AI Training, Fair Use, And The Burdens Of Being First

Judge Bibas's second take in Thomson Reuters v. Ross Intelligence will get plenty of second looks from courts deciding fair use in generative AI copyright cases.

"Highly fact-specific." "Narrowly decided." A case with "potentially limited impact."

Those were some of the phrases legal commentators used to describe Andy Warhol Foundation for the Visual Arts v. Goldsmith in the days following the Supreme Court's 2023 landmark fair use decision. Some predicted (or hoped) that Warhol was too tied to its own unique facts to meaningfully reshape how courts would analyze fair use going forward.

But fair use cases are always fact-specific—and that hasn't stopped Warhol from becoming a fixture in nearly every fair use ruling since, invoked in cases involving everything from architectural plans to Billie Eilish documentaries.