Category: Photography

Sedlik v. Kat Von D Appeal Prompts Copyright Critics to Weigh In

Sedlik

“One might expect a 140-year history of Supreme Court precedent would have led to a grant of summary judgment below, sparing everyone unnecessary time and money,” states the brief for Jeffrey Sedlik to the Ninth Circuit Court of Appeals. “Copyright infringement should have been decided by the district court as a matter of law, not at trial by a poorly-instructed jury swayed by a celebrity defendant.”

Jeffrey Sedlik v. Katherine von Drachenberg should have been an easy case. Tattoo artist Kat von D copied photographer Sedlik’s 1989 photograph of Miles Davis as a tattoo and also displayed the photograph in social media photos and videos featuring the production of the tattoo as promotion for herself and her business High Voltage Tattoo.

Sedlilk
Kat von D

In 2017, Kat von D made the Davis tattoo on the arm of her colleague and friend Blake Farmer. She could have studied any number of photographs of the jazz artist as references and then inked her own portrait, but instead, she traced and copied Sedlik’s photograph in detail, thereby producing a derivative work without license. Upon discovery of the social media posts, Sedlik reached out to Kat von D to discuss the use of his photograph and was rebuffed. He then filed the first copyright suit in his career, which includes serving as an expert witness in hundreds of copyright cases. He took legal action because he believes artists should respect one another and obtain permission to use works when it is appropriate to do so.

As the quote at the top of this post states, the case should have concluded at summary judgment with an easy finding in Sedlik’s favor. Instead, a jury wound up deciding that 1) the tattoo is not substantially similar to the photo (ergo non-infringing); and 2) several of the social media posts made fair use of Sedlik’s photograph. Sedlik filed an appeal with the Ninth Circuit in October, citing errors of law by the lower court, including faulty jury instructions.

Although courts are appropriately cautious about overturning jury decisions, the appellate court here should agree that the lower court made unfounded legal decisions (and oddly dismissive comments) that were prejudicial to the outcome. Highlights include the court’s failure to properly weigh substantial similarity as a matter of law; excluding Sedlik’s expert testimony at trial about photo licensing; and electing not to communicate to the jury the court’s own findings on fair use, thereby leaving the entire fair use inquiry to the jury, which is inconsistent with precedent.

As one example implicating a confused jury, the Sedlik brief notes, “…the jury determined that eight [social media] posts that were found to be not substantially similar were a fair use, a legal impossibility that the district court would later find to be ‘contrary to the form’s instructions.’” [emphasis added]. This legal impossibility is one of several head-scratchers in the administration of this case, yet the appeal has inspired three amicus briefs* in favor of KVD written by Professors Pamela Samuelson, Rebecca Tushnet on behalf of several law professors, and Christopher Sprigman with Molly Van Houweling.

I am unfamiliar with Van Houweling, but the other three are all prominent copyright critics, and if I can read between the lines, the three briefs express dismay with the Goldsmith v. Warhol decision because it stopped fair use from swallowing the derivative works right. Copyright critics don’t like the derivative works right, and so, each brief targets Sedlik’s underlying complaint from three different perspectives—on fair use, substantial similarity, and (believe it or not) standing.

The Tushnet Brief

Professor Tushnet and amici argue that the jury was properly instructed and arrived at a reasonable finding that the tattoo is not substantially similar to the photo. To support this view, the brief cites a litany of cases in which substantial similarity was not found because, as Tushnet states, “there can be copying without infringement.” Yep. There sure can. Just not in any of the case law relevant to Sedlik.

I agree with the brief that the courts should first focus on substantial similarity before getting bogged down in fair use. In fact, I have stated in other posts that if Warhol had been a substantial similarity case instead of a fair use case, I could see a plausible argument that Andy Warhol did not copy the protectable expression in Lynn Goldsmith’s photograph, but this same consideration is not nuanced in Sedlik. Kat von D painstakingly copied the expression in the Davis photograph, and Tushnet’s list of cases in which defendants’ works were not substantially similar offers no authority for finding lack of substantial similarity in this instance. For example, the brief highlights Rentmeester, in which the photographer of an iconic photograph of Michael Jordan unsuccessfully sued Nike for producing a photo and now-famous logo known as “Jumpman.”

Rentmeester demonstrates that, for instance, the plaintiff cannot protect the idea of a basketball player jumping toward a hoop with his legs posed in a jeté. And the Tushnet brief is right that this is a good example of some copying that is not enough copying to find infringement. Yet, one struggles to see how Rentmeester is instructive to Sedlik where we see meticulous copying of the protected expression. Kat von D shared images and video of herself tracing Sedlik’s photograph and stated publicly that she copied the image “100%.” But at trial, she sought to emphasize small changes made during the process of creating the tattoo.

Likewise, the Tushnet brief overstates the relevance of Kat von D’s “changes,” many of which are necessitated by the medium of drawing with ink on skin, and none of which excuse the substantial amount of copying that is plainly visible to an ordinary observer. The lower court, at various stages of its inquiry, and then by punting questions of law into the jury box, appears to have directed improper attention to the minor distinctions between the two works rather than the obvious and important similarities.

Because the Tushnet brief cites multiple cases of non-infringement that are not analogous to Sedlik, this implies criticism of copyright in photographs, which, as Sedlik’s brief notes in preface, has been settled law for 140 years. In fact, although it is true (as the Sprigman brief discusses) that the derivative works right was not statutory law in 1894, the Tushnet analysis suggests that the Supreme Court in that year should not have seen infringing copying of the photo on the left in the lithograph on the right:

The seminal Burrow-Giles v. Sarony decision, affirming copyrightability of photographs, was not a substantial similarity case, but there, the infringing lithograph is also different in several ways from the photograph—differences that are, again, partly necessitated by the medium. One could even argue that Burrow-Giles did not as precisely copy Sarony’s expression of Oscar Wilde as Kat von D faithfully copied Sedlik’s expression of Miles Davis. For instance, the face of Wilde is quite different in the lithograph, and if Burrow-Giles were litigating today, perhaps they would try to argue that those differences negate substantial similarity or favor transformative fair use.

But as the Sedlik brief states, “It defies one’s eyes and the law that there could be any result other than summary judgment in Plaintiff’s favor.” If Tushnet et al. argue that the von D tattoo is not substantially similar to the Sedlik photograph, then it seems they believe that only literal copying is a basis for infringement—i.e., that Sedlik’s right to prepare derivative works should be narrowed to the point of irrelevance.

The Samuelson Brief

Professor Samuelson’s brief addresses fair use, which can only refer to the jury’s finding that some of the social posts displaying Sedlik’s photograph were fair use.[1] In summary, she argues that 1) juries can properly decide fair use where facts are in dispute; and 2) the Warhol decision does not disturb fair use findings where the secondary use does not comment on the work.

Samuelson also misstates that Sedlik requested that the jury decide fair use and now appeals because he does not like the outcome,[2] and she implies that Sedlik’s claim of infringement would require a narrow application of fair use inconsistent with the Supreme Court’s holding in Warhol and Google v. Oracle. By my lights, the Samuelson brief argues a straw man because nothing about Sedlik’s claim is inconsistent with Warhol—and Google is inaptly cited.

As noted in several posts, Warhol reaffirmed the principle that when one creator uses the work of another, finding transformative fair use requires a colorable claim that the follow-on use express some “critical bearing” (i.e., comment) about the work used. Kat von D cannot plausibly argue that the social media posts displaying the Sedlik photograph express any commentary about the photograph itself. Display of the photo was done solely to promote Kat von D and High Voltage. Consequently, both the transformative question and the commercial purpose of the posts should have been found to favor Sedlik on factor one without going to trial.

To emphasize my point that this is a straw man brief, I note that Samuelson states, “Warhol also made clear that ‘targeting is not always required, highlighting that uses unrelated to criticism or commentary—such as those that facilitate interoperability or reveal new information about the original work—can also be fair.” That is absolutely true and utterly irrelevant in this case. Samuelson refers to software “interoperability,” as weighed in Google v. Oracle and to “revealing new information,” as considered in Google Books, neither of which has much to say about cases where one artist copies or uses the work of another artist.

Samuelson and Tushnet, in their joint brief to SCOTUS in Warhol argued against the “critical bearing” doctrine, favoring the broader discussion of fair use articulated in Google v. Oracle. But because computer code (at issue in Google) is highly utilitarian, its protection fosters a tension in copyright law that is distinct from the more common considerations presented in cases like Sedlik. The “critical bearing” doctrine may be characterized as “narrowing” by advocates for broader fair use, but that does not make Sedlik’s arguments against fair use inconsistent with Warhol or the substantial volume of similar cases. Samuelson’s brief is consistent with her views on fair use, but, like the Tushnet brief, it cites to authorities that do not apply.

The Sprigman/Van Houweling Brief

This brief is a doozy. It can arguably be read as a companion to the ALI Restatement of Copyright Law (led by Sprigman), and it proves the point that copyright critics really do not like the derivative works right. Because forget substantial similarity and fair use. Professors Sprigman and Van Houweling argue that under the Supreme Court’s 2021 ruling in TransUnion v. Ramirez, copyright owners lack standing to sue in federal court unless they can prove “concrete injury” (i.e., monetary harm) caused by the alleged infringement. I know this is how some people think copyright works, or how many believe it should work, but this brief seeks to unravel the law as it does work.

The TransUnion opinion holds that just because Congress writes a statute allowing for remedies in federal court, this does not excuse a plaintiff from showing a concrete injury, even when he can show a statutory violation. One can imagine how this ruling could be applied to standing in copyright claims, but only if the courts agree that failure to obtain permission/license is not a concrete harm, or if they agree with this brief that violation of some of the exclusive copyright rights in §106 should be accorded less weight than violation of others.

The brief states, “It is doubtful whether a presumption of harm should apply at all to copyright claims, like Sedlik’s, that do not involve the reproduction and distribution of a copyrighted work as such, but rather its use in a derivative work.” Amici imply that the courts should dismiss, or view skeptically, a failure to license as a concrete harm when the use at issue results in a derivative work. To be fair, here is Sprigman and Van Houweling’s fuller description:

If a derivative is close enough to the original that it competes with it, or perhaps preempts a product or licensing market that the author might otherwise plan to enter, then the derivative work at issue may harm the original author. In such an instance, if the copyright law did not reach conduct in this category, we might fear overall harm to author incentives to create. However, if—as is the case here—the derivative “is not closely similar to the original, does not compete with it for audience patronage, and does not preempt a market that the original rightsholder realistically is positioned to exploit, then the existence of the derivative is unlikely to harm the original author.

Once again, suggesting that the tattoo is not “closely similar to the original” is an insult to empirical evidence. But beyond that, amici misstate the consideration of market harm in general and Sedlik’s claim in particular. Licensing creative works for uses the author may not actively pursue or anticipate describes the nature of the potential market in which the copyright owner may choose to participate.[3] Failure to license by the user of a work is a concrete harm as a matter of law, whether the unlicensed use is the result of literal copying, preparing a derivative work, or violation of any of the making available rights in the Copyright Act. This is why, under fair use factor four, the courts consider whether the unlicensed use at issue, if it were to become widespread, would cause significant harm by persistently depriving the copyright owner of fees to which he is entitled.

But under the theory of the Sprigman/Van Houweling brief, TransUnion must upend the practice of copyright law by, among other things, overwriting fair use factor four case law, abolishing statutory damages, and at least weakening the derivative works right. Only a narrow group of rightsholders would be allowed to file suit by showing actual financial damages caused by an infringement stemming from reproduction or distribution of literal copies.

Sprigman/Van Houweling would leave independent and developing creators out of the copyright system altogether, while the owners most likely to have standing would be parties like private equity firms that have bought large catalogs of works whose value is easier to quantify. It is notable, though not surprising, when the anti-copyright crowd, which claims to advocate democratic values and fairness, would propose an interpretation of the law that can only benefit the wealthiest and most powerful copyright owners.

Further, amici’s application of TransUnion to copyright would vitiate any basis other than proven monetary harm for rightsholders to control uses of their works. For example, the author who does not want a motion picture adaptation or a sequel made from her novel; the musician who does not want certain politicians using his songs in campaign ads; the artists who do not want their works used for any form of advertising would be unlikely to show “concrete harm” for violation of those choices under this brief’s interpretation of TransUnion as follows:

If harm caused by violation of the copyright owner’s right to exclude is not generally presumed to be irreparable, then absent some showing that such harm is irreparable in a particular case, it is, by hypothesis, reparable by money damages—if it is harm at all.

Turning down a use that would otherwise be licensed—I doubt Sedlik would license the Davis photo to the KKK at any price—is a right retained by the copyright owner. And if the rejected party uses the work anyway without permission, Sprigman and Van Houweling suggest that the owner cannot sue for infringement because he not only did not suffer monetary damage, but he turned down monetary gain!

The copyright owner retains the right to select which parties, and under what circumstances, derivative works may be created, and unlicensed derivatives can devastate the author’s opportunity to create the derivative works she prefers—including projects that may be more lucrative than those she turns down. Thus, any limiting of the author’s right to choose how her work is used for derivatives forecasts myriad results that would easily meet the definition of concrete harm.

Notably, despite arguing that Sedlik does not have standing, Sprigman and Van Houweling do not ask the court to toss the whole case but instead write that the court can “avoid the constitutional questions” by upholding the jury’s decision below. How does that make sense? As long as amici are writing a brief that is unlikely to make much legal headway, they might as well stick to their guns. If they truly believe Sedlik doesn’t have standing, why ask the court to affirm the outcome?

Conclusion

For Jeff Sedlik’s first (and perhaps only) copyright case as a plaintiff, he drew a strange hand. In what should have been short work for the court, the legal questions are straightforward with ample precedent for guidance. I strongly suspect the Ninth Circuit will reverse and remand based on evidence that the lower court committed errors of law. Meanwhile, it is not surprising that some of copyright’s most notable critics were inspired to argue that the aberrations in this case reflect copyright law as they would see it applied.

[1] The appeals court may reverse the finding on substantial similarity and also opine on the question of fair use with respect to the tattoo itself.

[2]  Samuelson elides the fact that this request came from counsel whom Sedlik immediately replaced for making that unauthorized request, after which, Sedlik corrected the record with the court.

[3] A friend of mine received word from officials in the UK that they wanted to use one of his photos on a stamp, and he certainly never saw that opportunity coming.

*NOTE: A fourth brief was submitted by Authors Alliance, but 1) this post is long enough; and 2) their argument mirrors the “narrowing fair use” claim alleged by Prof. Samuelson.

Generative AI’s Analogs to Technological Disruptions of the Past

technological

A common disparagement of copyright advocacy is that it is anti-technology. Despite overwhelming evidence that professional creators are early adopters of new technlogical developements, the talking point persists that enforcing the rights of creators can only “stifle innovation.” This “Luddite” critique of copyright rights was used to defend the predatory models of social and streaming platforms (and defend outright piracy), and now it is being used to defend the development of generative artificial intelligence (GAI).

Even if it were true that creators historically fear new technology until they discover ways in which it fosters new forms of expression, GAI does not easily fit analogies to tech revolutions of the past. Nevertheless, comparisons to the invention of photography do at least allude to the right starting point for a conversation about protected “authorship” using GAI as a tool of production. Before I proceed with that subject, however, let me clarify that a discussion about authorship with GAI does not necessarily justify the development of the products by means of “training” models with protected works. More on that below.

The Supreme Court Finds Authorship in a Photograph

The seminal case Burrow-Giles Lithographic Co. v. Napoleon Sarony (1884), which affirmed copyright protection for photographs under U.S. law, underlies the conversation about whether, and under what conditions, GAI may be used as a method of producing works that may be protected by copyright. As discussed in a recent post about Dr. Thaler’s lawsuit, the rule that human authorship is required for copyright rights to attach to a work should not be abolished or changed. But from there, the question remains as to how a human might use GAI as a tool to create a work of expression that is protected by copyright.

In Burrow-Giles, the defendant infringed the photographic portrait “Oscar Wilde No. 18,” taken in 1882 by the celebrity photographer Napoleon Sarony. The defendant argued that, as a constitutional matter, Congress should never have protected photographs as “writings” under a proper reading of the IP clause in Article I.[1] The heart of the defendant’s argument rested on the premise that the machine made the image, not the man. The Supreme Court, however, agreed with Sarony’s argument that his creative choices—posing Wilde, lighting, setting, arrangement of the furnishings, etc.—all constituted “authorship” of the resulting photograph, and thus, Congress had the authority to add the medium to the statute as a form of “writing.”[2]

From this precedent, then, it might seem like short work to argue that instructing a GAI to produce an image from one’s mental conception is easily analogized to Sarony, or any photographer, who selects and arranges certain expressive elements to produce the final work. And to an extent, this view is well-founded, at least as a starting point. But what frustrates the analogy, of course, is that a GAI is capable of producing something that is apparently “creative” with either no, or less than minimal, human direction.

Tell your camera to make an image of “Two mermaids and a walrus,” and the camera will do nothing whatsoever. Type that same prompt into Midjourney, and it will produce a few variations depicting the idea of what you described, but the authorship (i.e., how the idea is expressed) is not yours any more than if you were to present the same idea to a human artist who then created the image. A work generated by an AI is a probability outcome, a metaphorical statement roughly translated as, “Based on the information available, this is probably an image of two mermaids and a walrus.” So, how it initially represents the unprotectable idea of that image is a crapshoot and is in no way “authored” by the user who entered the purely instructional prompt.

But if the user of the GAI begins with the initial output and then proceeds to enter more complex and nuanced prompts, altering the image until it looks like what she has in mind (i.e., what she wants to express), this can reasonably be compared to the photographer in the studio. For instance, a photographer might begin by placing the subject against a simple backdrop, capture a few tests to get the creative process started, and then pose the subject, alter the lighting, employ makeup, wardrobe, set dressing, props, etc., until the idea of the subject becomes a distinctive expression or series of expressions.

I use this example on purpose because it emphasizes an important and vexing difference between photography and GAI from a copyright perspective. Whereas those first iterations the GAI produces of “two mermaids and a walrus” are not protected by copyright, those first test photos by the photographer (even if they represent steps toward the final images she has in mind) are protected by copyright. Further, the distinction between the two generative acts is not measured by the amount of labor performed. As a matter of doctrine, “sweat of the brow” neither vests copyright rights in an author nor gives an author any greater protection because she “worked harder” to achieve a particular result.

This is one reason Burrow-Giles is a starting point. One need not engage in the amount of creative control the Supreme Court inferred from “Oscar Wilde No. 18”—indeed, Sarony was more meticulous than the Court recognized—to claim copyright in a photograph. The spontaneous or serendipitous photograph taken by the “amateur” is automatically protected along with the painstakingly crafted, expert photograph.

Some have described this doctrine as one that rests upon a “convenient fiction,” a tautology that copyright “protects ‘original works’ made by ‘authors’ because ‘authors’ are people who make ‘original works.’”[3] And, indeed, this critique emphasizes the important distinction that with GAI, the question of “authorship” demands that we identify the human spark separate from the machine’s unprecedented capacity to make something on its own.

The Sarony Paradox

The conditions of 1884 are ghosts in 2024. Inference is not evidence of authorship. It is only in the last few years that one must wonder whether volumes of “creative” works have authors at all. One might even discover a “19th century cabinet card” that was generated by a computer last month. The card is neither work of authorship nor historic artifact of the period it claims to represent. It is, like so much material in the “abundant” digital age, just a prank—more disposable flotsam. The internet is of course flooded with such works, and both professional creators and rational minds, clinging to that anachronism we call “reality,” scorn the AI junk heap. But this sentiment, which I generally share, does not resolve the AI authorship question in copyright law.

As important as Burrow-Giles remains, it was also relatively simple work for the Court. It merely had to infer Sarony’s authorship from the evidence plainly visible in the photograph, and Sarony’s counsel, a skilled copyright attorney, provided descriptive language which the Court even copied in its opinion.[4] At the same time, the Court did note that, perhaps, an “ordinary” photograph might not be protected, and I often wonder how the same arguments might have been weighed if the photo before the Court had been one of the many “ordinary” portraits made at the time.

Personality of the Artist

Beginning in 1903, the Court moved on to what some might describe as a metaphysical conclusion that the “personality” of the artist lives in works where protectable expression may be quite subtle. Justices Holmes and Hand both articulated this notion,[5] which informed the doctrine known today as the “modicum of originality” necessary for copyright rights to attach to a work.

So, while it is fun to play alternate history and imagine the Burrow-Giles Court considering, say, Lynn Goldsmith’s comparatively minimalist portrait of Prince, the bottom line is that her photograph is protected while an image of Prince requested from a GAI is not. And the task in the present is to decide what, if anything, the human using the GAI might do to create an image in which even a modicum of his “personality” can be said to live in the work.

One could argue that because the dataset of the GAI comprises millions of personalities of millions of artists that, in general, its probability outcomes will only express a randomly selected arrangement of those personalities but never the personality of the GAI user. Here, the developers attempt a sleight of hand, arguing that every author both consciously and unconsciously learns from, or is inspired by, other works they have experienced. This is true but irrelevant.

Of course, works experienced by the artist shape her personality, which may be reflected in her work. But that creative experience is sequestered from at least the initial output of the GAI. Even more dubious is the prompt which instructs a GAI to produce a work “in the style of’ a named artist, directly conjuring the personality of a specific author and, quite possibly, producing a result that infringes that author’s copyrights. But what about the artist who begins with his own, highly original, mental conception and then makes extensive and nuanced use of the GAI as a tool to express that conception?

Authorship in Allen v. Perlmutter

Artist Jason Allen, used Midjourney to generate an award-winning image called “Théâtre D’opéra Spatial.” He was denied a registration in the work by the Copyright Office and is now suing for relief. Unlike Dr. Thaler’s lawsuit, which asks the court to abandon the human authorship requirement altogether, Allen presents a compelling argument that his visual work clears the bar for “originality” with room to spare. Not only does his brief rely on Burrow-Giles, but the following description could almost be a contemporary version of Sarony’s brief:

Plaintiff initially envisioned a detailed image of women in Victorian dresses wearing space helmets. He wanted to bring that vision to life using the Generative AI tool called “Midjourney.” He selected the colors, the style, and the era of the artwork, and arranged the elements in the image to represent the women dressed in elegant Victorian dresses performing opera on stage, their attire presenting a juxtaposition between old-world charm and a futuristic twist. He selected and arranged the elements to depict each performer wearing a space helmet, creating a striking contrast between the classical and the sci-fi elements. Plaintiff set the stage in a grand theater, with an audience watching intently, overlooking a large circular window through which the vast expanse of the outer world is visible, adding an otherworldly ambiance to the performance.

According to Allen, he re-prompted Midjourney 624 times until he achieved the desired result—a process he reasonably analogizes to a motion picture director doing multiple takes, citing the world record at 148 takes for a scene with dialogue. While Allen’s descriptions of the process like “tedious, complicated, and frustrating” may be excluded by the court as “sweat of the brow,” Allen makes a plausible argument that he expressed his mental conception in a fixed visual work, applying the same principles that protected Sarony and all photographers ever since.

At present, the Copyright Office may be too intensely focused on “control” of every aspect of a work when, as discussed, copyright can attach to even the amateur photographer for whom even basic settings like shutter speed and aperture are automatically adjusted by software. Additionally, “selection and arrangement” of expressive elements constitutes authorship as a matter of doctrine. And importantly, the Copyright Office is not the right venue to decide how “broad” or “thin” copyright protection might be for a specific work. Registration is an administrative process, and it is sufficient to ask the applicant to disclaim whether AI was used (and perhaps describe that use), but the more nuanced consideration of what is or is not protected in a work (i.e., a substantial similarity test) has long been conducted by the courts.

Of course, Allen is one creator in one case, and even if he succeeds in proving authorship of his visual work, this does not resolve the question of whether the flood of authorless works produced by GAI might be generally harmful to copyright doctrine. One could argue, as a practical matter, that those works are as irrelevant as the millions of photographs taken daily by cellphones, none of which will ever be registered with the Copyright Office or have the attached rights enforced by their owners. On this basis, one might decide that the Allens of the world should be able to register their claims of copyright in contrast to the majority of authorless works that will never be claimed or adjudicated.

While that may be true in principle, in practice, there will be chicanery. Parties will lie. And if there is a way to game a system (i.e., to automate claims in volumes of GAI material and enforce those claims for damage awards), somebody will at least try it. Michael Smith faces a criminal indictment for automating royalty payments to himself by flooding streaming services with AI musical dreck. Although not a copyright matter per se, the Smith example predicts the kind of shenanigans we can expect with mass GAI outputs, which is anathema to copyright’s purpose to incentivize humans to create works.

Authorship with GAI Does Not Justify Development by Mass Infringement

Weighing the matter of “authorship” in GAI outputs is separate from the question presented in every active lawsuit against the developers—namely, whether machine learning (ML) relied upon mass copyright infringement of existing works. Additionally, recognizing that authorship with GAI may be allowable under the right conditions should not be construed to morally or legally justify GAI development by means of ingesting protected works without permission, compensation, or transparency. On the contrary, I would say that simply because authorship with GAI may be plausibly argued as a doctrine, this does not in itself favor a finding that ML with unlicensed works is transformative fair use.

The developers will first argue that their products cause new works to exist in general and that this alone “fulfills the purpose of copyright.” Second, they will contend that their products are “tools” providing new methods for authors to create works of expression. The first argument is simply wrong, while the second argument (as discussed in this post) might support a finding that a given GAI is “slightly transformative,” a precedent held insufficient to carry the day on fair use.

Works Produced by Any Means?

Contrary to the PR messages coming from the Chamber of Progress, copyright’s purpose is not to cause works to exist by any means. From its inception, and specifically in the U.S., copyright was codified as an incentive to human beings, who have the talent and desire to create and distribute works of cultural value. Clearly, GAIs are no more incentivized to produce creative works than cameras or pianos, and in response to technological developments, Congress and the Courts have always sought to protect the author’s incentive.

In response to the invention of the player-piano Congress determined in 1909 that the scrolls were mechanical copies of music compositions created by human authors. Imagine if the piano makers had argued that each piano in each home performed a unique expression of its “personality,” and that this was, therefore, expanding the purpose of copyright. Absurd as that argument would have been, it is analogous to the contemporary GAI developer’s claim that their machines, capable of reading and playing back a random selection of the “scrolls” of millions of compositions, produce outputs that fulfill the purpose of copyright.

GAI as “Tools” for Creators

As a fair use argument that GAI are “tools” for creators, the scope of the business models of the major AI companies in suit, is instructive. If the major AI developers intended to build “tools” for creators (like Procreate for illustrators), their investors may be at even greater risk than some analysts have suggested. There simply are not enough professional creators in the world to subscribe to these products as “tools” and generate ROI for the billion-dollar cost of development and maintenance. (Adobe is used by approximately 25-million creators, but nobody is talking about refiring nuclear power plants to maintain Creative Suite.)

For example, the music making products Suno and Udio, presently being sued by the record labels, are anticipating that consumers will pay monthly subscriptions to use these GAIs as alternatives to listening to artists’ sound recordings. I predict this model will not be profitable, but from a fair use perspective, the ambition itself militates against a claim under factor one that the primary purpose of these products is to build “tools” for professional music creators.

Not only do Suno and Udio produce volumes of authorless works, but even where real musicians might use them as “tools,” the evolving doctrine on authorship implies considerable uncertainty as to how, and how often, use of these “tools” will result in protected works. Allowing for a minority of outputs to be plausibly considered works of authorship is the reason I would argue these products may be “slightly transformative,” but it seems clear that the primary purpose is to make toys for consumers, not tools for creators.

Further, if I’m wrong about the market, and the business models of Suno and Udio were to be successful as planned, these consumer toys become substitutes for music creators. And whatever else we might say about this as a cultural matter, the result is antithetical to the purpose of copyright law, which again, militates against transformative fair use.

Finally, the “tools” argument for fair use is intertwined with the authorship question. To the extent Burrow-Giles is instructive on the question of authorship of AI generated visual works, it may be muted when considering the use of GAI for works in other categories. Photography was seminal and remains paradigmatic in establishing a low originality threshold, but the considerations must naturally be articulated differently with literary, musical, and other works. As such, a “tools” based fair use defense may be stronger for one GAI product and weaker for another.

Thanks for indulging this long post. These are complex questions that, as mentioned, are difficult to analogize to technological developments of the past. Not only are GAIs uniquely productive compared to other technologies, but they are also still developing. The camera, player-piano, VCR et al. were all clearly defined in their functions at the time copyright confronted their potential effects on creators. This is worth noting when GAI developers lean too hard on those precedents.

[1] “…by securing for limited times to authors…the exclusive right to their respective writings…” Ar1, Sec 8, Cl 8 U.S. Const.

[2] Of note, photography means “light writing.”

[3] Newhoff, Who Invented Oscar Wilde?, citing Jane Gaines, Contested Culture.

[4] Moreover, Congress had added photography to the Copyright Act nearly 20 years prior to the case, and the Court might have been reluctant to overrule the Legislature without a damn good reason.

[5] Holmes in Bleistein (1903) & Hand in Jewelers’ Circular (1921).

Jury finds Kat Von D tattoo does not infringe. But stand by.

Sedlik

Last Friday, a Los Angeles jury returned a verdict that celebrity tattoo artist Kat Von D did not infringe the copyright rights of photographer Jeff Sedlik when she made a tattoo that (it must be said) is strikingly similar to Sedlik’s portrait of Miles Davis. Sedlik filed a copyright infringement suit in response to Kat Von D reproducing an unlicensed copy of the photograph, tracing over printouts of the photograph, making social media posts that include the photograph, and tattooing the Miles Davis image onto the arm of Blake Farmer, a friend and colleague whom she did not charge for the tattoo.

Although this case is far from over, Kat Von D has been quoted in the press as saying, “I’m excited to be done. If we didn’t fight this, it would have done so much harm to an industry that’s already struggling.” I’ll comment below on the industry harm allegation, but Kat Von D’s celebrity status should not confuse anyone into believing that she is the party litigating on principle. Sedlik only filed suit—the first in his career—after Kat Von D refused to have a conversation in response to a letter about the use of the photograph.[1] Sedlik’s view is that artists should respect one another’s rights when it comes to preparing derivatives of each other’s works, a theme lately made clear in the outcomes in both AWF v. Warhol and in Graham and McNatt v. Richard Prince.

Not only will Sedlik appeal, but the results of last week’s trial imply errors by this court and a curious jury verdict because it is not clear that Judge Dale Fischer properly distinguished between questions of law (the court’s purview) and questions of fact (the jury’s purview). To clarify any misreporting in the press and/or social media posts, the jury did not find that the tattoo itself is fair use but found that four of the social media posts depicting Kat Von D working with Sedlik’s photograph to be fair use.[2] The tattoo itself was found by the jury to be non-infringing on the basis that it is not “substantially similar” to the photograph—a verdict that will make many a copyright watcher curious as to how, or why, this jury was instructed to consider the matter. “The question of substantial similarity should never have gone before the jury. That should have been decided as a matter of law.” Sedlik’s attorney, Robert Allen, stated. And probably with good reason.

Ordinarily, the court would separate the non-protected elements of a work (e.g., the facts of Davis’s likeness) from the expression created by the photographer (e.g., Sedlik’s explicit posing of Davis’s hand, lighting, and composition choices) and then determine whether the secondary work copies the expression in the original. This is not analysis performed by a jury. Moreover, in this instance, where there is evidence of copying (e.g., photographs of Kat Von D inking the tattoo with Sedlik’s photograph by her side), Ninth Circuit precedent holds that a substantial similarity test need not be performed at all in order to prove copying by inference. Then, of course, there is the commonsense factor that no reasonable person could look at the images side-by-side and not see that the tattoo copies the main expression in the photograph.

Sedlik photograph of Miles Davis and Kat Von D tattoo.
Sedlik portrait (1989). Kat Von D tattoo (2017)
Social post - Kat Von D copying Jeff Sedlik photo of Miles Davis
Social Media Post ~90,000 likes.

The fair use saga in this trial thus far also raises some questions, including Judge Fischer’s own fair use analysis before trial and the jury’s decision that the four social media posts are fair use. But because there is a lot to unpack, and because the jury found the tattoo itself to be non-infringing as a threshold question, I will leave fair use for a follow-up post.

Trials in the Court of Public Opinion

It is interesting that this case, Warhol, and the recent judgments for Graham and McNatt against Richard Prince all share common elements of fact and law, filtered through cultural perceptions that have little to do with either fact or law. Anecdotally, I would say that sympathies broke almost evenly between Lynn Goldsmith and the late Andy Warhol, both inside and outside the art community. Richard Prince does not earn much sympathy outside certain art salons, and that’s partly because appropriations like “New Portraits” are seen as lazy and uninspired, and because he personally makes strident declarations that piss off a lot of creators.

In a different light, Kat Von D is both popular and sympathetic, especially with her post-trial claim to be litigating on behalf of the tattoo industry, combined with her statement that this case has turned her off ever making another tattoo. I get why this will play well in the court of public opinion, but as a legal matter, the assumption that she was allowed to use Sedlik’s photograph is highly analogous to the assumptions made by Warhol and Prince, also using photographs to make unlicensed derivative works. And they both lost on questions relevant to Kat Von D’s defense.

For example, Von D is on record saying that she could have based the tattoo on any number of images of Miles Davis and didn’t need to use Sedlik’s photograph, meaning there was no justification for her unauthorized use—a concept that was at the forefront of the Warhol case. This militates against her claim that she is defending the industry in general. Although I believe Sedlik is correct on the law in this instance, Kat Von D’s allegation that licensing would cause significant harm to the tattoo industry is questionable, not least because Sedlik presented evidence that tattoo artists do license images.[3]  

As a hypothetical question, if Blake Farmer had presented Kat Von D with the Sedlik photograph and asked her to reproduce it on his arm, would it have been fatal to High Volage, and the entire industry, if she had to reply that she could ink Davis but not that specific image? To be clear, a tattoo artist is free to look at photographic portraits of a subject and then render her own drawing of that subject as a tattoo. If the tattoo artist is good, as indeed Kat Von D is, then the customer gets a quality tattoo of the subject he wants but not an expression belonging to another artist.

Perhaps most damming to Kat Von D’s claim to be defending the industry is the verdict itself. Although I expect the Ninth Circuit will be reversing a few findings in this case, any artist following this story should recognize that were this verdict to stand, it means nothing for tattoo artists in general. Just because one alleged copy is held to be non-infringing on the basis that it is not substantially similar to the plaintiff’s work, this predicts little to nothing about the next potential claim of infringement in the tattoo world, or for artists in any other media.[4]

So, Kat Von D’s declaration to have fought and won on behalf of tattoo artists everywhere is as misguided as it is prematurely announced. On the other side of the equation, Sedlik’s argument, not unlike Goldsmith, Graham, and McNatt, is that it is indeed detrimental to all artists when fellow artists working in any medium copy their work as if it is simply there to be taken. There will be more to say about this case. Stand by.

[1] Sedlik Complaint (Document 1).

[2] Redacted Verdict Form (Document 217).

[3] For example, tattoo “flash” includes images that are licensed.

[4] Also, I wouldn’t expect the same result in, say, a New York court.

Photo source by: korobskyph