Warfare of Art & Law Podcast
Warfare of Art and Law Podcast sparks conversation about the intriguing – and sometimes infuriating – stories that arise in the worlds of art and law with artist and attorney Stephanie Drawdy.
Warfare of Art & Law Podcast
Copyright Advocate & Author David Newhoff on State Sovereign Immunity, IP, AI and Artists' Rights - A 2ND Saturday Conversation
Cover Photo of David Newhoff by Sean Mekas
To learn more, please visit Mr. Newhoff's site as well as his blog, The Illusion of More.
Show Notes:
1:45 Newhoff’s background
4:15 impetus to write Who Invented Oscar Wilde?: The Photograph at the Center of Modern American Copyright?
6:15 SCOTUS’s Warhol decision
10:00 Sarony’s input compared with and AI users’ input
14:00 Newhoff’s comments to USCO’s NOI and Request for Comments
17:20 compulsory licensing scheme
18:50 RightsClick
25:45 USCO’s focus on how a work was created (by AI or human) versus leaving that to courts
25:55 feedback on his comments to USCO
32:00 AI copyright lawsuits in the US
36:25 liability for AI training data
40:45 Emily Gould: whether training involves making copies, EU exception for copies
43:00 whether US copyright is still fit for purpose in light of issues raised by AI
44:20 work “in the style of”
48:40 Deborah Roberts vs Lynthia Edwards - suit over collage works
52:30 Alan Robertshaw: threshold of infringing work versus transformative work
54:50 why use AI to create artwork
56:45 NFT hype
57:35 the legacy Newhoff hopes to be creating
58:50 Newhoff’s view of justice
1:01:00 status of Allen v. Cooper and Allen’s pending constitutional takings claim
1:04:00 camouflage patents
1:05:20 change from allowing IP claims against states to decision that Congress does not have that authority and 11th Amendment’s restriction of individuals bringing suit against states controlled
Please share your comments and/or questions at stephanie@warfareofartandlaw.com
Music by Toulme.
To hear more episodes, please visit Warfare of Art and Law podcast's website.
To leave questions or comments about this or other episodes of the podcast and/or for information about joining the 2ND Saturday discussion on art, culture and justice, please message me at stephanie@warfareofartandlaw.com.
Thanks so much for listening!
© Stephanie Drawdy [2025]
I definitely went down the rabbit hole on the whole sovereign immunity story in a few posts. The court essentially overturned its own precedent back in the 90s and it was right in the quiz decision which it is now following. It's funny which precedent they consider when Starrie de Cicis holds and when it doesn't. It's notable, shall we say.
Speaker 2:Welcome to Warfare of Art and Law, the podcast that focuses on how justice does or doesn't play out when art and law overlap. Hi everyone, it's Stephanie, and that was writer, communications, professional rights advocate and entrepreneur, david Newhoff, discussing a case brought by Nautilus Productions co-founder, rick Allen, against the state of North Carolina over copyright infringement and state sovereign immunity, which was featured on a prior episode of this podcast. What follows is a continuation of that conversation that was recorded during a recent second Saturday art and justice online gathering, during which David shares how he came to be a copyrights advocate, his book entitled who Invented Oscar Wilde, the photograph at the center of modern American copyright, his recent comments to the US Copyright Office regarding its request for comments as part of its AI initiative, and we close by circling back to the issue of state sovereign immunity and how it impacts artist rights. David Newhoff, welcome to Warfare of Art and Law. Thank you so much for being on the podcast.
Speaker 1:Thank you for inviting me. It's a pleasure to be here.
Speaker 2:Would you start with giving an overview of your background and how you came to be a copyrights advocate?
Speaker 1:Sure, sure. So my background is in the creative field. I was a film major in college. I worked in production in a variety of film and video roles, predominantly Worked for higher type projects for well over 20 years, primarily in the New York market, but a little bit beyond that.
Speaker 1:As I say, I worked in a number of capacities as an editor, as a director, as a writer, producer all of you above and then, right around 2011, at the same time that the SOPA and PIPA battles were heating up online, I was concurrently good friends with the CEO of Copyright Alliance, a woman named Sandra Eistar, who's a professor today at George Mason, and through our conversations and through doing a little bit of work actually for them, I learned more about some of the issues and simultaneously became interested in artist rights, which always mattered to me, and also in the levels of disinformation surrounding that whole campaign at the time, which is where the blog the Illusion of More and, in fact, where its name comes from.
Speaker 1:What was I possibly thinking? That disinformation might be a problem on the internet? So that was kind of its origins. And then I began writing general pieces in defense of artist rights and copyright in particular, and then, over the past it's been about 11 years now obviously learned a lot more about copyright along the way, to the point where I've written pieces about specific cases and responses to papers, etc. And then, of course, in 2020, published the book. Anyway, that's the overview of where that came from.
Speaker 2:And since you just mentioned it, would you kind of give an overview of the book that you just referenced from 2020? I believe it was late 2020 that it came out. Who Invented Oscar Wilde? What was the genesis of you deciding to create that book? And it's fascinating, by the way. I highly recommend it.
Speaker 1:Oh, thank you.
Speaker 1:Thank you so well.
Speaker 1:Part of the genesis was simply that after about seven or eight years of writing on copyright matters, I acquired more information about copyright law and various stories than I knew what to do with and I thought, well, and I love nonfiction books, of course and thought, could I write something that was accessible to non-legal readers and nonlaw scholars about copyright law and that kind of collects some of my favorite stories in the history of copyright?
Speaker 1:And I decided, in going back and forth and developing the proposal for it, that, focusing on the Seroni case the Barogiles v Seroni case, which is the one that the case that affirmed copyright ability of photography in under US law that that was an interesting kind of focal point for discussing things that interest me in copyright law, which is actually photography presented a great challenge, as we know, to copyright law because it's the first truly machine made work, and so the question of what authorship is under copyright doctrine is central to that, to that case and that story. So I thought it was a way to kind of ground the conversation about what that means, and then it would also be an opportunity to not only talk about copyright prior to that case but also going forward, as we see in AI. Seroni has been re-litigated, if you will not really re-litigated, but it's been brought up in context to AI, which is, of course, the topic on everybody's lips today.
Speaker 2:So you referenced in your book the Warhol Case since it came out before the Supreme Court's decision of late. Do you have any thoughts that you want to supplement and I know you reference it in one of the answers that you gave in the US Copyright Office's Notice of Inquiry, which is kind of your takeaway of how you see the conversation around fair use and AI in the context of the Warhol decision?
Speaker 1:Sure, sure, well, so you know, cutting to the chase in terms of, in terms of the question that was presented to the court in the cold and cold Smith view, Warhol or vice versa. Um, you know, I was, I personally was pleased with the outcome because I don't think that Warhol's claim of fair use on its basis was sufficient, and that was that's been one of the one of the big battles under the transformative doctrine that's been around since since the 90s, and you know, one of the frustrations on that, on that principle, has been that that defendants have often tried to push the boundaries on that to the point where anything that's a little bit different from the original is sufficient to find transformativeness, and that has been too to amorphous for many of us that that that's getting, you know. You effectively are arguing that almost anything could be very use and it no longer has any boundaries. So I and others were certainly pleased to see that on that question the court rained that back in, if you will, and, and and brought it back to the standard it had said in the Campbell case, with two live crew, and and the Roy Orbison song, and, and, and you know, and reaffirm this idea that to to find transformativeness. In a case like this you really have to find some element of comment on the original work, otherwise you really have no foundation for it. You're just, you're just kind of opening up this generic, undefinable sense of what is transformed. So I was happy to see that personally.
Speaker 1:On a, on a, you know, what the court did not take up is is a different question that I've also addressed in the blog, which is whether Warhol copy the, the protectable expression in that photograph you know meaning as a substantial similarity test. That that has not been raised. It's not going to be raised, of course, in this case, but it's, it remains an unanswered question, I think for many, because you know there is this tendency to go straight to fair use and in some cases, perhaps a fundamental question of whether a key claim of infringement really exists in a case like that is often kind of glossed over for the sake of fair use and so and so here we are. You know, back back when I wrote the book it was, it was still a budding case and very different. Some of the sorry, some very different questions have been presented at that time and I think that was narrowed significantly.
Speaker 2:Maybe it was in a blog or in the book you discuss, or maybe both the differences or the similarities between Goldsmith and seroni and the techniques that they were using to capture the true barriers. And I just thought that was kind of an interesting connection between those two cases and the way case law has developed, whether or not the nuance of the input that the photographer put into the sitter, how that might be analogized or not to the input that the AI users put into work output.
Speaker 1:Yeah, no, it's, it's. It's a good and tricky question. So you know, as you know, when the seroni case was decided, the court actually mentioned that perhaps other photographs of a more what they called ordinary nature might not have been, might not be protectable, but this one, the the bro, rather, oscar Wilde, number 18, certainly is protected. And so, and at the same time, the court almost separately decided that there was no, there was no constitutional violation in in Congress, adding photographs to the act, to the copyright act, but sort of left open that question, if you will, and and and certainly in the 1890s, and quote ordinary photograph, there were lots and lots of portraits made of people in front of playing backgrounds, and so, had that been one of the photographs presented my, the court of rule differently in that specific case, you know, based on its language, it might have. Of course, today there is no, there's no real question of copyright attaching to a photograph like Lynn Goldsmiths, which is obviously just a reference to his head in front of a white background, and so it has compared to say, you know, oscar Wilde, number 18, it doesn't have as many demonstrably obvious creative choices, if you will, as something like Oscar Wilde, where he is very deliberately posed and and and and every aspect of that, seroni, you know, controlled all the details, but you know.
Speaker 1:So it does raise an interesting question in terms of again going back to the idea of what. What is what is protectable versus not protectable? Obviously, we all know is Princess face is, by definition, not protectable. Anybody can photograph it. They can't copyright Princess face. So then you start to get into the question of how thin versus thick is that protection? And so that's the question I think it raises.
Speaker 1:It's that this challenge is now coming up in a new context with AI, because, for example, the copyright office is very much and others are trying to wrestle with this question of, all right, a human creator. We've established that human creation is doctrine. There must be human creator, it can't just be autonomous AI creation. But then the question is how much does the human creator control the use of the AI to produce something that is still protectable expression and that is? It is a new question in a new context, but obviously it has parallels to the camera, right, because the camera is obviously doing a lot of the work, but then the photographer has to is making choices.
Speaker 1:We haven't had to ask the question before. It was sufficient before to say this photograph is protectable. It's all your work. If there's something to separate, if you will, that'll come out in a court case. But as far as copyright attaching, we're now at a new phase when we're asking whether or not it can attach at all in certain cases and partly that'll depend on the integrity of the person registering the work. I hope that answered your question.
Speaker 2:Yeah, yeah, I mean, I think it's like-. There's a lot there. Yeah, it's such a big question and the analysis is evolving, and even the fact that there were 30 plus questions from the copyright office kind of speaks to that. And so you chose to give comment to over a dozen questions when the window was open from the US Copyright Office. And I wonder if we might shift to the questions that you chose to comment on. Why did you pick those? Why did you even feel it important for you to speak to some of those?
Speaker 2:To kind of explore that for a moment.
Speaker 1:Sure. So I guess second question first, I'm just arrogant enough to feel like I had something to offer. You know I've been at it while I am not an attorney. I've been at this long enough and think I've earned it. You know enough street credit, if you will, in the copyright world to have something to say. But as far as the ones I chose, they were either questions that I found particularly interesting or where I felt that I had something to offer. If it got into a subject that I really did not think was either my area of expertise or was not something that I could comment on, I skipped it, you know. So you know it was a variety of things, from pragmatic questions about what the Copyright Office should do vis-a-vis registration and intake of information. That was one of, I think, the last question that I answered on there to, as you mentioned, whether or not, cases like Gold Smith, and I forget now the other one.
Speaker 1:It was Gold Smith and Oracle and, I'm sorry, oh, in Oracle, of course. How could I forget Whether or not those cases were informative to the question of AI? I answered that they I did not think that they were particularly informative to the question of whether or not ingestion for AI training is inherently fair use. And, like I say, and then there were a number of questions that are not specifically copyright-related questions. For example, they ask what are fundamentally rights of publicity questions and other things that are outside the purview of copyright, and one of the reasons I chose to answer those questions and also make it part of a blog is that, you know, I tend to try to write the blog so that it's helpful to other creators and other parties that I talk to.
Speaker 1:All the time and, as I'm sure you know, artists consistently conflate areas of law, whether it's and now especially with the ROPs rather AI. You see this all the time. People are confusing reputation with copyright, with trademark, and so, to the extent that anything I answer there can inform other parties like the voice actors have a lot of questions these days, many of which don't actually sound in copyright law. So that was another part of the motivation for what I chose to answer.
Speaker 2:One of the questions that struck me that you answered was related to whether there should be a licensing regime, and you, I believe, were emphatically against that. I would love to hear more about that.
Speaker 1:Well, on instinct, you know the idea that Congress passes yet another compulsory license. I think that was the question, the big one. There got feel, having seen what happened to the songwriters in the world of compulsory licensing once we got to the age of streaming, which, of course, at the time compulsory licenses were created and in part that was a reaction to technology clashing, particularly radio clashing, with songwriters Back in the back during World War II. Nobody of course at the time could anticipate Spotify and these technologies. Well, we have no idea where AI is going, necessarily in this context. So I think erecting a compulsory licensing scheme at this time seems risky because we don't know what the unintended consequences may be and if that's a lesson, that hasn't been a particularly good one, I think, for most songwriters.
Speaker 2:And going back to the last question, which you mentioned a moment ago and I think it might have been just an open question about anything else that you think should be spoken about, and you did mention the registration aspect, and I wondered you were also, I believe, a co-founder of Right's Click, yep If you would kind of give an overview of that, why you created it and how it might be helping creatives address the AI registration.
Speaker 1:Sure, now I'm glad you asked. So Right's Click was? I founded Right's Click along with my partner, steve Tep, who is an actual copyright attorney with over 25 years of law and policy experience, including, I think, 11 years of the copyright office. And Right's Click was created as a response to the independent creator, the entrepreneurial creator, who our sense is that somewhere between having an attorney on retainer, which most creators can't afford, and doing absolutely nothing, there's a middle ground. Creators can take actual affirmative action to get their portfolios organized, which is one piece of the Right's Click tool set to get their work registered, which, as any attorney knows, is critical to actually protecting your or foundational, I should say, to protecting your rights. And then there's actually tools in the Right's Click suite to help you take some first steps to address a potential infringement. This include we have an attorney network that you can search in there and actually contact attorneys from within the system. But even prior to that, you can do what we call an infringement assessment, which is kind of like a tax app model, but for copyright law it's meant to be very understandable and simple and from there you can take certain actions, including sending your own cease and desist notice that's pre-formatted from within the system Because, as you know, some infringements are fairly low level and you can potentially remedy those without going to litigation. But there's a process to be followed and there are things you can do and unfortunately I think a lot of artists today still something happens they get angry, they go on to the internet. They say what should I do? They shame the other party. This is not really actually very helpful to remedy the infringement. And, of course, if you go online I moderate at least one of those panels and invariably you get advice that's not very helpful, or you shouldn't even be talking about a potential case on social media. You should actually take action without making it necessarily a public matter.
Speaker 1:Anyway, that's the idea behind RightsClick and yes, one of the pieces of that is to register work. Particularly if you're doing group registrations, we make that a lot faster. And especially if you're doing photo group registrations, we make that a lot faster Because if you've ever done that process, it's pretty time consuming and also part of the goal is to try to get people to build that, particularly the registration function, into the day-to-day work of, say, running a photo studio or something like that. You're done with the work. You're going to. Your next step is going to be to edit and cull the material that you want to keep, and then you're going to move on and maybe refine whatever you're going to do with the material.
Speaker 1:But that moment is the ideal moment to kind of build in particularly for photographers a group registration, get it all register with the copyright office. Then you're protected before you've even done anything with it, before it goes out into the world, gets published, etc. That if we can make that process easier for people to just build into their workflow, then that's part of the principle, because we know that, at least according to Copyright Alliances Survey, about 25% of creators responded that they find registration either too confusing or too time consuming and that's one of the big reasons they don't do it. There are other reasons, like people don't register because they don't. They figure well, I'm never going to sue anybody, so I'm not going to bother, which is not the best approach, because of course, you don't necessarily need to sue anybody to get a remedy, but you're not likely to get a remedy if you haven't registered.
Speaker 2:You know this because you're an attorney, so, um, but it's, it's one of the things attorneys preach to their clients all the time and they don't necessarily listen all the time and and many artists I've spoken to, like that 25 percent, I believe it was you said yep, that's the people that you're talking to, as opposed to the ones who don't even bother to approach the copyright conversation. They just either think their work isn't good enough or, like you, you know, for the reasons that you said, that they don't do it but it's many reasons.
Speaker 1:So hopefully, like an organization like yours, makes the conversation more approachable and then perhaps it leads them to protect themselves more that's, that's exactly the goal, and in fact, you know I I actually wrote a blog about this maybe a couple months ago. Um, you know that that among the issues for, I think, many artists is that, especially younger ones, the big tech industry has spent no shortage of money preaching copyright dead, copyright isn't relevant, don't worry about it, doesn't matter anymore, and anybody who kind of grew up on that notion believed it. I think a lot of artists believed it and still do. Maybe the one good thing or one of the good aspects I've seen about all this dust up over AI is at least it's got artists thinking again. You know, the moment they start hearing oh, all the work on the on the planet has been sucked up by this machine to potentially put us out of work. Now artists are suddenly animated to get involved and to think about their rights, and that's a good thing. I I just hope it's not either a too little, too late and also be, as we know, some of the some of the, some of the challenges with AI are not necessarily addressed by existing law.
Speaker 1:So, you know, whereas for 20 plus years artists have had more you know the entire history of the United States the artists have had copyright to to use, but many have been taught to ignore it for different reasons. Um, and, as you mentioned, some some of it's personal, some of it's oh, my work's not good enough. Nobody's ever gonna steal it. I'd be lucky if they stole it. You hear all kinds of you hear all kinds of you hear all kinds of sentiments, right up until it gets stolen by the wrong person. Yeah, and then they're really mad yeah, yeah.
Speaker 2:Well, so going to the point that you made in your notice of inquiry response, I believe it was about creating like a at the certification level, a box to check that it is dealing with AI, and then to I believe the comment that I that really struck me was you were saying to let the courts parse out whether it's AI or human authorship yeah, this is one of those challenges I mentioned earlier that you know.
Speaker 1:For the first time, the copyright office is suddenly asking this question how was this work made? That is not part of the copyright office. First of all, it's never been part of the doctrine of whether or not copyright attaches to a work. Copyright office is never asked how was this work made? The law does not ask how was this work made? There is a question of of um sufficient originality, and examiners at the copyright office are trained in in identifying works that may not, may not, have enough originality for copyright to attach, and then they'll reject the, the um the claim. That's not very common, but it does happen. But there's never been a question how did you go about making this? Did you use, you know, markers, or did you use crayons, or did you use a camera, whatever? That's not, that's not part of copyright attaching.
Speaker 1:Now, suddenly, the the office is saying well, should we ask this question? How do we? How do we? Um address the question of whether you brought AI, a tool, into the mix? And I understand the motive or at least I believe I do which is that the copyright office does not want to be registering works that are not human authored, because that would go against the doctrine of human authorship, and suddenly it'd be registering thousands of works that are just generated by a machine and and now maybe the whole copyright premise just falls apart. Um, at the same time, how do you, how do they address it from an administrative standpoint? And I I think the current guidelines get a little bit close to trying to squeeze it into the limit of claim.
Speaker 1:Uh, question, and which is a limit of claim for anybody listening is um, is when you know you've got, let's say, let's say, my book. For example, it has photographs in it. I did not take so when the work was registered. It's registered as a literary work and then disclaims photographs. It doesn't have to list which ones, it just disclaims that there are photographs in this book that that are not my authorship and therefore I'm not claiming any copyright.
Speaker 1:So going about that with, say, let's say, a visual work that is definitely got human authorship but mixed with some amount of AI contributing in that, is that really a limit of claim question or more of a kind of a? Really a, a separation question of, or rather a substantial similarity question? Right is which? What's the protectable expression? What's the non-protectable expression copyright office has never really had to ask that question before.
Speaker 1:So you know, yes, in in responding to the NOI, one thought I had was that they could ask a simple question at the end is there any AI contributed in this? That gives the, the author, the opportunity to make a an honest disclaim, that you know, an honest statement that they, that they've incorporated sorry that they've incorporated AI but then any question of what is and isn't their authorship would be left to a potential litigation down the road. Any number of attorneys or experts may disagree with me entirely on that, but that was a, you know, I wouldn't say a gut feel to an administrative question, but a you know, having thought about it for many months, a response to that idea with that problem.
Speaker 2:Have you received comments about the responses, not just generally like through the blog, or I know you posted, I believe, on LinkedIn, your comments. Have you had feedback from the community?
Speaker 1:Not huge. So you know, with certain things I will, as you probably can guess, you know, I have a community of colleagues and friends obviously the copyright alliance, other friends in the, my business partner, other attorney friends who are active in copyright matters. I will occasionally share things with people to get feedback even before it goes out, not so much for approval, but you know just, colleagues share things all the time to say you know, what do you think? Have I gone off on? You know off on a tangent here? So you know, in that regard, you know, I haven't heard anybody say you're out of your mind.
Speaker 1:This is this, isn't. You know, this isn't a good approach. I think they're fairly consistent with a lot of views that you'll hear. But, as you know, or you may know, you know, in the AI world, or rather in the AI question, every advocacy group for different kinds of works, whether you're talking literary works or musical works, etc. They all have slightly different views on how to approach this and they all have obviously different sorry, different interests, because of course AI can be used one way in motion pictures and a different way in musical works and a different way in literary works. So so you know, it's anyway, to answer your question, I haven't had any major specific, you know comments other than people sharing it and seeming to like it, and there hasn't been a whole lot of back and forth with anyone in particular on that.
Speaker 2:One of the posts that I believe you recently did related to artists AI suits Anderson that just had received an order in the motion to dismiss. Would you kind of just give an overview of your opinion on where you stand with that decision and the suits that are pending?
Speaker 1:Sure, sure. So the class action suits and I have not combed through every single one of them, but they all, and that's partly because they all kind of share very similar arguments, as I've written in a few blogs, and I think others in the community agree that some of the claims in those suits were problematic. So it wasn't surprising. For example, one of the more problematic claims was that the outputs of a generative AI for in this case the visual arts ones, let's say that all the outputs of the generative AI are necessarily derivative works of all the inputs. That's not a very sound claim.
Speaker 1:I don't think, and I don't think too many copyright attorneys would find it a very sound claim because, as you know, a derivative work really has to contain some element of the originally protected expression that you're claiming is a derivative. So to say that millions of outputs are just the derivatives of millions of inputs is sketchy, and the court agreed that you would really need a substantial similarity basis to begin to examine that. So I wasn't surprised that a lot of those claims and then, of course, as you know, there are a number of claims in those cases that aren't about copyright. They are about rights of publicity and other areas of law including, for example, state competition law and all that. Most of that was rejected by the court. The one thing that does stand, at least in the Anderson case, is the question of direct infringement, which I and others have.