Aaron J. Moss

A year ago, the hot issue Aaron J. Moss’s clients were interested in was NFTs. These days, it’s artificial intelligence.

Clients regularly ask him “how to use AI art in various projects … in a responsible way that’s not going to lead to them being sued for copyright infringement,” he said. “But there’s a lot to navigate in terms of some of the risks just because it’s pretty uncharted territory.”

Moss writes a biweekly blog on copyright issues, so he keeps a close eye on that territory. He has seen some lawsuits challenging the use of copyrighted images to train AI models. But he hasn’t yet seen any dealing with whether someone who simply uses AI to produce works can be liable for the output the AI-generated.

So far, he is telling clients that they “absolutely want to be very careful that your output is not substantially similar to preexisting works.” Going further, he advises them “to use AI as a starting point and not an ending point for creation.”

“If you add your own creative expression to the [final] work … there’s a much better chance you’re going to be able to obtain protection,” he said.

He is advising a film and television production company about AI. He also is helping it explore copyright questions regarding possible remakes of older works. Conducting chain-of-title and rights analyses requires reviewing many old contracts. “It also tends to be a lot of on-the-ground investigation and going through … old probate files in Switzerland from the seventies”

One of Moss’s well-known clients is Riot Games. He represented the video game publisher in a now-resolved MDL against someone who produced a game that was “almost a clone” of Riot’s “Valorant.” He said he frequently must go after others who try to sell merchandise — even NFTs — using Riot trademarks and other IP.

And he continues to represent the popular sports media company Barstool Sports in several pieces of litigation, including a defamation action against the company by actor and comedian Michael Rapaport. “That’s still going on, incredibly,” Moss said.

Last month, he filed a brief in the Second Circuit responding to Rapaport’s appeal of a summary judgment loss. Rapaport v. Barstool Sports Inc., 1:18-cv-08783 (S.D. N.Y., filed Sept. 25, 2018).

Rapaport’s lawsuit claims he was injured because Barstool accused him of having herpes and being a racist. Moss argues that the comments were “just trash talking between two sides [whose] … stock in trade is trash talking.”

Still, it could become a very important defamation case, Moss said. “This is really about whether these trash-talking feuds that tend to erupt on Twitter and other social media platforms … are protected as opinion as opposed to being false statements of fact, which can give rise to a libel claim.”

— Don DeBenedictis