By: Dustin Lennon-Jones

Introduction

From the release of Pac-Man in 1980 to the trailer for the latest installment of the Grand Theft Auto series, the technology behind creating and displaying characters in video games has come a long way. With a release scheduled for May 2026, praise is already pouring in for the hyper-realistic graphics, with fans remarking that it “looks like a movie.” However, as video games get closer to mimicking reality, past copyright precedents may fall into obsolescence.

Solid Oak Sketches v. 2K Games

In February of 2016, Solid Oak Sketches filed a lawsuit against 2K Games, the creator of the NBA 2K video games series, alleging that 2K had used copyrighted tattoo designs in its recreation of the likeness of several NBA players. In its motion for summary judgment, 2K raised several defenses, including that the use was de minimis, that it fell within fair use, and that they had an implied license. Ultimately, the court agreed with 2K on all of these defenses, granting summary judgment, and ending the litigation.

The “De Minimis” Exception

The De minimis exception comes from a longer Latin phrase, which translates to “the law does not concern itself about trifles.” In the context of copyright law, it refers to infringement that is so trivial that the original and the copy are not substantially similar. In concluding that the tattoos in 2K’s game were not substantially similar, the court viewed videos of gameplay and noted that the tattoos “appear out of focus” and can be seen “only as undefined dark shading on the players’ arms.”

Fair Use

The doctrine of fair use allows for the unlicensed use of protected works in certain circumstances. In determining whether the doctrine applies, courts look to the purpose and character of the use, the nature of the work, the amount of the work used in relation to the protected work as a whole, and the effect of the use upon the potential market for or value of the protected work. In 2K’s case, the court found that the use of the tattoo designs was not for the purpose of self-expression, but rather to accurately capture the player’s likeness, making them incidental to the commercial value of the game. Since it was for the “transformative” purpose of a realistic depiction of the players, it does not affect the value of the design itself. The use of the tattoos was therefore fair use.

Implied License

An implied license refers to a contractual agreement that creates implicit permission to use a protected work, despite no explicit language agreeing to such use. In these cases, an implied license is found when the copyright holder creates a work at the request of another, delivers the work to the other person, and intends for the other person to copy and distribute the work. In finding there was such a license, the court found that the artists had created the tattoos at the request of the players, created and “delivered” the tattoos by inking the designs on to their bodies, and since they knew the players were likely to appear in the media, intended them to copy and distribute the tattoos. The players, therefore, had an implied license, which they granted to 2K through the NBA.

GTA 6: Character Customization

In the previous iteration of Grand Theft Auto, players had the ability to customize their avatar with tattoos. However, they suffered from the same limitations that saved 2K in its lawsuit: they were impossible to see clearly. If the game’s graphics are anywhere close to what is shown in the trailer, this limitation will be a thing of the past. While this may enhance the player experience, it has the potential to land Rockstar, the developers of the game, in hot water.

It is not difficult to imagine a court coming to the opposite result of the 2K case in a lawsuit against Rockstar. Since the tattoos will not be relegated to blurry, dark shading and instead appear as clear artwork, it is much harder to argue that a copy of an artist’s design is not “substantially similar. Additionally, as players will be using tattoos to express themselves, rather than capture the licensed likeness of a celebrity, it is unlikely to be fair use. For the same reasons, there cannot be an implied license.

This issue was addressed recently when Take-Two Interactive was found liable for infringing on a tattoo artist’s copyright by copying her tattoo designs in a WWE video game. The tattoos appeared as a part of a wrestler’s likeness, but unlike the NBA 2K lawsuit, players could use the copyrighted tattoos to customize their own wrestlers using the game’s “Create-a-Superstar” feature. Since this had nothing to do with accurately depicting a licensed likeness, it was beyond the scope of fair use.

Conclusion

The actual features of GTA 6 in terms of player customization are still to be confirmed. But as Rockstar has promised, the upcoming release will be “groundbreaking.” While customization and realism increase the user experience, it cannot come at the cost of trampling tattoo artists’ copyright protections.

#tattoos #copyright #fairuse

By Teagan Raffenbeul

Light & Wonder, a manufacturer of automated card-shuffling machines, recently found itself at the center of high-stakes antitrust disputes. With active cases in both New York and Chicago, these proceedings have the potential to reshape the antitrust and arbitration landscape.

Class Arbitration Approved in Case Against Light & Wonder

In 2021, more than 100 casinos filed claims alleging Light & Wonder attempted to monopolize the automated card shuffling market. The casinos allege Light & Wonder used fraudulent patent claims to establish a monopoly on automated card shufflers, thereby excluding competitors and maintaining market dominance. Since these casinos have arbitration agreements with Light & Wonder, they are required to resolve any disputes exclusively through arbitration. 

In a landmark decision, John Wilkinson, an arbitrator with the American Arbitration Association, certified the casinos as a class. This permits arbitration to resolve these antitrust lawsuits against Light & Wonder as a class-action. This move came after the recent U.S. Supreme Court decision in Lamps Plus, Inc. v. Varela, which held that class arbitration is permissible only when explicitly authorized in arbitration agreements. Despite Light & Wonder’s objection that the individual arbitration agreements lacked sufficient similarity, Wilkinson determined the language in the contracts was broad enough to permit class arbitration.

This certification marks a first of its kind development in the context of antitrust claims. Class arbitration offers a more streamlined and arguably fairer mechanism for resolving such disputes. Proceeding through individual arbitrations would not only be costly and time-consuming for the casinos but could also produce inconsistent outcomes – undermining arbitration’s intended efficiency. 

Light & Wonder sought to overturn Wilkinson’s decision, arguing the varying purchase histories and harm among the casinos necessitated individualized assessments. They also relied on Lamps Plus, Inc. v. Varela to assert that the variations in the casinos arbitration agreements precluded a class certification. Nonetheless, New York state trial and appellate courts upheld Wilkinson’s determination, allowing the class to proceed.

Defining the Market 

Light & Wonder faces similar antitrust claims in federal district court in Chicago. There, more than 1,000 casinos – none of which are bound by arbitration agreements – have filed suit over the same alleged conduct: fraudulent patent applications that enabled Light & Wonder to monopolize the automated card-shuffling market. These plaintiffs are also seeking class certification, but through traditional court proceedings.

In recent proceedings, an Illinois federal judge heard arguments in support of each party’s motion for summary judgment. Light & Wonder asked the court to dismiss the case before trial, arguing the casinos failed to define a valid antitrust market. Specifically, Light & Wonder claim the plaintiffs’ proposed market that includes four distinct types of card shufflers – single-deck, multi-deck, continuous, and other types  – is too broad.

In antitrust law, a valid product market (which is essential to proving the presence of a monopoly) requires functional interchangeability between products, and consideration of whether price changes in one product lead consumers to switch to another. Industry experts in this case agree that the various card shufflers are not functionally interchangeable. The choice of shuffler depends heavily on its specific use and features. 

To illustrate, one cannot place bicycles and trucks in the same product market. Although both serve the general purpose of transportation, a price increase in trucks does not impact bicycle demand, indicating they are not substitutes. The same reasoning applies to different types of card shufflers. Light & Wonder argue that because the products serve different functions and are not interchangeable, they cannot be grouped into a single market. Not a single case in antitrust law has found two products that were not interchangeable to be in the same product market. 

Although plaintiffs present compelling evidence that Light & Wonder controls nearly 100% of the card shuffler industry, Light & Wonder maintains the claims should fail due to an overly broad and inaccurate market definition.

Conclusion

The legal challenges facing Light & Wonder may mark pivotal moments in both antitrust enforcement and arbitration. The certification of a class in a complex antitrust context might indicate greater willingness to allow collective redress, despite an absence of explicit class arbitration clauses. Meanwhile, across the country, the litigation in Illinois highlights how critical product market definition remains in antitrust law. The court’s decision on whether the plaintiffs’ market definition holds could shape how narrowly, or broadly, future markets are defined in similar cases.

As these cases unfold, the outcomes may not only determine Light & Wonder’s legal fate but also influence the future landscape of both arbitration and antitrust law. Beyond these legal ramifications, the results could also reshape how patent fraud and market monopolization are addressed in niche tech industries, such as automated card shufflers. Ultimately, these cases could set the course for key legal and industry standards for years to come.

#wjlta #casinos #cardshufflers #antitrust

By: Madison Bruner

Although the beauty industry thrives on creativity and artistry, few consumers would risk their lives or health for glamour. In early 2025, three hairstylists filed lawsuits in California against L’Oreal, Wella, Redken, and Paul Mitchell, alleging that these beauty giants and others sold products with carcinogenic chemicals that caused bladder cancer, without providing consumers any warning of the associated risks.

The complaints for the lawsuits can be viewed below:

1. Hector Corvera v. L’Oreal USA Inc. et al filed on February 13, 2025;
2. Debra Matarazzo v. Henkel AG & Co. KGaA et al filed on March 6, 2025; and
3. Sharon Mirtaheri v. L’Oreal USA Inc. et al filed on April 28, 2025.

Breaking Down the Lawsuits Against L’Oreal, Wella, Redken, Paul Mitchell, and Procter & Gamble

The primary health concern underpinning these lawsuits is an alleged increased risk of developing bladder cancer associated with the long-term use of hair dye products. The plaintiffs filed a civil suit in the state of California alleging products liability claims such as failure to warn, design defect, breach of warranty of merchantability, and various negligence claims. California’s robust consumer protection laws and a strong unfair competition statute (California Unfair Competition Law) give the plaintiff hairdressers powerful tools to pursue legal remedies.

Failure to Warn – Strict Liability

Manufacturers have a legal duty to warn consumers about potential health risks. The defendants are accused of failing to provide adequate warnings about the carcinogenic chemicals in their products. To prevail on a failure to warn theory a plaintiff must show: (1) The product had potential risks known or knowable at the time of manufacture; (2) The manufacturer failed to adequately warn of those risks; (3) The lack of warning rendered the product dangerous beyond an ordinary user’s expectations; and (4) The inadequate warning was a substantial factor in causing injury.

Design Defect – Strict Liability

The defendants are accused of defective design of their hair dye products. The plaintiffs argue both a risk-utility theory (that feasible alternatives existed through botanical or amine-free formulas) and a consumer-expectations theory (that no consumer expects to get cancer from a hair dye). The plaintiffs further argue that the hair dye formulations, including the “ammonia-free” or “natural” lines contain known carcinogens that defendants could have eliminated without sacrificing function. 

A risk-utility test requires the plaintiff to show whether a reasonable person would determine that the probability of harm of the product will outweigh the burden or costs of taking precautions. Similarly, through the consumer allegation test, plaintiffs must show whether a reasonable person would consider the product defective. 

Negligence

The defendants are accused of both negligent failure to warn and gross negligence. For a negligent failure to warn claim, a plaintiff must show: (1) Defendant owed a duty to warn foreseeable users; (2) Defendant breached that duty by failing to provide adequate warnings; (3) The breach was a proximate cause of injury; and (4) Damages resulted. Gross negligence is a heightened degree of negligence and requires showing “conscious disregard” for safety.

Breach of Warranty

The defendants are accused of breach of warranty, which occurs when a seller “fails to live up to the promises or guarantees they made about a product or service.” A breach of warranty can be expressed or implied. The plaintiffs broadly allege breach of warranty, meaning both express and implied breach of warranty is argued. Specifically, the plaintiffs claim that marketing materials and labels represented the dyes as safe, gentle, or even condition-protective, yet the products caused cancer.

Deceit by Concealment

The defendants are accused of deceit by concealment, with allegations that the defendants actively concealed known carcinogenic ingredients such as aromatic amines. The plaintiffs also allege the defendants lobbied to keep safety data from regulators. This suppression induced stylists to continue using the products, causing injury. Deceit by concealment requires a showing that the defendant conceals or suppresses a material fact, with knowledge of its falsity, intending to defraud, and the plaintiff justifiably relies on that fact. 

Fraud

Finally, the defendants are accused of fraud, as the plaintiffs allege that the defendants misrepresented on packaging and in advertising that the dyes were “safe” or “damage-free,” and did so knowing those representations were false. A claim of fraud requires the plaintiff to show: (1) A false representation of a material fact; (2) Defendant’s knowledge of its falsity; (3) Intent to induce reliance; (4) Justifiable reliance by plaintiff; and (5) Resulting damage.

Violations of CA Unfair Competition Law

Cal. Bus. & Prof. Code § 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” Firstly, the plaintiffs allege that the defendants’ conduct was unlawful by violating FDA labeling regulations requiring warnings on cosmetics. Secondly, the plaintiffs alleged unfair practices, that the defendants concealed known hazards while continuing to market dyes as safe. Finally, plaintiffs allege fraudulent activity, claiming that defendants misled consumers about safety and ingredient risks.

Scientific Studies Linking Hair Dye to Cancer

Multiple studies have confirmed the potential link between hair dye and cancer. A 2019 study reported higher instances of breast cancer among women who use permanent hair dye, as well as chemical straighteners. Studies finding statistically significant links with hair dye use by hairstylists and bladder cancer go back many years, with research displaying hairdressers of 10+ years were nearly twice as likely to develop bladder cancer versus those who had never worked as a hairdresser.

However, research results are mixed; a 2022 study conducting a systematic review of studies from 2000-2021 indicated that only one of the four studies found an increased risk of bladder cancer for hairdressers as compared to population controls. Regardless, the hair dye lawsuits stand on legitimate scientific evidence, and manufacturers, regulators, and consumers should take the claims seriously..

Behind the Formulas: Understanding the Alleged Carcinogens

Given there is a real risk of adverse health effects with long-term use of hair dye products, let’s break down the key chemicals you need to know about.

1. 4-Aminobiphenyl (4-ABP): Classified by IARC as a Group 1 (“carcinogenic to humans”) bladder carcinogen and by the NTP as “known to be a human carcinogen.” Studies have repeatedly detected 4-ABP in commercial hair dyes and in DNA adducts in bladder tissue, linking it mechanistically to bladder cancer via metabolic activation to a reactive nitrenium ion that binds DNA.
2. Ortho-Toluidine (o-Toluidine): IARC Group 1 and NTP “known human carcinogen.” O-Toluidine forms DNA adducts in bladder tissue through metabolic conversion to N-hydroxy-o-toluidine, causing mutations on prolonged exposure.
3. Benzidine (and benzidine-metabolites): A long-banned industrial dye still detected in some formulations. IARC lists benzidine as a Group 1 bladder carcinogen; metabolized derivatives likewise trigger DNA damage and cancer risk.
4. 2-Naphthylamine: Another IARC Group 1 bladder carcinogen historically used in dyes and still alleged to persist in minor amounts, with strong epidemiological ties to increased bladder-cancer incidence.
5. 4-Chloro-ortho-Toluidine: Classified by IARC as Group 2A (“probably carcinogenic to humans”). Detected in defendants’ dye lines and implicated in bladder-cancer risk.
6. 2,4-Diaminoanisole sulfate (4-methoxy-m-phenylenediamine sulfate): Identified by the FDA and NTP as a carcinogenic dye intermediate that is “reasonably anticipated to be a human carcinogen” and is used to achieve certain permanent-color shades.
7. 2,4-Diaminotoluene and Disperse Blue 1: Both listed by the NTP as “reasonably anticipated to be human carcinogens,” these intermediates remain in some permanent-dye formulations.
8. Basic Red 9 Monohydrochloride and 4,4′-Oxydianiline: Also flagged by the NTP as “reasonably anticipated to be human carcinogens,” used for red and other vivid shades.
9. Coal tars and coal-tar pitches: Classified by the NTP as “known carcinogens” and historically used as dye precursors; they introduce complex mixtures of polycyclic aromatic hydrocarbons linked to cancer.
10. Aniline and Aniline Hydrochloride: IARC Group 2A (“probably carcinogenic to humans”) and noted in occupational-exposure studies; these simple amines persist as minor components in various dye mixes.

Avoiding these listed chemicals is the safest way to minimize your exposure to carcinogens and protect your health. 

‘Natural’ Alternatives: Bona Fide or Bogus?

In response to health and environmental concerns, several hair color brands market themselves as natural, organic, or safer alternatives. A prime example is Aveda, which advertises its professional hair color line as “96% naturally derived” and PPD-free. PPD-free means Aveda products contain no p-phenylenediamine, but the products could still include other problematic intermediates or residues like 4-ABP, o-toluidine, and benzidine. Instead of using the p-phenylenediamine found in typical dyes, Aveda’s formulas use other dye molecules like p-aminophenol and 2,4-diaminophenoxyethanol (along with plant-based ingredients) to achieve color. 

So are these “natural” hair dyes safer? They do eliminate certain known harmful ingredients named in the complaints. For example, Aveda explicitly states it contains no coal-tar ingredients and no petrochemicals, which means it likely avoids the carcinogenic aromatic amines at issue. However, experts caution that “natural” doesn’t mean chemical-free or risk-free. Because these chemicals are newer, there is less research on their long-term health effects compared to the older chemicals.

#HairDyeLawsuit #ConsumerProtection #BeautyandCosmeticsSafety

By Olivia Bravo

In October 2023, Steven Anderegg, a 43-year old Wisconsinite, was indicted for knowingly producing at least one visual depiction of a minor engaging in sexually explicit conduct. Anderegg allegedly used a text-to-image generative artificial intelligence (GenAI) model called Stable Diffusion to “create thousands of realistic images of prepubescent minors.” In May 2024, Anderegg became the first person in the U.S. criminally charged for generating and distributing AI-created child sexual abuse material (CSAM). His case became a turning point for U.S. authorities, underscoring the legal and ethical challenges AI-generated CSAM poses, highlighting the need for clearer policies and enforcement strategies as they continue to grapple with regulating AI-generated explicit content. 

What is CSAM?

Child Sexual Abuse Material (CSAM) or “child pornography,” is any visual depiction of sexually explicit conduct involving a person less than 18 years old. Due to rapid technological advances, online child sexual exploitation and victimization have increased in scale and complexity. One of the current legal challenges of the new technological age is the use of AI. This is problematic in two ways: (1) offenders are able to use AI capability to create CSAM, and (2) AI models are being trained with CSAM.

Legal Precedents and Challenges

Under U.S. federal law, Child Sexual Abuse Material (CSAM) is considered illegal contraband and is not protected under the First Amendment. Statutes such as 18 U.S.C. §§ 2251, 2252, and 2252A criminalize the production, possession, and distribution of such material through any means of interstate or foreign commerce. 

However, AI-generated CSAM introduces legal complexities. Because some synthetic images do not involve identifiable victims, they may fall outside the scope of laws written before the advent of generative models. This raises questions about whether such material qualifies as illegal “depictions,” and how harm is defined in the absence of a real child.

To address emerging risks, lawmakers have begun to update and expand relevant legislation:

• The Protecting Children From Online Predators Act (The PROTECT Act) (S.151) extended prohibitions to include synthetic and computer-generated imagery of child sexual abuse, closing loopholes for non-photographic, “synthetic” CSAM.
  
• The Children’s Online Privacy Protection Act (COPPA), updated in January 2024, introduced stricter consent requirements and limited how children’s data can be collected and shared by online platforms, though it doesn’t directly address AI model training.
  
• California’s (LEAD) for Kids Act (AB 1064) takes a step further by targeting AI model development. It mandates parental consent for training AI on children’s data and requires developers to conduct risk assessments of potential harms.

Despite these efforts, no comprehensive federal framework yet exists to regulate the use of CSAM in AI training datasets or the creation of AI-generated abuse imagery. As the technology rapidly evolves, regulators face growing pressure to close these legal gaps while balancing free expression and innovation.

How AI Changes the Game

What is AI model training and how is it impacted by CSAM? An AI model is both a set of algorithms and the data used to train those algorithms so they can make accurate predictions based on consumer queries. The term “AI model training” refers to a process where the model is fed massive amounts of data, the results are examined, and the model output is tweaked to increase accuracy and efficacy. However, what happens when these models are trained on exploitative images of children found on a public dataset?

An investigation by Stanford Internet Observatory (SIO) revealed hundreds of known images of CSAM in an open dataset (LAION-5B) used to train popular AI models such as Stable Diffusion. Stable Diffusion is the same AI text-image generator that Steven Anderegg used to create hyper-realistic images of children. This creation of images from text is an example of harnessing the power of Generative Artificial Intelligence (GAI). GAI enables the creation of fake imagery, including synthetic media, digital forgery, and in this case, CSAM. GAI allows offenders to create hyper-real sexual abuse material that depicts the victimization of children, and can then be used to retrain AI datasets. A July 2024 report by the Internet Watch Foundation (IWF) found that since October 2023, there has been a clear web increase in AI-generated CSAM material, with more images uploaded onto the dark web, and more severe images in Category A abuse, indicating that perpetrators are more able to generate complex ‘hardcore’ scenarios. “AI-generated imagery of child sexual abuse has progressed at such an accelerated rate that the IWF is now seeing the first realistic examples of AI videos depicting the sexual abuse of children.”

Conclusion

Steven Anderegg may have been the first person in the U.S. prosecuted for generating AI-created child sexual abuse material, but he will not be the last. In this way, the technological advances brought on by AI force us to rethink harm and the accountability that we have as users of these platforms. As generative AI becomes more powerful and accessible, the risk of its misuse to produce, circulate, and train future models on CSAM escalates. For lawmakers, this means crafting forward-looking policies that not only criminalize synthetic abuse content but also prevent its proliferation through stricter oversight of training data and AI development practices.

#CSAM #ChildProtection #AITraining #WJLTA