district court, however, still applied the Copyright Act’s fee shifting provisions and awarded EIG over $2.6 million in attorney’s fees and costs. The parties’ consolidated appeals to the Fifth Circuit thus presented an issue of first impression: namely, whether the failure to mitigate copyright infringement is a complete defense to liability for statutory damages under the Copyright Act and the DMCA.
Addressing issues of copyright and patent infringement, the US Court of Appeals for the Federal Circuit found that the Federal Insecticide, Fungicide, and Rodenticide Act did not preempt copyright protection and that patent infringement under 35 U.S.C. § 271(g) does not require that the claimed process be performed by a single entity. Syngenta Crop Protection, LLC v. Willowood, LLC, Case Nos.18-1614, -2044 (Fed. Cir., Dec. 18, 2019) (Reyna, J.).
The US Court of Appeals for the Third Circuit affirmed a grant of partial summary judgment in favor of Thomson Reuters, finding that Westlaw’s editorial headnotes were copyrightable and that use of those headnotes to train an artificial intelligence (AI) legal-research platform did not constitute fair use. Characterizing the dispute as “no more than an ordinary copyright case,” the Court emphasized that its decision did not resolve broader questions concerning generative AI training. Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., Case No. 25-2153 (3d Cir. Sept. 29, 2026) (Restrepo, Montgomery-Reeves, Bove, JJ.)
Thomson Reuters operates Westlaw, a legal-research platform that provides judicial opinions accompanied by editor-written headnotes summarizing key points of law. Although judicial opinions are not copyrightable, Thomson Reuters claimed copyright protection in the headnotes, which its editors prepare under detailed guidelines requiring them to identify and summarize significant legal principles in concise standalone statements.
ROSS developed a non-generative-AI legal-research platform designed to respond to users’ legal questions by identifying relevant passages from about 10 million judicial opinions. To train its platform, ROSS retained LegalEase Solutions to prepare about 25,000 memoranda, each containing a legal question and four to six responsive judicial opinions. LegalEase used thousands of Westlaw headnotes to formulate the questions. ROSS intended to compete directly with Westlaw and marketed its platform at comparable prices.
Thomson Reuters sued ROSS for copyright infringement. The district court granted partial summary judgment, finding that 2,243 headnotes identified by Thomson Reuters’ expert were sufficiently original to warrant copyright protection and that ROSS’s use of those headnotes was not fair use. The district court certified the originality and fair use issues for interlocutory appeal.
The Third Circuit first addressed copyrightability. Applying the “extremely low” originality threshold established in the Supreme Court’s 1991 Feist Publications, Inc. v. Rural Telephone Service Co. decision, the Third Circuit concluded that the headnotes contained sufficient creativity because editors exercised judgment in selecting which legal principles to summarize and how to express them. The Third Circuit rejected ROSS’s argument that copyright protection would effectively grant Thomson Reuters a monopoly over the law, explaining that judicial opinions remained freely available. The Court also rejected ROSS’s merger doctrine argument, finding that the underlying legal principles could be expressed in many ways.
Turning to fair use, the Third Circuit considered the four statutory factors under 17 U.S.C. § 107:
The US Court of Appeals for the Ninth Circuit affirmed the dismissal of Digital Millennium Copyright Act (DMCA) claims that alleged artificial intelligence (AI) tools removed or altered copyright management information (CMI) from the programmers’ protected works. Doe et al. v. GitHub, Inc., et al., Case No. 24-7700 (9th Cir. Sept. 16, 2026) (Thomas, Miller, Blumenfeld, JJ.)
GitHub operates a platform where developers can store, manage, and share software code. GitHub Copilot and OpenAI Codex are generative AI tools trained on millions of software projects available on GitHub. Copilot uses statistical patterns learned from its training data to generate code in response to user prompts. The plaintiffs are programmers who published copyrighted code in public GitHub repositories under open-source licenses that generally required attribution, including the author’s name and copyright notice.
The plaintiffs sued GitHub, Microsoft, and OpenAI, alleging that Copilot sometimes reproduced their code without the attribution, copyright notices, or license terms accompanying the code in the GitHub repositories. The plaintiffs asserted that these omissions violated § 1202(b) of the DMCA.
The district court dismissed the DMCA claim, reasoning that § 1202(b) required the allegedly infringing work to be identical to the original work from which the CMI had been removed. Because the plaintiffs alleged that Copilot generated near-identical, modified, or functionally equivalent versions of their code, the district court concluded that they had failed to state a claim. It certified for interlocutory appeal the question of whether § 1202(b) imposes an identicality requirement.
Removal or alteration of CMI
Section 1202(b) prohibits intentionally removing or altering CMI, and distributing works or copies of works knowing that CMI has been removed or altered without authority.
The plaintiffs argued that § 1202(b) does not require the defendant’s output to be literally identical to the copyrighted work. They contended that a literal-identicality rule would allow a defendant to evade the DMCA simply by making a trivial change to a copied work after removing its CMI – for example, changing one word on a page. The defendants, while conceding that literal identicality was not required, argued that § 1202(b) requires CMI to have been removed or altered from a copy of the plaintiff’s existing work. If Copilot instead generates a new or derivative work that never contained the plaintiff’s CMI, there is nothing from which CMI was “removed” or “altered.”
The Ninth Circuit rejected a literal identicality requirement and characterized “identicality” as a “misnomer.” The relevant inquiry is not whether the works are identical, but whether CMI was actually removed or altered from a copy of an existing protected work. Identicality may be evidence of removal where two works are otherwise identical, but the allegedly infringing version omits CMI contained in the original. Under those circumstances, a factfinder may reasonably infer that the CMI was removed. But literal identity is not required. Minor cosmetic changes will not necessarily defeat a claim where a defendant substantially or entirely reproduces an existing work and removes its CMI.
Applying that standard, the Ninth Circuit concluded that [...]
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