2023 was a breakout year for generative artificial intelligence, but it was a rough year for protecting the content generated using such technology. The U.S. Copyright Office issued several rulings last year on the question of when works generated using AI technology are protected under U.S. copyright law, and so far, applicants have not been able to convince the Copyright Office that the AI-generated components of their works are protectable.

Perkins Coie is pleased to present the fifth edition of Labor Law Today—Year in Review, which provides a summary of significant developments in traditional labor law over the past year.

Welcome back to Today’s Most Disruptive Technologies! We turn from quantum computing to a spotlight on multimodal AI. Artificial intelligence (AI) continues to dominate the news and the markets and while some of us are still mulling over existential questions of what it means to be human, AI is about to take yet another fast turn—AI is going multimodal.

In his prescient 1994 book, Copyright’s Highway, Professor Paul Goldstein of Stanford Law School popularized the term “the celestial jukebox” for his prediction of a future where consumers could stream on-demand over the Internet any music, film, TV show, or other entertainment work. Professor Goldstein’s foresight anticipated the rise of massive cloud streaming platforms like Facebook, Netflix, Spotify, and YouTube, well before their inception.

AI-generated robocalls may trick some consumers into thinking they are being called by a human being, but the Federal Communications Commission clarified in a recent AI Declaratory Ruling that it will not be fooled.

Shirin Malkani and John Delaney authored an article for Bloomberg Law titled "AI at Super Bowl Raises Contract, Copyright Issues for Pro Sports" that assesses the legality and consequences of using AI on and off the playing field. 

Safety risk assessments are becoming a preferred regulatory tool around the world. Online safety laws in Australia, Ireland, the United Kingdom, and the United States will require a range of providers to evaluate the safety and user-generated content risks associated with their online services.

Earlier this January, I was an industry attendee and speaker at Digital Hollywood at CES 2024, a one-day, in-person conference that kicks off the Consumer Electronics Show in Las Vegas.

The latest additions to the patchwork of state and federal regulations with which businesses offering subscriptions must comply are a new Kentucky law governing subscriptions offered in that state and the Federal Trade Commission’s proposed amendments to its “Negative Option Rule.”

The Federal Trade Commission gave privacy lawyers a long-awaited Christmas present on December 20, 2023: its notice of proposed rulemaking to amend the Children’s Online Privacy Protection Act Rule. The NPRM follows a review of the COPPA Rule initiated by the FTC four years ago and the submission of over 175,000 public comments.

The last few months have seen a flurry of activity in cases involving artificial intelligence (AI), including some of the first major rulings involving generative AI.

Sometimes the best learning experiences are local. After a quick subway ride on the 2 to Borough Hall, I walked into Brooklyn Law School (BLS) for its third annual Sports Law Symposium, presented each year by the Brooklyn Entertainment Sports Law Students and Intellectual Property Law Association.

Last week, the UK’s Online Safety Bill received royal assent and became law. With this development, Ofcom, the regulator for the new Online Safety Act, has published a roadmap to explain how the Act will be implemented over the next two years.

The White House recently issued its most extensive policy directive yet concerning the development and use of artificial intelligence (AI) through a 100-plus-page Executive Order (EO) titled "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” and accompanying “Fact Sheet” summary.

With all of the hubbub surrounding the growing wave of generative artificial intelligence (AI) lawsuits, a recent court decision involving a generative AI-powered app has received surprisingly little attention, despite addressing issues that will be relevant in other, higher profile AI litigation.

Perkins Coie presented at Digital Hollywood’s “AI Bill of Rights, Ethics & the Law” Summit, a one-day virtual conference that seeks to advance the conversation around the establishment of a national regulatory policy for artificial intelligence (AI).

The Federal Communications Commission recently adopted a Notice of Proposed Rulemaking to reestablish its authority over broadband internet access service by reinstating its net neutrality rules.

A significant number of federal legislative proposals that focus on online child safety have been introduced. If enacted, they would modify online providers’ obligations to remove and report child sexual exploitation content, as well as require providers to implement notice and takedown mechanisms for certain CSE content.

The generative AI revolution has arrived. Will copyright law snuff it out? 

Hollywood is no stranger to artificial intelligence, or AI. Filmmakers have relied on AI for decades to enhance and accelerate their audiovisual productions.

The U.S. Department of Homeland Security announced new policies on September 14, 2023, regarding its use and acquisition of artificial intelligence technologies, including facial recognition and face capture technologies.

The U.S. District Court for the Northern District of Illinois is the latest court to require a company to pay millions of dollars in fees to adjudicate mass arbitrations. Judge Harry D. Leinenweber compelled Samsung Electronics America, Inc., and Samsung Electronics, Co., Ltd. to arbitrate according to Samsung’s Terms & Conditions and ordered Samsung to pay over $4 million in initial fees to the American Arbitration Association before the merits of any individual claims are considered.

The U.S. Supreme Court’s recent decision on universities’ affirmative action policies, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), has garnered significant political, cultural, and media attention. The overall focus has centered on the decision’s determination that  race can no longer be used as a factor to achieve diversity in university admissions. Less attention has been paid to the manner in which the winding trials and ensuing appellate process lifted the veil on college admissions and how various factors other than race, including legacy and athletic ability, tip the scales in admissions decisions.

Last week, we attended (and one of us presented at) Digital Hollywood’s first ever AI Summit, a one-day virtual conference centered on the profound impact of artificial intelligence (AI) on the entertainment industry.

Perkins Coie’s Digital Media & Entertainment, Gaming & Sports and Artificial Intelligence industry groups look forward to seeing you at Digital Hollywood’s free virtual summit titled “AI: Breaking the Net” on July 18, 2023. 

Regulated gaming is booming in the United States. This is particularly true of newer forms of gambling, such as skill games, fantasy sports, and social casino games played on the internet and mobile applications.

The U.S. Supreme Court has affirmed the U.S. Court of Appeals for the Second Circuit’s decision that the licensing of an image Andy Warhol created of musician Prince (titled “Orange Prince”) based on a photograph by Lynn Goldsmith for use as a magazine cover was not fair use.

The U.S. Supreme Court has held—by a 5-4 margin—that it did not violate due process for a Pennsylvania court to exercise jurisdiction over an asbestos case with no connection to Pennsylvania because of a unique Pennsylvania foreign corporation registration statute that requires consent to general jurisdiction to do business in the state.

On June 23, the U.S. Supreme Court held that federal district courts must stay all proceedings pending appellate review of an order denying a motion to compel arbitration.

We recently attended the Annual Meeting of the Copyright Society of the USA, a two-and-a-half day, in-person conference focused on emerging issues in copyright law (perhaps the country’s largest annual get-together of copyright nerds like us).

On June 20, 2023, the New York State Assembly passed a bill which, if signed by New York Governor Kathy Hochul, will impose a blanket ban on—and render unlawful—all future noncompete agreements. New York’s proposed law is the most recent crackdown on the enforceability of noncompetes amid a wave of federal and state efforts to limit such agreements or prohibit them outright.

Crafting an appropriate AUP for generative AI is a process that requires careful consideration and collaboration across multiple departments. Each policy will be different, reflecting the company’s business needs and culture, the nature of the intended uses of such tools, and the company’s level of risk tolerance in light of its industry and the applicable evolving legal and regulatory landscape.

The FTC issued a policy statement on May 18, 2023, addressing privacy and data security concerns and the potential for bias and discrimination relating to the collection and use of biometric information. In the Biometrics Policy Statement, the FTC lists specific examples of business practices relating to biometric information that it will scrutinize under Section 5 of the FTC Act, which prohibits unfair or deceptive acts and practices.

Use of generative AI in the legal profession offers the potential for significant advancement but also poses risks. Court orders issued last week by the U.S. District Court for the Northern District of Texas and the U.S. District Court for the Northern District of Illinois, along with a recent show cause order issued by the U.S. District Court for the Southern District of New York, each highlights some of the risks that in-house counsel and litigators should consider when using these new technologies in litigation matters.

A surprising, unannounced collaboration between Drake and The Weeknd—a song called “Heart on My Sleeve”—went viral on social media a few weeks ago.

As digital media continues to supplant physical media, e-commerce sites offering digital content have experienced unprecedented growth.

Welcome to Today’s Most Disruptive Technologies! We kick things off with a Spotlight on Quantum Computing.

Creators in film, television, music, and gaming are increasingly turning to artificial intelligence and machine learning models to deliver new content and experiences to audiences. While providing many benefits, some applications of AI/ML in these contexts could potentially trigger biometric privacy laws.

Accessibility, artificial intelligence (AI), and hybrid-casual games were among the noteworthy topics at the March 2023 Game Developers Conference (GDC) in San Francisco.

This Update is the second in a three-part series on legal issues surrounding generative technologies. This second installment discusses the initial lawsuits filed involving these technologies and how these issues may be addressed by the courts for the first time.

We recently attended the fourth annual Seton Hall Law School Gaming Law, Compliance & Integrity Bootcamp.

The Federal Trade Commission recently announced a notice of proposed rulemaking to expand its Negative Option Rule to apply to all recurring subscription programs.

California’s Age-Appropriate Design Code is a first-of-its-kind children’s privacy law in the United States that is scheduled to go into effect in 2024. The CA AADC is applicable to online services, products, or features that are likely to be accessed by children.

There have been two important developments in recent weeks regarding the U.S. Copyright Office’s position on registering works created by the use of artificial intelligence (AI) technology. First, on February 21st, the Copyright Office issued its much-anticipated decision regarding the registration of a graphic novel by artist Kristina Kashtanova that included images generated using the AI tool Midjourney. Then, on March 15th, the Copyright Office issued a policy statement providing its first guidance on the subject of copyright registration for works generated by AI.

A reference chart comparing certain key characteristics of demand deposits with government securities, money market funds, and other short-term cash management instruments. Please note that the chart is for informational purposes only and not for the purpose of providing legal or investment advice. 

In early February, following a six-day trial, a jury in the U.S. District Court for the Southern District of New York found in favor of Hermès in its claims of trademark infringement, trademark dilution, and cybersquatting against artist Mason Rothschild, the creator of the “MetaBirkins” non-fungible tokens (NFTs).

In a landmark decision, the Illinois Supreme Court holds that every individual scan or transmission of biometric data made without the proper disclosures amounts to a separate violation of the Illinois Biometric Information Privacy Act.

This Update is the first in a three-part series on legal issues surrounding generative technologies. This first installment will discuss recent developments regarding the copyrightability of AI-generated works.

The European Commission released a draft adequacy decision approving the new EU-U.S. data privacy framework established in part by President Biden's Executive Order 14086.

Last week, we attended Digital Hollywood, a one-day, in-person conference that is part of CES and focuses on how technology is transforming the entertainment industry.

Data security will be an enforcement priority for the FTC in 2023. The FTC, in its December 14, 2022, Commission meeting, highlighted four data security measures that it believes are particularly important for strong cybersecurity.

The Federal Trade Commission announced its proposal of a new rule that would ban employers from imposing noncompete clauses on their workers and invalidate nearly all existing noncompetes currently in effect. According to the FTC, this will affect 30 million, or one in five, American workers currently covered by a noncompete agreement.

After briefly recounting the history of Ticketmaster and Live Nation and their respective lines of business, this Update analyzes the potential legal theories and remedies that antitrust enforcers could pursue against the entertainment conglomerate.

Perkins Coie’s survey of 150 industry stakeholders involved in XR and next-gen technology, which encompasses technological advancements such as Web3 and the metaverse, shows that immersive technology has reached a critical point.

New Jersey has become the latest state to pass a law governing some types of automatically renewing subscriptions.

President Biden signed an executive order on October 7, 2022, changing U.S. surveillance laws to address perceived deficiencies in protecting personal data identified by European Union courts.

The Federal Trade Commission filed a lawsuit on August 29, 2022, against data broker Kochava Inc., alleging that the company’s sale of precise geolocation data is an unfair act or practice that violates Section 5 of the FTC Act.

The Federal Trade Commission released an advance notice of proposed rulemaking on “Commercial Surveillance and Data Security” on August 11, 2022. The ANPRM, approved on a 3-2 party line vote, is the initial step in a process that could result in the adoption of the first federal regulation addressing privacy, data security, and algorithmic discrimination across broad sectors of the U.S. economy.

In its most recent open meeting, the Federal Trade Commission (FTC) unanimously (1) issued a COPPA policy statement directed at ed tech providers and (2) proposed amendments to the Endorsement Guides, which address influencer advertising on social media and consumer reviews.

Alvaro Bedoya was sworn in as a commissioner of the U.S. Federal Trade Commission (FTC) on May 16, 2022.

Federal Trade Commission Chair Lina Khan spoke at the opening of the International Association of Privacy Professionals Global Privacy Summit on April 11, 2022, in Washington, D.C.

In the third episode of Innovation Unlocked: Exploring the Next Level of Entertainment series, Meeka Bondy of Perkins Coie talks with Portia Archer, Chief Operating Officer of the NBA’s G-League.

The Federal Communications Commission recently proposed new rules that would require internet service providers to display labels that allow consumers to comparison shop for broadband services.

Businesses that allow customers to sign up for automatically renewing subscriptions must comply with a patchwork of state and federal regulations.

Perkins Coie and XR Association survey of over 160 professionals found that immersive technology’s prospects have been strengthened by the pandemic.

Congress recently passed the long-awaited bipartisan Infrastructure Investment and Jobs Act. The law allocates over $1 trillion in new and repurposed funds to upgrading the country’s infrastructure.

Perkins Coie, XR Association, and boost VC surveyed nearly 200 professionals representing startups, enterprise technology firms, and investors for their insights on the trajectory of the immersive technology industry.

Perkins Coie surveyed 200 startup founders, technology company executives, investors and consultants on key challenges and opportunities in the immersive technology space.

Perkins Coie surveyed 140 startup founders, technology company executives, investors and consultants on key challenges and opportunities in the AR/VR space.

Perkins Coie and Upload surveyed more than 650 startup founders, executives with established technology companies and investors on the future of augmented and virtual reality.

In this discussion, Nate Sabri and Eugene Marder of Twitch Interactive covered the ins and outs—old and new—of using third-party content in creative industries, from parody to fair use and free speech.

SAG-AFTRA recently warned that "artificial intelligence poses an existential threat to creative professions."

Ron Koo was a panelist in this presentation on the key considerations every game developer should consider when integrating film, TV, music, or other intellectual property into video games.

Joe Cutler was a panelist in this deep dive into the future of gaming and the exploration of the innovations that will affect the industry.

Patchen Haggerty moderated the IP and Game-Related Enforcement presentation, covering how to develop robust content protection and branding strategies.

The Sports Lawyers Association, in conjunction with Perkins Coie LLP, had a panel discussion on current issues in intellectual property and sports.

The Perkins Coie New York Digital Media & Entertainment, Gaming & Sports industry group celebrated Asian American and Pacific Islander Heritage Month with a fireside chat.

Dax Hansen presented "Sports Digital & Blockchain Roundup: Mobile Sports Betting, Tradeable Digital Products, and Cryptocurrency" during the Sports Lawyers Association Annual Conference.

The summit brought together all sectors of the esports ecosystem for three days of networking, education, inspiration, and deal-making.