As fearsome as Godzilla has proven to be over the decades, the indomitable kaiju may have found its foil in Japanese copyright law.  A Tokyo court recently found several individuals guilty of violating Japanese law for publishing spoiler-heavy posts, including in relation to a recent Godzilla movie, on an entertainment review website.  The penalty for one of the individuals?  An 18-month jail sentence and a stiff monetary fine (equivalent to over $6,000 U.S.) according to press reports.

The case arose based upon complaints brought by a Japanese trade group, Content Overseas Distribution Association (CODA) on behalf of the owners of the IP rights to Godzilla and an anime series called Overlord, Toho Co., Ltd. and Kadokawa Corporation.  Police investigated and ultimately arrested the individuals behind the website and posts, including the apparent website owner Wataru Takeuchi.  Japanese prosecutors brought a criminal case, overseen by Tokyo District Court Judge Jun Shimato.  On April 16, 2026, Judge Shimato found that the descriptions of the scenes, plots, and elements of the entertainment being “reviewed” in the posts on the website in question went beyond mere “fair use” of the elements of the works. 

Copyright laws in most countries—including the United States—allow certain descriptions of films, TV shows, and other works, which might otherwise be considered infringing, if the author is writing a commentary on, or review of, the works.  In this case, however, Japanese prosecutors argued that the posts on the website in question contained so much detail that they crossed over from mere commentary to being an unauthorized adaptation.  For example, some of the posts in question contained long quotes of verbatim dialogue from Godzilla Minus One and Overlord, published along with numerous images from the works.  The prosecutors successfully argued that these posts were so detailed, and contained little to no commentary, such that the posts might discourage consumers from actually watching the movies or anime because they would already know substantial details about the works.  The prosecutors also alleged that the website made hundreds of thousands of dollars in ad revenue, driven by views of their posts, including posts about Godzilla and Overlord.

Although U.S. infringers won’t face this kind of jail time, the arguments raised in the Japanese case are not so different from those seen in many litigations over commentary versus adaptations in the U.S.  One example is a famous U.S. Court of Appeals decision from the early 1990s, Twin Peaks Productions v. Publications International (which you can read more about here).  In that case, the owners of the IP from the cult TV show Twin Peaks argued that an unauthorized book was so detailed that it would dissuade consumers from renting or buying episodes of the show.  The plaintiffs ultimately prevailed in that case, although the infringers only had to pay monetary damages, rather than spend time in jail.

The Japanese case provides a good reminder: think before you post those spoilers and consider whether you are crossing the line from commentary to adaptation.  Websites and social media pages that focus on detailed, spoiler-heavy film summaries may find themselves in the cross-hairs of companies that want to protect their IP. 

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Compagnons, Unsplash

1970: The Birth Of A Symbol

On April 22, 1970, the very first Earth Day was celebrated.  In its honor, the Container Corporation of America — then one of the nation’s largest producers of recycled paperboard — sponsored a design contest to symbolize recycling.  Gary Anderson, a 23-year-old architecture student at the University of Southern California, submitted the winning entry: an equilateral triangle formed by three curved, chasing arrows intended to represent the concept of a closed-loop recycling process.

With no one claiming exclusive rights to it, the symbol quickly became ubiquitous. Over the following decades, it appeared on an enormous range of products and packaging — from plastic bottles to cardboard cartons to items that were rarely, if ever, actually recycled. In the 1980s, the Society of the Plastics Industry introduced a related system of resin identification codes — the numbers 1 through 7 placed inside a triangle of arrows — to identify the type of plastic resin used in manufacturing. Although these codes were designed for identification purposes only, many consumers understandably interpreted them as confirmation that a product was recyclable.

By the 2020s, a growing consensus had emerged — among environmentalists, industry groups, and regulators alike — that the gap between what the chasing arrows symbol implied and what actually happened to products at end of life had become significant. California’s legislature responded with Senate Bill 343.

What Is SB 343?

California Senate Bill 343, due to go into effect on October 4, 2026, establishes new standards governing when and how recyclability claims may be made on products and packaging sold in the state. The law declares that recyclability claims should be truthful and accurate, and that consumers should receive useful information about how to properly handle products at end of life.

The law also addresses broader environmental marketing claims, imposing documentation requirements on a range of “green” advertising terms.

Below is an overview of the law’s key provisions.  Future posts will discuss the status of the case seeking to enjoin enforcement of SB 343, the interaction between SB 343 and other California recycling statutes, the interaction between SB 343 and other State’s recycling laws, and other issues as the effective date of SB 343 draws near.

Who Is Impacted By SB 343?

The law prohibits “a person from offering for sale, selling, distributing, or importing into the state any product or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made.”  Although its reach is very broad, it does exclude any “wholesaler or retailer who does not initiate a representation by advertising or by placing the representation on a package.”

When Does SB 343 Become Effective.

October 4, 2026.  However, on March 17, 2026, a coalition of 18 trade associations representing food producers, packaging manufacturers, grocers, and other industries filed a complaint in the U.S. District Court for the Southern District of California challenging the constitutionality of SB 343. The plaintiffs argue that SB 343 violates the First Amendment and is unconstitutionally vague under the Fourteenth Amendment’s Due Process Clause, and enforcement should therefore be enjoined.  As of this writing, the case is still in the very early stages, so it remains to be seen how it will play out.

What Does SB 343 Do?

1. It Regulates Broad Environmental Marketing Claims

SB 343 goes beyond recycling symbols. The law imposes documentation requirements on any person who represents — in advertising or on product labels — that a consumer good is “not harmful to, or is beneficial to, the natural environment.” This includes terms such as:

  • “Environmental choice,” “Ecologically friendly,” “Earth friendly”
  • “Environmentally friendly,” “Ecologically sound,” “Environmentally sound”
  • “Environmentally safe,” “Ecologically safe,” “Environmentally lite”
  • “Green product,” or any other like term

Any person making such claims must maintain written records documenting: the basis for believing the claim to be true; any significant adverse environmental impacts associated with the product; measures taken to reduce those impacts; any permit violations associated with production or distribution; and whether the product conforms with FTC Guidelines for Environmental Marketing Claims.

2. It Sets New Rules for Recyclability Claims

The law makes it unlawful to offer for sale, sell, distribute, or import into California any product or packaging bearing a deceptive or misleading recyclability claim.  Under SB 343, a product displaying a chasing arrows symbol, a resin identification code inside a chasing arrows symbol, or any other symbol or statement indicating recyclability is deemed to be a deceptive or misleading claim unless the product satisfies specific statewide recyclability criteria.

3. It Establishes Specific Recyclability Criteria

To qualify for a recyclability claim, a product or packaging must meet four benchmarks:

  • Collection Threshold: Collected for recycling by programs serving jurisdictions encompassing at least 60% of California’s population.
  • Sorting and Processing: Sorted into defined streams by large-volume facilities serving at least 60% of statewide recycling programs, with those streams sent to reclaiming facilities consistent with the Basel Convention.
  • Design for Recyclability: Designed without components, inks, adhesives, or labels that prevent recyclability, as assessed under the APR Design® Guide (for plastics) or analogous standards (for non-plastics).
  • No Harmful Chemicals: Free of intentionally added PFAS chemicals or PFAS at or above 100 parts per million as measured in total organic fluorine.

4. Material Characterization Study

SB 343 required California’s Department of Resources Recycling and Recovery (CalRecycle), to study which types and forms of material are commonly sorted and reused to make new products and packaging.  CalRecycle published the results in its SB 343 Final Findings Report on April 4, 2025, triggering the effective date of SB 343 for 18 months later, namely October 4, 2026.  The Report provides guidance to companies impacted by SB 343 regarding what goods are, and are not, considered recyclable.  The report is intended to be updated at least every five years.

5. It Restricts Resin Identification Codes

The law prohibits resin identification codes from being placed inside a chasing arrows symbol unless the product meets the statewide recyclability criteria. A resin code placed inside a solid equilateral triangle — rather than a chasing arrows triangle — is not subject to this restriction.

6. It Imposes Recordkeeping and Transparency Requirements

Any person who uses the term “recyclable,” displays a chasing arrows symbol, or otherwise directs a consumer to recycle must maintain documentation demonstrating compliance with the recyclability criteria. This documentation must be made available to any member of the public upon request.

7.  It Creates Penalties for Non-compliance And Opens The Door To Class Action Liability

Violations constitute a misdemeanor under California law. Compliance with the FTC Guidelines is generally a defense, but this safe harbor does not apply to claims involving recyclability symbols or resin codes regulated under SB 343.  More importantly, as any company that does business in California knows, California’s False Advertising Law and the California Consumer Legal Remedies Act (CLRA) both prohibit misleading and deceptive advertising, with the latter providing a private right of action that allows consumers to file class actions.

Conclusion

From its origins as a student design contest entry in 1970, the chasing arrows symbol has become central to how consumers understand — and sometimes misunderstand — recycling. SB 343 represents an effort to close the gap between recyclability claims and recycling realities. At the same time, the pending legal challenge raises substantial questions about the law’s constitutional boundaries. Businesses operating in California should stay informed and consult with legal counsel to understand how these developments may affect their products and marketing practices.

This blog post is for informational purposes only and does not constitute legal advice. Please consult with legal counsel regarding your specific compliance obligations under California Senate Bill 343.

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JC Gellidon, Unsplash

Brackets are set. Bets are placed. As the biggest college basketball game of the year tips off this weekend, fans across the country will be wagering on the outcome of the FINAL FOUR® after the NCAA lost an initial bid to block DraftKings from using its trademarks in connection with the famed MARCH MADNESS® tournament. But the NCAA seems poised to continue the fight against unauthorized references to its marks on digital gambling platforms, calling into question how courts should apply nominative fair use principles in modern, interactive commercial settings.

Those who are familiar with the NCAA’s aggressive enforcement history know the organization’s stance is not accidental. The annual basketball tournament is the NCAA’s primary revenue engine, with media and licensing revenues tied closely to exclusivity and sponsorship integrity. Failure to police unauthorized uses of these marks by third parties risks not only dilution, but also naked‑licensing arguments that could weaken the strength of those valuable assets. Therefore, it is not unusual to seek a spike in cease-and-desist letters every March involving marks such as MARCH MADNESS®, FINAL FOUR®, SWEET SIXTEEN®, and ELITE EIGHT®.

However, the NCAA’s recent lawsuit against DraftKings in the Southern District of Indiana centers around more than a typical, generic advertising slogan such as “March Madness Sale” or “Final Four Giveaway,” communicated through traditional media channels. The NCAA alleges that DraftKings has used its tournament marks throughout DraftKing’s digital sportsbook platform, betting menus, and promotional materials to market wagering on tournament games. According to the complaint, integration of the marks into the platform in this manner falsely suggests affiliation, sponsorship, or endorsement by the NCAA, which has publicly rejected ties to sports gambling and declined sportsbook sponsorships.

The court denied the NCAA’s motion for a temporary restraining order against DraftKings, finding that although the NCAA was perhaps likely to prevail on the merits of its trademark infringement, false association and unfair competition, and trademark dilution claims, it had not demonstrated irreparable harm sufficient to block DraftKings on an emergency basis.

DraftKings, for its part, pointed out that it has used the marks for several years without issue. It asserts that the terms “March Madness” and “Final Four” are “universally recognized” names for the tournaments, and are necessary to accurate describe betting markets tied to real-world events. This defense, based on the well-established nominative fair use doctrine, highlights a growing issue: as betting, prediction markets, and live‑data products continue to evolve, where does identification end, and infringement begin?

The problem for DraftKings is how the marks are actually being used in practice.

Modern trademark disputes increasingly turn on presentation and context, not just wording. According to the NCAA’s filings, the challenged uses appeared repeatedly and prominently within DraftKings’ interface, sometimes stylized, and embedded directly within revenue‑generating betting menus and promotions, infiltrating user navigation flows.

That matters. Courts analyzing nominative fair use often focus on whether the defendant’s use functions as a designation of source rather than mere identification. When a mark becomes part of a structured menu or branded user experience—especially in commerce adjacent to sponsorship—it begins to look less like neutral identification and more like use of a trademark as a source identifier. Betting apps integrate event names directly into menus and user flows, creating persistent brand adjacency that did not exist in print ads or “odds tables” of the past.

The NCAA’s trademarks are one of its few leverage points to disassociate itself from the commodification of gambling on its games, especially with respect to potential tarnishment. Therefore, it is likely that the organization views trademark policing as existential at this point. Otherwise, the floodgates on uncontrolled associations will open, and the NCAA will lose control over its ability to shape public perception of its brand.

Unlike merely slapping an NCAA logo on a billboard, DraftKings and similar platforms present more of a danger to the underlying brand association. The marks are beginning to appear within the architecture of a product itself, organizing how users experience the service, and sitting adjacent to calls-to-action that generate profit. In other words, this use of the marks crosses the line from informational to operational, and arguably becomes unlicensed brand deployment.

The DraftKings litigation will become an important test case in the application of nominative fair use in an increasingly interactive digital world, and will likely shed light on how these issues will play out in the context of online marketplaces, social media platforms, AI-driven interfaces, recommendation engines, and prediction markets in general. Where trademark use is experiential—not just textual—how will the fair use doctrine evolve?

For IP practitioners, this grudge match is well worth watching beyond March.

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Milad Fakurian, Unsplash

Seyfarth’s 2026 Commercial Litigation Outlook reinforces a key reality for IP practitioners: artificial intelligence is not just driving innovation—it is fundamentally reshaping how intellectual property is created, protected, and challenged. This year, Seyfarth’s Intellectual Property team contributed insights focused on the growing risks to trade secrets, ownership rights, and proprietary information in an AI-driven environment.

One of the most pressing issues identified in the Outlook is the rapid adoption of AI-enabled tools in everyday business operations. Technologies like automated notetaking and meeting summarization are generating new forms of data that may capture highly sensitive or proprietary information. For companies relying on trade secret protection, this creates heightened risk of inadvertent disclosure, loss of confidentiality, and disputes over the accuracy and ownership of AI-generated content.

From an IP perspective, these developments raise critical questions: Who owns AI-generated outputs? How can companies preserve trade secret protection when information is passively recorded and widely distributed? And how should organizations structure governance to ensure that key innovations remain protected?

The Outlook makes clear that strong information governance is now central to IP strategy. Companies that implement clear policies around recording, restrict access to AI-generated materials, and define authoritative records will be better positioned to protect their innovations and defend against litigation.

These issues sit at the intersection of intellectual property, commercial litigation, and eDiscovery—making a cross-disciplinary approach essential. To explore these challenges in greater depth, Seyfarth’s IP, litigation, and eDiscovery teams will come together for the first session of the 2026 Commercial Litigation Outlook Webinar Series:

Securing Innovation and Competitive Edge in the AI Era
Tuesday, March 24, 2026

This session will provide:

  • IP-focused insights on AI inventorship, patent eligibility, and copyright challenges
  • Practical strategies for protecting trade secrets in an AI-enabled environment
  • Perspectives from litigation and eDiscovery practitioners on emerging evidentiary risks
  • Cross-functional guidance on managing legal exposure tied to AI tools and technologies

Download the 2026 Commercial Litigation Outlook and register for the webinar to learn how to align your IP strategy with today’s rapidly evolving risk landscape.

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Kasem Sleem, Unsplash

A Boston-based jewelry company, with a storefront steps away from Seyfarth’s Boston offices, is at the center of a trademark dispute that is all too familiar. In Lagos, Inc. v. Coastal Caviar, LLC, Case No. 2:26‑cv‑00447 (E.D. Pa) an up-and-coming brand made popular by social media meets a Goliath-like competitor that wants to shut down the newcomer. At first blush, this may seem cut and dry because the marks at issue, CAVIAR (a mark used by Lagos) and COASTAL CAVIAR (a mark used by, you guessed it – Coastal Caviar) share an identical term, and the goods offered under each are jewelry. But this case may not be like shooting fish(roe) in a barrel. CAVIAR evokes a certain type of jewelry and may be entitled to a limited scope of protection. The parties’ goods may also be distinguishable. This could open the door for potential coexistence. 

Lagos has been selling its signature CAVIAR brand jewelry since 1989, and it secured a federal registration for its mark in 1992. The company’s textured, beaded designs became somewhat iconic, appearing everywhere from department stores to red carpets. Lagos reports more than $250 million in CAVIAR jewelry sales and over $40 million in advertising investment supporting the brand. The CAVIAR brand appears to be central to the company’s identity.      

Coastal Caviar by contrast, launched more recently, selling handcrafted charm necklaces and bracelets online. In December 2023, it began selling those goods under its COASTAL CAVIAR mark, which Lagos says is confusingly similar to its own. And critically, Coastal Caviar uses its mark on products in the same channels of trade: jewelry.

Coastal Caviar filed a trademark application for its mark in late 2024. This prompted Lagos to file with the United States Patent and Trademark Office (USPTO) a Letter of Protest, i.e., a letter providing evidence to support a potential refusal. The USPTO issued a refusal to register COASTAL CAVIAR based on Lagos’s prior CAVIAR registration. Coastal Caviar ultimately abandoned the application but continued using its mark online and at a brick-and-mortar shop in Boston’s Seaport neighborhood. The company is slated to open a second location next month. 

Lagos has spent decades building the reputation of its CAVIAR jewelry line, supported by its federal registration and extensive nationwide sales and advertising. But before assuming that Coastal Caviar should rebrand, it’s worth considering the merits of the case and whether the marks may peacefully coexist in the market, particularly because CAVIAR may not be provided a broad scope of protection for jewelry.

Lagos’s CAVIAR mark is long‑used, and its registration is incontestable, i.e., it cannot be challenged on certain grounds, including mere descriptiveness. But Lagos acknowledges that the term caviar refers to the look of its beaded jewelry designs. The company describes its signature jewelry style as “fish‑roe‑like beading,” meaning caviar arguably has a suggestive or even descriptive quality for this aesthetic. Conversely, Coastal Caviar appears to have adopted its mark as a reference to a love of the ocean. Separately, the word caviar may mean something to be considered the best of its kind. Accordingly, caviar evokes a high-quality product and may be considered laudatory. Such terms are generally considered weak when it comes to trademarks.      

If a term describes, hints at, or touts a product or its features, it may be entitled to a narrower scope of protection than those that do not. That doesn’t eliminate Lagos’ rights, but it may open space for coexistence, especially where brands can differentiate themselves.

Lagos also alleges that the goods are targeted to identical consumers. But the price points may suggest otherwise as many of Lagos’s CAVIAR goods cost thousands of dollars while COASTAL CAVIAR goods appear to predominantly cost hundreds of dollars or less. The difference in price may attract distinct consumers. Also, the high cost of some of Lagos’s goods may cause consumers to take more care when making purchasing decisions. These factors may weigh against a likelihood of confusion. 

In its lawsuit Lagos seeks broad injunctive relief, profits, and other remedies. But enforcing a potentially suggestive mark against a younger brand using a CAVIAR mark in a different conceptual way (ocean‑inspired vs. bead‑texture‑inspired) creates litigation uncertainty. This may leave room for carefully structured coexistence—one that limits confusion while allowing the marks to coexist and both brands to thrive.

Trademark coexistence agreements often succeed when brands craft mutually protective guardrails. This may include restrictions on how the mark COASTAL CAVIAR may appear, where Coastal Caviar may offer its goods, the price points of Coastal Caviar’s goods, and limitations regarding specific types of jewelry marketed under the COASTAL CAVIAR mark.  If an ongoing coexistence agreement proves unreachable, Coastal Caviar could seek to negotiate a temporary coexistence period to shift toward a new long‑term mark without abrupt disruption.

This case illustrates a lesson for emerging companies: even where another brand’s mark appears dominant, the path forward may not always be binary (rebrand or fight). Sometimes, the smartest move is to meet in the middle. If a coexistence agreement can be reached here, maybe the parties can share champagne and caviar.

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Mana Akbarzadegan, Unsplash

Patent attorneys spend a lot of time explaining two deceptively simple concepts: novelty and obviousness. Both rise and fall on one thing: prior art. Most inventors assume prior art means a patent or some obscure technical paper written by someone surviving on cold brew and conference coffee.

That assumption is wrong.

Prior art is anything made available to the public before you file your patent application. Not just patents. Not just academic papers. We are talking about movies, television shows, YouTube videos, blog posts, product demos, and comic books.

…and occasionally, Borat.

There is an actual patent application that tried to claim what can best be described as a sling-style male garment (U.S. Patent Application No. 12/071,878 – Publication: US20090216171). The application described the invention using the kind of terminology patent lawyers love: structural support members, anchoring points, tension distribution, and other language designed to make a piece of fabric sound like a suspension bridge.

The examiner read the application and had a moment of déjà vu.

Why? Because millions of people had already seen essentially the same garment in the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. The examiner cited a screenshot from the movie as prior art.

Imagine opening your Office Action and discovering the rejection includes Borat standing on a beach wearing the claimed invention. That is not the moment you want to begin explaining obviousness doctrine to your client.

As Borat might say: “Great success… for the examiner.”

And Borat is not the only comedian who has ruined someone’s patent dreams.

In another well-known example, a 1949 Donald Duck comic showed characters raising a sunken ship by filling the hull with ping-pong balls to displace water. Years later, a Dutch engineer filed a patent application describing a buoyancy-based salvage method using spherical displacement elements (Dutch application NL 6514306).The application was technically correct and elegantly written. 

Unfortunately, one famous duck had already solved the problem decades earlier.

The examiner essentially responded: “Quack.”

Result: rejection.

Once prior art appears, the next phase of the conversation with an inventor tends to follow a very predictable script: “But mine is different.”

The explanations usually follow familiar themes. The material is different. The shape is slightly different. A buckle has been added. Maybe the color changed. Sometimes the pitch is delivered with great confidence, as if the Patent Office has never encountered a buckle before.

Patent law is generally unimpressed.

If the core idea is already public, the analysis shifts from novelty to obviousness. At that point, the question becomes whether the differences would have been obvious to someone skilled in the field. Minor tweaks rarely save the day. Adding buckles to Borat’s swimsuit does not suddenly transform it into a breakthrough in garment engineering.

Another misconception is that patent examiners only search patent databases. That may have been closer to reality twenty years ago. Today, examiners search patents, academic publications, archived websites, product documentation, videos, historical media, and just about anything else that has ever been made publicly available.

Now we are entering the era of AI-assisted search tools capable of analyzing enormous bodies of information. Soon enough, examiners may have tools powerful enough to comb through the entire internet in seconds. In Borat terms, “Very nice.”

Before filing a patent application, the question should not simply be: “Has anyone patented this?”

The better question is: “Has anyone shown this to the public anywhere?”

Because once an idea becomes public, even in a movie scene or a comic panel, it can become prior art. The good news is that with the rise of AI-assisted search tools, prior art searching has become much easier. At a minimum, it is worth running a quick search before investing too much time in your next bathing suit breakthrough. Otherwise, you may find yourself opening an Office Action that cites a screenshot of Borat standing on a beach, at which point your legal arguments may feel like you just showed up to the beach without a towel.

At that point, the best response may simply be,“Wa wa wee wa.”

Then start brainstorming the next invention.

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Luke Jones, Unsplash

The U.S. Supreme Court has declined to hear Dr. Stephen Thaler’s appeal seeking copyright protection for his AI‑generated artwork A Recent Entrance to Paradise. The decision allows to stand the long series of administrative and judicial rulings holding that a work created autonomously by an AI system cannot be protected by copyright under U.S. law because it lacks a human author. The denial of certiorari was unsurprising, but the implications and ongoing issues remain significant.

1.  The Thaler Case: A Narrow Question

Dr. Thaler has been attempting for many years to secure copyright registration for a work that he described as having been autonomously generated by his AI system (sometimes called DABUS or the “Creativity Machine”). He initially argued that because he owned and created the system, the resulting work should be considered a work‑made‑for‑hire under copyright, owned by him although created solely by the system. That argument faltered early, though, and when he later attempted to shift to a different theory — namely, that his guidance and control were sufficient to constitute human authorship — the lower court found the argument waived because it had not been raised earlier.

Accordingly, the question before the courts in the Thaler cases has been relatively narrow: Can an AI system acting autonomously be an “author” for purposes of U.S. copyright law?  Both lower courts held “no,” reaffirming human authorship as a bedrock requirement. The Supreme Court then refused to take the case. The U.S. Copyright Office had long maintained the same position, consistently rejecting applications listing non‑humans as authors. Those decisions have now effectively been endorsed by the judiciary. 

2.  Why the Denial Was Expected

While Dr. Thaler attracted at least one amicus brief supporting his petition, there does not appear to be significant doctrinal or policy momentum at this time, either within U.S. law or internationally, for treating a truly autonomous AI system as an author. The Copyright Act contains multiple provisions that presuppose a human creator, and courts have repeatedly reinforced that assumption. As the D.C. Circuit emphasized, copyright is a form of property tied to human lifespan, transferability, and creative labor, frameworks that are poorly suited to autonomous machines. 

Thus, the Supreme Court’s refusal to take the case, though noteworthy, does not necessarily signal broader hostility to AI creativity.  It simply leaves intact the long‑standing principle that AI acting alone cannot be an author.

3.  The Open Question: What Counts as “Human Authorship” when Using AI?

The unresolved frontier, of course, is not autonomously-acting AI, but human‑directed AI.

The Copyright Office currently takes the categorical position that providing even extensive prompts to a generative system does not supply the “traditional elements of authorship.” Under this view, any image or output generated by systems like Midjourney, Stable Diffusion, or DALL·E is uncopyrightable unless the human user contributes sufficient creative expression before or after generation (e.g., uploading an initial image beforehand or editing or modifying outputs), and then only to the extent of the human contribution, as demonstrated by the now-well-known Zarya of the Dawn, Rose Enigma and A Single Piece of American Cheese examples. 

4. The Jason Allen Case: 624 Prompts and Still No Human Authorship

Colorado artist Jason Allen, whose work Théâtre d’Opéra Spatial won a state art competition, apparently employed 624 Midjourney prompts and extensive iterative refinement to achieve his final image. Yet the Copyright Office rejected his application, finding that the AI, rather than Allen, executed the “traditional elements of authorship.”

Allen is now litigating that denial, arguing that prompt‑based creation is analogous to earlier technologies like photography, where artists make creative choices even though a machine captures the image. His case may ultimately reach the Supreme Court and could become an important test of what level and types of human involvement and contribution—conceptually, technically, aesthetically, phenomenologically, and otherwise—are sufficient to constitute human authorship in the context of generative AI.

5.  International Divergence: China’s More Flexible Approach

Not all jurisdictions share the U.S.’s strict view.

In Li v. Liu (2023), the Beijing Internet Court held that a Stable Diffusion‑generated image was copyrightable because the plaintiff’s creative contributions — prompting, parameter adjustments, and selection — constituted sufficient intellectual input.  The court recognized the work as “original” and reflecting the plaintiff’s “intellectual investment.”

However, China’s approach is not uniformly permissive.  In the later Zhou v. Defendant 1 case (2025), the same court refused protection for a Midjourney‑generated image because the plaintiff failed to provide evidence of his creative process, such as specific prompt engineering or iterative adjustments; “after-the-fact simulations” of the creative process were insufficient to prove originality and user effort.  The court held that the burden lies on the claimant to prove substantial human contribution, and failure to do so resulted in no recognition of copyright in that case. 

These cases suggest a more case-by-case, evidence-driven approach in China, in contrast to the categorical rule applied thus far in U.S. cases.  Which approach is more effective at “promoting progress” in the arts and creative industries remains uncertain. 

6.  What Comes Next?

The Thaler cert denial closes the chapter on autonomous‑AI authorship, but the underlying and related questions involving human-AI creativity will likely continue to be carefully considered, and litigated.  The Allen case — and others likely to follow — will force courts to confront the core question the Thaler case sidestepped:

When a human uses an AI tool, what level of control, judgment, and creative input is sufficient for human authorship?

Until that question is resolved, creators, technologists, and rights‑holders will continue to operate in a gray zone.  But one thing is certain: as AI becomes more deeply embedded in creative workflows across all industries, the definition of “authorship,” and questions around the protectability of AI-assisted works, will remain at the forefront.

Pinned locations on map of globe.
Andrew Stutesman, Unsplash

Artificial intelligence may be global, but patent eligibility remains stubbornly local. A recent decision out of the Supreme Court of the United Kingdom seems to have nudged UK practice for computer-implemented inventions closer to the approach historically taken by the European Patent Office. The decision lowers the threshold for exclusion from patentability, reducing the likelihood that applications for these types of inventions will be automatically rejected on their face. However, this approach still differs from U.S. practice, representing a continental divide that needs to be taken into account when seeking patent protection for AI-related inventions on a global basis. AI prosecution should not occur in cross-border silos.

In Emotional Perception AI Ltd v Comptroller-General of Patents, Designs and Trade Marks, the UK Intellectual Property Office rejected a patent application seeking protection for an artificial neural network trained to align physical properties of media files with human-perceived emotional responses in order to improve AI-driven recommendation engines. The UKIPO held that “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers” are simply not regarded as patentable inventions. The case progressed through the England and Wales High Court of Justice and the Court of Appeal (England and Wales) before the Supreme Court issued its decision on February 11, creating a new standard for patent eligibility in the UK based on EPO standards.

For years prior to this decision, applicants in the UK have faced a familiar frustration. If an invention even smelled like software, it risked being categorized as a “computer program as such” and excluded from patentability before novelty or inventive step received serious attention. In Emotional Perception, the court rejected the idea that an artificial neural network should be treated as a computer program for exclusion purposes merely because it is implemented in software on a standard computer. Put differently, the court was willing to look past the label and into the mechanics, which is a welcome development for applicants and a mild inconvenience for anyone hoping eligibility could be resolved by vibes.

This shift reduces some of the historical daylight between the UK and the EPO, where the standard analysis for patentability of a computer-implemented invention hinges on whether the claimed subject matter produces a “further technical effect.” For AI in particular, EPO practice often turns on whether the claim is credibly tied to a technical purpose and technical effects, such as improved image processing, reduced latency, improved signal quality, or control of a technical process. That does not mean “AI” equals “technical.” It means the EPO is interested in the technical problem, the technical means, and the technical result, in roughly that order.

The practical message is that, in the UK, the question “it is software” is now less of a trapdoor and more of a cue to ask: “Fine, but what is the technical contribution?” Novelty, inventive step, and sufficiency remain fully intact, and they remain perfectly capable of doing the heavy lifting where eligibility is no longer a bar. Clearing an excluded-subject-matter objection is only the first lap. The UK may be letting more AI claims into the stadium, but it still expects them to run the race.

Across the Atlantic, the landscape remains different. In the United States, eligibility continues to be shaped by Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014). Courts ask whether a claim is directed to an abstract idea and, if so, whether it contains an inventive concept sufficient to transform the claim into patent-eligible subject matter. Simply saying an AI model runs on hardware is rarely enough. U.S. practice often demands a concrete improvement to computer functionality itself, meaning an improvement in how the system operates, not merely what it computes. If the UK is currently asking, “is this excluded,” the U.S. is still asking, “is this abstract,” which is the same question, just with a different accent.

This divergence matters because Applicants do not innovate AI for one jurisdiction. They file globally. A claim strategy that is comfortable in the UK may still face turbulence in the United States, while a U.S.-focused “technical improvement” narrative may not map cleanly onto the EPO’s technical-effect framing. The era of drafting one master claim set and translating it into local dialects is fading. Modern AI patent strategy looks more like systems architecture than document localization.

For practitioners, the lesson is both strategic and structural: Draft specifications in more detail for global flexibility. A robust AI patent application should, where supportable, describe:

  1. Technical problem and context (not just a use case)
  2. Model architecture and training pipeline (including data preparation and constraints)
  3. How the model is deployed in a system (compute, memory, bandwidth, latency)
  4. Data structures and data flow (what moves where, and why that matters technically)
  5. Performance characteristics (metrics, tradeoffs, and operational bounds)
  6. Concrete technical effects tied to the above

Thin disclosure leaves counsel with one story and one jurisdiction’s vocabulary. Detailed disclosure preserves options and reduces the temptation to “discover” the invention during prosecution, which tends to be less persuasive the second time it is attempted.

There is also a recurring drafting theme. Separate the mathematics from the machine, then put them back together in the specification with enough detail that the reader can see the stitching. Courts and examiners are increasingly skeptical of purely functional AI claims that focus on results rather than implementation. Anchoring an algorithm to specific computing resources, defined data flows, and measurable performance characteristics strengthens technical character in essentially every venue. Concrete detail is not a drafting luxury. It is increasingly an eligibility strategy.

It is also key for practitioners to remember that positions taken in one jurisdiction can improve strategy in another. If a U.S. examiner forces a computer-functionality improvement narrative, that framing can strengthen European prosecution. If European examination pushes limitations emphasizing technical purpose or hardware interaction, those limitations can help reduce U.S. abstract-idea risk. Global coordination is no longer a best practice. It is basic hygiene.

The broader story is familiar, given the jurisdictional divide in intellectual property law. AI is stress-testing patent doctrine worldwide, and legal systems are responding unevenly. The UK has moved toward a more pragmatic recognition that neural networks and software live in physical systems and deserve serious technical analysis. Europe continues to apply its structured technical-effect inquiry. The United States continues to litigate the outer bounds of abstraction. Harmonization remains aspirational.

In practical terms, AI innovators should assume divergence, not convergence. The UK’s posture may make it a more comfortable venue for certain computer-implemented claims, particularly where the technical contribution is clearly articulated. U.S. filings may still require sharper emphasis on improvements to computing technology itself. Drafting becomes an exercise in anticipating doctrinal weather patterns, not simply describing the invention on a calm day.

AI may operate on borderless networks, but patent law remains deeply territorial. The UK has refreshed parts of its interface. Europe has been running a structured build for years. The United States continues to issue patches for Section 101. Success will depend less on choosing one approach than on drafting so the same invention can survive in all of them.

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On February 20, 2026, Gadgets, Gigabytes and Goodwill Blog co-editor Owen Wolfe spoke at the Fordham School of Law as part of the Fordham Intellectual Property, Media & Entertainment Law Journal Symposium, The Meaning of Ownership: Rethinking Intellectual Property, Creativity, and Control in the Age of Innovation. Owen discussed how courts have so far applied the “fair use” doctrine to cases involving generative AI, distinguishing between use of copyrighted materials in gen AI training and gen AI outputs that are alleged to be substantially similar to the original works. He noted that the decisions to date have been mixed, with some courts finding that certain uses of copyrighted works for AI training are fair use, and other courts expressing skepticism about whether that is the correct result. Owen also surveyed arguments both for and against a finding of fair use, giving the audience food for thought about what courts might decide in the future and whether we might see an amendment to the Copyright Act down the road.

Owen’s talk followed one by Dr. Douglas Lind, a professor at Virginia Tech, who surveyed the history of copyright law in the United States. He focused on the law’s treatment of phonograph records and sound recordings when those new technologies first emerged. Dr. Lind noted that copyright law evolved, and the Copyright Act was eventually amended, to address those new technologies. Dr. Lind raised the question of whether the Copyright Act should be amended again to address gen AI.

Owen and Dr. Lind then sat for a panel discussion and questions from the audience.  Audience questions focused on potential confusion between original works and AI-generated works, and the steps that creators might be able to take to protect their name, image, and likeness beyond copyright law. The discussion confirmed that AI continues to be a hot topic, resulting in thoughtful discussion from multiple different angles and perspectives.

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Seyfarth is proud to share that John Carl “JC” Zwisler has been named a Top Author in Trademarks in the 2026 JD Supra Readers’ Choice Awards, recognizing his exceptional thought leadership and strong reader engagement throughout 2025.

JC’s insights on trademark strategy, brand protection, and emerging developments in intellectual property law resonated with readers nationwide. His recognition reflects both the depth of his experience and his commitment to delivering practical, timely analysis for clients and industry professionals.

In addition to this individual honor, Seyfarth was recognized for one of the Top Read Articles of 2025 in the Education category. Authored by partners Alison Silveira and Lilah Wylde, “Federal Court Pumps the Brakes on House v. NCAA Settlement: What Comes Next for Roster Limits and College Athlete Pay?” examines the federal court’s decision to pause approval of the House settlement and explores the broader questions universities must address as litigation and regulatory expectations continue to evolve.

Two other Seyfarth attorneys were also recognized in the 2026 JD Supra Readers’ Choice Awards for their outstanding contributions:

The JD Supra Readers’ Choice Awards honor leading authors and firms whose thought leadership achieved the highest levels of reader engagement across the platform. Based on 2025 readership data spanning 33 key topics, the awards recognize standout contributors among more than 70,000 authors nationwide.