Category: Art

On AI Removing Creative Constraints

constraints

A paper by Eleonara Rosati titled The future of the movie industry in the wake of generative AI: A perspective under EU and UK copyright law states the following:

…some have stressed the opportunities presented by the implementation of AI, including by advancing claims, like those made by AI video studio The Dor Brothers that at AI tools ‘are actually a purer form of expression, offering the most direct link between the artist’s brain and the end result, without the compromises required in large productions or the constraints that come with complex shoots’

The quote by The Dor Brothers raises a question I imagine many creators ask all the time—why use generative artificial intelligence (GAI) to produce anything? The answers will vary depending on the medium of expression—from the sculptor who says “never” to the audio-visual producer who says “all the time”—because beyond the legal issues triggered by GAI, the technology reframes the question of what it means to create works of expression in the first place. And this includes the question as to whether removing “constraints” is either conducive or harmful to the creative process.

Although motion picture production entails more non-creative constraints (e.g., large investments and complex logistics) than all other media, I would caution that even in filmmaking, constraints are generative of creativity. In the same way that working around copyright constraints tends to produce new creative expression, this is also true of the limitations inherent to each medium. Moreover, the idea that an artist does not want to confront the constraints of her chosen medium is misguided, and the passion to confront those challenges is not a matter of mere nostalgia.

I get what the Dor Brothers are saying, of course. The AV producer can go from script to screen without any of the costly and cumbersome production work that will frustrate, if not substantially alter, the original vision. Screenplay material becomes prompts, and the GAI outputs the AV material without the need for cameras, actors, sets, etc. Still, the extent to which the outputs more “purely” represent the mental conception in the “artist’s brain” is both a question of copyrightability and artistic integrity. How much control the AV prompter has over the resulting material will determine the extent to which he owns the rights in that material, but even with extensive control, the “purity” of the expression is not necessarily preserved by the removal of constraints.

Notwithstanding many useful applications of AI, including for various aspects of artistic work, all the talk about “democratizing” creative expression (i.e., without developing skills in various crafts) reprises that question Why? for many artists. If you don’t enjoy dealing with the constraints of clay, paint, words, light, sounds, etc., then you probably don’t really like the process of creative expression. Again, that’s not just luddite’s nostalgia. Creative expression (art) results when the unique, imperfect human confronts, learns from, and eventually masters the constraints of a chosen medium. As my friend Sandra Aistars, copyright professor and, recently, a fine art student, writes about the distinction between AI “training” and human learning:

… instead of predicting “what comes next,” artists studying masterworks are taught to unlock “how” the original artist has conveyed what is foundational to an image’s storytelling. This requires patience, humility and empathy on the part of the artist asking to learn. But it ends in developing one’s own aesthetic judgment and voice.

Aistars describes engaging with the constraints of visual artmaking by retracing the steps of masters in order to discover her own aesthetic. The process is physical, intellectual, and emotional at the same time, and most artists would ask why a creator would want to avoid engaging with the medium in this way. It is the act of confrontation and the artist’s unique mode of problem solving where the meaningful act of creating occurs for the individual.

Using GAI as a cheap or free assistant to write a boilerplate email or report makes sense, but the hyped-up marketing of these products, challenging users to push AI to “write poems or novels” is asking people to fool themselves. You might have a brilliant idea for a premise, but if you don’t want to grapple with the constraints of writing, you’re not a novelist any more than you’re the “boyfriend” of an AI companion.

Turning back to the Dor Bros.’ comment, because motion picture production entails thousands of constraints that are not necessarily generative of creativity, their point has some merit in certain applications of the medium. Specifically, a lot of their work appears to be commercial advertising at this time, and the utilitarian nature of marketing material, combined with the attraction of low-cost, fast-turnaround production cannot be ignored. Nevertheless, I would caution against the idea of a “pure” link between an artist’s “mental conception” and the end result by means of removing constraints.

Motion picture production still entails many constraints that are generative of creative expression. Just as Aistars chooses to wrestle with the possibilities and limitations of a particular pencil in her hand, the filmmaker has a complex set of “tools” that include the constraints of physical space, light, camera and lens characteristics, performers, writing, time, which must be confronted to find the film’s unique voice. And as any film student can tell you, working around constraints has often resulted in moments considered to be works of cinematic genius.

Naturally, GAI is already used to reduce or eliminate certain drudgeries in creative production, and although this also implies reducing or eliminating various jobs, that is a separate matter from the philosophical premise to which this post responds. In general, I am skeptical that a seamless, constraint-free transition from mental conception to creative expression is desirable, even if it is achievable. Constraints define the various artistic media, and it seems more likely that expression through GAI will evolve as its own medium with its own constraints. Otherwise, if GAI’s only purpose is to synthetically displace the creative process in all media, the results will likely be as bloodless as the computers that made them.

Photo by: Ponsulak

A Brand Divided: Trademark and the Legacy of Frida Kahlo

frida kahlo

In 2018, when Mattel introduced the Frida Kahlo doll as part of its “Inspiring Women” collection in the Barbie portfolio, some consumers saw a strong feminist statement, but many observers familiar with Kahlo’s life and work saw a commercial exploitation the artist would have hated. Indeed, Kahlo was a sharp critic of American capitalism and the kind of bourgeois sensibility that would presume to commoditize a plastic gloss on her complicated and painful story—let alone a false rendering of her likeness and traditional Tehuana dress.

In rejecting the label “surrealist,” Kahlo said that her famously tortured self-portraits (e.g., The Broken Column) were not expressions of haunting dreams but depictions of her reality—a reality largely defined by a shattered body. Kahlo was born with polio and then, at the age of eighteen, was impaled by an iron handrail when a trolley crashed into the bus she was riding in Mexico City. The near-fatal accident foreclosed her intended career as a physician, and Kahlo spent months of cast-entombed recovery painting in bed by means of an easel her mother rigged to allow her to work in a supine position. With the aid of a mirror also suspended nearby, her own face became her most consistent model.[1]

Although Kahlo said that she frequently painted herself because she was so often alone, it is paradoxically this abundance of self-portraiture that makes her, perhaps, the most widely recognized visual artist in the world. Relatively obscure between her death in 1954 and the 1983 biography by Hayden Herrera, Frida Kahlo’s story and artworks now comprise, for better or worse, a brand—and one that her family is trying to regain control of to prevent inappropriate applications like Kahlo Barbie.

Whether Frida Kahlo herself would have scorned the notion of becoming a brand, it is the inevitably careless uses of a famous artist’s name and likeness that emphasize both the value of protecting intellectual property and of having that IP managed by thoughtful stewards. Most often, this means family heirs, and in the eyes of Kahlo’s grandniece Mara Pinedo, the Frida Barbie was among the more offensive breaches of an already souring arrangement between Familia Kahlo, a Mexican entity, and Frida Kahlo Corporation (FKC), a Panamanian entity. [2]

The roughly thirty years between Frida Kahlo’s death and the explosion of interest in her story and work—the term Fridamania applies—emphasizes the role of trademark as a means for family heirs to control the artist’s legacy. In Kahlo’s case, the copyrights on the paintings have either expired or are controlled by other parties, and the right of publicity under Mexican law expired in 2004. But because trademarks are indefinitely renewable, these become the IP crown jewels that need to be enforced and protected.

In 1954, all rights descended under Mexican law to Kahlo’s niece, Isolda Pindeo Kahlo and subsequently to her daughter Mara Pinedo, presently owner and officer of Familia Kahlo. Under the terms of a 2005 agreement, Familia Kahlo transferred trademarks to FKC but states in court briefs that they conditioned FKC’s authority to make licensing agreements upon obtaining permission from the family for every deal. Oscar Gomez, attorney for the family tells me via email:

Over time, FKC repeatedly engaged in the commercial use of Frida Kahlo’s name, image and likeness without consulting the family or obtaining the approvals required under the 2005 agreement. Products and partnerships were launched — including consumer goods the family and general public found culturally insensitive or inappropriate — without the family’s knowledge or involvement. These actions were in clear disregard for the approval process intended to protect Frida Kahlo’s legacy.

Based on the alleged breaches of the 2005 agreement, Familia Kahlo seeks to revert all trademarks back to its exclusive control, and this matter is presently being litigated in Spain and Panama. “In Spain, the court is focusing its review on whether certain European trademarks were wrongfully revoked and otherwise who holds rightful ownership. In Panama, there is a separate legal action to resolve the corporate control of the FKC entity,” says Gomez.

Litigation in Florida Federal Court

Meanwhile, in 2022, FKC filed a lawsuit in a Florida district court alleging that Pinedo and Familia Kahlo were liable for tortious interference by attempting to prevent what FKC argues are its legal rights to exploit the marks it claims to own. The litigation was triggered by cease-and-desist notices sent by Familia Kahlo advising four FKC licensees of the ongoing litigations abroad and notifying these parties that they could be held liable for trademark infringement. Only two of the four letters were directed at U.S. entities operating in Florida, and all four were written and sent by Familia Kahlo general manager Alfonso Durán.

Without addressing the merits of FKC’s claim, the district court held in 2023 that it lacked personal jurisdiction over defendants Pinedo and Familia Kahlo—Pinedo is a Mexican citizen with no ties to the State of Florida—under both corporate shield doctrine and comportment with due process under the 14th Amendment. On that basis, the district court dismissed FKC’s claims, and in May 2024, the plaintiff filed an appeal to the 11th Circuit. In response, the family’s brief states, “Plaintiffs are attempting to bypass the laws of Mexico and the legal disputes ongoing in Panama and Spain by filing this action in Florida to try to gain some form of authentication for their false claims to the intellectual property rights of the Frida Kahlo mark.”

It would be a major project (and one well outside my wheelhouse) to attempt to unpack the contractual details applicable to trademark ownership in several jurisdictions. But Gomez states that “[The Spanish and Panamanian] proceedings could resolve key questions of ownership and standing before the U.S. case ever reaches the merits.” Consequently, he theorizes that FKC may be forum shopping, hoping that a U.S. court might be a more favorable venue to find that it rightfully controls the Kahlo brand. But unless the 11th circuit reverses, finding that the lower court erred in its holding on personal jurisdiction, the core matter of ownership will presumably be resolved outside the U.S.

Both Licensing and Enforcement at Stake

In addition to licensing uses of the Kahlo brand that both the family and the public find inappropriate, FKC also engages in legal enforcement actions against parties who may not be making inappropriate uses. For instance, in a long post about these ongoing disputes, Laurel Wickersham Salisbury for Center for Art Law, describes FKC’s action against folk artist Nina Shope. “Shope handmakes a variety of embroideries and dolls, many of which represent Frida Kahlo and are sold [on Etsy] using her name,” Salisbury writes.

Shope’s derivative works based on Kahlo’s paintings are legal if the paintings have fallen into the public domain, but whether a court would find that her use of Kahlo’s name, an unavoidable description, constitutes trademark infringement is a separate question. From a cursory review, I am not certain Shope’s use constitutes infringement under U.S. law, but more important for the moment is whether FKC or Familia Kahlo has the right to make that determination and pursue (or not) legal remedy.[3]

Two Different Futures

A recurring theme in Kahlo’s self-portraiture includes several depictions of herself as divided, as two Fridas simultaneously occupying two realities laden with symbols of her fraught and chronically painful life. In that light, it is notable that today the Frida Kahlo brand is divided between an entity that appears willing to capitalize on any use without regard to appropriateness and a family seeking to keep “Fridamania” within the bounds of respect for who Frida was rather than commoditizing any Frida people wish to see.

Although the U.S. case is currently procedural and one that may never affect ultimate control of the Kahlo brand, it raises important considerations for well-known artists and families contemplating management of a potential legacy. “We see it happening more frequently now that artists are seeking to reclaim the rights to their works and their brands from the parties who they hoped could help them grow,” says Gomez. Although Frida Kahlo’s biography is unusual, her posthumous fame, more than a half century since her passing, reveals the need for balancing legacy management between exploitation and reverence.

[1] Frida – documentary by Carla Gutierrez

[2] As a result of litigation in Mexico, the court there enjoined sale of the doll pending further proceedings.

[3] Notably, trademark, unlike copyright, is a use-it-or-lose it IP right. Failure to enforce can be a basis for loss of the mark.

The Big Deal in Mahmoud et al. v. Taylor is The First Amendment

first amendment

The U.S. Supreme Court last week heard oral arguments in Mahmoud et al. v. Taylor—a case brought by three families petitioning, on First Amendment Free Exercise grounds, to have their young children opt out of class time involving age-appropriate books that depict homosexual characters. The families—one Muslim, the other two Catholic—are not seeking to ban the books or to amend the Maryland elementary school curriculum. Instead, they are suing to overcome the school board’s refusal to allow an opt-out in this circumstance.

Opting out might appear to be a modest request, and Amy Howe’s Scotusblog summary of oral arguments describes the conservative majority of the Court as sympathetic to the parents’ petition. “What’s the big deal about allowing them to opt out of this?” asked Justice Alito. Although an unsurprising comment from Alito, the big deal raises conflicts the Court may be inclined to ignore—but it should not.

The Petitioners Misrepresent the Facts

The first big deal is that by allowing the petitioners to opt out on First Amendment Free Exercise grounds, this would make doctrine from an improper reading of the facts before the Court. In order to object to the books on the basis of the Exercise right, the parents should be required to show that the books promote an ethical or moral viewpoint that is not only anathema to their beliefs but also show how mandatory classroom exposure to that viewpoint is an abridgement of their right of Exercise.

But that bar cannot be met based on the content of the books at issue. “One book describes the story of a girl attending her uncle’s same-sex wedding, for example, while another book, Pride Puppy, tells the story of a puppy that gets lost during a Pride parade,” writes Howe. It may be the case that in the minds of the petitioners, the books imply or impose a moral position on homosexuality, but in fact, the books at issue simply depict the world as it is—a world that includes gay people.

If the books “promote” any viewpoint at all, it is tolerance in general, and it is extraordinary for these families to ask the Court to find that tolerance is tantamount to abridgement of religious exercise. It is clear that many religious people feel this way, but if the Court sanctions this view, it will erode the Framers’ purpose in writing the Exercise and Establishment clauses—namely that religious tolerance in a nation as complexly diversified as the United States is necessary for ensuring domestic tranquility.

So, if mere tolerance is unacceptable for certain families, it is unreasonable for those families to expect the public school to accommodate this view—let alone find that failure to make that accommodation is an abridgement of the Exercise right. The American public school has a responsibility to provide curricula and materials in literature, science, and history that reflect the world as it is—indeed failure to do so would violate the meaning of education—and the world includes gay people. It is, therefore, not the job of teachers or administrators at a public school to help certain parents shield their children from this fact any more than they would shield a child from a book depicting a prosperous Black character because some family sincerely believes that non-White people are subordinates in the “eyes of God.”

An Atheistic Hypothetical Makes the Point

Although my atheism is not conditioned on the fact that I find many religious people to be morally objectionable, I nevertheless sincerely believe that many religious people are morally objectionable. In fact, I could cite centuries of history to support that view in contrast to the dearth of evidence the petitioners in Mahmoud might bring to show a similar pattern among associations of gay people. Regardless, if the Court decides in favor of these families, would it likewise find that my secular child may opt out of a lesson in which a storybook merely depicts a family going to church?

If this hypothetical children’s book does not preach, for instance, that churchgoers are morally superior to non-churchgoers, then the book simply depicts the world as it is—a world in which some families go to church. In this case, would the Court find, as it should, that I am overreacting by seeking an exemption for my child on the false interpretation that the book’s mere depiction of churchgoing is implying that her secular family is morally wrong?

If the Court would rule against me in this hypothetical, then its finding should be no different for the plaintiffs in Mahmoud. Further, if my child gleans from the storybook that she is expected to tolerate, if not agree with, the religious kids in her class, that is both a sound lesson and one that is conducive to the atmosphere necessary for teaching a roomful of young children. This is especially true where young children come from a diverse range of families, including the likelihood that one may be the child of same-sex parents.

We Cannot Each Be a Law Unto Ourselves

Although opting out of a kindergarten class is a small matter—indeed, the parents could have done so without literally making a federal case out of it—asking the Court to grant the exemption on the basis that compliance with the public-school curriculum is an abridgement of Exercise conflicts with precedent, and possibly in a new and dangerous way. As the court held in Reynolds v. United States (1878), and Justice Scalia restated in Employment Division v. Smith (1990), the Free Exercise Clause is not “a system in which each conscience is a law unto itself.”

Reynolds and Smith address matters of state abridgement of specific exercise (polygamy in the first instance, and peyote ritual in the second) as a question of balance with “generally applicable law.” In response to Smith, Congress and President Clinton passed the Religious Freedom Restoration Act (RFRA) to reset judicial review and reverse Scalia’s holding in that case. RFRA was subsequently key in 2014 to then Judge Gorsuch’s 10th Circuit holding that Hobby Lobby, a privately held company owned by devout Christians, may be exempted from certain birth control mandates in the Affordable Care Act.

But between Reynolds and Hobby Lobby, in addition to the shift from natural persons to corporations engaging in “religious exercise,” we also see a contrast between direct prohibition of specific conduct (polygamy) to a more nuanced concept of abridgement (compliance with federal insurance law). But even Hobby Lobby is narrow in contrast to the implicitly broad exemption being sought in Mahmoud.

It is clearly the view of many religious Americans—especially American Christians—that mere toleration of fellow citizens outside their orthodoxy is perceived as an infringement of their Exercise rights. Or as The Authors Guild states in its amicus brief in this case, “Petitioners argue that the mere exposure to books that represent this community violates their free exercise rights under the First Amendment….we are now at an especially fraught moment in our history, as book removal initiatives—couched as attempts to shield children and young adults from harmful subjects and dangerous ideas—are wreaking havoc on school districts and public libraries across the country.”

The Court should refuse to endorse this agenda with a poor reading of the Exercise clause. Not only would it be bad law, but it invites pedagogical chaos in public education and animates viewpoint extremism in general. After all, what are the boundaries for public-school parents to opt out, grade-by-grade, topic-by-topic, belief-by-belief—in a society increasingly belabored by subjective truths? The family who clings to the geocentric model of the universe, for instance, is at liberty to home-school or find a parochial option that fits their beliefs, but the First Amendment does not permit them to demand that the public school accommodate their personal brand of scientific ignorance.

Thus, if we look beyond kindergarten and the Court finds for the plaintiffs in Mahmoud, the disarray it prefaces in public schools may only be resolved by an unconstitutional cabining of the opinion as an exception for certain religious exercise—perhaps just the three Abrahamic religions?—which would be in conflict with the Establishment clause. And quite possibly, that is the underlying intent of this lawsuit: to frame tolerance of diverse beliefs as intolerance of a few preferred beliefs until the latter overwhelms the former.

In that regard, intolerance itself is, of course, part of the world as it is, and as children mature, the literature they read often deals directly with various forms of intolerance in books that some Americans have tried to censor. Any sincerely held belief, whether religious or irreligious, will eventually breed some measure of intolerance for the heterodox view. Some Christians believe that I am an emissary of the devil, and, in turn, I believe those people are howling-at-the-moon insane.[1] There is no reconciling our views of one another, and so, the constitutional Framers, keenly aware that such antagonisms tear nations apart, wrote the Establishment and Exercise clauses with the hope of fostering comity in the new nation. So, the big deal in this case is that at the very least, the Court should honor history and tradition by supporting public school teachers working to foster comity in the classroom.

[1] Expression by Aaron Sorkin, The West Wing.

Photo by Peopleimages