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The list of cases that target the developers/operators of generative artificial intelligence (“AI”) platforms, most of which tend to focus heavily on copyright infringement and Digital Millennium Copyright Act (“DMCA”) claims, keeps growing. Among a number of newly filed cases is one that was filed against Microsoft and OpenAI in the U.S. District Court for the Southern District of New York on April 30. The “publisher plaintiffs,” which include the companies behind the New York Daily News, the Chicago Tribune, the Orland Sentinel, and the Denver Post, among others, set out an array of copyright-centric causes of action, such as direct, vicarious, and contributory copyright infringement.

From a copyright perspective, this case – and others like it – centers on two key issues: One at the input/training stage and one that has to do with AI-generated output. Primarily, the publisher plaintiffs take issue with OpenAI and Microsoft’s allegedly unauthorized use of the newspapers’ content to train the large language models that power their generative AI offerings, including ChatGPT and Copilot. In terms of output, the plaintiffs claim that OpenAI and Microsoft have run afoul of copyright law by providing users of their generative AI tools with “content that is identical to, or a slightly masked version of, the newspapers’ content.”

Copyright claims aside, the case is arguably most interesting because of its inclusion of trademarks claims, which have been far less frequently waged in generative AI cases. Specifically, the plaintiff publishers set out a federal trademark dilution claim (15 U.S.C. § 1125(c)), as well as one under New York state law (N.Y. Gen. Bus. Law § 360-l).

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Some Litigation Updates …

> Hermès v. Rothschild: SDNY Judge Jed Rakoff has given the go-ahead to Mason Rothschild to provide permission to include the MetaBirkins works in a museum exhibition in Sweden – albeit with a specific disclosure about the jury verdict in the case. 


> Zhang v. Google: A group of visual artists have filed suit against Google LLC and its owner Alphabet Inc. in the N.D. Cal., alleging that the tech titans made unauthorized use of their ©-protected artworks to train its AI-powered image generator, Imagen.


> Daily News, LP, et al. v. Microsoft Corp., et al: A group of 8 news publications have filed a © infringement and TM dilution lawsuit against Microsoft & OpenAI, alleging that the Ds are “purloining millions of [their] © articles w/o permission or payment to fuel the commercialization of their generative AI products.


> Raw Story Media v. OpenAI: OpenAI is looking to escape the DMCA-centric suit waged against it by Raw Story Media, arguing in a new motion to dismiss that the plaintiffs lack standing because “the mere (alleged) absence of CMI in non-disseminated training data is not a concrete injury-in-fact.” 

In some deal-making (and other finance) news this week …

– Julie Zerbo
Founder & Editor-in-Chief

Here are TFL’s top articles of the week …

1. Appeals Court Affirms Lower Court Win for Thom Browne in adidas Case. In a summary order on Friday, as first reported by TFL, a panel of judges for the 2nd Cir. affirmed the SDNY’s judgment in the stripes-centric case.

2. Another Court Takes on Watch Customization, Trademark Infringement. A Swedish court sided with watchmaker Tissot in a TM case it waged against a third-party customizer. 

3. What is Next for MATCHES and the Brands that Hang in the Balance?  A read between the lines of Frasers Group’s statement provides some insight into what the retail group has planned & what it might mean for the brands whose clothes hang in the balance. 

4. SKIMS Sued for Allegedly Enabling Meta to “Spy on” Website Users. The plaintiffs claim that SKIMS “enables Meta to eavesdrop on website visitors’ communications” while they search for products on the SKIMS website.

5. Nike, BAPE Settle Trademark Lawsuit Over “Lookalike” Sneakers. In furtherance of the settlement, BAPE agreed to discontinue its sale of some of the allegedly infringing sneakers & to redesign others. 

6. Rolex Sheds Light on How it Built its “Famous” Crown Trademark in New Opposition. Rolex is looking to block part of the application for registration that Hallmark filed for a “lookalike” crown logo.

7. EU Regulator Ramps Up Online Content Rules for Shein. Now What? Reworking its model to ensure that it is not in the business of offering up infringing products may be a game-changer for Shein if the allegations in at least a couple of pending lawsuits are any indication. 

8. ICYMICompanies’ Complex Supply Chains & the Role of Digital Product Passports. EU Parliament voted on and adopted the Ecodesign for Sustainable Products Regulation during a plenary session on April 23 with 455 votes in favor, 99 against, and 54 abstentions.