November 7, 2023
On October 30, 2023, a judge in the Northern District of California ruled in one of the first lawsuits between artists and generative AI art platforms for copyright infringement. While the judge quickly dismissed some of the Plaintiffs’ claims, the case is still very much alive as he is allowing them to address some of the problems in their case and file amended complaints.
So what’s it all about? Three artists are suing Stability AI Ltd. and Stability AI, Inc. (collectively, “Stability”), whose platform, Stable Diffusion, generates photorealistic images from text input. To teach Stable Diffusion how to generate images, Stability’s programmers scrape (i.e., take or steal, depending on how charitable you’re feeling) the Internet for billions of existing copyrighted images — among them, allegedly, images created by the Plaintiffs. End users (i.e., people like you and me) can then use Stability’s platform to create images in the style of the artists whose work the AI has been trained.
In addition to Stability, the proposed class action suit on behalf of other artists also names as defendants Midjourney, another art generation AI that incorporates Stable Diffusion, and DeviantArt, Inc., an online community for digital artists, which Stability scraped to train Stable Diffusion, and which also offers a platform called DreamUp that is built on Stable Diffusion.
The Plaintiffs — Sarah Andersen, Kelly McKernan, and Karla Ortiz — allege, among other things, that Defendants infringed on their copyrights, violated the Digital Millennium Copyright Act, and engaged in unfair competition.
In ruling on Defendants’ motion to dismiss, U.S. District Judge William Orrick quickly dismissed the copyright claims brought by McKernan and Ortiz against Stability because they hadn’t registered copyrights in their artworks — oops.
Anderson, however, had registered copyrights. Nonetheless, Stability argued her claim of copyright infringement should be dismissed because she couldn’t point to specific works that Stability used as training images. The Court rejected that argument. It concluded that the fact she could show that some of her registered works were used for training Stable Diffusion was enough at this stage to allege a violation of the copyright act.
The judge, however, dismissed Anderson’s direct infringement claim against DeviantArt and Midjourney. With DeviantArt, he found that Plaintiffs hadn’t alleged that DeviantArt had any affirmative role in copying Anderson’s images. For Midjourney, the judge found that Plaintiffs needed to clarify whether the direct infringement claim was based on Midjourney’s use of Stable Diffusion and/or whether Midjourney independently scraped images from the web and used them to train its product. Judge Orrick is allowing them to amend their complaint to do so.
Because Orrick dismissed the direct infringement claims against DeviantArt and Midjourney, he also dismissed the claims for vicarious infringement against them. (By way of background, vicarious infringement is where a defendant has the “right and ability” to supervise infringing conduct and has a financial interest in that conduct.) Again, however, the Court allowed Plaintiffs to amend their complaint to state claims for direct infringement against DeviantArt and Midjourney, and also to amend their complaint to allege vicarious infringement against Stability for the use of Stable Diffusion by third parties.
Orrick warned the Plaintiffs (and their lawyers) that he would “not be as generous with leave to amend on the next, expected rounds of motions to dismiss and I will expect a greater level of specificity as to each claim alleged and the conduct of each defendant to support each claim.”
Plaintiffs also alleged that Defendants violated their right of publicity, claiming that Defendants used their names to promote their AI products. However, the Court dismissed these claims because the complaint didn’t actually allege that the Defendants advertised their products using Plaintiffs’ names. Again, he allowed the Plaintiffs leave to amend. (The Plaintiffs originally tried to base a right of publicity claim on the fact that Defendants’ platforms allowed users to produce AI-generated works “in the style of” their artistic identities. An interesting idea, but Plaintiffs abandoned it.)
In addition, DeviantArt moved to dismiss Plaintiffs’ right of publicity claim on grounds that DeviantArt’s AI platform generated expressive content. Therefore, according to DeviantArt, the Court needed to balance the Plaintiff’s rights of publicity against DeviantArt’s interest in free expression by considering whether the output was transformative. (Under California law, “transformative use” is a defense to a right of publicity claim.) The Court found that this was an issue that couldn’t be decided on a motion to dismiss and would have to wait.
What are the key takeaways here? For starters, it is fair to say that the judge thought that Plaintiffs’ complaint was not a paragon of clarity. It also seems like the judge thought that Plaintiffs would have a hard time alleging that images created by AI platforms in response to user text input were infringing. However, he seemed to indicate that it was more likely to allow copyright infringement claims based on Stability’s use of images to train Stable Diffusion to proceed.
October 24, 2023
It’s long been known that one of the pitfalls of being in the public eye is you don’t control your own image. Paparazzi can take photos of you that can be published anywhere, with the photographer getting paid, the media outlet generating revenue from ad sales and subscriptions, and the subject themselves neither seeing a dime nor having any control over how they look. That’s because traditionally, photographers have full copyright when they capture an image of a celebrity, particularly in public. Now, a bunch of new lawsuits are taking ownership even further out of celebrity hands, with photographers and their agencies suing stars who dare to post paparazzi photos of themselves on their social media accounts without licensing them first.
There are plenty of celebs under fire at the moment, including LeBron James, Bella Hadid, and Dua Lipa. A few examples: Melrose Place and Real Housewives star Lisa Rinna posted on Instagram photos of herself that were taken by a paparazzo represented by the Backgrid agency; Backgrid is suing Rinna for copyright infringement. Rinna accuses Backgrid of “weaponizing” copyright law, while Backgrid retorts that once one of their paparazzi photos are posted without permission, magazines like People will be less likely to buy it because fans will have already seen it. Another case: model Gigi Hadid, who is being sued for copyright infringement by agency Xclusive-Lee over posting one of its images to Instagram. Hadid’s legal team asserts her post constitutes fair use because Hadid “creatively directed” the photo by choosing her outfit, posing and smiling, thus contributing “many of the elements that the copyright law seeks to protect.” Hadid also cropped the image when she posted it, which she says refocuses the photo on her pose and smile, rather than the photographer’s composition.
Model Emily Ratajowski recently settled a suit brought by a photographer over a photo he took of her walking outside of a flower shop, her face completely obscured by a bouquet she was carrying. Ratajowski posted the photo on an Instagram story with the text “MOOD FOREVER,” intending to convey how she feels like hiding from paparazzi. While the case settled, the judge indicated her text served as a commentary on the celebrity/paparazzi dynamic that may have amounted to transformative use, protecting her from a copyright claim.
This wasn’t Ratajkowski’s first battle with copyright law. She wrote a long essay on how it feels to be unable to control her image after a photographer took hundreds of nude photos of her early in her career, supposedly for a magazine editorial, and later published them as several books and showed them in a gallery exhibit — all without asking her permission or paying her. Ratajowski also had photos she posted to her Instagram account turned into “paintings” by renowned appropriation artist Richard Prince and sold for $80,000 each. She writes, “I have learned that my image, my reflection, is not my own.”
It’s easy to sympathize with the celebrities’ position. While mere mortals often scorn celebrity complaints about their lack of privacy and the invasiveness of paparazzi — “hey, it comes with the territory!” — it seems like adding insult to injury to allow paparazzi to take photos of celebrities against their will and then demand the celebs pay to use the photos themselves.
Also, it’s not hard to see why Ratajkowski or others might feel victimized by someone in a position of relative power profiting from images without sharing those profits. (For what it’s worth, a number of states do have laws against revenge porn, but that’s not what we’re talking about here.)
In that vein, in the wake of #metoo, the celebrities’ position is also appealing because it’s not hard to see it as trying to subvert the male gaze by allowing the (mostly) female celebrity subjects to at least profit from or assert some element of control over the pictures they appear in.
However, from an intellectual property law point of view, this is not how it works.
For starters, copyright law is really clear. The copyright for photos rests with the person who took the photo. Posing for a picture is not subject to copyright protection, and copyright law doesn’t give the subject of a photo rights to the copyright. This is because a copyright comes into existence when it is “fixed,” meaning recorded on a piece of film or a memory card — and those are owned by the photographer, not the subject.
Moreover, copyrights trump any publicity rights that celebrities have. Article 1, section 8, clause 8 of the U.S. Constitution says that Congress has the power to enact laws to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This is because we as a society benefit from encouraging creators the right to create by allowing them to profit from their work. Celebrities and their lawyers would say that they too should be able to profit because they provided a service by appearing in the photograph and/or by being famous, and thus photoworthy. While the law isn’t supposed to get into judging the relative value of different artistic contributions, let’s be real: there is a difference between the creation of even a bad novel or artwork and smiling for a second into a camera lens on a step-and-repeat.
What’s more, in contrast to copyright law, the right of publicity is — at least for now — a product of state law. This means that under established law, if there’s a conflict between the rights of a copyright holder and the rights of a celebrity to control his or her image under the applicable right of publicity, the copyright holder’s interests come first.
This isn’t to say that this is the only policy balance that could be struck between the rights of the copyright holder and the rights of the subject of a photo, but it’s the one, for better or worse, that we currently have. So yes, the law is clear: if you’re a celeb, not only do you not profit from photos taken of you in public, if you want to use them yourself, you have to pay.
Also, look at it this way: none of us own everything about ourselves anymore (think about your personal data), nor do we profit from it. There’s no reason for the famous and the sort-of-famous to be different from everyone else.
October 10, 2023
In 1989, five Black and Latinx teenagers were prosecuted for and ultimately convicted of assaulting and raping a jogger in New York’s Central Park. The case brought the word “wilding” into the lexicon and drew national attention.
This attention stemmed, in part, from the defendants’ youth, race, the lack of DNA evidence tying any of them to the assault, and inconsistencies in the defendant’s confessions — confessions eventually proved to be false. Because of these issues and the eventual confession of a serial rapist who took sole responsibility for the crime, the convictions of the youths — who became known as the “Central Park Five” — were vacated.
For many, both in New York and beyond, this case symbolized New York at its worst and the wrongful use of the criminal justice system to target Black and Latinx men.
This case is now in the news once again. This time it is because of a defamation case brought by Linda Fairstein, the former head of the Sex Crimes Unit of the Manhattan District Attorney’s Office, who was involved in the prosecution of the Central Park Five. Fairstein, who is now a successful mystery writer, is suing Netflix, writer/director Ava DuVernay, and writer Attica Locke for defamation over how she was portrayed in the miniseries When They See Us.
When They See Us, is a four-part series dramatizing the Central Park Five’s experiences from their arrests through their release from prison. It portrays the criminal justice system as the villain and Fairstein’s character (played by Felicity Huffman) as the primary representative of the criminal justice system. Fairstein is shown as determined to see the five teenagers convicted regardless of inconsistencies pointing to their innocence. According to a recent decision in the Southern District of New York, which denied the defendants’ motion for summary judgment, “the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation of the [Central Park] Five.”
Because of the judge’s recent decision, unless the case settles, it will go to trial over five allegedly defamatory scenes. (In 2021, the judge ruled that seven of the scenes Fairstein claimed were defamatory were not actionable.) Fairstein alleges each of these scenes portrays her as responsible for far more of the arrest and prosecution of the Central Park Five than she actually was. For example, one of the allegedly defamatory scenes could be understood to imply that Fairstein improperly delayed providing DNA evidence to the defense, while another shows her instructing the police to round up suspects in Harlem and harshly interrogate them. Fairstein maintains that she didn’t do those things and there’s nothing in the historical record to support the series’ claim that she did have that authority.
It’s pretty clear that there were some very, very serious problems with the prosecution of the Central Park Five, that innocent men lost years of their lives in prison, that Fairstein played a role in their fate and, that to this day, she seems to be unrepentant, even continuing to indicate skepticism as to their innocence.
Nonetheless, the judge said there was evidence that “by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system,” When They See Us “reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers” and were not reflected in “the substantial body of research materials” assembled in preparing the series. Netflix and its co-defendants, for their part, argue that the filmmakers are allowed to use some dramatic license in creating a portrayal of Fairstein that was substantially true.
Some important things to keep in mind about this case and fictional stories based on real events:
- Even in dramatizations, you can’t ascribe things to real people that aren’t supported by the facts. Here, there will be an issue over whether the series’ portrayal of Fairstein is at least somewhat supported by the factual record. There will be a particular focus on the dissent of and comments by a judge on New York’s highest court who stated that Fairstein “deliberately engineered” a confession from one of the Central Park Five by not allowing a parent to be present.
- Fairstein is a public figure and, as such, to prevail at trial she will have to prove not only that certain statements in When They See Us were false, but that the statements were made with “actual malice.” The phrase “actual malice” is confusing because, for the most part, ill will is only a small part of the analysis. As used in the context of defamation, actual malice means that Fairstein will have to prove by clear and convincing evidence that the producers, writers, and director had subjective doubts about whether the statements at issue were false or probably false or that they created them with reckless disregard for whether they were true or not.
- The inclusion of a disclaimer is not a free pass. Here, Defendants did include a disclaimer stating that various elements had “been fictionalized for purposes of dramatization.” However, that disclaimer appeared only briefly at the end of each episode. This has to be contested against promotions for the series which included the statements “The story you know is the lie they told you” and “Based on the true story of The Central Park Five.”
However the case is resolved, it is clear that really, there are no winners here.
September 26, 2023
Our last post was about who owns a social media account: the company whose products are featured or the individual in the role associated with that account. This week we have another case at the intersection of social media and intellectual property. At issue here is who owns a trademark: the user who first created it or the social media platform (in this case, Reddit) where the mark is first used?
In early-2012, Jamie Rogozinski launched a subreddit on Reddit called “r/WallStreetBets,” where users could share stock tips and other financial advice. Rogozinski was its first moderator. By early-2020, r/WallStreetBets had grown to more than a million subscribers and Rogozinski published a book titled WallStreetBets: How Boomers Made the World’s Biggest Casino for Millennials. Then, the pandemic happened and the subreddit exploded in popularity. Suddenly, WallStreetBets was a very valuable property.
On March 24, 2020, Rogozinski filed an application with the United States Patent and Trademark Office (“USPTO”) to register the mark WallStreetBets. Two weeks later Reddit notified Rogozinski that it had temporarily suspended his account because, in violation of Reddit’s terms of service, he had “attempted to monetize the community.” Subsequently, Reddit filed its own application to trademark WallStreetBets and sought to have the USPTO block Rogozinski from asserting a trademark in WallStreetBets.
Rogozinski sued Reddit. He claimed, among other things, ownership of the trademark and that Reddit was infringing on his mark. The heart of his argument was that he owns WallStreetBets because he created the phrase and it is associated with him. Reddit moved to dismiss the complaint and, on July 11, 2023, U.S. District Judge Maxine Chesney granted Reddit’s motion.
The court’s decision was based on the fact that the test for trademark ownership is “priority of use.” However, use alone isn’t enough. Rather, the party claiming ownership has to show that it was the first to use the mark in connection with the sale of goods or services.
Here, while Rogozinski created WallStreetBets, the Court found that Reddit, not Rogozinski, had been using the mark in commerce starting with its inception on January 31, 2012, because any content created on the site becomes a product against which Reddit sells ads. According to Judge Chesney, to own a trademark, you must be “the first to actually use the mark in the sale of goods or services,” and none of the things Rogozinkski did to grow his subreddit “constitutes a use in commerce.”
One big problem with the court’s conclusion here is it could mean that because social media platforms like Facebook, X (formerly Twitter), Instagram, and the like have become so integral to marketing products, these companies could be seen as the owners of trademarks in products offered through their platforms. I suspect future cases will need to draw a line between products or services that are part of the social media platform (i.e. the subreddit at issue here) and the products or services that are entirely separate from the social media platform.
September 12, 2023
Almost a year ago, we wrote about a dispute between bridal designer Hayley Paige Gutman and her former employer over who owned social media accounts bearing her name. With the prevalence of social media and its importance for marketing, it seemed like it was only a matter of time until this issue came up again. And here it is.
Vital Pharmaceutical, which makes an energy drink called Bang (we’ve written about Bang before), filed for bankruptcy in 2022. As part of the bankruptcy, Vital sought a declaration that it, not its former CEO John Owoc, owned the social media accounts @bangenergy.ceo (TikTok and Instagram) and @BangEnergyCEO (Twitter/X). In response, Owoc claimed that he had used these accounts to cultivate a personality and the accounts belonged to him, not Vital.
The bankruptcy court granted Vital’s motion for summary judgment against Owoc. In reaching this conclusion, the Court created its own, new test for determining ownership of social media accounts because, in its view, the law had failed to keep up with the times.
Specifically, the court examined: (1) the existence of a documented property interest, i.e. an employment agreement or similar stating that certain social media accounts belong to the company; (2) who controls access to the social media accounts; and (3) the use of the account, for example, whether the account is used to promote the company’s products or to create a persona that goes beyond the company’s products.
Based on these factors, the bankruptcy court determined that despite the social media account names referring to Vital’s CEO, they belonged to the company and not its former chief executive. While there was no agreement documenting that the accounts belonged to the company (one point to Owoc), the court noted that Vital employees had access to and created and posted content for the accounts. This included posting things without Owoc’s approval. In addition, a large majority of posts featured Bang-branded products rather than Owoc’s personal content, indicating that the accounts should be the property of Vital, and not Owoc. Two points to Vital.
The court declined to follow the test used by another bankruptcy court in an earlier, similar case because that case predated “the emergence of the social media influencer, among other changes” in the use of social media. Specifically, the prior decision did not consider the existence of agreements that may establish the ownership of social media accounts (factor #1 in the Vital Pharmaceutical case).
The big takeaway from all this is that brands need to be very careful about establishing and using social media accounts and, in a dispute over who owns an account, it’s important to establish how social media accounts are used.
(Epilogue: On July 31 Vital was purchased by Monster Beverage, so we can all hope someone other than Owoc will carry on as @BangEnergyCEO.)
