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Wine counterfeiting: how to respond to brand or appellation infringement

Written by Dreyfus16/04/2025

Wine counterfeiting is a growing concern in the U.S. and worldwide. Fraudsters may illegally use a producer’s trademark, replicate a label design, or falsely claim an American Viticultural Area (AVA) to profit from a winery’s hard-earned reputation. Whether you’re a boutique producer in Napa Valley or a large-scale winery in Washington State, safeguarding your brand identity is vital to maintaining consumer trust and financial stability.

This article explains how to detect and respond to wine counterfeiting or misuse of a brand or appellation in the United States, covering the legal frameworks, best practices to protect your winery’s image, and the scope of possible actions—both domestically and internationally.

Understanding Wine Counterfeiting in the U.S. Market

General Definition of Counterfeiting

In broad terms, counterfeiting involves the unauthorized reproduction or imitation of protected intellectual property (IP). Within the wine industry, this may include:

  • Unauthorized use of a registered trademark
    Example: A bottler selling lower-quality wine under a recognized name to capitalize on that brand’s reputation.
  • Label or packaging replication
    Fraudsters may closely imitate or replicate a legitimate producer’s labels, logos, or overall design to deceive consumers.
  • Improper AVA or regional claims
    Using a term like “Napa Valley” or “Willamette Valley” without meeting federal and state AVA requirements (e.g., TTB rules) constitutes a form of geographic misrepresentation.

Economic and Safety Ramifications

  • Brand damage: Substandard counterfeit wines can undermine a producer’s reputation for quality.
  • Financial losses: Industry groups, such as the Wine Institute, estimate that counterfeits and misleading labeling cost U.S. wine producers millions of dollars in lost revenue.
  • Health concerns: Some counterfeit wines contain unregulated or unsafe ingredients, putting consumers at risk.

International Context

American wines, especially those from prestigious AVAs like Napa Valley, Sonoma County, or the Willamette Valley, are in high demand globally. Counterfeiters may exploit brand recognition to sell imitation products in overseas markets. U.S. producers often need to secure trademark or brand protection abroad (e.g., via the Madrid System under the World Intellectual Property Organization, or direct filings in target export countries).

Types of Infringement: Brand, Appellation, and Mislabeling

Brand Infringement

When someone else uses your federally registered (or common law) trademark without permission, they may:

  • Directly copy your brand name or logo.
  • Adopt a confusingly similar name (e.g., changing one letter or adding a minor word) to trade on your brand’s goodwill.
  • Mimic your label design (colors, fonts, layout) to deceive consumers.

Appellation Misrepresentation

In the U.S., American Viticultural Areas (AVAs) are geographically defined wine-growing regions certified by the Alcohol and Tobacco Tax and Trade Bureau (TTB). Misrepresentation includes:

  • Using an AVA name improperly
    For instance, labeling a wine “Napa Valley” when less than 85% of the grapes are from Napa or if the wine doesn’t meet other TTB requirements.
  • Falsely suggesting a region
    Terms like “Champagne,” “Port,” or “Burgundy” have international naming regulations. In the U.S., some of these names may be grandfathered for older producers, but new labels generally must comply with truth-in-labeling rules.

Illicit Labeling Practices

Even if a producer isn’t directly stealing a brand name, they might violate TTB regulations by listing false or misleading descriptors on the label. Examples include:

  • Incorrect varietal or vintage claims
  • Bogus designations such as “reserve,” “estate,” or “old vine,” if those terms are not accurate or recognized.
  • Misleading references to sustainability, organic certification, or production methods.

Detecting Counterfeit Wines and Gathering Evidence

Red Flags

  • Unusually low prices for wines purportedly from a high-end region or producer.
  • Suspicious distribution channels—online auctions, gray-market retailers, or unknown importers.
  • Label inconsistencies—poor print quality, incorrect typographical details, missing mandatory warnings or TTB-required information.

Documenting the Infringement

Compiling evidence is essential before initiating legal action or a cease-and-desist letter:

  • Photographs or scans of the suspect label: capture the front and back labels, cork, capsule, and any serial markings.
  • Invoices or receipts to show the source and price of the counterfeit wine.
  • Lab analysis (if appropriate): Forensic testing may confirm that the liquid does not match the legitimate wine’s chemical profile.

Practical Tip: Retain physical samples of the alleged counterfeit bottles, ideally sealed and notarized or documented by a legal professional, to serve as proof during litigation or TTB review.

The Value of Ongoing Monitoring

  • Trademark watch services: Engage a specialized agency or use USPTO watch services to identify potentially infringing or confusingly similar marks.
  • Market checks: Periodically review online stores (domestic and international) and local retailers, especially in emerging markets where counterfeits are more common.

Legal Remedies and Enforcement Options

The Cease-and-Desist Letter

Often the first step, a cease-and-desist letter formally notifies the infringer that they must:

  1. Immediately stop using the brand, label, or appellation.
  2. Remove infringing products from the market.
  3. Destroy or surrender remaining inventory.
  4. Pay damages or seek a settlement for lost revenue and harm to reputation.

In some cases, if the violation is unintentional or minor, the infringer may comply to avoid legal escalation.

Litigation and Court Actions

If the infringer refuses to comply or the financial harm is substantial, a winery can pursue legal action:

  • Civil suit in federal court: This can yield damages (including treble damages for willful infringement), injunctive relief to stop further infringement, and potential recovery of attorneys’ fees.
  • Criminal prosecution: For egregious counterfeiting operations, law enforcement agencies (like the FBI or local authorities) might get involved if there is evidence of fraud, smuggling, or organized crime.

Example: Large-scale counterfeit rings selling imitation Napa Valley Cabernet abroad might face federal charges for violating trademark laws, wire fraud, or even money laundering statutes.

Role of U.S. Customs and Border Protection (CBP)

For import or export of counterfeit products, CBP can detain or seize shipments at U.S. ports of entry if a brand owner has recorded its trademark with the agency’s Intellectual Property Rights (IPR) e-Recordation system. This prevents counterfeit goods from entering (or leaving) the United States, saving brand owners from chasing infringers post-distribution.

Case Studies, Statistics, and a Hypothetical Example

Notable Case: Counterfeit “Napa” Wines in Asia

Groups like Napa Valley Vintners have periodically confronted counterfeiters producing “Napa” wines in China and other parts of Asia using imitation labels.

  • Approach: They collaborate with U.S. and foreign authorities, leveraging trademark registrations and local enforcement.
  • Result: Seized counterfeit stock, criminal fines for producers, and improved AVA recognition in key markets.

Stats on Economic Impact

A 2025 study cited by the Wine Institute (wineinstitute.org) estimated that global counterfeiting of American-made wines accounted for over $500 million in annual losses. High-profile AVAs, such as Napa Valley and Sonoma County, were the primary targets, but smaller regional producers have also been affected.

Hypothetical Example: “Sundown Cellars”

“Sundown Cellars,” a Washington-based winery, discovers an online retailer selling bottles labeled “Sundown Estates” with an almost identical logo and design.

  1. Evidence gathering: They purchase samples, photograph the counterfeit label, and retain invoices.
  2. Cease-and-desist: The winery sends a formal demand letter to the retailer and the purported importer.
  3. Litigation: The retailer refuses to comply. Sundown Cellars files a trademark infringement lawsuit in U.S. federal court.
  4. Outcome: The court issues an injunction, orders destruction of the infringing stock, and awards damages to Sundown Cellars.

Best Practices to Prevent Counterfeits and Protect Your Wine Brand

Proactively Register Your Brand

  • USPTO trademark registration: Filing with the U.S. Patent and Trademark Office is crucial for nationwide protection.
  • State registrations: May offer limited local coverage, but if you plan to sell across state lines, a federal mark is essential.
  • International coverage: For export markets, consider the Madrid Protocol or direct filings in strategic countries.

Enhance Label Security and Traceability

  • Advanced label features: Holograms, microtext, QR codes, or serialized capsules.
  • Batch and lot tracking: Use scannable barcodes or RFID technology to confirm authenticity.
  • Blockchain solutions: Some wineries are experimenting with blockchain to provide an immutable record of each bottle’s journey from grape to shelf.

Implement a Vigilant Monitoring Strategy

  • Online surveillance: Regularly check e-commerce platforms and auction sites for suspicious listings.
  • Collaboration with industry groups: Associations like Napa Valley Vintners, Sonoma County Vintners, Washington Wine Institute, etc., can share intelligence and coordinate legal actions.
  • Customs enforcement: Record trademarks with CBP to interdict counterfeit shipments at borders.

Conclusion and Call to Action

Wine counterfeiting is not just an economic threat; it poses a significant risk to your brand’s integrity. As more consumers discover and appreciate U.S. wines, counterfeiters grow increasingly sophisticated. Proactive legal registrations, robust label security features, and rigorous market monitoring form the backbone of an effective anti-counterfeiting strategy.

By securing federal and international trademarks, collaborating with enforcement agencies, and acting swiftly when a counterfeit is discovered, wineries can protect their hard-earned reputations and safeguard their revenue.

Why Work with Dreyfus?

  • Recognized Expertise: Our team has over 20 years of experience combating IP infringement, with a deep understanding of wine industry challenges.
  • Global Network: We collaborate with partners worldwide to address counterfeits and brand abuses in key wine markets.
  • Customized Approach: We develop tailored strategies that combine trademark registrations, monitoring solutions, and decisive legal actions.

The cabinet Dreyfus et Associés is in partnership with a worldwide network of lawyers specialized in Intellectual Property.

Dealing with wine counterfeiting or brand misuse?

  • Contact us for an immediate assessment of your case.
  • Subscribe to our newsletter for the latest legal developments in wine and intellectual property.
  • Download our guide, “7 Essential Steps to Combat Wine Counterfeiting,” featuring case studies and a comprehensive checklist.

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Birkenstock sandals: Evaluating their artistic merit for copyright protection

Written by Dreyfus16/04/2025

The question of whether Birkenstock sandals can be considered works of applied art and therefore eligible for copyright protection is a central topic in intellectual property law. Copyright protects works that exhibit originality and creativity. However, not all objects or designs qualify for this form of protection. This article analyzes whether Birkenstock sandals meet the necessary criteria for such protection, drawing on the principles of intellectual property law and recent legal precedents.

  Judicial Findings on Birkenstock sandals’ artistic merit

·      The German Federal Supreme Court’s ruling

In a decision number I ZR 16/24 dated February 20, 2025, the German Federal Supreme Court (BGH) ruled that Birkenstock’s sandal designs do not meet the necessary criteria to be considered works of applied art protected by copyright. The Court clarified that, to benefit from copyright, the product must demonstrate a certain level of creativity and personal choice. Birkenstock sandals, primarily designed for functionality and comfort, were deemed insufficiently creative to meet this criterion.

 Distinction between art and design

The Court also clarified the distinction between artistic works and functional designs. Artistic works are created primarily for their aesthetic value, while functional designs, like Birkenstock sandals, are intended for practical use. The minimalist design of Birkenstock sandals, emphasizing ergonomic support, was seen as serving practical goals rather than artistic expression

Originality and eligibility for copyright protection

Criteria for originality

Originality is a fundamental requirement for copyright protection. A work must be the personal creation of its author, reflecting creative and free choices. In the case of Birkenstock sandals, while their design may be considered distinctive due to its ergonomic benefits, it lacks the artistic originality needed to qualify as a work eligible for copyright protection.

 Implications for intellectual property protection

The absence of copyright protection does not mean that Birkenstock’s designs go unprotected. The company can still seek protection through other forms of intellectual property, such as design patents or trademarks, which safeguard the visual appearance of products and their brand identity. However, these protections focus more on the design’s utility or branding rather than the artistic expression of the product.

The design of Birkenstock sandals

 Functional design vs artistic expression

Birkenstock sandals are famous for their functional design, which prioritizes comfort and practicality. Features such as arch support and adjustable straps contribute to their popularity. However, these functional elements do not seem to meet the threshold of artistic creativity required for copyright protection. The minimalist design, although distinctive, is more focused on functionality than on aesthetic creativity.

 Minimal artistic expression

The design of Birkenstock sandals, consisting primarily of a simple sole and straps, is not characterized by a strong artistic expression. The aesthetic, while iconic, prioritizes ergonomics and comfort, which are more functional than artistic in nature.

 Comparison with other artistic designs

Compared to other footwear designs that emphasize ornamental aesthetics (such as high-fashion shoes), Birkenstock sandals appear less creative in terms of artistic expression. Their minimalist design, while practical and well-regarded, does not reflect the level of creativity typically required for applied art works protected by copyright.

  Conclusion

In conclusion, Birkenstock sandals do not meet the criteria necessary to benefit from copyright protection. While they are unique and widely recognized for their comfort and functionality, their design is more functional than creative. Therefore, these sandals would likely not be considered artistic works and protected by copyright under current intellectual property standards. This analysis highlights the importance of understanding the distinctions between different forms of intellectual property protection and the specific criteria for each form of protection.

Dreyfus Law Firm works closely with its clients to evaluate whether their designs and trademarks are eligible for protection under intellectual property law. We provide the necessary expertise to help you navigate these complexities and protect your rights.

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Overturning the ban on “soy steaks” and “veggie sausages”

Written by Dreyfus16/04/2025

On 28 January 2025, the French Council of State (Conseil d’État) issued two landmark decisions (n° 465835 and n° 492839), overturning the decrees (n° 2022-947 et n° 2024-144) banning the use of the terms “soy steaks” and “veggie sausages”. This decision is in line with the position of the European Court of Justice (ECJ), which had previously ruled on the issue. This ruling has significant implications for the food industry, particularly in relation to the labelling of plant-based products. It also reflects a wider legal debate about the use of traditional food terminology in the context of rapidly growing plant-based alternatives.

Background to the case

The legal framework of the ban

The French government initially banned terms such as “soy steaks” and “vegetable sausages”, arguing that such terms could mislead consumers into thinking that these products were made from meat. However, companies in the plant-based sector challenged this regulation, arguing that it unfairly restricted their ability to accurately market their products. The legal question arose as to whether these French decrees violated broader European principles of competition and the free market. This led to the Council of State’s decision to overturn the ban.

The role of European law

The Council of State’s decision follows an important ruling by the European Court of Justice in October 2024. The ECJ had emphasised that such bans could violate the freedom of companies to advertise their products, as long as the products were clearly labelled as plant-based and not derived from animals. This position was crucial to the Council of State’s assessment, which concluded that the French decrees did not comply with European principles of free movement of goods and commercial freedom.

The legal reasoning behind the repeal

The impact of the ECJ ruling

The Council of State’s decisions of 28 January 2025 followed the logic of the ECJ ruling and concluded that the French regulations banning terms such as “soy steaks” and “vegetable sausages” were overly restrictive. The Council of State stated that these terms could be used as long as there was a clear indication that the products were plant-based. This decision aims to provide greater freedom for producers while ensuring transparency for consumers.

Consumer protection versus corporate freedom

The Council of State balanced the need for consumer protection with the commercial freedom of companies. It concluded that the use of terms such as “steaks” or “sausages” would not confuse consumers, provided that the labelling clearly indicates that these products are plant-based. This approach seeks to strike a fair balance between preventing consumer confusion and allowing plant-based businesses the freedom to market their products effectively.

Impact on the plant-based food industry

Greater flexibility for manufacturers

With the ban lifted, manufacturers of plant-based products can now freely use terms such as “soy steaks” and “veggie sausages”. This decision improves their ability to market their products and supports the continued growth of the plant-based foods sector, which is expanding rapidly in France and Europe. It allows producers to label their products in a way that appeals to consumers, while maintaining the accuracy of their claims.

Impact on consumer behaviour

Consumers will benefit significantly from this decision as it will ensure clearer product labelling. This decision helps to reduce confusion about the nature of plant-based foods and increases the credibility of plant-based claims. As more people adopt vegetarian and vegan diets, the decision ensures that the marketing of these products remains transparent and in line with the values and expectations of environmentally conscious consumers.

Conclusion

The Council of State’s overturning of the ban on terms such as “soy steaks” and “veggie sausages” is a significant victory for the plant-based food industry. By aligning itself with the position of the ECJ, this decision allows companies greater freedom to market their products while maintaining transparency for consumers. It highlights the importance of balancing consumer protection, business innovation and market freedom in an evolving food landscape.

Dreyfus Law Firm works with clients in the food sector, providing specialist advice on intellectual property and regulatory issues to ensure compliance with national and European laws.

We collaborate with a global network of intellectual property attorneys.

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FAQ

1. What is the Council of State?

The Council of State is the highest administrative court in France, responsible for ensuring that government decisions comply with French law. It advises the government on legal matters and rules on disputes involving public administration.

2. Why did France ban terms such as "soy steaks" and "vegetable sausages"?

France introduced the ban to avoid consumer confusion, as it believed that such terms could mislead consumers into thinking that these products were made from meat.

3. What impact has the ECJ ruling had on food labelling in Europe?

The ECJ ruling emphasised that plant-based products can use familiar food terminology as long as the label clearly indicates that they are plant-based, promoting marketing freedom while protecting consumers.

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Evolution of French case law on trademarks registered in the name and on behalf of a companies in the process of being set up: a trend towards streamlining formalities

Written by Dreyfus15/04/2025

The protection of a trademark is crucial for any business, including those in formation. However, the process of registering a trademark in the name and on behalf of a company still in the process of being formed raises complex legal questions, particularly regarding the adoption of acts and the ownership of rights. Recently, French case law has evolved towards simplifying the formalities required for these actions.

Legal context of companies in the process of being set up in France

Definition and legal framework

A company in the process of being set up is a legal entity that has not yet acquired its legal personality, which occurs upon registration in the French Trade Register (RCS). During this period, acts can be carried out by the founders in the name and on behalf of the future company. These acts can be adopted by the company once it is incorporated, in accordance with articles L. 210-6 and R. 210-6 of the French Commercial Code.

Procedures for reassumption of acts

Acts carried out on behalf of the company in the process of being set up can be reassumed in one of three ways:

  • By mentioning in the company’s statutes that a list of acts done on its behalf is annexed.
  • By granting a mandate to one of the partners to carry out specific acts.
  • By a decision of the company after its incorporation, expressly approving the acts that have been performed.

Trademark registration for a company in the process of being set up

Importance of early registration

Registering a trademark before the company is incorporated is crucial for securing the business name and preventing third parties from taking ownership of it. This registration is typically carried out by a founder acting on behalf of the company in formation.

Risks associated with lack of regularization

If, after the company’s incorporation, the trademark registration is not regularized, the company will not be considered the owner of the trademark. As a result, it will be unable to take action against trademark infringement or defend its rights. Furthermore, the founder who made the registration will remain personally liable.

Recent jurisprudential evolution

French Supreme Court’s case law revision of November 29, 2023

In three rulings on November 29, 2023 (n°22-12.865, n°22-18.295, and n°22-21.623), the French Supreme Court relaxed the conditions for reassuming acts carried out on behalf of a company in formation. Previously, only acts explicitly stating that they were done “in the name” or “on behalf” of the company could be reassumed. The court has now allowed judges to consider the common intent of the parties, even in the absence of such explicit mentions.

Implications for companies in formation

This development simplifies the reassumption of acts and reduces the formalities previously required. Founders now have greater flexibility in managing acts performed prior to the company’s incorporation.

Case study: the French “PROPULSE” case

In a recent case, decision handed down by the Judicial Court of Lyon on October 1, 2024 (no. 24/01144), a trademark “PROPULSE” had been registered by an individual “acting on behalf of the company Submersive Drinks in formation.” After incorporation, no steps were taken to transfer the trademark to the company. When a trademark infringement action was filed, the court ruled that the company could not act since it was not the rightful owner of the trademark.

  1. Practical recommendations for entrepreneurs
  • Formalize the acts: while recent jurisprudence has relaxed requirements, it is still advisable to explicitly state that acts are carried out “in the name and on behalf of the company in formation.”
  • Annex the acts to the statutes: listing acts performed on behalf of the company in the company’s statutes makes it easier for them to be automatically reassumed after incorporation.
  • Follow post-incorporation formalities: after the company is incorporated, take the necessary steps to transfer the trademark ownership officially to the company, including filing a modification request with the INPI (French National Institute of Industrial Property).

Conclusion

Recent jurisprudential developments have simplified the formalities regarding acts carried out on behalf of a company in the process of being set up, particularly concerning trademark registration. However, entrepreneurs must remain vigilant to ensure their trademark rights are fully protected after incorporation.

Dreyfus Law Firm works with clients in the food sector, providing specialist advice on intellectual property and regulatory issues to ensure compliance with national and European laws.

We collaborate with a global network of intellectual property attorneys.

Join us on social media !

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FAQ

 

1. What is the INPI?

The INPI (National Institute of Intellectual Property) is the French public body responsible for the registration and management of industrial property rights, such as trademarks, patents, and designs. It oversees the issuance of protection titles and the management of databases related to industrial property rights.

2. Can a trademark be registered in the name of a company that has not yet been registered?

Yes, a founder can register a trademark “in the name and on behalf of a company in the process of being formed”. This wording allows the company, once registered, to take over the rights to this trademark, provided that the regularization procedures are then carried out.

3. Who is the holder of the trademark before the company is registered?

Before registration, the applicant remains the legal holder of the trademark, even if he or she is acting on behalf of the company in formation. It is only after an explicit takeover (by statute or by decision) or a transfer that the company becomes the holder of the rights.

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The new European Design reform: Key changes and strategic insights for rights holders

Written by Antony09/04/2025

The reform of the European design law, introduced through Regulation (EU) 2024/2822 and Directive (EU) 2024/2823, marks a significant evolution in industrial design protection. With implementation beginning on May 1, 2025, and full transposition required by December 9, 2027, the reform redefines core aspects of how designs are protected, enforced, and managed across the EU.

This article provides a comprehensive breakdown of the key provisions and their practical implications for rights holders, businesses, and legal practitioners.

Summary of the reform and its strategic impact

The new EU legal framework introduces:

  • Modernized definitions reflecting digital and animated designs
  • Expanded procedural flexibility (multi-design filings, deferment)
  • Enhanced enforcement tools for both physical and digital infringements
  • Harmonized grounds for refusal and invalidity
  • Rebalanced fees that benefit SMEs but impact long-cycle industries
  • Clear ownership rules aligned with employment law
  • Legal clarity on unregistered designs and repair clause use

Rights holders are advised to audit their design portfolios, revise employment agreements, and reconsider filing strategies to optimize protection under the new regime.

Key dates and implementation timeline

  • May 1, 2025: Regulation takes effect (Phase I)
  • July 1, 2026: Secondary legislation provisions apply (Phase II)
  • December 9, 2027: Deadline for Directive transposition
  • December 9, 2032: Expiration of grace period for spare parts protections

Expanded scope of protectable designs

A – Digital and non-physical designs

The scope now includes graphical user interfaces, virtual objects, and spatial configurations in virtual environments. This reform reflects market trends in gaming, metaverse technologies, and digital user experiences.

B – Animated and virtual elements

Designs incorporating movement or transitions are now explicitly protected, such as app animations, dynamic web content, or virtual clothing.

Procedural innovations in design filing

A – Simplified multi-design applications

Applicants may include up to 50 designs in a single application, with no requirement to group them under the same Locarno class.

B – Visual representation and application requirements

Only visibly represented features in the application will be protected, resolving a longstanding ambiguity. Mandatory elements include applicant identity, visual representation, and indication of product use.

C – Harmonized deferment of publication

Applicants may defer publication for up to 30 months. A request to block publication must be submitted at least 3 months before deferment expiry.

Strengthened rights and enforcement mechanisms

A – 3D printing and digital file protections

Rights holders can now block unauthorized sharing or use of digital files enabling 3D reproduction, offering critical protection in an era of decentralized manufacturing.

B – Enforcement against infringement in transit

Design rights may be enforced even if the infringing goods are merely transiting through the EU, aligning with trademark law.

C – Fast-Track invalidity procedures

The EUIPO can now expedite invalidity procedures when uncontested, reducing enforcement delays.

Ownership clarifications and employment relationships

Ownership of a design belongs by default to the creator or successor, unless created during employment, in which case the employer becomes the owner. National laws and contracts may override this default rule.

Financial impact and new fee structure

The reform introduces a comprehensive revision of the fee structure applicable to designs within the European Union. While certain upfront costs have been reduced (notably, the filing fee for a single design has decreased from €350 to €250) renewal fees rise significantly from the third renewal period onwards.

This shift is designed to benefit SMEs and short product life-cycle industries (such as fashion, accessories, and digital goods) by easing entry costs and streamlining the registration process. Conversely, it may place a heavier financial burden on sectors with long product life cycles, including automotive, home appliances, and industrial engineering, where sustained protection over 20 to 25 years is critical. For these industries, the escalating renewal costs necessitate proactive budgeting and strategic portfolio management.

Harmonized grounds for refusal and invalidity

New optional grounds for refusal include designs that:

  • Misuse emblems or signs of public interest
  • Reproduce elements of national cultural heritage (e.g., monuments, traditional clothing)

Unregistered designs: a clarified regime

First disclosure outside the EU may still qualify for unregistered protection if it reasonably reaches the relevant EU public. This flexibility aligns the law with modern digital dissemination practices.

The new repair clause and its market implications

Effective December 9, 2027, the repair clause allows reproduction of design elements necessary to restore the original appearance of complex products (e.g., car parts).

  • Strict conditions apply: Must be used for repair only, and origin must be disclosed.
  • Does not apply to trademarks or parts not critical to visual restoration.

This clause fosters competition and circular economy goals, but raises compliance questions.

Enhanced legal certainty and creative freedom

Legitimate uses of protected designs now include:

  • Comparative advertising
  • Commentary and critique
  • Parody

These are permitted under fair trade principles and aim to preserve freedom of expression and market transparency.

Strategic considerations for international businesses

Businesses should:

  • Audit portfolios and renewals deadlines to identify models that require renewal or consolidation, taking into account the new fee structure, which imposes a heavier financial burden in the long term.
  • Update employment contracts regarding ownership, particularly for employees likely to create designs as part of their duties. The reform confirms that, by default, rights belong to the creator unless a contrary clause or specific national provision applies. A clear contractual clause prevents future disputes over ownership and strengthens the company’s legal security in case of litigation or rights transfers.
  • Always assess on a case-by-case basis whether it is more advantageous to opt for an international application under the Hague System or a Community design application, depending on the target countries, exploitation prospects, and budgetary constraints.

Conclusion

The reform modernizes EU design law for the digital age, introduces procedural efficiency, and fosters innovation through clarity and flexibility. While offering opportunities, it also requires proactive adaptation by rights holders.

Dreyfus Law Firm advises rights holders across Europe and internationally to implement these changes strategically.

The Dreyfus Law Firm is in partnership with a global network of lawyers specialized in Intellectual Property.

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FAQ

1 – What rights are granted by a registered Community design in the EU?
A registered Community design (RCD) in the European Union grants its owner the exclusive right to use the appearance of a product or part of a product resulting from its visible features (such as lines, contours, shapes, textures, materials, or ornamentation). This right enables the holder to prohibit third parties from manufacturing, offering, placing on the market, importing, exporting, or using a product incorporating the protected design, or from holding such a product for these purposes. Protection extends throughout the EU and lasts for five years, renewable in five-year increments up to a total of 25 years.

2 – Can a design be transferred?
Yes. A registered design is an intangible asset that can be transferred through sale, contribution to a company, inheritance, gift, or via corporate restructuring (merger, demerger). To ensure enforceability against third parties, it is advisable to record the transfer in the register maintained by the EUIPO (or the national office for national designs). It is also possible to grant an exclusive or non-exclusive licence for the use of the design.

3 – Where should a design be filed for protection in Europe?
To obtain EU-wide protection, an application must be filed for a Registered Community Design (RCD) with the European Union Intellectual Property Office (EUIPO). This single application offers protection across all 27 EU Member States. Alternatively, the Hague International Design System administered by WIPO allows for international filings designating the EU and other jurisdictions in one procedure. National filings remain possible for country-specific needs or complementary strategies.

4 – What is the difference between a design and a model?
Under EU law, the terms “design” and “model” are used interchangeably to refer to the legal protection of a product’s appearance. However, in some national systems (e.g., French law), a practical distinction exists:

  • A design typically refers to a two-dimensional feature, such as a pattern or graphic interface;
  • A model refers to a three-dimensional shape, like a product, packaging, or industrial object.
    In both cases, protection concerns the aesthetic appearance, not the technical function of the product.
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Thaler v. Perlmutter: Affirmation of human authorship in copyright law

Written by Antony09/04/2025

On March 18, 2025, the U.S. Court of Appeals for the District of Columbia Circuit rendered an impactful decision in the case of Thaler v. Perlmutter, reinforcing the principle that copyright protection is exclusively reserved for works created by human authors. This ruling has significant implications for the intersection of artificial intelligence (AI) and intellectual property law.

Introduction

The rapid advancement of artificial intelligence has revolutionized various sectors, including the creative industries. However, this technological evolution has raised complex legal questions, particularly concerning the eligibility of AI-generated works for copyright protection. The recent decision in Thaler v. Perlmutter addresses these issues head-on, providing clarity on the necessity of human authorship in copyright law.

Background of the case

Dr. Stephen Thaler, a pioneer in AI research, developed an artificial intelligence system known as the “Creativity Machine.” This system autonomously produced an artwork titled “A Recent Entrance to Paradise.” In 2019, Dr. Thaler sought to register this AI-generated artwork with the United States Copyright Office, listing the Creativity Machine as the sole author and himself as the copyright claimant.

Legal proceedings and arguments

A – Initial application and denial

The Copyright Office denied Dr. Thaler’s application, citing its longstanding policy that copyright protection extends only to works created by human authors. The Office emphasized that non-human entities, such as machines, cannot be recognized as authors under the Copyright Act.

B – District Court proceedings

Challenging the Copyright Office’s decision, Dr. Thaler filed a lawsuit in the U.S. District Court for the District of Columbia. He argued that the human authorship requirement was neither mandated by the Copyright Act nor the Constitution. The district court upheld the Copyright Office’s decision, affirming that human authorship is a fundamental prerequisite for copyright eligibility.

C – Appeal to the D.C. circuit

Undeterred, Dr. Thaler appealed to the U.S. Court of Appeals for the District of Columbia Circuit. He contended that the term “author” in the Copyright Act should encompass non-human creators, especially in the context of advanced AI systems capable of independent creativity.

Court’s analysis and rationale

A – Interpretation of author in the Copyright Act

The appellate court conducted a thorough analysis of the term “author” as used in the Copyright Act of 1976. Notably, the Act does not explicitly define “author.” However, the court examined various provisions within the Act that implicitly require human authorship:​

  • Ownership and transfer provisions: The Act presupposes that authors have the legal capacity to own property and transfer rights, capacities that machines inherently lack.​
  • Duration of copyright: Copyright protection is tied to the life of the author, a concept inapplicable to non-human entities.
  • Termination rights: The Act provides for termination rights exercisable by the author’s heirs, underscoring the human-centric framework of copyright law.

Based on these considerations, the court concluded that the Copyright Act necessitates human authorship for a work to qualify for copyright protection.​

B – Rejection of non-human authorship arguments

Dr. Thaler proposed that the work-for-hire doctrine allows non-human entities to be considered authors. The court rejected this argument, clarifying that the doctrine permits employers to be deemed authors of works created by human employees within the scope of their employment, but it does not extend authorship to machines or AI systems.

Implications for AI-Generated works

A – Human involvement in creative processes

The court’s decision reaffirms that copyright protection is reserved for works with identifiable human authorship. This does not preclude the use of AI in the creative process; however, there must be substantial human involvement and creative contribution for a work to be eligible for copyright protection.

B – Future considerations

As AI technology continues to evolve, the delineation between human and machine contributions may become increasingly complex. Future legal frameworks may need to adapt to address these challenges, ensuring that copyright law remains relevant in the age of artificial intelligence.

Conclusion

The Thaler v. Perlmutter decision underscores the enduring principle that human creativity is at the heart of copyright protection. While AI can serve as a valuable tool in the creative process, the law currently requires a human touch to confer copyright.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters.

Dreyfus Law Firm collaborates with a global network of IP attorneys to provide tailored legal solutions in the evolving field of AI and copyright.

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FAQ

1 – Does AI have copyright?
No. Under current legal frameworks in the United States, France, and most jurisdictions worldwide, artificial intelligence cannot hold copyright. Copyright law recognizes only natural persons (human beings) as authors. The recent ruling in Thaler v. Perlmutter (2025) reaffirmed that a work created autonomously by an AI system without human authorship is not eligible for copyright protection. Machines are regarded strictly as tools, not as legal subjects.

2 – Why does AI pose a threat to copyright law?
AI challenges the fundamental principles of copyright, particularly authorship, originality, and legal accountability. When a work is generated autonomously without substantial human input, it becomes difficult to assess whether it qualifies for protection and, if so, who owns the rights. Additionally, generative AI systems are often trained on protected datasets without authorization, raising significant risks of massive infringement, bypassing of creators, and erosion of intellectual property value. The mass production of AI-generated content also complicates the detection and protection of authentic human works.

3 – What is the impact of artificial intelligence on the law?
Artificial intelligence has a transformative effect on legal systems, presenting both challenges and opportunities:

  • In intellectual property law, it compels a re-evaluation of the concepts of authorship, ownership, and originality.
  • In contract law, it raises issues regarding the validity of agreements negotiated or executed by autonomous agents.
  • In liability law, it prompts questions about assigning responsibility for harm caused by AI systems.
  • In data protection law, it intersects with privacy regulations and the governance of algorithmic decisions.

Legal frameworks will need to evolve significantly while preserving their core principles, to provide a fair and effective regulatory response to AI-driven innovation.

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The Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. Case: Implications for AI training and copyright law

Written by Antony09/04/2025

Thomson Reuters Enterprise Centre GmbH et al v. ROSS Intelligence Inc., Docket No. 1:20-cv-00613 

In the rapidly evolving landscape of artificial intelligence (AI), the intersection of AI development and intellectual property rights has become a focal point of legal discourse. The case of Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. dated February 11, 2025 serves as a landmark in this context, addressing critical questions about the use of copyrighted materials in AI training processes.

Background of the case

Parties involved

Thomson Reuters Enterprise Centre GmbH and its subsidiary, West Publishing Corp., are prominent providers of legal research and information services, notably through their Westlaw platform. Ross Intelligence Inc., on the other hand, was an AI startup aiming to revolutionize legal research by developing an AI-powered platform to provide efficient legal information retrieval.

Nature of the dispute

The dispute arose when Thomson Reuters alleged that Ross Intelligence had unlawfully utilized content from Westlaw’s proprietary database to train its AI system. Specifically, Thomson Reuters contended that Ross had copied headnotes and other editorial enhancements from Westlaw without authorization, constituting copyright infringement. Ross Intelligence countered by asserting that their use of the materials fell under the fair use doctrine, a legal principle permitting limited use of copyrighted works without permission under certain circumstances.

Legal issues presented

Copyright infringement allegations

Thomson Reuters claimed that Ross Intelligence’s actions amounted to direct and willful copyright infringement. The crux of their argument was that the headnotes and editorial content in Westlaw are original works protected under copyright law, and Ross’s reproduction of these elements for commercial gain violated their exclusive rights.

Fair use defense

In response, Ross Intelligence invoked the fair use defense, arguing that their use of Westlaw’s content was transformative and served the public interest by fostering innovation in legal research. They posited that their AI system did not merely replicate the original content but utilized it to develop a novel tool that enhanced legal information accessibility.

Court’s analysis and decision

Evaluation of copyright claims

The court meticulously examined whether the materials in question were subject to copyright protection. It affirmed that the headnotes and editorial content produced by Thomson Reuters involved sufficient creativity and originality to warrant copyright protection, thereby recognizing them as protected works under the law.

Assessment of fair use doctrine

The court then evaluated the applicability of the fair use doctrine by analyzing the following factors:

  1. Purpose and character of the use: The court determined that Ross’s use was commercial and not sufficiently transformative, as it replicated the original content’s purpose.
  2. Nature of the popyrighted work: The works used were factual but included creative elements, weighing against fair use.
  3. Amount and substantiality of the portion used: Ross had used a substantial portion of the protected content, which was central to Thomson Reuters’ offerings.
  4. Effect on the market: The court found that Ross’s use could potentially supplant the market for Westlaw’s services, adversely affecting Thomson Reuters’ revenue.

Based on this analysis, the court concluded that Ross Intelligence’s use did not qualify as fair use and constituted copyright infringement.

Broader implications for AI and copyright

Impact on AI training practices

This ruling underscores the necessity for AI developers to exercise caution when using copyrighted materials for training purposes. It highlights that unauthorized use of protected content, even for innovative applications, may lead to legal repercussions. Developers are encouraged to seek licenses or utilize public domain data to mitigate infringement risks.

Future legal considerations

The case sets a precedent for how courts may approach similar disputes involving AI and copyrighted content. It emphasizes the importance of balancing technological advancement with the protection of intellectual property rights. Stakeholders in the AI industry should closely monitor legal developments and consider proactive measures, such as developing internal guidelines for content use and engaging in policy discussions to shape future regulations.

Conclusion

The Thomson Reuters v. Ross Intelligence case serves as a pivotal reference point in the ongoing dialogue between AI innovation and copyright law. It illustrates the complexities inherent in applying traditional intellectual property principles to modern technological contexts and signals a call to action for both legal professionals and AI developers to navigate these challenges collaboratively.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters. Our experts stay ahead of AI and copyright developments!

Dreyfus Law Firm collaborates with a global network of IP attorneys.

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FAQ

  1. What was the main issue in the Thomson Reuters v. Ross Intelligence case?
    The primary issue was whether Ross Intelligence’s use of Thomson Reuters’ copyrighted materials to train its AI system constituted fair use or copyright infringement.
  1. What is the fair use doctrine?
    Fair use is a legal principle that allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  1. How did the court rule on the fair use defense in this case?
    The court ruled against Ross Intelligence, determining that their use of the copyrighted materials did not meet the criteria for fair use and thus constituted infringement.
  1. What are the implications of this ruling for AI developers?
    AI developers must be cautious when using copyrighted content for training purposes and should consider obtaining licenses or using public domain data to avoid legal issues.
  1. Does this case affect all AI applications using copyrighted materials?
    While this case sets a significant precedent, each situation may differ based on specific facts. It’s advisable for AI developers to consult legal experts when dealing with copyrighted materials.
  1. Can AI systems use any copyrighted material under fair use?
    Not necessarily. The applicability of fair use depends on factors such
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Latest developments in generative AI and copyright: An in-depth analysis

Written by Antony09/04/2025

The rapid evolution of generative artificial intelligence (AI) has transformed the creation and use of content, raising complex questions regarding copyright. This article provides a comprehensive overview of recent legal actions and legislative initiatives related to generative AI and copyright, highlighting the challenges and opportunities that emerge in this dynamic landscape.

Recent legal actions in the United States

In the United States, several lawsuits have been initiated concerning the use of copyrighted works in training generative AI models.

Case of Kadrey v. Meta

In this class action lawsuit, authors Richard Kadrey, Sarah Silverman, and Christopher Golden allege that Meta Platforms Inc. infringed their copyrights by using their books to train its AI model, LLaMA (Large Language Model Meta AI). On November 20, 2023, the U.S. District Court for the Northern District of California dismissed several claims, including those for direct copyright infringement based on the derivative work theory and vicarious copyright infringement. However, the court allowed the plaintiffs’ claims related to the removal of copyright management information under the Digital Millennium Copyright Act (DMCA) to proceed, acknowledging that the plaintiffs had alleged sufficient injury for Article III standing. Subsequently, on March 10, 2025, the plaintiffs filed a motion for partial summary judgment on direct copyright infringement, arguing that Meta cannot rely on a fair use defense concerning its alleged acquisition of “millions of pirated works” used to train its model. ​

Legal proceedings against OpenAI and Microsoft

In December 2023, The New York Times filed a lawsuit against OpenAI and Microsoft, alleging that their AI models were trained using the newspaper’s articles without authorization, constituting copyright infringement. This case underscores the growing tensions between content creators and AI developers regarding the use of protected works in AI training. As of March 2025, a federal judge has allowed the lawsuit to proceed, dismissing some claims but permitting the core allegations of copyright infringement to move forward. ​

International legal developments

Legal actions related to generative AI and copyright are also increasing internationally.

Legal action in France against Meta

In France, three associations representing authors and publishers—the Syndicat National de l’Édition (SNE), the Société des Gens de Lettres (SGDL), and the Syndicat National des Auteurs et des Compositeurs (SNAC)—have initiated proceedings against Meta. They allege that Meta used copyrighted works without authorization to train its generative AI model. This is the first action of its kind in France, demanding copyright enforcement and the complete removal of data repositories used for AI training.​

Legislative and regulatory initiatives

In response to these challenges, several legislative and regulatory initiatives have been proposed or implemented.

United States: Generative AI Copyright Disclosure Act

In April 2024, U.S. Representative Adam Schiff introduced the Generative AI Copyright Disclosure Act. This bill requires companies to disclose the copyrighted works used to train their generative AI systems by submitting a notice to the Register of Copyrights at least 30 days before the public release of a new or updated AI model. Penalties for non-compliance start at $5,000, with no maximum penalty specified.

European Union: AI Act

In the European Union, the proposed Artificial Intelligence Act (AI Act), which was formally adopted on 13 March 2024, includes specific provisions designed to address intellectual property concerns related to generative AI.

Among its key requirements, the AI Act mandates that developers of general-purpose AI models, including generative AI systems, must provide detailed documentation on the content used for training, including information on whether the datasets contain copyright-protected material. This transparency obligation is aimed at ensuring that rights holders are aware of how their works may have been used.

Additionally, the Act introduces a duty to clearly label AI-generated content, enabling consumers and rightsholders to identify content created without direct human authorship.

These measures reflect the EU’s broader objective to strike a balance between fostering AI innovation and safeguarding intellectual property rights, especially as tensions grow between creators and developers of large-scale AI systems.

Conclusion

The intersection of generative AI and copyright law is a rapidly evolving field, marked by significant legal actions and legislative efforts worldwide. As AI technology continues to advance, it is imperative for stakeholders—including developers, content creators, and legal professionals—to stay informed and engaged with these developments to navigate the complex landscape effectively.

FAQs

What is generative AI?
Generative AI refers to artificial intelligence systems capable of creating content, such as text, images, or music, based on patterns learned from existing data.

Why is generative AI raising copyright concerns?
Generative AI models are often trained on large datasets that include copyrighted works, leading to concerns about unauthorized use and potential infringement.

What is the Generative AI Copyright Disclosure Act?
It is a proposed U.S. legislation requiring companies to disclose the copyrighted materials used to train their generative AI systems, aiming to increase transparency and protect creators’ rights.

How is the European Union addressing AI and copyright issues?
The EU’s proposed Artificial Intelligence Act includes provisions for transparency in the use of copyrighted materials for AI training and mandates labeling of AI-generated content.

What should companies developing generative AI models consider regarding copyright?
Companies should ensure they have the necessary rights or licenses for the data used in training their models and stay informed about evolving legal and regulatory requirements to mitigate infringement risks.

At Dreyfus Law Firm, we specialize in intellectual property law and are committed to assisting clients in navigating the complex intersection of AI and copyright. Our firm collaborates with a global network of attorneys specializing in intellectual property to provide comprehensive support.

Dreyfus Law Firm is in partnership with a global network of Intellectual Property attorneys, ensuring comprehensive assistance for businesses worldwide.

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The third draft of the General-Purpose AI Code of Practice: Objectives and future perspectives

Written by Dreyfus02/04/2025

The rapid advancement of artificial intelligence (AI) technologies has necessitated the development of comprehensive frameworks to ensure their ethical and responsible use. In this context, the European Commission has introduced the third draft of the General-Purpose AI (GPAI) Code of Practice, aiming to guide AI model providers in aligning with the stipulations of the EU AI ActRegulation (EU) 2024/1689). This article delves into the primary objectives of this draft and explores its future implications.

I – Objectives of the third draft of the General-Purpose AI Code of Practice

A – Enhancing transparency

A cornerstone of the third draft is its emphasis on transparency. All providers of general-purpose AI models are mandated to disclose pertinent information about their models, including design specifications, training data sources, and intended applications. This initiative seeks to foster trust among users and stakeholders by ensuring they are well-informed about the functionalities and potential limitations of AI systems. Notably, certain open-source models are exempted from these transparency obligations, reflecting a nuanced approach to diverse AI development paradigms.

B – Addressing copyright concerns

The draft also tackles the intricate issue of copyright in AI development. Providers are required to implement measures that respect intellectual property rights, ensuring that AI models do not infringe upon existing copyrights. This includes establishing mechanisms for rights holders to report potential violations and for providers to address such claims effectively. The draft outlines that providers may refuse to act on complaints deemed “manifestly unfounded or excessive, particularly due to their repetitive nature.”

C – Ensuring safety and security

For AI models identified as posing systemic risks, the draft delineates additional commitments focused on safety and security. Providers of these advanced models are obligated to conduct comprehensive risk assessments, implement robust mitigation strategies, and establish incident reporting protocols. These measures aim to preemptively address potential threats and ensure that AI systems operate within safe and ethical boundaries.

II – Future perspectives of the General-Purpose AI Code of Practice

A – Implementation challenges

As the AI landscape continues to evolve, implementing the GPAI Code of Practice presents several challenges. Providers must navigate the complexities of aligning their operations with the Code’s requirements, which may necessitate significant adjustments in their development and deployment processes. Ensuring compliance without stifling innovation will be a delicate balance to maintain.

B – Global influence and harmonization

The GPAI Code of Practice has the potential to set a global benchmark for AI governance. By establishing comprehensive guidelines, the European Commission aims to influence international standards, promoting harmonization across jurisdictions. This could lead to a more cohesive global approach to AI regulation, benefiting both providers and users worldwide.

Alongside the third draft, the Chairs and Vice-Chairs are also introducing a dedicated executive summary and an interactive website. These resources aim to facilitate stakeholder input, both through written comments and discussions within working groups and specialized workshops. The final version of the Code is expected in May, serving as a compliance framework for general-purpose AI model providers under the AI Act, while integrating cutting-edge best practices.

C – Continuous evolution and adaptation

Recognizing the rapid pace of AI advancements, the Code is designed to be adaptable. It emphasizes the need for continuous evolution, allowing for updates and refinements that reflect technological progress and emerging ethical considerations. This flexibility ensures that the Code remains relevant and effective in guiding AI development responsibly.

Conclusion

The third draft of the General-Purpose AI Code of Practice represents a significant step toward responsible AI governance. By focusing on transparency, copyright respect, and safety, it lays a foundation for ethical AI development. As the cCde progresses toward finalization, its successful implementation will depend on collaborative efforts among stakeholders to address challenges and seize opportunities for global harmonization.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters.

We collaborate with a global network of intellectual property attorneys.

Join us on social media !

FAQ

1 – What is the AI Act?

The AI Act is a regulation proposed by the European Commission aimed at governing the development and deployment of artificial intelligence systems within the European Union. It is the first comprehensive legal framework in the world dedicated to AI, designed to balance innovation and fundamental rights protection. The AI Act classifies AI systems into four risk levels: • Unacceptable risk (banned, such as social scoring systems or subliminal manipulation). • High risk (subject to strict requirements, including AI systems used in critical infrastructures, recruitment, or judicial decisions). • Limited risk (requiring transparency obligations, such as chatbots or deepfakes). • Minimal risk (with no specific obligations, such as AI-powered content recommendations). The primary objective is to ensure that AI systems deployed in the EU comply with fundamental rights, safety, and transparency while promoting responsible innovation.

2 – When will the AI Act come into force?

The AI Act was provisionally adopted in 2024 and is expected to come into force in 2025, following final approval by the European Parliament and the Council of the European Union. However, its implementation will be gradual: • Some immediate provisions will take effect six months after publication. • Rules for high-risk AI systems will apply starting in 2026. • Additional obligations, such as those for general-purpose AI models, may not be fully implemented until 2027. This phased approach allows businesses to adapt their operations to comply with the new regulatory framework.

3 – What is the legal framework for AI?

The legal framework for AI currently consists of a combination of European and national laws covering various aspects: 1. The AI Act (set to come into force in 2025), which will provide specific regulations for AI development and deployment. 2. The GDPR (General Data Protection Regulation), which governs the use of personal data—a key issue for AI systems. 3. The Product Liability Directive (Directive 85/374/EEC) and the upcoming AI Liability Directive (COM(2022) 495 final 2022/0302 (COD)), which define the responsibility of AI developers and users in case of damages. 4. Sector-specific regulations (e.g., finance, healthcare) that impose industry-specific AI compliance requirements. 5. Copyright and intellectual property laws, which impact the training datasets of generative AI models (e.g., ensuring that AI does not infringe on existing copyrights). This legal framework is constantly evolving to protect users and promote ethical AI development.

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Latest developments in generative AI and copyright: An in-depth analysis

Written by Dreyfus01/04/2025

The rapid evolution of generative artificial intelligence (AI) has transformed the creation and use of content, raising complex questions regarding copyright. This article provides a comprehensive overview of recent legal actions and legislative initiatives related to generative AI and copyright, highlighting the challenges and opportunities that emerge in this dynamic landscape.

Recent legal actions in the United States

In the United States, several lawsuits have been initiated concerning the use of copyrighted works in training generative AI models.

Case of Kadrey v. Meta

In this class action lawsuit, authors Richard Kadrey, Sarah Silverman, and Christopher Golden allege that Meta Platforms Inc. infringed their copyrights by using their books to train its AI model, LLaMA (Large Language Model Meta AI). On November 20, 2023, the U.S. District Court for the Northern District of California dismissed several claims, including those for direct copyright infringement based on the derivative work theory and vicarious copyright infringement. However, the court allowed the plaintiffs’ claims related to the removal of copyright management information under the Digital Millennium Copyright Act (DMCA) to proceed, acknowledging that the plaintiffs had alleged sufficient injury for Article III standing. Subsequently, on March 10, 2025, the plaintiffs filed a motion for partial summary judgment on direct copyright infringement, arguing that Meta cannot rely on a fair use defense concerning its alleged acquisition of “millions of pirated works” used to train its model. ​

Legal proceedings against OpenAI and Microsoft

In December 2023, The New York Times filed a lawsuit against OpenAI and Microsoft, alleging that their AI models were trained using the newspaper’s articles without authorization, constituting copyright infringement. This case underscores the growing tensions between content creators and AI developers regarding the use of protected works in AI training. As of March 2025, a federal judge has allowed the lawsuit to proceed, dismissing some claims but permitting the core allegations of copyright infringement to move forward. ​

International legal developments

Legal actions related to generative AI and copyright are also increasing internationally.

Legal action in France against Meta

In France, three associations representing authors and publishers—the Syndicat National de l’Édition (SNE), the Société des Gens de Lettres (SGDL), and the Syndicat National des Auteurs et des Compositeurs (SNAC)—have initiated proceedings against Meta. They allege that Meta used copyrighted works without authorization to train its generative AI model. This is the first action of its kind in France, demanding copyright enforcement and the complete removal of data repositories used for AI training.​

Legislative and regulatory initiatives

In response to these challenges, several legislative and regulatory initiatives have been proposed or implemented.

United States: Generative AI Copyright Disclosure Act

In April 2024, U.S. Representative Adam Schiff introduced the Generative AI Copyright Disclosure Act. This bill requires companies to disclose the copyrighted works used to train their generative AI systems by submitting a notice to the Register of Copyrights at least 30 days before the public release of a new or updated AI model. Penalties for non-compliance start at $5,000, with no maximum penalty specified.

European Union: AI Act

In the European Union, the proposed Artificial Intelligence Act (AI Act), which was formally adopted on 13 March 2024, includes specific provisions designed to address intellectual property concerns related to generative AI.

Among its key requirements, the AI Act mandates that developers of general-purpose AI models, including generative AI systems, must provide detailed documentation on the content used for training, including information on whether the datasets contain copyright-protected material. This transparency obligation is aimed at ensuring that rights holders are aware of how their works may have been used.

Additionally, the Act introduces a duty to clearly label AI-generated content, enabling consumers and rightsholders to identify content created without direct human authorship.

These measures reflect the EU’s broader objective to strike a balance between fostering AI innovation and safeguarding intellectual property rights, especially as tensions grow between creators and developers of large-scale AI systems.

Conclusion

The intersection of generative AI and copyright law is a rapidly evolving field, marked by significant legal actions and legislative efforts worldwide. As AI technology continues to advance, it is imperative for stakeholders—including developers, content creators, and legal professionals—to stay informed and engaged with these developments to navigate the complex landscape effectively.

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FAQ

What is generative AI?

Generative AI refers to artificial intelligence systems capable of creating content, such as text, images, or music, based on patterns learned from existing data.

Why is generative AI raising copyright concerns?

Generative AI models are often trained on large datasets that include copyrighted works, leading to concerns about unauthorized use and potential infringement.

What is the Generative AI Copyright Disclosure Act?

It is a proposed U.S. legislation requiring companies to disclose the copyrighted materials used to train their generative AI systems, aiming to increase transparency and protect creators' rights.

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