Volume 72

Issue 4 with Copyright + Technology Conference 2025

JOURNAL OF THE COPYRIGHT SOCIETY
VOLUME 72(4) (Fall 2025)

TABLE OF CONTENTS

From the Desk of the Editor-in-Chief – v

PART I: COPYRIGHT + TECHNOLOGY 2025

Panel 1
This Masquerade: Streaming Fraud and Copyright
With Aruni Soni, Patra Sinner, Jon Glass, and Katherine Reilly – 1005

Panel 2
A Thousand Times No: The Practicalities of Opt-out for AI Training
With Adam Rendle, Daan Archer, Ali Sternburg, and Thomas Sullivan –

Keynote Address
Tracey Armstrong – 1043

Panel 3
What’s Past is Prologue: Lessons for AI from the File-Sharing Era
With Bill Rosenblatt, Annemarie Bridy, Gary Greenstein,
Bobby Rosenbloum, and Howie Singer – 1053

Panel 4
My Own Three Hands: AI Content Creation Tools and Copyright Registration
With Charity Gates, Maria Backman, Zachary Cooper,
Gili Karev, and Dori Hanswirth – 1071

PART II: ARTICLES

Copyrighting Style
By Christopher Buccafusco – 1091

Reconstructing Copyright Reversion: Releasing Authors from their Own Dead Hands
By Hanoch Dagan and Molly Van Houwelen – 1131

“Designed Landscapes–Ar©hitecture, S©ulpture, Visual Art, Shape, Pi©torial Work, or . . . Nothing at All?”
By Richard Chused – 1209

The AI Authorship Distraction: Why Copyright Should not be Dichotomised Based on Generative AI Use
By Zachary Cooper – 1251

The USPTO’s Art Teacher Patent Gambit: How Design Patents Stepped on Copyright’s Territory
By Anish Wesley King – 1291

PART III: YEAR END SUMMARY

Editor's Note

FROM THE DESK OF THE EDITORS

We are delighted to present you with a fourth (yes) issue for 2024. We are returning to four issues a year, and next year, will also be adding more content through our Online Forum. As Editor-in-Chief, I am also delighted to have Bill Rosenblatt back as co-editor for the Copyright + Technology portion of the issue. Part I of this issue includes the proceedings of the 2025 Copyright + Technology Conference. Part II presents articles. Part III gives us a few summaries for the year in copyright.
After the publication of the proceedings of the 2024 Copyright + Technology conference in this journal last year, we decided to continue this practice into the future. So this issue contains the second instance of what we hope will become an annual tradition: the proceedings of Copyright + Technology 2025, which took place on September 8 at Fordham Law School in New York.

Bill: Since the launch of ChatGPT in late 2022, we have focused much of the agenda of each year’s Copyright + Technology on the nexus of copyright and artificial intelligence (AI) – but not all of it. That’s on purpose. We are in an AI bubble. From the perspectives of conference chairs and journal editors, bubbles draw crowds and readers; then they do not so much burst as deflate. We want to make sure that we are maintaining threads of coverage of other important copyright and technology topics that we can pick up after the deflation. There is, of course, no shortage of such topics.

Accordingly, one of our panels was at least ostensibly not about AI: “This Masquerade: Streaming Fraud and Copyright.” Streaming fraud is a “copyright-adjacent” phenomenon that takes many forms, such as using bots and identity theft to generate music plays on streaming services, and submitting well-known artists’ content to streaming services under fraudsters’ identities – all to generate fraudulent royalties. Streaming fraud is of increasing concern to a range of participants across the music industry ecosystem: it siphons royalties away from legitimate rightsholders, mars users’ experiences on streaming services, and is now a locus of organized crime activity.

Our panel on streaming fraud showed how the issue has aligned the interests of a broad range of music industry stakeholders in ways they haven’t been aligned before. This was reflected in the panelists’ backgrounds: they included Katherine Reilly, the former federal prosecutor who brought the first criminal indictment for streaming fraud in the United States; Patra Sinner, the general counsel of a digital distributor for independent musicians that is taking a leading role in the non-profit Music Fights Fraud Alliance; and Jon Glass, the SVP of digital legal affairs at a major music company. As you will see, the conversation was not about whether streaming fraud is a problem but how the industry can work together to combat it. Yet AI is relevant to streaming fraud after all: much of the content used to generate fraudulent royalties is either AI-generated audio or incorporates AI techniques for creating fake artists and other metadata.

Our keynote speaker this year also spoke on an AI-adjacent topic. Tracey Armstrong is the longtime President and CEO of the Copyright Clearance Center (CCC), an organization that administers large-scale voluntary blanket licenses to a variety of content. CCC recently added certain AI uses to the rights it licenses under its Annual Copyright License for businesses. But the main reason why I invited Tracey to keynote the conference was that CCC has accumulated decades of experience in large-scale, automated content licensing. Tracey spoke about the real-world challenges of licensing at scale in environments where the content and use cases are constantly changing and expanding. – the same challenges that administrators of content licenses for AI uses are facing now.

The first of our panels at the conference was also related to AI and licensing. “A Thousand Times No: The Practicalities of Opt-Out for AI Training” discussed the pros and cons of so-called opt-out licensing schemes for AI, wherein an AI platform will use an item of content for training purposes, and/or may generate an output that resembles that content item, unless the rightsholder tells it not to (“opts out”) – as opposed to “opt-in” schemes where rightsholders must give permission to the licensee for the intended uses.

The idea of a central opt-out registry for AI training use has been proposed in the UK, to much controversy, though it had not been discussed much in the United States by the time of the conference. Yet opt-out schemes for large-scale non-AI uses are already common, such as Google’s Content ID scheme for YouTube and Meta Rights Manager for Facebook and other Meta platforms. “A Thousand Times No” comes not just from the 1935 Betty Boop film but also invokes the idea that private opt-out schemes put the onus on copyright holders to submit opt-out notices to every platform that implements one. Adam Rendle moderated and provided the UK perspective on the panel.

The panel “My Own Three Hands: AI Content Creation Tools and Copyright Registration” addressed the slow-brewing complexity of copyright registration when creators of all types turn increasingly to AI tools to help them create content – and as the tools that they use most commonly add more and more AI-powered features. The U.S. Copyright Office currently requires creators to disclaim AI-generated portions of their content in their registration applications. But cases are sure to pile up in which it’s not exactly clear which portions of a creator’s submission were generated with AI assistance, or how much prompting (or other user interaction) it takes to qualify as human creative input. As this panel discussed, this issue is likely to keep the Copyright Office as well as courts busy for years to come.

Finally, as someone who has lived through multiple technology bubbles, I have been struck repeatedly by the parallels between the current scene around AI and the bubble that emerged during the late-1990s-early-2000s era of dot-com and Napster – not about the technologies per se, but rather about how disruptive innovations unfold through creative industries and copyright laws. So I decided to convene and moderate a panel in which veterans of that earlier era who are still active in the field today discuss the similarities and differences between the two scenes. The panelists on “What’s Past Is Prologue: Lessons for AI from the File-Sharing Era” included Bobby Rosenbloum, a transactional attorney who negotiated many of the important content licensing deals for digital platforms back in the day; Howie Singer, a music industry technologist who analyzed technical aspects of those deals on behalf of one of the major record companies; Gary Greenstein, a lawyer who was at the RIAA during the Napster litigation and then became founding general counsel of the early digital music licensing entity SoundExchange; and Annemarie Bridy, a copyright scholar, now in-house at Google, whose writings during the 2000s included a prescient, clear-eyed analysis of the practical enforceability of copyright in the online world.

Elizabeth: Part II then turns to six academic articles. What they share in common is looking at key components of copyright under our current condition. We start with Chrisopher Buccafusco’s article “Copyrighting Style,” which takes up the question of artist style and its relationship to idea/expression. This becomes particularly important in the face of generative AI. We then turn to Hanoch Dagan and Molly Shaffer Van Howeling’s “Reconstructing Copyright Reversion: Releasing Authors from Their Own Dead Hands,” which argues that termination of transfer serves the purpose of authorial autonomy, and suggests a way to reform to strengthen that goal.

Clark D. Asay and Dan Ankenman then explores “Copyright Law at the Federal Circuit,” which looks at the relationship between patent cases that include a copyright claim, and asks whether the Federal Circuit is unwittingly influencing copyright. They review all of the copyright cases that the Federal Circuit has taken up to understand the Federal Circuit as a decision maker.
The next three articles focus on the artistic side of copyright–and also patents? Richard Chused in “Designed Lands©apes—Ar©hitecture, S©ulpture, Visual Art, Shape, Pi©torial Work, Or . . . Nothing At All?” looks at landscape architecture under the 1976 Copyright Act, and suggests some changes that might help. Zachary Cooper in “The AI Authorship Distraction: Why Copyright Should Not Be Dichotomised Based On Generative AI Use,” looks at the intersection of Generative AI tools within the creative production. And finally, Anish Wesley King introduces us to the new Category D design patent practitioner, where the USPTO put out a call to art teachers and creative professionals to prosecute design patents, and asks about the boundaries between patent and copyright protection. So, a full slate of articles.
We end the issue (and the year) with two additional elements. In 72(3), we published the annual Cowan, Leibowitz, and Latman review of copyright cases. In this one, we review proposed legislation of Congress and administrative action of the Copyright Office, along with other administrative activities related to copyright.

We had an amazing staff of Copyright Society Student Fellows, and thanks especially our Co-Managing Editors, Holly Hanney and Kristin Ivey, and our Production Editor, Jonathan Sorokin, along with all of our student editors Thank you as always to the team at Copyright Society – Kaitland Kubat, Thais Soalleiro, and Jennifer McGhee, and to our President Dan Cooper, and Vice President, Theo Cheng for their support as well.

Elizabeth Townsend Gard
Editor-in-Chief
Journal of the Copyright Society
John E. Koerner Endowed Professor of Law
Tulane University Law School
eic@copyrightsociety.org

Bill Rosenblatt
President
GiantSteps Media Technology Strategies
Adjunct Professor, Music & Performing Arts Professions
New York University
billr@giantstepsmts.com