Insights

On December 20, 2022, the FTC originally noticed its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) on the Federal Register. While the original deadline to submit comments was February 21, 2023, the Federal Trade Commission (“FTC”) extended the public comment period to April 24, 2023.

On May 18, 2023, the US Supreme Court issued a long-anticipated decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, which alters the Courts’ interpretation of the copyright fair use doctrine. Specifically, the Court, in a majority opinion written by Justice Sotomayor, affirmed an earlier Second Circuit decision and held that the “purpose and character” factor of the fair use test does not focus on whether the new work is “transformative.” “[I]nstead, the analysis focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.”

Following its recent grant of a registration for Zarya of the Dawn, a comic book incorporating certain images generated by artificial intelligence, the U.S. Copyright Office (“Copyright Office) has issued new Guidance regarding its examination of works containing material that has been generated by artificial intelligence (“AI”), effective as of March 16, 2023.[1] In sum, works that incorporate material generated by AI may be eligible for copyright protection and registration under certain circumstances, provided that the work contains sufficient human authorship. Applicants seeking to register their works with the Copyright Office now have a duty to disclose any AI-generated material in copyright applications, as well as in existing registrations. Any AI-generated content that is more than de minimis must be excluded from the filing.