WYWH: “Art Lawyering Bootcamp: Copyright Law”

March 6, 2026

 

By Alexandra Kharchenko

On February 4, 2026, the Center for Art Law hosted an in-person, full-day Art Lawyering Bootcamp focused on copyright law. The bootcamp was led by experienced art law attorneys specializing in copyright law, and provided participants—including attorneys, artists, and law students—with foundational legal knowledge relevant to advising visual artist clients. Through a combination of instructional presentations and mock consultations, participants gained a solid grounding in copyright law and its specificities as applied to the visual arts, including the fair use doctrine and the use of generative artificial intelligence tools.

The bootcamp featured five panels, led by different attorneys on various copyright topics, followed by mock consultations with artists.

Panel 1: Copyright Fundamentals by Louise Carron

The first panel was led by Louise Carron, who is counsel at Penguin Random House, where she focuses on film and television matters, conducts prepublication vetting, and advises editorial and licensing teams on contracts, copyright, fair use, and First Amendment issues.

Louise Carron introduced the fundamentals of copyright law, including the scope of protection, the rights associated with copyright, registration issues, authorship, derivative works, license agreements, and creative works, illustrated through landmark decisions.

The presentation prompted discussion on different topics. The first questions, from artists and foundation’s perspective, were about the practical necessity for registration, especially in order to get damages in case of infringement. While copyright protection exists from the moment of creation, statutory damages are only available if the work has been properly registered. If not, the claimant must prove actual damages, such as lost licensing opportunities or royalties, and provide a concrete financial basis. Therefore, registration is not required for protection, but it is recommended in case of infringement. From a foundation’s perspective, if an artist has passed away and willed the works to a foundation, the foundation already owns the artworks but may still register them to secure these to prevent future potential legal claims.

One of the most interesting case studies discussed was Rogers v. Koons 960 F.2d 301 (2d Cir. 1992). In this foundational case, Jeff Koons created a sculpture based on a photograph. The court found infringement of several rights, including reproduction and the preparation of derivative works. Koons raised a fair use defense, which failed. This case raised questions from participants about derivative works and how the Copyright Office evaluates registration applications when a work is based on a preexisting work.

Panel 2: Infringement and Fair Use by Barry Werbin

The second panel about infringement and fair use was presented by Barry Werbin, who is counsel at Herrick, Feinstein LLP and a member of its Intellectual Property and Technology Group.

Barry Werbin discussed the elements of an infringement claim (access to copyright protected work and substantial similarity of protectable elements), defenses to infringement, and the challenges associated with the fair use defense in infringement cases. Today, it is the most controversial and discussed aspect of copyright law, without having a definitive finality of case law yet.

Rogers v Koons, 960 F.2d 301 (2d Cir.1992) was also mentioned in this presentation because the main argument for Koons was fair use, especially that the work was parody. The second circuit rejected this argument, finding that the sculpture was commercial and did not sufficiently comment on the original work.

Some cases landed in the Supreme Court and are really relevant today to understand different components of fair use. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) was discussed for introducing the term of “transformative” use, although without strictly defining it. This case shows that even landmark decisions make outcomes difficult to predict. For example, the Second Circuit in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) appeared to minimize the relevance of commerciality of the work, whereas the Supreme Court in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) reaffirmed that commercial purpose remains a relevant factor.

From the perspective of legal counsel working in the publishing industry, it was noted that, to prevent these types of issues, drafting a fair use or opinion letter is often recommended given the ambiguity and unpredictability. This practice shows how the criteria for arguing fair use remain complex and do not always provide a sure defense, especially as courts and circuits have sometimes diverged in their interpretations.

When participants asked whether there is a “recipe” for arguing fair use, the conclusion was that there is none; the analysis must be conducted on a case-by-case basis, making it difficult to predict whether a work will be considered transformative.

Panel 3: Moral Rights by Carol Steinberg

Carol J. Steinberg, Esq. is the founder of Carol J. Steinberg Law, a firm specializing in art, copyright, and entertainment law.

As moral rights become more frequently invoked, Carol Steinberg explained how they operate in the United States, knowing it is originally a European concept. Although moral rights are included in the U.S. Copyright Act, they remain more limited than in Europe. They protect the personal connection between an artist and their work and consist mainly of rights of attribution and integrity. Back in time, when moral rights were not legally recognized yet, some claims like about Ruth Bernhard’s photograph In the Box – Horizontal, showed how little protection existed at the time. Before the enactment of VARA, artists relied on alternative legal arguments, sometimes successfully, as in Monty Python v. American Broadcasting Companies, Inc. (2d Cir. 1976), and sometimes unsuccessfully, as in Serra v. US General Services Admin., 667 F. Supp. 1042 (S.D.N.Y. 1987).

A major case illustrating the evolution of moral rights protection is the 5Pointz litigation (Castillo v. G&M Realty L.P., No. 18-498 (2d Cir. 2020), where the concept of “recognized stature” was central. The court relied on extensive expert testimony, press and critical coverage, and a detailed factual record. As emphasized during the previous panel, there is no “recipe” for proving artistic merit; case law provides guidance, but each determination is highly fact-specific.

Questions also arose regarding how VARA applies to works made for hire. Employees generally lose moral rights in that context, while the situation for freelancers can be more complex. As with fair use, the contours of moral rights remain somewhat unclear, and reviewing case law is the best way to understand how courts assess “recognized stature.”

As with fair use, the contours of this notion remain unclear, and there is no set formula for establishing it. Reviewing case law remains the best way to understand how courts determine whether an artwork has “recognized stature.”

Panel 4: Digital Artworks and AI by Scott Sholder

Scott J. Sholder, Co-Chair of CDAS’s Litigation Group, focuses his practice on litigation, counseling, and dispute resolution in connection with entertainment, media, art, and intellectual property matters.

This presentation addressed the challenges that artificial intelligence presents for copyright law. It began with an overview of basic AI concepts, explaining the different types of AI (machine learning, and deep learning), how AI is trained through data and the legal issues that input can create (prompts).

The discussion then focused on authorship. Under the Copyright Act and the U.S. Copyright Office Compendium, registration will be refused if no human author is involved. One of the few cases directly addressing this issue is Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. 2025), in which a computer scientist sought to register a work created entirely by an AI system. The district court held that a work generated independently by AI, without human contribution, cannot be registered. Another well-known example is Zarya of the Dawn, a work created using Midjourney that was initially registered but later partially canceled after the Copyright Office determined that the images were AI-generated.

Today, multiple AI tools are used across creative fields—such as Suno and Stable Audio for music and audio, and Sora or Midjourney for visual content. These tools raise questions about their reliance on existing works for training datasets and about the authorship of the outputs they generate. Participants asked, for example, whether an artist whose voice is used in AI-generated content could claim rights without relying only on copyright. The level of human control over the final product is important: whether the output is raw, heavily edited, or simply used for storyboarding. The absence of sufficient human creativity remains one of the main reasons why purely AI-generated content is not protected.

Approximately fifty litigations are currently ongoing, many focusing on issues of infringement and fair use.

After the fourth panel, participants were invited to take a lunch break before returning for the final panel and mock consultations with artists.

Panel 5: Copyright and Estate Planning by Marc M. Misthal and Michelle Yeung

Marc P. Misthal is a Principal Attorney at Offit Kurman, where he leads the firm’s Intellectual Property Practice Group.
Michelle Yeung concentrates her practice on estate and tax planning, Medicaid and special-needs planning, and trust and estate administration in New York.

The final panel explored the intersection between copyright law and estate planning, using case examples to illustrate how copyright issues can arise in estate administration and succession planning. First, Marc covered how termination works in copyright law and then Michelle talked about testamentary freedom and how both interconnects.

As an introduction, Marc recalled that it is important to consider the date of registration because the rules about registration under Copyright Law in 1909 and the 1976 Act are different, so it is important to know today when the work was registered before or after 1978.

Termination is one of the areas of copyright law that often brings together IP lawyers and trust and estate attorneys. Under the Copyright Act, a termination notice traditionally applies only to U.S. rights. However, the Fifth Circuit recently issued a decision, Vetter v. Resnik, No. 25-30108 (5th Cir. 2026), suggesting that termination may apply to worldwide rights, making the situation even more complex.

Termination rights initially belong to the author and, if the author is deceased, pass to statutory heirs— spouse, children, or grandchildren. If no such heirs exist, the rights may pass to executors or trustees. This framework can conflict with testamentary freedom. While estate planning allows individuals to distribute their assets as they wish, termination rights vest in a specific group of statutory heirs and cannot simply be waived or reassigned in advance.

This complexity is illustrated in The Ray Charles Found. v. Robinson, No. 13-55421 (9th Cir. 2015). Ray Charles transferred his copyrights to his foundation, whose primary assets were royalty rights. Before his death, he provided financial compensation to his children to discourage them from contesting his estate plan. Nevertheless, seven of his twelve children later served termination notices. The speakers also explained when and how termination rights may be exercised, emphasizing that the statutory requirements are very technical. A termination notice must meet strict formalities, and there are exceptions, like works made for hire.

Participants highlighted that because copyright law is federal, it can supersede private agreements concerning termination rights. Questions also arose regarding artist foundations and international implications, particularly in light of the recent Fifth Circuit decision and situations involving foreign artists who transfer their rights through wills executed in the U.S.

Mock Consultations

At the end of the presentations, three artists had the opportunity to discuss their legal issues they are currently facing. The consultations focused in particular on copyright management and estate planning, and on general principles of copyright, moral rights, and fair use. From the artists’ perspective, a range of concerns were addressed, including misattribution of works, fraudulent artworks, and the potential rights violations arising from these. situations.

The Bootcamp provided a comprehensive overview of how copyright law is interpreted and applied in practice. It examined the ways attorneys navigate complex and evolving doctrines, particularly where case law plays a central role in shaping legal standards. Concepts such as transformative use within fair use analysis and moral rights were discussed in the context of judicial interpretation, underscoring that copyright doctrine develops incrementally through court decisions rather than through fixed formulas or bright-line rules.

The program also incorporated perspectives from practicing artists, highlighting how copyright issues emerge in real-world creative contexts. These discussions demonstrated how legal principles operate beyond theoretical analysis, illustrating the practical implications of ownership disputes, licensing challenges, and enforcement concerns across diverse artistic practices.

In addition, panels addressed emerging and cross-disciplinary issues, including the intersection of copyright law and artificial intelligence, as well as the relationship between copyright and estate planning. By situating copyright within broader legal frameworks, the Bootcamp emphasized the importance of understanding how intellectual property considerations intersect with technology, succession planning, and long-term rights management.

About the Author

Alexandra Kharchenko (Spring 2026 Intern, Center for Art law) is an LLM graduate of Northwestern Pritzker School of Law, Chicago. There, she was the LLM Representative of the Arts and Entertainment Law Society. Having passed the bar, she hopes to practice in the intellectual property or art law field.