The 5 Dumbest Copyright Stories of 2023

There’s not much doubt that 2023 was a banner year for copyright. The Goldsmith ruling in May, by itself, could radically change copyright and fair use in the United States for years to come.

However, 2023 was also the year of AI when it comes to copyright, including dozens of lawsuits being filed by creators against various AI companies. The numerous lawsuits, many of which overlap with one another, are still being heard, with truly impactful decisions likely next year.

Then, as we wind down the year, it’s also a banner year for the public domain. Works published in 1928 will enter the public domain, including works by Virginia Wolf, D.H. Lawrence, W.E.B. Du Bois, Agatha Christie and Robert Frost to name a few. 

However, the headline work is Steamboat Willie, which was the first cartoon to feature Mickey Mouse. The work was set to lapse into the public domain in 1984 but received two copyright extensions to push it back to 2024. 2023 marks the final days that the work is protected by copyright.

But as significant as the year has been for copyright, it hasn’t been all Supreme Court decisions and cutting-edge technology. The year has seen more than its share of stupid behavior, misguided lawsuits and outright copyright tomfoolery.

So that’s what I’m “celebrating” in this post, my picks for the five dumbest copyright stories of 2023.

5: X/Twitter’s DMCA Debacle

Back in June, a group of music publishers filed a lawsuit against X Corp (formerly Twitter), alleging that the site was not licensing the use of music they control and not doing enough to stop copyright infringement.

The publishers make two specific claims. First, they allege that Twitter is either slow to remove infringing material when notified, often taking over 30 days, or doesn’t remove the material at all. Second, they allege that repeat infringers are rarely banned on the service, as is required by the law.

The case is ongoing, but, even if X wins the lawsuit, it would likely be a Pyrrhic victory. After all, other social media platforms easily avoid this issue by simply obtaining a license. X is the only major social media platform that doesn’t purchase such a license.

While the court will ultimately decide whether X is liable or not (though the Cox verdict doesn’t bode well for them), it never should have come to that point. X would have saved itself a great deal of headache, and likely an even larger amount of money, if it had followed in the footsteps of other social media services.

4: REALLY Bad DMCA Takedowns

From dealing with a host who is handling DMCA notices poorly to a DMCA filer that seems to be recklessly targeting non-infringing material.

The company DMCA Privacy Prevention first made headlines back in November. Automattic, the owners of Tumblr, alleged that the company was representing adult film star La Sirena 69. According to Automattic, the company had filed over 300 complaints. However, many were targeted not at images or videos of La Sirena 69 but just mentions of “La Sirena”, a ship featured in Star Trek: Picard. 

As such, Automattic placed DMCA Privacy Prevention in their “Hall of Shame”, which highlights filers that misuse or abuse the law. 

However, that wasn’t the end for the company. This week, the same company made headlines again, this time over a takedown submitted to Google. Here, the company is representing another adult film star named Artemis. However, many of the links that the company is requesting be removed from the search index, are blog posts about Artemis 2, NASA’s upcoming moon mission.

Seemingly, the company did not learn from its mistakes at Tumblr and, instead, is repeating the same errors with Google.

3: Not Such a Genius

The Goldsmith case was not the only copyright one concluded by the Supreme Court this year. The Supreme Court also brought an end to Genius’ ongoing war with Google by simply declining to hear their appeal.  

The story began all the way back in June 2019. That was when Genius accused Google of scraping its website to publish lyrics directly in search results. As proof of this, they claimed to have “watermarked” their lyrics with a series of apostrophes and found those marks made it into Google results.

This became a lawsuit in December 2019, when Genius sued Google and LyricFind, the company Google licenses its lyrics from. However, even then, reports said that the lawsuit’s chance of success was “slim”.

The reason is that Genius does not own the copyright to the song lyrics. They are provided by users and are based (hopefully accurately) on songs owned by composers, songwriters and music publishers. To get around this, Genius tried to claim that the copying was a violation of their terms of service.

However, the courts saw through that and said that the breach of contract and unfair competition claims were preempted by copyright. The case was dismissed at the district court. That decision was upheld in March 2022 by the Second Circuit. 

Genius then attempted to appeal it again to the Supreme Court, which declined to hear the case in June 2023, following the advice of the Biden administration. That concluded a nearly four-year battle that was always a long shot against a much larger foe. 

While I thoroughly agree that there needs to be a conversation about how search engines use content found on websites (especially relevant today with the rise of AI), this lawsuit was a misguided attempt to address those issues and the fact it went on for so long, even when the resolution was clear, is what makes this case particularly frustrating.

2: Maximum Damages

When it comes to statutory damages for copyright infringement in the United States, the award can be anywhere from $750 per infringement all the way to $150,000. 

That’s a pretty wide delta and, on the higher end, it can lead to some extremely high theoretical damages. One famous example includes the 2011 lawsuit against LimeWire, which dealt with 11,000 songs, giving it a ceiling well into the trillions if each download is considered a separate infringement. 

However, as copyright watchers are quick to point out, that $150,000 max is, largely, theoretically. Rarely seen outside of default judgements where no defense is presented, it’s usually not much more than a way to grab headlines or encourage settlements.

That said, this year provided one very noteworthy exception: The Pacifica Senior Living case.

The lawsuit was filed by photographer Scott Hargis, who alleged that Pacifica was using some 43 images of his without a license. He claims to have reached out to them multiple times to alert them to the infringement, to offer a license to them, or otherwise settle the case. The company rebutted every attempt and continued to use the images, even after multiple attempts to settle.

As a result, the jury in this case found that all 42 properly registered images were infringed, that the infringement was willful and that they all deserved the statutory maximum. That meant Hargis received a judgement for $6.3 million.

As we discussed last week, the case highlights the massive swing in damages that rightsholders have available to them at the discretion of the judge and/or jury. However, there was absolutely no reason for Pacifica to be put in this position, not when the infringement was apparently this clear-cut.

This case, by all accounts, should have been settled well before it ever got to court. For reasons that aren’t clear, Pacifica made the decision not only to go to trial, but to continue to use the images well after being notified that they were infringing.

It’s an incredibly expensive and easily avoided mistake.

1: Fan Fiction Author Sues Amazon, Tolkien Estate

There was really nothing else that the top (or rather bottom) slot could be. 

In April, a Lords of the Ring fan fiction author named Demetrious Polychron filed a lawsuit against both Amazon and the estate of J. R. R. Tolkien, alleging that the new Amazon series, The Rings of Power, were an infringement of his work. 

According to Polychron, he had registered his book, The Fellowship of the King, in 2017 and had repeatedly reached out to the Tolkien estate about collaborating on the project. After repeatedly being rebuffed, he then published his book on Amazon in September 2022, roughly at the same time the TV series was starting.

The lawsuit was misguided for a number of reasons, the worst being that fan fiction, in and of itself, a copyright infringement. Though it’s usually tolerated by creators as long as the use is non-commercial, Polychron was actively selling his fan fiction, infringing the rights of the Tolkien estate.

After the lawsuit was filed, his book disappeared from Amazon. A California court then dismissed his case and ruled that it was Polychron, not Amazon or the estate, that was the infringer. 

That prompted the Tolkien estate to file a lawsuit of their own, seeking the destruction of all copies of Polychron’s work and an injunction against any further distribution of his fan fiction. 

Earlier this month, the court sided with the estate, granting that injunction and also finding that Polychron’s original lawsuit was wholly unreasonable. As such, the court ordered him to pay $134,000 in attorneys’ fees and court costs to the estate.

Of all the copyright headlines in 2023, this one was easily the most misguided. It’s difficult to think of a story that represented a bigger misunderstanding of how copyright law works and where the outcome was so clearly predictable.

Bottom Line

All these stories represent some degree of bad judgement. However, it’s important to remember that these decisions were all made by human beings. Humans routinely make decisions based on emotion, a lack of information, or just bad advice.

So, while I am recognizing these as the dumb moments they are, I’m not going as far as to say the parties or the lawyers are dumb people. People make mistakes, and it’s easy for someone like me to make judgements, especially with the power of hindsight.

The reason that I highlight them is because it’s important to remember that, while it can often feel like copyright law is something of a sideshow. These are serious issues with very real consequences. It’s important to treat any decision made in this space with the gravitas it requires.

As these cases show, mistakes in this space can be very costly. Fortunately, most of the major ones are avoidable if one is willing to put in the work to understand both their rights and their obligations.

It’s a small step, but one that can save a lot of headaches down the road.