On March 6, 2025, the U.S. District Court for the Southern District of New York confirmed that historical events are not subject to copyright protection. 

This is true even if the events were discovered through original research. In Ackerman v. Pink, 2025 U.S. Dist. LEXIS 40028 (S.D.N.Y. Mar. 6, 2025), the court explained that although copyright protection applies to an artistic expression of historical events, the events themselves are not subject to copyright protection.  

This case began in August 2023, when Plaintiff Daniel Ackerman brought claims for copyright infringement, unfair competition, and tortious interference against individuals and companies that contributed to the production of the 2023 film Tetris. Ackerman alleged that the film contained “glaring similarities” to his own book, The Tetris Effect: The Game That Hypnotized The World, which was copyrighted and published in September 2016. Ackerman further asserted that the creators of the film used his book to create the film without his consent. To substantiate his claims, Ackerman provided the court with an “exhaustive analysis and examination of the film and the book” that outlined “the substantial similarities between the two works.”

In response, Defendants—which include The Tetris Company (the company that manages the Tetris brand), the screenwriter of the film, and various producers of the film—filed a motion to dismiss Ackerman’s lawsuit in March 2024, asserting that “(i) [Ackerman’s] copyright infringement claim failed as a matter of law; (ii) his unfair competition claim was preempted by the Copyright Act and failed to state a claim; and (iii) his tortious interference claim was barred by the statute of limitations and failed to state a claim.”

The court addressed each argument in turn. First, the court outlined the two elements of a copyright infringement claim: (1) that a defendant “actually copied” the plaintiff’s work; and (2) that “the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s.”  Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)).

The court then emphasized that “[w]orks of history and historical fiction present unique complexities for substantial similarity analysis.”  Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 290-91 (S.D.N.Y. 2012). To this end, the court explained that “copyright protection applies to expression but does not extend to ideas or facts, because ‘[t]he primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and Useful Arts.”’”  Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349-50 (1991) (emphasis added) (quoting U.S. CONST. art. I, § 8, cl. 8). Thus, the court held that historical events cannot be copyrighted as a matter of law and thus do not factor into the “substantial similarity” analysis.

Applying this well-established logic here, the court conducted a thorough analysis of the similarities between the book and the film but did not consider similarities based on the specific historical events that were referenced in both works. Rather, the court looked at the artistic expression of the historical events, but not as it relates to the use of the historical events themselves.  

The court concluded that there was no substantial similarity between the expression of the historical events portrayed in the film and the book, and thus dismissed Ackerman’s copyright infringement claim. In reaching this decision, the court pointed to specific differences in the expression of “true events” between the two works, such as the way relationships were portrayed, the order in which the events were presented, and the extent to which facts were dramatized or exaggerated. The court noted that although the two works “tell the stories of the same real people” and cover “the same time period,” the defendants “were entitled to use the facts contained” in the book “so long as they did not copy [Ackerman’s] unique expression of those facts.”

Next, the court dismissed Ackerman’s unfair competition claim, explaining that this claim was preempted by the Copyright Act because it was based on the same allegations as the copyright claim, and the subject matter of the works “falls within the type of works protected by the Copyright Act.”  

Finally, the court dismissed Ackerman’s tortious interference claim on the grounds that it was time-barred by the applicable statute of limitations.

This decision highlights an important limit on copyright protection for artistic works that are based on historical events—while artistic expressions of such events may receive some copyright protection, the historical events themselves do not, even if those true events are discovered through original research.  

When meme coins—crypto tokens that usually do not purport to have any utility but are often just a single digital image of a dog, frog, or celebrity—began to be popularized, many skeptics thought that they were a joke, primarily because there was no discernible value and because of the onslaught of seemingly bad actors who took advantage of small investors. This skepticism was most recently supported by the fiasco surrounding the “Hawktuah Girl” influencer, whose meme coin hit almost a half a billion dollars in market cap and then lost about 95% of its value within hours of reaching its peak, resulting in a lawsuit against her and the other promoters. Meanwhile, other meme coins, such as Dogecoin—an image of a cute dog—have enjoyed astronomical and sustained value, which, in the case of Dogecoin, is currently around $29 billion in market cap. President Trump’s organization sold a meme coin shortly before his second inauguration. He and his administration have been clear about seeking to create a more permissive, crypto industry-friendly regulatory framework in the U.S. Meme coins seem to be here to stay.

On February 27, 2025, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) promulgated the division staff’s view that meme coins do not generally involve the offer and sale of securities under the federal securities laws. While the statement is merely a view of the SEC staff and is not thereby a law passed by Congress or a rule set by the Commission, this statement may signal the direction Congress and the administration intend to take on meme coins when legislation or rulemaking ultimately takes shape, as we expect this year.

Continue Reading SEC Staff Says Meme Coins Are Not Securities

On February 25, 2025, the United States Supreme Court held that plaintiffs who obtain a preliminary injunction are not eligible for attorney’s fees under 42 U.S.C. § 1988(b) because they do not qualify as “prevailing parties.” See Lackey v. Stinnie, 604 U.S. ___ (2025). Chief Justice Roberts, writing for the Court, explained that obtaining a preliminary injunction does not confer “prevailing party” status under § 1988. The Court reasoned that preliminary injunctions do not provide “enduring judicial relief on the merits.”

This case began in late 2018 when a group of Virginia drivers challenged a Virginia statute that permitted the Virginia Department of Motor Vehicles to suspend the licenses of individuals who failed to pay court fines. The drivers asserted that this statute violated both the Equal Protection Clause and the Due Process Clause “as applied to people who cannot afford to pay due to their modest financial circumstances.” The United States District Court for the District of Virginia granted the drivers a preliminary injunction in December 2018, thereby prohibiting the Virginia Department of Motor Vehicles from suspending licenses for failure to pay court fines.

Continue Reading U.S. Supreme Court Decision Prohibits Plaintiff Recovery of Attorney’s Fees After a Preliminary Injunction Win

On February 11, 2025, Judge Stephanos Bibas issued an opinion in Thomson Reuters Enterprise Centre GMBH v. Ross Intelligence Inc., civ. no. 1:20-cv-613, a dispute regarding copyright infringement allegations stemming from the use of copyrighted data from the Westlaw legal database used in the training of an AI search tool. Judge Bibas, sitting by designation in this matter from the Third Circuit, granted partial summary judgment to Thomson Reuters on direct copyright infringement and determined that Thomson Reuters’ Westlaw key number system and more than 2,200 headnotes were impermissibly used to create Ross’s competing product and are original enough to be protected by copyright.

After finding that the Westlaw system was copyrightable, Judge Bibas rejected Ross’s fair-use defense. In the highly anticipated opinion, Judge Bibas found that two key factors of the “four factor fair use analysis” favored Thomson Reuters. Specifically, the purpose of Ross’s use of headnotes from Thomson Reuters’ Westlaw legal research service and its harm to the market for the originals both favor Thomson Reuters. Therefore, Ross’s fair use defense failed, and using Westlaw’s copyrighted headnotes to train Ross’s AI search tool was found to be copyright infringement.

Continue Reading Judge Rejects Fair Use Defense in Thomson Reuters’ AI Copyright Suit Against Ross Intelligence

Introduction

As recent high-profile litigation, government investigations, and large-scale data-security incidents have shown, organizations are often thrust into crisis mode, requiring rapid responses and close collaboration with third parties, such as public relations consultants, crisis management teams, and forensic accountants and investigators, in order to address the crisis holistically. While these third-party partners are vital in steering an organization through a difficult period, it is imperative to take steps to protect communications with these external partners and safeguard the confidentiality of sensitive and even privileged information.

Generally, the attorney-client privilege protects confidential communications requesting or receiving legal advice between an attorney and their client. The confidential nature of these communications is important, and the privilege can be jeopardized if third parties are included. However, there are important exceptions to the general rule. First, the “common interest” (or “joint defense”) doctrine extends the attorney-client privilege to communications between attorneys and third parties with a shared legal interest (such as co-counsel in an active lawsuit), but it requires active collaboration on a common legal strategy or issue, not just business strategies with incidental legal concerns. Second, privilege can also extend to third-party consultants (such as private investigators, accountants, public relations professionals, etc.), as long as their involvement is essential to aiding the understanding between legal counsel and the client.

Continue Reading Communicating in a Crisis: Tips for Protecting Communications When It Matters Most

On June 18, 2024, California Attorney General (AG) Rob Bonta announced a third CCPA enforcement settlement, this one with Tilting Point Media LLC. Tilting Point was allegedly using its mobile app game “SpongeBob: Krusty Cook-Off” to collect, share, and sell the data of minors, in violation of the California Consumer Privacy Act (CCPA), California’s Unfair Competition Law (UCL), and the Children’s Online Privacy Protection Act (COPPA). Tilting Point agreed to pay a $500,000 civil penalty and implement certain measures to address the alleged violations. The settlement is notable for combining enforcement of COPPA alongside the CCPA, targeting similar practices but different age groups under each law. Also notably, the AG investigated Tilting Point after the Children’s Advertising Review Unit (CARU) of BBB National Programs issued findings alleging that Tilting Point’s practices violated COPPA. The AG alleged that Tilting Point failed to correct its practices following the investigation by CARU. The case illustrates the risks of ignoring industry self-regulatory reviews and provides a roadmap other states can use to leverage multiple laws against the same activities.

The AG’s complaint focused on the key allegations outlined below:

Continue Reading California Attorney General’s Recent Enforcement of CCPA and COPPA

A recent en banc Federal Circuit decision overruled the unique test for obviousness of design patents and advised that the same analysis should apply to both utility patents and design patents. LKQ Corporation v. GM Global Technology Operations (LKQ). Courts had previously used the Rosen-Durling test in determining invalidity due to obviousness of design patents. The Federal Circuit’s decision overruled the Rosen-Durling test and instructs courts to instead apply the Supreme Court’s analysis in its KSR decision and utilize the Graham factors as they would with a utility patent when evaluating the obviousness of a design patent. This important en banc decision may cause uncertainty surrounding the application of the Graham factors to design patents and the enforcement of design patents generally.

Continue Reading Federal Circuit Overrules Obviousness Test for Design Patents and Decades of Precedent

In an effort to provide its musical artists some protection from AI-generated deepfakes of their voices, the state of Tennessee recently enacted ELVIS seeking a cure. Specifically, Tennessee passed the Ensuring Likeness, Voice and Image Security (ELVIS) Act, which goes into effect July 1 of this year. The ELVIS Act replaced Tennessee’s existing rights law (the Personal Rights Protection Act, PRPA), which only protected a person’s name, photograph, or likeness and limited that protection to only barring use in advertising. PRPA also added postmortem rights in an effort to protect the state’s most famous resident, Mr. Presley himself. Interestingly, unique to Tennessee and two other states, the protected rights under the act are characterized as property rights as opposed to rights of publicity, which is more typical.

Continue Reading ELVIS Adds (His) Voice to the Protection of Artists Against AI-Generated Deepfakes

On February 6, 2024, in Philpot v. Independent Journal Review, the U.S. Court of Appeals for the Fourth Circuit issued a copyright fair use decision in a photograph infringement case that is noteworthy for a number of reasons. Those who plan to use photos based on a fair use defense should take heed of this decision.

In this case, photographer Larry Philpot sued news website Independent Journal Review for using Philpot’s photo of singer Ted Nugent in an online article. One of the more interesting facts here was that Philpot uploaded his photo to Wikimedia Commons, which is governed by a Creative Commons license requiring attribution. In other words, he simply required that users of his photo give him attribution, not pay him. Users could use Philpot’s photo free of charge, provided they included the following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.” Instead, Independent Journal Review hyperlinked to Mr. Nugent’s Wikipedia page, where the photo was featured.

Yet another noteworthy fact is that the photo apparently generated only approximately $2 or $3 in revenue for the Independent Journal Review.

Continue Reading Fourth Circuit Hands Photographer a Clean Sweep Victory in Copyright Fair Use Appeal Over News Website’s Use of Free of Charge Photo

On Thursday, October 12, a bipartisan group of senators—Chris Coons (D-Del.), Thom Tillis (R-N.C.), Marsha Blackburn (R-Tenn.), and Amy Klobuchar (D-Minn.)—released a Discussion Draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (dubbed the “NO FAKES”) Act that would protect the voice, image, or visual likeness of all individuals from unauthorized AI-generated digital replicas, also referred to as “deepfakes.” This draft bill, while focusing on protections required by the advancement of AI, would establish the first federal right of publicity—the right to protect and control the use of one’s voice, image, and visual likeness. The NO FAKES Act could have widespread impacts on the entertainment and media industries, among others.

Generative AI has opened new worlds of creative opportunities, but with these creative innovations also comes the ability to exploit another’s voice, image, or visual likeness by creating nearly indistinguishable digital replicas. This has caused great concern among musicians, celebrities, actors, and politicians regarding viral AI-created deepfakes circulating on social media and the Internet more broadly. To date, advancements in AI technology used to create digital replicas have outpaced the current legal framework governing unauthorized use. Although there are existing laws that may be used to combat digital replicas, these laws either vary from state to state, creating a patchwork of differing protections based on where one is located, or do not directly address the harms caused by producing and distributing unauthorized digital replicas.

Continue Reading AI Deepfake Bill: Senators Contemplate the First Federal Right of Publicity