Insights

Chicago – June 11, 2025: Managing Intellectual Property has recognized 12 Crowell & Moring attorneys and four practices in its 2025 IP Stars guide. The guide, which is in its seventh edition, “brings together the world’s foremost law firm and corporate trademark experts, allowing the wider community to benefit from their insight, experience and perspectives.”

Will the Supreme Court review the Ninth Circuit’s unique Server Test for online copyright infringement? After the Ninth Circuit recently affirmed the Server Test, a photographer and copyright owner has requested certiorari. Petitioner-Plaintiff, Elliot McGucken, is a landscape photographer. Respondent-Defendant, Valnet, Inc., is the owner of a travel website located at “www.thetravel.com.” McGucken sued Valnet for copyright infringement when Valnet embedded on its site a number of links to McGucken’s Instagram posts. The district court, bound by the Ninth Circuit’s en banc decision in Perfect 10, granted Defendant’s motion to dismiss, finding that the Server Test foreclosed McGucken’s direct infringement claim as a matter of law, because Valnet linked to the images and did not store them on its own servers. The Ninth Circuit affirmed in a panel decision. McGucken now requests the Supreme Court to review the validity of the Server Test, which is unique to the Ninth Circuit.

In a unanimous opinion issued by the D.C. Circuit on March 18, 2025, the Court of Appeals affirmed denial of Dr. Stephen Thaler’s application to register a copyright protection for a work created by his generative artificial intelligence system, holding that the Copyright Act requires human authorship.

The U.S. Copyright Office has released Part 2 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI). This part of the Report, issued on January 29, 2025, focuses on the copyrightability of outputs created using generative AI. Overall, the Copyright Office concludes that existing law is sufficient to resolve questions of AI usage in copyrighted works, and sufficient human contributions to AI-generated outputs that would constitute authorship will be analyzed on a case-by-case basis. The Office declined to support a separate copyright registration analysis for AI works, but provided new examples of how using AI as a tool could support sufficient authorship for copyrightability.

Artificial intelligence and the metaverse are two of the most rapidly evolving technologies today, testing the boundaries of intellectual property law. While the swift expansion of AI in all industry sectors can be thrilling, it also presents challenges in terms of protecting and encouraging artistic and scientific endeavors. A principal challenge for authors, creators, and corporations is how to protect creative endeavors from the threat of consumption and reproduction by AI engines, while at the same time realizing the promise of AI-conceived and -developed creative and technological advances. This fundamental IP conundrum also arises in the evolving metaverse.