USA
Copyright and AI: Human touch still required
We reported in our March 2025 issue on the D.C. Circuit’s decision in Thaler v. Perlmutter, in which the plaintiff, a computer scientist, sought a copyright registration for an image that his generative AI system had autonomously created. Now, a year later, the Supreme Court has denied the plaintiff’s certiorari petition in the case. Accordingly, to claim copyright, rights holders should take care to document “human” contributions to their work. Significantly, in its March 2025 opinion, the Circuit Court noted that its decision was limited to cases in which the AI is listed as the sole author. The Copyright Office has permitted registration where the human author was assisted by AI tools.
Richard Lehv
Questioning efficacy of “extrinsic-intrinsic” test
How can a copy of an image be “100% exactly the same” as the original but not “substantially similar”? In concurring Ninth Circuit opinions, Judges Wardlaw and Johnstone raised this paradox, even as they affirmed a jury verdict absolving tattoo artist Katherine Von Drachenberg of copyright infringement for her inked replica of photographer Jeff Sedlik’s portrait of Miles Davis.
A petition for rehearing en banc is pending. We are closely watching to see if the Ninth Circuit revisits a precedent it set in 1977 when it established the two-part “extrinsic-intrinsic” test for copyright disputes. The “extrinsic test” is an objective comparison of specific expressive elements. The “intrinsic test” is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works. In their concurrences in Sedlik v. Von Drachenberg, Judges Wardlaw and Johnstone heavily criticized the intrinsic portion of the test, opining that, by focusing on a work’s “concept and feel,” the intrinsic test contradicts the Copyright Act’s language that copyright protection does not “extend to any idea [or] concept.”
“[H]ow did we get from a statute that protects against the copying of pictures, not concepts, to a doctrine that turns on similarity in ‘total concept and feel’?” Judge Johnstone asked.
We expect the Court’s decision on whether to grant en banc review in the next few months.
Parker Eudy
DATA PRIVACY
California – Relief from some CIPA claims in sight?
Amid a flood of claims brought under the pen register and trap-and-trace provisions in § 638.51 of CIPA, courts continue to wrestle with whether this decades-old statutory language applies to all of today’s pixels, cookies, and other tracking technologies. Last fall, a California lower court denied Variety Media’s motion to dismiss a CIPA putative class action complaint. In the complaint, the plaintiff alleged Variety’s website installed tracking tools operated by third parties that collected and shared his IP address and other identifiers without his consent. The motion argues that the statutory provisions, which were primarily meant to protect dialing and signaling information from the telephone era, should not be applied to all modern-day internet communications.
Some clarity about CIPA may be on the horizon: In January 2026, the California Court of Appeal issued an Order to Show Cause as to why Variety’s requested relief should not be granted. Appellate review of this kind is exceedingly rare, and it is expected that further proceedings will squarely address whether CIPA § 638.51 extends to commonly used internet tracking technologies.
Carole Klinger and Eric Gordon
INTERNATIONAL
Argentina – Aligning trademark system with other Latin American countries
Under Argentina’s current system, owners seeking trademark protection must file national applications directly with Argentina’s National Institute of Industrial Property (“INPI”). But this may soon change. On February 5, 2026, Argentina entered into a trade agreement with the United States that, in part, commits Argentina to strengthening its IP protections by acceding to certain international intellectual property treaties.
Among other measures, Argentina must submit for ratification by the end of 2027 both the Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks and the Singapore Treaty on the Law of Trademarks to Congress.
This new legislation would bring Argentina more in line with its major Latin American neighbors that are party to the Madrid Protocol, in turn making Argentina’s trademark system more predictable and competitive.
Darra Frino
Africa – Updates to ARIPO trademark prosecution
Effective March 1, 2026, ARIPO enacted amendments to the Banjul Protocol on Marks. The reforms include:
- Shortening examination from nine months to six months;
- Updating electronic forms for online filing;
- Recognizing a six-month priority date for marks shown at international exhibitions;
- Increasing official fees for applications, designation of members covered, registration certificates, and renewals;
- Requiring advance fees for oppositions;
- Shortening the time for payment of registration fees from twelve to three months after the opposition period ends; and
- Providing a mechanism for withdrawal of an opposition if parties settle during the Alternative Dispute Resolution.
ARIPO has 22 member states. However, only Botswana, Malawi, Mozambique, Namibia, and Zimbabwe have amended national legislation to recognize ARIPO registrations. Even there, procedures can be unpredictable. Accordingly, national filings are still recommended.
Darra Frino
Saudi Arabia – Substantially modernizing copyright protections
The Copyright Law, published February 13, 2026, protects works by Saudi citizens or residents, works first published in Saudi Arabia, or works both first published abroad and in Saudi Arabia within 30 days of first publication. In addition to broad subject-matter protection, the law provides changes concerning moral rights, neighboring rights, work for hire, internet content provider liability, software licensing, and exceptions for AI development. It also strengthens enforcement mechanisms, including civil and criminal penalties. Generally, the term of protection is the author’s life plus 50 years, with specific provision for joint, anonymous, and collective works and works of applied art and financial rights of broadcasting organizations. Registration is optional, but it provides a rebuttable presumption of ownership. Foreign nationals are protected, assuming the home state provides reciprocal protection to Saudi nationals under international agreements and treaties.
Janet Hoffman
Time-sensitive Updates
Libya – Renewal payments over time eliminated
Previously, the Libyan Trademark Office had permitted payment of the fee with annual $2,000 payments. Accordingly, rights holders should review their current coverage in Libya now to make appropriate financial arrangements for any upcoming renewals.
Nepal – New deadline for mandatory submission of documents
All applications, renewals, or recordal applications filed before September 9, 2025, must be resubmitted, with complete supporting documentation, no later than May 29, 2026. Failing to meet this deadline with sufficient documentation may result in cancellation.