Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About

Trending Topics

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni

    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor & Employment
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations

    Industries

    View All

    • Cannabis
    • Consumer
    • Energy
    • Entertainment
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Non Profit
    • Real Estate
    • Technology

    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    1. Home
    2. Insights
    3. Articles
    4. Artificial intelligence admitted in copyright disputeArticles

    Article

    Artificial intelligence admitted in copyright dispute

    Nov 6, 2020

    Share

    By Tracy Ickes

    A federal district court recently allowed an expert to testify on the similarity of copyrighted and purportedly infringing images using facial recognition technology.

    A federal district court recently allowed an expert to testify on the similarity of copyrighted and purportedly infringing images using facial recognition technology. This appears to be the first decision regarding admissibility of such evidence in a copyright dispute.

    The plaintiffs created “King Cake Baby,” used as a mascot for the New Orleans Pelicans. Reviews of the mascot are mixed, with one website describing it as “a grotesque creature that looks like it survives off some wicked concoction of stolen baby candy and tears.” New Orleans Pelicans Reveal Stunning “King Cake Baby” Mascot. King Cake Baby’s creators allege that a cartoonish baby face in the feature films Happy Death Day and Happy Death Day 2U infringe their copyright.

    In support of their claims, plaintiffs offered expert testimony that most people would view King Cake Baby and the Happy Death Day mask as substantially similar. One of the experts “conducted an artificial intelligence assisted facial recognition analysis” to reach his conclusion. Defendants challenged the admission of this testimony under Daubert. With little discussion, the court concluded the expert was qualified and denied the motion.

    Tests for substantial similarity in copyright disputes vary across the country, as do opinions regarding the necessity of expert witnesses. But under any standard, the threshold question—even before reaching the Daubert factors—is whether the expert testimony would be helpful to the jury, or whether the subject is one that a lay person can understand without an expert. Federal Rule of Evidence 702. As lay people, we see and compare faces every day, and the task of comparing two masks arguably does not require expert assistance.

    What is notable here is not the court’s resolution of the issue but the lack of any discussion of it. Perhaps the expert’s impressive qualifications and use of artificial intelligence-assisted technology obscured the threshold question of whether those techniques were needed at all. (Plaintiff surely hopes the jury will be impressed by the “artificial intelligence” and “facial recognition.”)

    The case is a helpful reminder that when offering or opposing testimony from an expert witness who relied on A.I. in a copyright dispute, litigants should remember to consider whether it will be of assistance to the fact finder in the first place.

    Artificial IntelligenceTrendingArtificial Intelligence

    Practices

    Complex DisputesLitigation

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • © 2023 Nixon Peabody. All rights reserved
    • Privacy Policy
    • Terms of Use
    • Statement of Client Rights
    • Supplier Diversity Program
    • Nixon Peabody International LLC
    • PAL