HUDSON INSTITUTE 1
GENERATIVE AI AND COPYRIGHT INFRINGEMENT:
LESSONS FROM PAST FAIR USE CASES
POLICY MEMO
Generative AI and Copyright
Infringement: Lessons from
Past Fair Use Cases
KEVIN MADIGAN
SVP, Policy and Government Affairs at the Copyright Alliance
June 2025
Thus, fair use is not just a big question—it is the only question
that really matters in generative AI copyright infringement
litigation. AI companies and their supporters argue that
copying protected works to train AI models constitutes a
transformative purpose that tips the scales in favor of fair use
and that past fair use cases clearly support their position.
However, as this policy memo will show (and as courts and
the United States Copyright Office are already recognizing),
the fair use cases AI companies rely upon (1) are significantly
undermined by the Supreme Court’s recent Warhol v.
Goldsmith decision, (2) are, regardless of Warhol v. Goldsmith,
readily distinguishable and do not set a precedent that
generative AI training is fair use, and (3) in fact demonstrate
that in most cases generative AI training does not qualify as
fair use.
Background and Rise of Generative
AI Litigation
While AI has been incorporated into a variety of technologies
for years, the generative capabilities of large language, image,
music, and motion picture models are now progressing at
Introduction
The development of generative artificial intelligence (AI) models
in recent years is transforming digital technology, with some
even asking if current AI advancements represent a “fourth
industrial revolution.”
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However, as we enter this new era of
technological advancement, there are unanswered questions
about how generative AI models are developed and what effect
they could have on society. Specifically, copyright owners
and creator communities have significant concerns about
what materials are being ingested for training and whether AI
companies will be held liable for the mass unauthorized use of
copyrighted works to build their generative models.
Seeking answers and accountability, copyright owners have
now brought over forty copyright infringement lawsuits against
AI companies.
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These cases, which have mostly been filed
over the past two years, are winding their way through various
federal courts and are all leading to one pivotal question:
Does the ingestion of copyrighted works for generative AI
training constitute direct infringement of copyright owners’
reproduction rights, or does it qualify as fair use?
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