Copyright
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.
May 31, 2023
We’ll keep this brief as the U.S. Supreme Court’s May 18 decision in Goldsmith v. Andy Warhol Foundation for the Visual Arts, Inc. has already been examined by many others. For example, here, here and here. Also, there will be much more to come as people have time to digest the Court’s ruling and the dissent.
The majority decision, written by Justice Sotomayor, held that Andy Warhol’s artwork Orange Prince, based on a photograph by Lynn Goldsmith and used by Condé Nast on the cover of a 2016 special edition magazine celebrating Prince’s life, was not sufficiently transformative. The Court concluded that the first fair use factor — the “purpose and character” of the second work — favored Goldsmith and not the Foundation. The Court rested its decision largely on the fact that Goldsmith’s photo and Orange Prince both could have served as the magazine cover and, significantly, Condé Nast chose to use Orange Prince as a substitute for Goldsmith’s photo on its magazine. One key point: the creation of Orange Prince went beyond the terms of the publisher’s original 1984 license for Goldsmith’s photo and Goldsmith wasn’t credited as the photographer when Condé Nast used the image in 2016.
By focusing on the fact that Warhol’s adaptation competed commercially with Goldsmith’s original for this specific application, the Court largely avoided having to answer the question of to what extent Warhol’s image visually transformed Goldsmith’s image. This is probably a good thing as judges should not moonlight as art critics. This decision allowed the Court to preserve the right of copyright holders to make derivative works, which would have likely been threatened by a ruling for the Foundation.
However, not everyone on the Court agreed. Justice Kagan wrote a blistering dissent in which she accused the majority of ignoring the extent to which Warhol was a transformative artist.
This focus on Warhol’s overall legacy, however, has its limits as it is not helpful when the next case deals with an artist who is far less famous or has a much less immediately identifiable style than Warhol (which is pretty much everyone). Moreover, Justice Kagan’s hypothesis that Condé Nast selected Orange Prince over the Goldsmith photo because the editors preferred the aesthetics of the Orange Prince ignores one obvious possibility — Conde Nast went with the Warholized image because they thought it would sell more copies of the magazine. The dissent’s failure to recognize Warhol’s unique level of fame and its commercial impact is a pretty big blind spot.
Putting all of that aside, as noted above, the majority’s opinion has the advantage of shifting at least some of the analysis away from having a judge (or a jury) determining the transformativeness of an artwork. However, the majority’s decision does have problems. For starters, it collapses or combines the first fair use factor (“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”) and the fourth fair use factor (“the effect of the use upon the potential market for or value of the copyrighted work”). Moreover, the idea that Warhol’s use of Goldsmith’s photo is fair use if the image hangs in a museum, but not if it’s on the cover of a magazine is odd. What would have happened if Orange Prince was on the cover of an issue of Vanity Fair that looked at celebrity culture or a catalog of a museum exhibition? Is the analysis different and do artists (and lawyers) now have to make judgments for each particular use? That would seem to be a bad thing. We shall see.
May 2, 2023
The last few months have seen an explosion in chatter about AI, specifically, freely available AI chatbots and apps like ChatGPT, DALL-E-2, Soundful and more that can create text, images, and music in response to prompts entered by a user. Internet forums are overflowing with examples of people using these apps to create “a love song that sounds like it was played by the Beatles in 1966” or “a painting of a three-legged horse in the style of Picasso” or “a 2,000-word story about colonizing the moon by Ernest Hemingway.” ChatGPT is already the fastest-growing app of all time and, naturally, people fear these AIs will quickly replace actual humans for the creation of commercial art and entertainment. We’re also starting to see some lawsuits involving AI-generated art infringing on copyrights. Everything is pretty much at the complaint stage, so there’s not too much to report on — yet. With that said, what follows are some of the places where I think we’re going to see legal battles.
Before diving into the legal issues, it’s worth taking a step back and thinking about how AI works. At a high level, AI platforms take in a ton of information and “learn” patterns about that information. Show an AI a coffee cup, and it “knows” what a coffee cup is. “Feed” it a banana, and it can create another banana in any color or pattern a user asks of it. Everything an AI can do begins from something that already exists.
Ok. On to the legal issues that will have to be sorted out by creators or, ultimately, in the courts.
- How similar is the output of an AI platform to the material it was trained on? If it’s too close, the output could be infringing. On the other hand, if the output is based on unprotectable components, then there’s no infringement. However, the line between copyrighted and unprotected is not always clear.
- Do AI platforms need to license the underlying materials used to create a new image or song to avoid claims of copyright infringement? In order for an AI platform to review information, it needs to make a copy of it. If work being used as a basis for an AI-generated product is copyrighted (or copyrightable), unless the platform has obtained a license, the act of copying may be infringing.
- If AI imitates an artist, does the output infringe on the artist’s right of publicity which, in some states, extends to an artist’s persona?
- What happens if the output from an AI platform includes a trademark? It’s not hard to imagine AI creating works that include trademarks. One doubts trademark owners will be happy about this.
- Sometimes the AI platforms are just wrong or false. These statements could be defamatory, but who is legally responsible? The platform, or the person who gave the platform the prompts?
We’ll follow the action here as it unfolds.
April 18, 2023
We spent the last two posts diving into Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith and some of the cases leading up to it. You can read those posts here and here.
Now, let’s turn to the oral argument before the Supreme Court and the Justices’ questions for the parties in that case.
As the appellant, the Warhol Foundation went first. Its central argument was that Warhol’s changes to Lynn Goldsmith’s photo of Prince gave Warhol’s work a different meaning or message. Specifically, its lawyer argued that Goldsmith’s photo is a photorealistic portrait of Prince while Warhol’s work is a depiction of the dehumanizing effects of celebrity. Based on this, according to the Foundation, Warhol’s Prince Series made fair use of Goldsmith’s photo.
The Justices had some doubts. They wanted to know how a court should determine whether new work has a sufficiently distinct meaning or message to qualify for fair use. The Foundation responded that Courts could look at a range of things in determining the meaning and message of a given artwork including: (1) evidence from the creators; (2) expert testimony; and (3) the judges own impressions. Justice Alito, however, noted that it could be hard to figure out what “meaning or message” to pay attention to because people might see things not intended by the artist.
The Foundation also faced questions about how to square its position with the fact that copyright law gives the right to create derivative works to the original artist — in this case, Goldsmith. (A derivative work is an adaptation of the original, for example, a translation of or a film made from a book.) In line with this, the Justices wanted to know whether a second artist performing another artist’s song in a way that conveys a different meaning is enough to avoid a claim of copyright infringement. The Foundation responded that it would require looking at other fair use factors. For example, whether the second work competed with the original.
Here, Justice Sotomayor pointed out (rightly) that this pretty much destroyed the Foundation’s argument as the Prince Series definitely competed with Goldsmith’s photograph as an illustration for an article about Prince’s life. The Foundation tried to avoid this by arguing that Goldsmith’s photo and the Prince Series had different audiences (and, compared to Goldsmith’s photos, the Prince Series fetched, um, princely sums).
Goldsmith’s attorney faced the Justices next. Among other things, she argued that a party claiming fair use should have to show that it needed to use the original work. In response, the Justices wanted to know the source for the test she was proposing. Goldsmith’s attorney responded that it came from the Supreme Court’s decision in Campbell. Justice Kagan was skeptical though. She noted that Campbell didn’t actually say that. Rather, it says that “if you need the original work, that’s the paradigmatic case.” Justice Kagan also noted that even if the second creator didn’t “need” the original work, there are plenty of situations where the new work is sufficiently transformative to be fair use. By way of example, Justice Kagan noted that Campbell uses “Warhol as an example of how somebody can take an original work and make it be something entirely different and that’s exactly what the fair use doctrine wants to protect.”
Goldsmith’s attorney also noted movie, music, and publishing industry groups supported Goldsmith’s position and were “horrified” by the Warhol Foundation’s position because it would essentially eliminate the right to control derivative works as set forth in the Copyright Act. She pointed out that the Warhol Foundation’s position would allow someone to create a movie where Darth Vader is a hero, not a villain, and claim fair use.
Finally, the Court heard from the United States government. It argued that the Court should not focus on a work’s meaning or message because it would destabilize long-established licensing markets, which have worked just fine in creating new and derivative works. It also argued that the Court should consider whether the second use has a distinct purpose or does it supersede the original, and, also, what is the justification for copying.
According to the US, both of these factors point against a finding of fair use in this case because the Foundation has never tried to show that Warhol’s copying of Goldsmith’s photo was essential to accomplish a new or distinct purpose. Put another way, the government argues that you can’t use another artist’s work to directly compete with that artist’s work unless there’s a justification for the copying.
Stay tuned. We should have a decision soon.
