Category: Art

AI Machine Learning:  Remedies Other Than Copyright Law?

In my last post, I discussed some of the allegations that “machine learning” (ML) with the use of copyrighted works constitutes mass infringement. Citing the class action lawsuits Andersen and Tremblay, I predicted that if the courts do not find that ML unavoidably violates the reproduction right (§106(1)), copyright law may not offer much relief to the creators of the works used for AI development. As of last week, it remains to be seen whether we’ll get to that question after Judge Orrick of the Northern District of California stated that he is tentatively prepared to dismiss the suit with leave to amend the complaint. The judge did indicate that a claim of direct infringement could survive, but we’ll have to see what comes of an amended complaint.

As mentioned in the last post, if the court does not find a valid claim of copyright infringement, the other allegations will likely fail as a result. Nevertheless, though the state allegations may be moot in the class cases filed thus far, I had intended in this post to look at whether any non-copyright remedies present much hope for creators. For instance, the Andersen complaint alleges violations of statutory and common law rights of publicity and violations of statutory unfair practice prohibitions in the State of California.

Right of Publicity and Works “in the style of…”

One of the most concerning aspects of generative AI is that it allows a user to prompt the system to make a work “in the style of [named artist].” Karla Ortiz, in her testimony to the Senate Judiciary Committee on July 12, stated, “[Artist] Greg Rutkowski, had his name used as a prompt between Midjourney, Stability AI and the porn generator Unstable Diffusion, about 400,000 times as of December 2022. (And these are on the lower side of estimates).” This is a deeply personal assault on the identity, work, and potential livelihood of an artist who has spent years mastering his craft and developing that distinctive style which can now be mimicked by a computer. But as a matter of doctrine, copyright does not protect style. So, can state laws like the right of publicity (ROP) offer any relief?

Only half the states in the U.S. have statutory rights of publicity, though most states recognize a common law ROP, which may prove more expansive in a litigation. The California statute, considered one of the strongest, prohibits the use, without consent, of a person’s likeness, name, voice, or signature for commercial purposes. In particular, advertising a product, service, or viewpoint so that a representation of the individual implies that person’s endorsement, is a paradigmatic violation of ROP and may infringe the speech right of the individual. But does prompting a generative AI to create an image “in the style of [artist]” implicate the artist’s ROP? Maybe and sometimes.

Because a user can prompt the production of a visual work “in the style of Greg Rutkowski,” one obvious implication is that there will be hundreds or thousands of “Rutkowskis” in the world which the artist did not create. If any of those AI-generated works are substantially similar to an existing work he did create, then he may have claims of copyright infringement—and potentially too many to contemplate addressing. But what about the works that do not look substantially similar to anything in the artist’s portfolio but to the observer, do look like “new Rutkowskis”?

In the fine-art trade, the duty to validate provenance and authenticity (i.e., not commit forgery) should offer some protection for those artists who sell their work in galleries etc. But in the commercial market, if a new vodka brand wants images in the style of, say, Molly Crabapple for its ad campaign but doesn’t want to hire Molly for the job, they could use generative AI to make something in her style. No question this implies that artists will lose gigs, but whether ROP offers a remedy to Crabapple herself in this hypothetical is questionable.

To begin, artwork in the style of the artist is not a “likeness.” Thus, Crabapple would have to prove that observers seeing the ads would perceive the images as her work and that the images, therefore, result in an unlicensed endorsement in violation of ROP. That can be a high bar to reach, let alone repeat in what could amount to multiple complaints by just one artist—and potentially in multiple states! Although a violation of ROP can stand alone without an underlying violation of some other law, it is a fact-intensive, case-by-case consideration and, therefore, hard to imagine how it can support allegations of harm to a plaintiff class as alleged in Andersen.

Moreover, some states only recognize celebrity ROP and not average citizen ROP. So, in the case of the visual artist, what is the threshold where he or she is famous enough to be considered a celebrity? Crabapple, Rutkowski, et al. are very well known in the art world, but they’re not movie-star well known to the general public. So, what constitutes “celebrity” in this context? We don’t know. The specific problems caused by generative AI are brand new.

New Federal ROP Law?

In testimony before the SJC along with Karla Ortiz, General Counsel for Universal Music Group Jeffrey Harleston broached the subject of adopting a federal right of publicity, and the idea was at least entertained by some of the senators. A federal ROP could theoretically address some of the new harms to artists caused by generative AI. Not only would a federal statute provide a uniform, national framework, but the new law would be written with an understanding of AI and its potential harms as a foundation of legislative intent. Further, it was raised in committee that ROP should apply to everybody and not just celebrities.

The Motion Picture Association (MPA) filed comments in response to this discussion, and these were focused largely on the fact that, historically, ROP has applied to commercial/promotional uses, but not to expressive ones. The MPA is right to point to some tricky considerations that would need to shape a new federal ROP in order to strike a balance between disenfranchising creators or performers through AI-generated replicas while allowing use of the technology to create expressions that are protected by the First Amendment.

In fact, in my book, I allude to a hypothetical future biopic about Carrie Fisher that (with the family’s permission, of course) might dramatize scenes using AI replicas. Whether this use of the technology would be an engaging choice in lieu of casting an actress play young Carrie is a question of aesthetics and culture, but not a question that can or should be addressed as a matter of law. Suffice to say, the contours of a prospective new federal ROP are complex enough to be subject of future posts.

Unfair Competition

Unlike an ROP complaint, unfair competition does not stand alone as an allegation. In general, these laws bar businesses from gaining unfair advantage by engaging in some form of prohibited conduct. In the Andersen et al. class action suits, the underlying conduct is alleged to be copyright infringement, which allegedly makes the AI developers unfair competitors with the plaintiff class of artists. This state allegation would seem to have merit if the court finds the developers liable for violation of §106(1) of the Copyright Act, and unlike ROP, I can see it surviving as a complaint for a whole class—i.e., as unfair competition against all artists. That would be encouraging. But if, for instance, the court finds that not all the named plaintiffs have standing (i.e., do not have registered works in suit), it’s hard to say what this does to the unfair competition complaint as argued.

What About Trademark?

It is tempting to wonder whether certain creators can find protection in trademark law. In addition to the cost of registering and maintaining a trademark, only certain artists would be able to make effective use of this form of intellectual property. In this instance, trademark only protects use of the artist’s name in commerce, and since it is already illegal to trade in forgeries, registering one’s name as a trademark may be redundant and little protection against the use of AI to produce “in the style of” works.

Relatedly, the Federal Trade Commission (FTC) may have a role to play to protect consumers against fraud stemming from the uses of generative AI. As to the FTC stepping in, presumably they could respond to or seek prophylactically to protect consumers from forgery at scale. Not unlike the rampant proliferation of counterfeit products sold via eCommerce sites, generative AI certainly presents the opportunity for some party to start generating mass forgeries of popular artists and selling those in the millions. As such, measures to restrict the use of artists’ names in generative AI may belong in the FTC’s wheelhouse.

In both this post and the last, my intent is not to advocate on behalf of the AI developers. Far from it. Instead, I am trying to kick the tires of existing law to ask whether the law is sufficient to the task of protecting authors of creative works. Because, overall, I’m not sure it is, though it is also essential to note that every type of work has different implications (i.e., voice actors’ rights are more likely to sound in ROP than visual artists’ rights).

One thing is certain. Generative AI is not comparable to the printing press, camera, phonograph, or any more recent changes to production and distribution enabled by digital technology. Debate about AI must be sequestered from discussions about technologies of the past because few, if any, of those revolutions are instructive to the moment. There is no doubt that AI implies new regulation in medicine, finance, IT, security, and just about everywhere else it will invade; and there is no reason why Congress cannot adopt the same posture in order to protect America’s creative culture and economy.

Image source by: idaakerblom

Podcast: On Being Among the Banned with Author J. J. Austrian

Pride month is more than celebratory in a time when book bans are on the rise in the United States, and 26% of the titles banned “have LGBTQ+ characters or themes,” according to PEN America. With politicians like Ron DeSantis determined to make “anti-wokeness” part of the Republican brand, this neologism for hate-speech has taken the form of book and media censorship in school and public libraries around the country. One of these banned books, entitled Worm Loves Worm, was written by a close friend named J. J. Austrian, who joins me for this episode of the podcast. Illustrated by Mike Curato and published by Harper Collins in 2016, Worm Loves Worm is a story for young children about two earthworms getting married and trying to figure out which is the bride and which is the groom while navigating the not-so-helpful advice and opinions of the other bugs and critters in attendance.

Show Contents

  • 01:22 – How does it feel to be among the banned?
  • 03:42 –  The creation of Worm Loves Worm.
  • 08:12 – What children get from Worm Loves Worm.
  • 09:36 – It’s not about sex. Indoctrination to what?
  • 12:23 – Attacks on the transgender community.
  • 15:03 – Did you expect the backlash when the book first came out?
  • 18:34 -Is it hard not to look at the negative comments?
  • 20:19 – The “shotgun wedding.”
  • 21:50 – Increase in attacks since it was first published.
  • 24:10 – More worried about middle grade and young adult readers.
  • 28:10 – Ever criticized for writing about a subject that’s not your subject? (outside your lane)
  • 34:45 – Do you have Woke Mind Virus?
  • 37:15 – A conversation about satire.
  • 44:33 – How banning can affect the author.
  • 47:44 – The victim’s narrative.
  • 50:15 – Hope for the future?
  • 52:44 – The Printing Press and the Internet
  • 57:05 – Love is love.

Court in Richard Prince Case Affirms that “Transformative” Has Boundaries

The big battle over application of the fair use defense has been focused on the highly subjective, often confusing, doctrine of “transformativeness,” which is addressed under factor one of the four-factor test. Factor one considers the purpose of the use, including whether the purpose is commercial; and over the past decade or so, several high-profile defendants have sought to broaden the concept of a “transformative” purpose to encompass any use of a work that results in any new development, from fine art to technology.

The courts have largely rejected this over-broad approach because it would render fair use a boundaryless and, therefore, meaningless aspect of copyright law. And in an opinion delivered last week, we see why it is essential to draw contours around the “transformativeness” doctrine because the “purpose” inquiry so often controls the rest of the fair use analysis.

In a case that I frankly did not realize was still active, the S.D.N.Y. affirmed the significance of a meaningful “transformativeness” consideration when it denied the fair-use-based motion for summary judgment (MSJ) to famed appropriation artist Richard Prince and co-defendant Gagosian Gallery. At issue are photographs taken by Donald Graham and Eric McNatt, which Prince reproduced, displayed, and offered for sale as part of his “New Portraits” series in 2015. The story went viral when Prince created (and sold for six-figure prices) the series of canvasses made from enlarged screen grabs of Instagram posts. Because the main expression in each of the canvasses is someone else’s visual work, which Prince used without permission, photographers and other artists responded with mixed, but generally negative, feelings about the exhibit.

Although I discussed the idea that the “New Portrait” series itself was an artistic and engaging statement about social media, I also noted, regarding the Graham complaint, that finding creative significance in the exhibit itself does not mean that any of the works copied were fairly used. According to the opinion released last week, the years since the MSJ was filed have entailed a lengthy discovery process during which Prince apparently changed his “purpose” statement from a nondescript intent “to make art” to a more assertive claim that the “New Portraits” series is a comment about social media and its role in contemporary culture.

Inconsistency in testimony notwithstanding, the court found Prince’s elaborated statement of intended social message no more persuasive that his use was “transformative” than his originally stated intent to just “make art.” Citing substantial circuit precedent, the district court reiterated the opinion that the user of a protected work must in some way comment upon the work used, not merely use a work to make a statement about something else.

…where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use’ … is insufficient to render a work transformative.[1] 

The court found that Prince’s latter testimony about the intent of the series only reinforced the fact that he could have selected any of the millions of images posted to Instagram and that he in no way commented upon or added new expression to the photographs made by Graham and McNatt. Combine the finding that the appropriator could have selected any work for his purpose with the fact that the works used happen to convey the heart of the follow-on expression, and then find the purpose to be commercial, and factor one is likely fatal to the defendant’s claim of fair use. In fact, this opinion, while not articulating anything new, is a good example of how the “transformative” question affects other dispositive aspects of the fair use inquiry.

As usual, the court addressed factor two (nature of the work used) as a simple, binary question finding the photographs in suit to be expressive in nature and, so, favors the plaintiffs with scant discussion on the matter. The factor three analysis (amount of the work used) restates that while it is possible to make fair use of a whole work, this inquiry is dependent upon factor one. “Because Prince’s use is not transformative, his use of nearly the entirety of plaintiffs’ photographs cannot be deemed ‘reasonable,’” the opinion states. [2] The court found that the fourth factor (potential market harm to the work used), “weighs slightly in favor of fair use” based on evidence indicating that Prince’s use does not threaten the market for the Graham and McNatt photographs, but…

…Prince has failed to show that other artists would not be emboldened by his success in declining to compensate plaintiffs for his non-transformative use, which negatively affects the value of the original works.

So, with three factors favoring the plaintiffs and the fourth maybe “partially” supporting the defendants, Prince and Gagosian lose on the MSJ. The consistency of this opinion with Second Circuit caselaw could mean that this litigation is about to settle. On the other hand, the Supreme Court has yet to drop its later-than-expected opinion in Andy Warhol Foundation v. Lynn Goldsmith—another Second Circuit case presenting a similar question on the meaning of “transformativeness.”

Warhol is more complicated than the “New Portraits” case for several reasons, including the fact that it highlights the tension between “transformative” for an unauthorized fair use, and “transformative” for an authorized derivative work. But AWF’s argument is similar to Richard Prince’s—namely that Warhol’s use is “transformative” because it expresses a “new meaning or message.” Thus, the Supreme Court may also find that this is too broad a definition for a prong of the inquiry that so often carries the day. As argued in an older post on Warhol, requiring that some comment on the work used must be present in the follow-on work would be consistent with the purpose of the fair use exception, and it would inject some long-needed clarity into a doctrine that has caused much confusion for all parties.

[1] Warhol v. Goldsmith citing Rodgers v. Koons (2nd Cir.)

[2] Citing Cariou v. Prince (2nd Cir).