AI
December 19, 2023
This year has brought us some of the early rounds of the fights between creators and AI companies, notably Microsoft, Meta, and OpenAI (the company behind ChatGPT). In addition to the Hollywood strikes, we’ve also seen several lawsuits between copyright owners and companies developing AI products. The claims largely focus on the AI companies’ creation of “large language models” or “LLMs.” (By way of background, LLMs are algorithms that take a large amount of information and use it to detect patterns so that it can create its own “original” content in response to user prompts.)
Among these cases is one filed by the Authors Guild and several prominent writers (including Jonathan Franzen and Jodi Picoult) in the Southern District of New York. It alleges OpenAI ingested large databases of copyrighted materials, including the plaintiffs’ works, to train their algorithms. In early December, the plaintiffs amended their complaint to add Microsoft as a defendant alleging that Microsoft knew about and assisted OpenAI in its infringement of the plaintiffs’ copyrights.
Because it is the end of the year, here are five “things to look for in 2024” in this case (and others like it):
- What will defendants argue on fair use and how will the Supreme Court’s 2023 decision in Goldsmith impact this argument? (In 2023 the SCOTUS ruled that Andy Warhol’s manipulation of a photograph by Lynn Goldsmith was not transformative enough to qualify as fair use.)
- Does the fact that the output of platforms like ChatGPT isn’t copyrightable have any impact on the fair use analysis? The whole idea behind fair use is to encourage subsequent creators to build on the work of earlier creators, but what happens to this analysis when the later “creator” is merely a computer doing what it was programmed to do?
- Will the fact that OpenAI recently inked a deal with Axel Springer (publisher of Politico and Business Insider) to allow OpenAI to summarize its news articles as well as use its content as training data for OpenAI’s large language models affect OpenAI’s fair use argument?
- What impact, if any, will this and other similar cases have on the business model for AI? Big companies and venture capital firms have invested heavily in AI, but if courts rule they must pay authors and other creators for their copyrighted works it dramatically changes the profitability of this model. Naturally, tech companies are putting forth numerous arguments against payment, including how little each individual creator would get considering how large the total pool of creators is, how it would curb innovation, etc. (One I find compelling is the idea that training a machine on copyrighted text is no different from a human reading a bunch of books and then using the knowledge and sense of style gained to go out and write one of their own.)
- Is Microsoft, which sells (copyrighted) software, ok with a competitor training its platform on copyrighted materials? I’m guessing that’s probably not ok.
These are all big questions with a lot at stake. For good and for ill, we live in exciting times, and in the arena of copyright and IP law I guarantee that 2024 will be an exciting year. See you then!
November 21, 2023
This week, I’m taking a break from talking about court cases and instead focusing on a draft bill aimed at creating a federal right of publicity that was introduced in October by a bipartisan group of Senators. A quick refresher: the right of publicity allows an individual to control the use of their voice, and laws or cases governing this right exist in about two-thirds of the states.
Now, with generative AI and “deepfake” technology, celebrities and entertainment companies are pushing for greater protection against the creation of unauthorized digital replicas of a person’s image, voice, or visual likeness. And the Senate, it appears, is responding, raising concerns among digital rights groups and others about First Amendment rights and limits on creative freedom.
Before diving into the specifics of the bill and its potential implications, I want to step back and talk about the underlying reasons for intellectual property laws. These laws are the subject of entire law school classes (I took several of them), but I can quickly summarize two fundamental reasons why they exist. The first is to encourage artistic works and inventions, an idea that can be found in the U.S. Constitution. The idea is that allowing creators (in the case of copyright law) and inventors (in the case of patent law) to exclusively reap the economic benefits of their work will incentivize people to make art and invent useful things. Notably, both copyrights and patents are in effect for a limited amount of time: for patents, 20 years from the date of the application, while copyrights run for the life of the creator plus 70 years (note that length; it’s going to come up again).
The second reason is to prevent consumer confusion. This is the central concern of trademark and unfair competition laws, which are intended to ensure that no one other than the company associated with a particular good or service is selling that good or service.
The idea behind the right of publicity (you can read more about it in the context of generative AI here), includes a dash of both of these rationales. It ensures that individuals can profit from their investment in their persona by preventing others from using their name, likeness, voice, etc., without their permission. It also prevents brands from claiming someone endorsed a product without that person’s consent.
With generative AI and the ease with which anyone can now create a digital replica of a celebrity to endorse a product or perform a song, artists and entertainment companies are worried that the current patchwork of state laws isn’t enough. Hence, the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023 or the NO FAKES Act of 2023, which, if enacted, would create a federal right of publicity. (A side question: in hiring staff, do Members of Congress test job applicants’ ability to come up with wacky bill titles that can be made into acronyms? Because this one certainly took some legitimate skill.)
The bill protects against the creation of an unauthorized “digital replica,” which the NO FAKES Act describes as: “a newly created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that is [nearly indistinguishable] from the actual image, voice, or visual likeness of an individual; and is fixed in a sound recording or an audiovisual work in which that individual did not actually perform or appear.”
In other words, NO FAKES bars using a computer to create an audiovisual work or a recording that looks or sounds very much like a real person when that person has not consented. This proposed right bars the creation of a digital replica during a person’s lifetime and for 70 years after death (the same as existing copyright laws). In the case of a dead person, the person or entity that owns the rights to the deceased’s publicity rights (often, the deceased’s heirs) would have to consent to the creation of a digital replica.
If NO FAKES is passed, anyone who creates an unauthorized digital replica can be sued by the person who controls the rights; the rights holder can also sue anyone, like a website or streaming platform, who knowingly publishes, distributes, or transmits a digital replica without consent. This is true even if the work includes a disclaimer stating the work is unauthorized.
That said, the Act as currently drafted does include some exceptions intended to protect the First Amendment. For example, NO FAKES states that it is not a violation of the Act to create a digital replica that is used as part of a news broadcast or documentary or for purposes of “comment criticism, scholarship, satire, or parody.”
Some other things to note:
- The right to control the creation of a digital replica does not extend to images that are unaccompanied by audio.
- The draft bill states that the right to control digital replicas “shall be considered to be a law pertaining to intellectual property for the purposes of section 230(e)(2) of the Communications Act of 1934. This means that Internet service providers cannot rely on Section 230 to avoid liability.
Now, it is likely the draft will have undergone significant amendments and revisions if and when it is passed. As mentioned above, digital rights groups and others worry that the right of publicity can be used to litigate against speech protected by the First Amendment, as public figures in the past have tried when they don’t like something that has been said about them in the media.
To me, the Act seems a bit suspicious. You may notice I’ve stressed how the Act extends protection against digital replicas to 70 years post-mortem, the same exact length as copyright protection. Isn’t this expansiveness a bit much considering the current state of play is no federal right of publicity at all? The extreme length of the proposed protection, coupled with the Act eliminating the use of disclaimers as a shield for liability, suggests NO FAKES is less about protecting the public and more designed to prolong celebrities’ and entertainment companies’ abilities to profit. After all, the right to publicity created in the NO FAKES Act can be sold by an actor or their heirs to a company like, say, a movie studio… that could then, in theory, continue to feature digital replicas of the aged or deceased actor in their films unchallenged for seven decades after death. Thelma and Louise 4: Back From the Abyss is coming, and Brad Pitt won’t look a day over 30.
Good, perhaps, for Brad Pitt. The rest of us, maybe not.
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.
June 27, 2023
Intellectual property class action lawsuits have, historically, been relatively rare. But here, at the dawn of AI, everything is changing fast, and we already have what appears to be the first attempt at an AI-related class action: Young v. NeoCortext, Inc.
This action is currently pending in the Central District of California against the owners of Reface, a “deep fake” generative AI app that enables users to replace a celebrity’s face in a still photo from a film or TV with their own face. The app includes a searchable catalog that allows a user to select the star whose face they want to replace. This library includes images of Kyland Young — a finalist in season 23 of CBS’ Big Brother — who is seeking to represent a class of California residents including musicians, athletes, celebrities “and other well-known individuals” who have had their “name, voice, signature, photograph, or likeness” displayed in Reface.
Young alleges that Reface’s inclusion of his image violates his rights under California’s right of publicity statute. This law protects individuals against the unauthorized use of their image, name, or voice to advertise or sell a product. His claim hinges on a specific detail: Reface promotes paid subscriptions with a free version that allows users to generate an image with their face in the place of a celebrity. Images generated by the free version are watermarked with Reface’s logo and say “made with Reface app.” According to Young, this amounts to an ad for the paid version of the Reface app. Thus, he claims that Reface’s owner is exploiting his image (and the image of other celebrities and demi-celebrities) to encourage users to purchase the paid version of the app, which brings the app within the ambit of California’s right of publicity statute.
Lawyers for Neocortext, which owns the app, have moved to dismiss the complaint. They argue, among other things, that Plaintiff’s claims are preempted by the Copyright Act and are barred by the First Amendment.
On preemption, Defendant argues that since images of Young used on the app are owned by CBS, not Young, any action for the unauthorized use of these images would have to be brought by CBS, not Plaintiff. It argues that CBS’ claims (if any) would sound in copyright infringement, not a violation of the right of publicity. It seems likely that the Defendant will prevail on this argument.
Even if the Defendant doesn’t prevail on this argument and the case survives the motion to dismiss, this copyright issue could create problems certifying a class. One issue courts consider in determining whether a suit can be heard as a class action is “commonality.” This requires judges to consider if the potential class members (in this case, other celebrities) are likely to have more issues in common than not. The possibility that some claims might be preempted by copyright law while others are not might lead the judge to conclude that common issues don’t predominate. This could preclude the certification of the action as a class action.
Defendant also argues that Plaintiff’s claim should be dismissed because it “violates the expressive rights of Defendant and its users that are guaranteed by the First Amendment.” Here, Defendant claims that modifying celebrity images to convey an idea or message can be an exercise of creative self-expression within the scope of the First Amendment, and thus Reface performs a “transformative use,” which brings it outside of the ambit of California’s right of publicity statute.
All in all, at least on copyright preemption, Defendant’s arguments seem more convincing.
With that said, this lawsuit points to how AI is making it easier to manipulate celebrities’ images. This will undoubtedly lead to more right of publicity lawsuits.
June 13, 2023
Well, that didn’t take long.
A pair of lawyers and their firm have very publicly and quite thoroughly embarrassed themselves by asking ChatGPT for case citations that turn out to have been made up by the trendy AI chatbot.
There are so many points of stupidity and laziness here: The global frenzy to adopt ChatGPT, the inability or failure of attorneys to understand new technology, one lawyer’s unthinking reliance on the work of a colleague, a law firm practicing in an area it is not equipped to handle … Let’s break it all down.
New York City law firm Levidow, Levidow & Oberman was working on what is, in most ways, an entirely unremarkable lawsuit: Roberto Mata v. Avianca. Their client — Roberto Mata — sued the airline Avianca claiming that, while on a 2019 flight from San Salvador to New York’s JFK airport, an airline employee failed to take sufficient care in operating a metal serving cart that hit Mata in the knee and seriously injured him.
In January 2023 Avianca moved to dismiss the case in the Southern District of New York Court, asserting the statute of limitations had expired. In March, Plaintiff’s counsel — Peter LoDuca — replied with an affidavit claiming otherwise. In his affidavit, LoDuca cited decisions from several cases including Varghese v. China Southern Airlines and Zicherman v. Korean Air Lines, both of which were supposedly decided by the 11th Circuit Court of Appeals.
Avianca’s counsel quickly pointed out there was no evidence that those or other cases cited by Plaintiff’s counsel existed or, if they did exist, stood for the propositions that Plaintiff said they did.
The judge — P. Kevin Castel — was perplexed, and ordered LoDuca to file an affidavit attaching copies of the cases he cited. LoDuca complied — well, sort of. He submitted an affidavit that attached what he claimed were the official court decisions.
Defendant’s counsel again notified the Court that the cases did not exist or did not actually say what Plaintiff’s counsel had represented.
The judge, now rather angry, ordered LoDuca to show up in Court and explain exactly how he came to submit an affidavit — a sworn document — citing and attaching non-existent cases. In response, LoDuca submitted another affidavit saying that he had relied on Steven Schwartz, another attorney in his firm, to research and draft his affidavit. (By way of background, LoDuca and Schwartz have been practicing law for more than 30 years.)
And this is where the story goes from weird to bad. Really bad.
The reason LoDuca was appearing in Court instead of Schwartz is because Schwartz isn’t admitted to practice in federal court. He’s only admitted in state court where the case started out. To make matters worse, it turns out that despite the fact that Levidow, Levidow & Oberman were representing Mr. Mata in federal court, its lawyers didn’t have a subscription that allowed them to search federal cases.
Without this access to federal cases, Schwartz turned to what he thought was a new “super-search engine” (his words) he had heard about: ChatGPT. He typed questions, and the AI responded with what seemed to Schwartz to be genuine case citations, often peppered with friendly bot chat like “hope that helps!” What could possibly go wrong? A good deal. Because the cases ChatGPT provided Schwartz didn’t actually exist.
On June 8, 2023, the judge held a hearing to determine whether LoDuca, Schwartz, and their firm should be sanctioned.
At this hearing, LoDuca admitted he had neither read the cases cited nor made any legitimate effort to determine if they were real. He argued he had no reason not to rely on the citations Schwartz provided. Schwartz, embarrassed, said he had no reason to believe that ChatGPT wasn’t providing accurate information. Both admitted that, in hindsight, they should have been more skeptical. Counsel for Schwartz argued that lawyers are notoriously bad with technology (personally, I object to this characterization). Throughout the hearing, the packed courtroom gasped.
Cringe-inducing, to be sure. But looking deeper, there’s more to fault here than a tech-challenged attorney blindly relying on some “super search engine” to research case citations. The bigger problem is that, even after Avianca’s lawyers pointed out they couldn’t find any evidence that the cases existed or said what Plaintiff’s lawyer said they said, Plaintiff’s attorneys — LoDuca and Schwartz — persisted in trying to establish that the “cases” they relied on were real despite possessing absolutely no evidence for it. Even after Schwartz couldn’t find the cases through a Google search, neither he nor LoDuca checked the publicly available court records to see if the cases were real. Moreover, they seem to have disregarded some pretty clear signs that the “cases” were, at best, problematic. For example, one case begins as a wrongful death case against an airline and, a paragraph or two later, magically transforms into someone suing because he was inconvenienced when a flight was canceled.
Should the duo and their firm be sanctioned? In general, the standard for sanctions is whether those involved acted in bad faith. Everyone here insisted that their conduct did not meet this standard. Rather, they claimed they were simply mistaken in not knowing how ChatGPT worked or that it couldn’t be trusted.
The judge certainly didn’t seem to see things that way. He was appalled that Schwartz and DoLuca didn’t try to verify (or, apparently, even read) the “cases” they cited. In court, the judge read aloud a few lines from one of the fake opinions, pointing out the text was “legal gibberish.” In addition, while LoDuca, Schwartz and their firm might not have been trying to lie to the court, it’s hard to believe that they fulfilled their obligation to make “an inquiry reasonable under the circumstances,” which is what is required under one of the rules applicable here.
The judge reserved a decision on sanctions, so stay tuned.
