Category: Copyright

Opportunity Costs (and with AI it may cost a bunch)

Lately, one reads a lot of statements with the preamble “Artificial intelligence presents opportunities and challenges…” But is this the right way to frame the conversation? Because if we’re talking about creative professionals and their industries, it is probably more accurate to say that generative AI presents clear threats and some opportunities. Although we are trying to predict future outcomes, and many expectations about AI (good or bad) may not come to pass, if generative AI is an existential threat to potentially millions of creative professionals while offering opportunities for a few, then it is wrong to begin the discussion as if opportunity and challenge are balanced forces.

Take, for example, the tentative agreement reached between the Writers Guild of America (WGA) and the motion picture producers, which includes the following provisions regarding the use of artificial intelligence:

  • AI can’t write or rewrite literary material, and AI-generated material will not be considered source material under the MBA, meaning that AI-generated material can’t be used to undermine a writer’s credit or separated rights.
  • A writer can choose to use AI when performing writing services, if the company consents and provided that the writer follows applicable company policies, but the company can’t require the writer to use AI software (e.g., ChatGPT) when performing writing services.
  • The Company must disclose to the writer if any materials given to the writer have been generated by AI or incorporate AI-generated material.
  • The WGA reserves the right to assert that exploitation of writers’ material to train AI is prohibited by MBA or other law.

These conditions prove the point in that they primarily seek to mitigate the threat of AI while opening a narrow and conditional window for the opportunity to use AI. Safeguards like these are necessary because it can be assumed that producers and show runners will be tempted by the prospect of paying fewer writers to “collaborate” with generative AI to produce scripts. But even if that approach were to prove effective (and there are reasons to think it would not), a writers’ room of, say, two instead of ten is not necessarily an opportunity. And perhaps not even for the show runners for very long.

Thinking solely about the U.S. economy, those laid-off writers would represent eight middle-class jobs lost—eight people who would curtail, if not cut off, their entertainment expenditures while they take the “opportunity” to ply their skills in other fields that may also be shedding jobs due to AI. If AI were to reduce the workforce in the entertainment industry alone, it would suck but could potentially fall within the principle of creative destruction. But if AI decimates work across multiple sectors at the same time, then products, including TV shows and movies, will lose customers, thereby nullifying those short-term savings gained by laying off those eight writers.

Meanwhile Creative Work Would Start to Suck

Beyond considering whether generative AI is an opportunity in cold, economic terms, it is hard to imagine outcomes that do not either diminish the cultural value of creative expression itself or trigger a rebellion against AI-generated material and dash the ambitions of the tech developers. In this regard, the “democratization of creativity” is a woefully ignorant goal as well as a dishonest talking point.

The promise that generative AI will “democratize creativity” should be read in the same light as Big Tech’s promise to “democratize information,” which has proven disastrous for democracy. Just as searching the web for “information” does not make the individual a journalist, instructing a generative AI to render ideas into expression does not make the individual an artist. And just like we continue to founder in a sea of disinformation, there is no broad, social value in “democratized” art any more than there is a market for children’s drawings tacked to a million refrigerators. If everyone is an artist then nobody is, and the value of creative expression diminishes accordingly.

That the creative process can be reduced to an algorithm which can learn how to write, draw, paint, etc. cannot be wholly denied when generative AIs are already doing these things and will presumably get better at doing them. However, the expectation that generative AI can or should displace artists may be the apotheosis of the TechBros’ enduring cynicism about the value of individual creators. In the trenches of the “copyright war,” creative professionals have been accused of being self-important, greedy, rent-seeking, whiners unwilling to get real jobs. And now that Big Tech is releasing tools that promise to obviate the need for creators, the newest hashtag claims that professional artists enjoy a #CreativityPrivilege that will finally be disrupted. In this context, generative AI can be seen as tech’s nuclear strike in the copyright war to prove once and for all that “original expression” is an illusion and, therefore, that any rights associated with original expression are a mythical construct that must be abandoned.

This impliedly jealous relationship with artists is an extension of the problem that the tech-utopian, anti-copyright crowd has never quite understood what artists do or why they do it. For instance, artistic output is not solely the result of interest plus training. Many great artists never receive formal training, and many need to escape formal training to find their own voices. Every artist will eventually, if not continually, go through a process of learning and unlearning various “rules” to make the craft their own. It may be a cliché to think of the artist as suffering or broken, but it is certain that the artist is sensitive to the world in a way that she is moved to respond through expression. And these are just some of the unpredictable human qualities that no computer can emulate with the math of probability outcomes.

Although it is plausibly argued that a creative-minded individual might have a disability which AI can help overcome, citing this hypothetical to justify the “democratization” narrative comes with a few caveats including:  1) enabling the few does not justify displacing the many; 2) if AI devastates the professional, creative ecosystem, the newly enabled artist can only be a hobbyist among millions of other hobbyists; and 3) if anyone believes the billion-dollar investments in generative AI were made with the intent to help someone with cerebral palsy become a painter, I’m calling billion-dollar bullshit. That may be a positive effect, but it is not the purpose of these machines.

Could the Models Simply Fall Down?

If generative AIs were to displace enough professional artists, it is possible that entropy will demand that the models exhaust their capacity for new outputs—let alone outputs that are of any interest or value. If we remove, say, one million working artists from the equation over the next few years, what will continue to feed the training models? Is the “sum of all human output” as of today sufficient to enable a generative AI to produce infinite, relevant expressions indefinitely? Maybe. But not necessarily.

Because artists are people who respond to the world through expression, timeliness and context matter a great deal. There are many reasons–from aesthetics to subject matter–why theater of the 19th century or television programs of the 1980s or ad campaigns of the 1960s are anachronistic to a contemporary audience. Yes, certain works endure or become freshly relevant as remakes because human experience is, in part, cyclical. But it is the artist’s sensitivity to the contemporary world that makes those connections, and the process of synthesizing that into creative expression is often instinctual as much as it is intellectual.

Yes, artists recycle and build upon prior works, but the relevance of a new expression at a given time and place requires a connection with audience that, again, is not merely the result of a probability outcome. This anticipates the likelihood that a lot of AI-generated work will be good enough but not necessarily good—a concern that directly affects the market for commercial art where many creators make a living.

For example, the stock music market for commercial use is built on a network of composers with the skills to produce a variety of tracks based on familiar and, often popular, music. If generative AI can adequately produce similar tracks by cutting out the human composer, the market for many composers is in peril. But again, if AI were to kill off or dramatically reduce new, human composition, it is conceivable that the “composition machine” might eventually fizzle out as it tries to burn the same fuel over and over.

No doubt, artificial intelligence will seed new opportunities, though I maintain that these are in fields other than the production of creative work. If the digital revolution in the creative market has taught us anything, it is that these technologies are generally an opportunity for owners of the tech at a tremendous cost to professional creators. Without the right safeguards, AI could exacerbate this trend in ways that will cost everyone.

Photo by: robcaven

What Does the Valancourt Decision Mean for Most Creators?

As discussed in an earlier post, Valancourt Books, a small, on-demand publisher, filed suit against the Copyright Office and the Department of Justice and argued that the Office’s demand for physical copies of published books is unconstitutional. Valancourt alleged that the authority granted by §407 of the Copyright Act to demand the copies (or be fined) is a violation of both the First Amendment speech right and the Fifth Amendment prohibition against a government taking of private property without “just compensation.” This week, the DC Circuit Court of Appeals agreed with Valancourt’s Fifth Amendment takings claim and declined to weigh the First Amendment claim.[1]

We agree with Valancourt that Section 407’s demand for physical copies of works, as applied by the Copyright Office here, represents an uncompensated taking of private property under the Takings Clause. We need not reach Valancourt’s First Amendment claim, as it seeks the same relief through that challenge.

Background (Summarized from Post of August 2021)

Valancourt produces books on-demand from old, rare, and hard-to-find manuscripts, including some dating back to the 18th century. Although many of the underlying works Valancourt republishes are long in the public domain, the companion material in their editions (e.g., scholarly introductions and footnotes) are subjects of copyright; and some of the manuscripts they print are still under copyright protection and used by permission of living authors or their estates. So, although the publisher does not register its books with the Copyright Office, it does place copyright notices in the front matter to alert readers that either the underlying manuscript and/or supporting materials are protected.

In 2018, Valancourt began receiving letters from the Copyright Acquisitions Division (CAD) of the Copyright Office demanding physical copies under the statutory deposit copy provisions of §407. The initial demand was for two copies of each of Valancourt’s 341 published titles. The publisher stated that this represented a significant financial and logistical burden and, finding no satisfactory relief in the Office’s compromise offers, they filed suit on the constitutional allegations. The district court ruled in favor of the government, and the DC Circuit has now reversed.

The Heart of the Decision

The most substantive aspect of the Valancourt decision is the court’s holding that the demand for physical copies is a taking because the publisher does not receive any benefit for supplying the copies. “A voluntary exchange for a benefit…does not exist if the purported ‘benefit’ is illusory,” the opinion states. Because copyright attaches automatically to any work fixed in a medium of expression, a party like Valancourt truly gets nothing in exchange for providing physical copies.

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States. Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

That said, where the Office may exercise its right to demand copies based on publication (§407), the Valancourt decision may have some interesting implications. For example, if an author registers a final-edit manuscript in electronic form and later publishes that material, she (or the publisher) may receive a demand to provide physical copies or face a fine for failing to comply. But after Valancourt, the demand for physical copies solely at the threshold of publication, would seem to be a taking because, again, the author/publisher gets no additional value in exchange for providing the copies. The underlying registration (e.g., in the previously unpublished manuscript) is not invalidated by a failure to provide post-publication physical copies.

This is More About the Library of Congress than Copyright Law

In Valancourt, we see one example of the tension that can arise between the interests of the Library of Congress and the efficient administration of copyright protection for creators. As discussed in other posts, the often-confusing formalities in U.S. copyright law are largely due to the historic, but not always compatible, relationship between the two institutions. The Copyright Act of 1870 consolidated registration and deposit at the Library for the purpose of growing the collection, and in 1897, the Copyright Office was established within the Library as both the administrative and expert agency.

But as the outcome in Valancourt highlights, the author/publisher’s copyright interests and the Library’s authority to demand copies are in conflict. With 1870 barely visible in the rearview mirror, the Library still wants free materials, but Valancourt shows that this mission is not wholly predicated on the author/publisher’s interest in obtaining the full advantages of copyright protection. And perhaps this is especially true in a modern, digital-age market.

Notwithstanding the unpublished manuscript scenario above, most publishers send physical deposit copies with registration applications for published—or about to be published—books.[2] But if the Valancourt decision stands, it is conceivable that many publishers, especially smaller presses, will argue that they are allowed to submit electronic copies or must be compensated for the cost of sending physical copies. We shall see whether the government appeals this decision to the Supreme Court, but in the meantime, most creators can file this case under the heading Conversation for Copyright Nerds and continue registering their works with electronic deposits. In any event, please remember to register immediately—before your work is published and before it can be infringed – to get the full protection of the Copyright Act.

[1] FWIW, I wonder whether Valancourt’s speech claim would have merit because it seems that Plaintiff would have to show that the demand for physical copies, though enforced inconsistently, is content based. City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022).

[2] There are good reasons to do this, not the least being that the physical book is the final draft of all the material being registered.

Sedlik v. Kat von D After Warhol

On August 7, photographer Jeff Sedlik and tattoo artist Katherine Von Drachenberg (Kat Von D) filed motions for reconsideration of summary judgment, with both sides arguing that their allegations are favored by the Supreme Court’s decision in Goldsmith v. Warhol delivered on May 18, 2023, finding for plaintiff Lynn Goldsmith. The parties also filed oppositions on August 21. I’ll cut to the chase and assert that to the extent Warhol is instructive here, it is impossible to see how it helps Kat Von D’s fair use defense as a matter of law.

I have written about this case before, but to repeat the background, Kat Von D (owner and operator of High Voltage Tattoo) is a celebrity tattoo artist with millions of fans and followers. In April of 2018, she tattooed a copy of Jeff Sedlik’s portrait of Miles Davis onto the arm of Blake Farmer, a lighting tech, with whom she had worked on a film project. Kat Von D did not charge Farmer for the tattoo, but she did publicize its making through her social media accounts, and these promotional posts included the Davis photograph, as shown here:

Sedlik reached out to Kat Von D to discuss her unlicensed use of the Davis photograph, but receiving no reply, he filed suit against her and High Voltage for copyright infringement (both for the tattoo and the display of his photo in the promotional materials). Kat Von D contends that tattoo artists are not required to license the images they use. Notwithstanding the validity of that claim, however, she argues that the Davis tattoo was a fair use and, further, that the outcome in Warhol is “new law” that now supports her defense. Conversely, Sedlik argues that Warhol rejects Kat Von D’s fair use claim, stating that her argument is “very similar” to that of Andy Warhol Foundation.

Tattoos Are Not Unique Re. Licensing

First, let’s dispense with the proposal that tattoos are generally exempt from a requirement to license protected images. Although tattoos are a distinctive form of image rendering in that they are permanently fixed on a person’s body, there is no exception in copyright law to which Kat Von D et al. can point to justify avoiding a requirement to license protected visual works. Although Sedlik presents evidence that licensing images for tattoos is common practice, and that he has personally licensed his photos for many uses, including tattoos, the requirement to obtain a license is not predicated on these facts, but rather on a core principle of copyright law that it does not protect a use-it-or-lose-it bundle of rights.

Sedlik could have created the Davis portrait as a work of fine art, sold a few limited-edition prints, and declined to license the image for any other purpose, and the legal considerations in this case should be the same.[1] A copyright owner retains the exclusive right to permit or deny the use of a work for any reason, at any price, and at any time during the term of protection. In fact, perhaps the most prominent, relevant case in which a court held that a rightsholder needed to be in a market to show potential harm was Cariou v. Prince. But Cariou was not only decided in a different (i.e., non-controlling) circuit, it is arguably dead law after Warhol.

But this gets ahead of the narrative, jumping into factor four considerations, so let’s return to factor one (the purpose of the use) and the effect of Warhol on Kat Von D’s fair use defense. Because to put it bluntly, her post-Warhol motions make a hash of the relevant aspects of that decision—even implying that the commercial consideration weighs more heavily than the transformative consideration. This inverts the analysis, but in any order of consideration, her use is clearly commercial and even more clearly not transformative.

The Tattoo is Commercial

Citing Warhol, Kat Von D alleges that Sedlik and the district court erroneously conflated the commercial nature of the social media posts with the allegedly non-commercial making of the tattoo itself. “Under the new rule set forth in Warhol, each of those challenged uses must be analyzed separately and assessed on their own terms,” the KVD motion states. In seeking to separate the tattoo’s production from promoting herself, Kat Von D then argues that the tattoo was made for a non-commercial purpose because she did not charge Mr. Farmer for the work. This legerdemain is aided by the misdirection in asking the court to look at commerciality first and transformativeness second,[2] but even if the promotional uses are separately analyzed for alleged infringement, this does not mean they cannot serve as factual evidence of a commercial purpose in the initial making of the tattoo.

Advertising or promoting an enterprise or a brand (Kat Von D is a brand) with the use of a protected work is sufficient to find that the user gained some “advantage,” and this is generally held to be a commercial use as a matter of law. Both for-profit and not-for-profit entities give away goods and services all the time and usually obtain some PR value by making these donations. In this same light, Kat Von D cannot escape the commercial nature of the Davis tattoo simply because it was a “gift” to Mr. Farmer.[3]

The widespread and sophisticated promotion of the tattoo, reaching millions of followers, can only be viewed as adding value to the Kat Von D brand. So, even if the promotional images were found, under separate analysis, to be non-infringing, they nevertheless demonstrate that the production of the tattoo served a commercial purpose. But more importantly, even if Kat Von D’s use of the Davis photo were found to be non-commercial, the lack of transformativeness must still find that factor one favors Sedlik. And Warhol makes this abundantly clear.

The Tattoo is Not Transformative (Before or After Warhol)

Kat Von D misreads the meaning of “purpose” under factor one and overlooks the most significant aspect of the holding in the Warhol decision. Because the Supreme Court found that the Warhol screen and the Goldsmith photo served the same “illustrative purpose” (in context to the facts at issue), Kat Von D argues that this means Sedlik’s original job to photograph Davis to illustrate a jazz magazine is distinguishable from her non-illustrative, “transformative” intent to make a tattoo. This strains the Court’s discussion in Warhol and tries to revive the argument that using a work in a different medium or context is transformative. This was an error even before Warhol.

The purpose of Sedlik’s photograph is to be a portrait of Miles Davis. It does not matter whether the first use of that portrait was to illustrate a magazine article, to hang in a fine art gallery, to be printed in a book about Miles Davis, etc. If Kat Von D’s premise were the foundation for transformativeness, it would be tantamount to finding that nearly any adaptation of a work to a new medium or context (e.g., book to movie, movie to video game) is transformative favoring fair use.

Because this would swallow the author’s exclusive right to prepare derivative works, the Supreme Court’s reaffirmation of the boundary between transformative use and derivative works was arguably the most important aspect of the Warhol opinion. Specifically, the Court restated the principle (citing Campbell) that to find transformativeness, the purpose in using a protected work must include some “critical bearing” on the work used. “Critical bearing” means some element of comment upon the used work—a claim that Kat Von D cannot make, which may be why her briefs omit this critical result in the Warhol decision.[4]  From the Opinion:

The asserted commentary [by Warhol] is at Campbell’s lowest ebb. Because it “has no critical bearing on” Goldsmith’s photograph, the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).”

Some Difference in Expression is Not Transformative

Kat Von D also overstates the significance of alleged expressive distinctions between her tattoo and Sedlik’s photograph, noting that at summary judgment, “The Court found that Defendants carried their burden of showing that the Tattoo ‘has a purpose or meaning distinct from the Portrait by virtue of the way Kat Von D changed its appearance to create what she characterizes as adding movement and a more melancholy aesthetic.’” [5] In my view, the district court erred in its finding here, but even if the question was determined to be a triable issue of fact before Warhol, the question should evaporate after Warhol because the essential element of “critical bearing” is clearly absent from the Kat Von D tattoo just as it is absent from the Warhol screen(s).

Further, any claim to expressive distinctions between the tattoo and the photograph that may find shaky purchase on factor one would be doomed to fall under analysis of factor three, which considers the amount of the original work used. Any court should hold that the tattoo copies the “heart” of Sedlik’s photograph and that many of the distinctions between the two works are largely the result of adaptation from one medium to another.[6] Adaptation from one medium to another is typically evidence that a derivative work has been made, and in this case, it is an unlicensed derivative that is not allowed by fair use.

Threat to the Potential Market

On the fourth factor analysis, regardless of whether Sedlik has previously licensed his photos for making tattoos, Kat Von D’s failure to obtain a license constitutes a threat to the “potential” market for the photograph. Here, Kat Von D argues that the tattoo cannot serve as a substitute for, say, photographic reproductions of the image, and this is true but irrelevant. The threat is to potential licensing opportunities for the image, and unless there is a foundation for finding that tattoo artists are exempt from copyright obligations, the tattoo market remains a licensing avenue for Sedlik and all other visual artists.

Further, because Kat Von D is a celebrity, other tattoo artists will follow her example and, likely, view the outcome of this case as instructive. Thus, under Ninth Circuit precedent in (among other cases) McGucken v. Pub Ocean, the district court should recognize the factor four holding that if tattoo artists “carried out in a widespread and unrestricted fashion” the same conduct with other visual works, this would “destroy” a “licensing market.”

Freehand Drawing, Bodily Integrity, and Other Distractions

Kat Von D directs the court’s attention (and that of a putative jury) to her testimony that she inked the image of Miles Davis freehand, but this is irrelevant. She admits to first tracing Sedlik’s photograph (and there is video evidence of same) and then doing the inking freehand, and she will presumably want to make a show of all this process to a jury. But none of it matters.

Facts related to the process of making a copy of a protected work are only relevant to the alleged infringer’s intent and may be evidence of access to the work used. The method of copying, no matter how impressive or mundane, has no bearing on the questions of infringement or fair use. Here, the tattoo is clearly a copy of the photograph, and to the extent Kat Von D’s process matters at all, it only serves as evidence that her copying was intentional.

There has also been some discussion among legal pundits and in the blogosphere about bodily integrity and the nature of tattoos, and this is another distraction from the salient issues. In addition to the fact that Sedlik has not filed suit against Farmer nor sought any form of injunctive relief whereby the tattoo might be ordered removed from his arm, this case is not an attack on the tattoo industry or on tattoo wearers. This case is about the need to obtain a license to copy protected works (in any medium), and if a celebrity like Kat Von D fails to honor that principle with a high-profile image, this sets a poor example for less well-known parties appropriating other works.

From my reading, this litigation contains a lot of unnecessary discussion about artistic process and subjective meaning (e.g., Farmer’s feelings about Miles Davis) that would likely be immaterial even in a more complex case. But this isn’t a complex case. A child can recognize that the tattoo is a very faithful copy of the heart of the photograph, and the Supreme Court in Warhol has affirmed that the tattoo is not a fair use. I fail to see how this case is more difficult than that.

Disclosure: The copyright advocacy world is quite small. I know Jeff Sedlik and have spoken to him about copyright matters in general and about the publicly available record in this case. In addition to his work as a photographer, he has served as an expert witness in over 450 copyright cases, including for Lynn Goldsmith. He is the founder of PLUS Coalition and is a board member of Copyright Alliance.

[1] e.g., The Beastie Boys sued GoldieBlox in 2013 for use of one of its songs because the band had never allowed commercial/advertising uses of its music.

[2] As Campbell makes clear, transformativeness is more determinative of fair use than commercial use, and the factor one analysis in Warhol rests substantially on Campbell.

[3] Also, although Sedlik does not allege barter, it is notable that Farmer worked for Kat Von D and then received what would be a rather expensive tattoo as a “gift.”

[4] To clarify, any claim to “comment” about Davis, about Farmer, about jazz, etc. is outside the standard for “critical bearing.” The comment must be about the work used, e.g., to critique the photograph.

[5] Notably, Warhol’s claim to “new expression” is stronger than Kat Von D’s.

[6] For instance, Sedlik’s solid black background is likely not achievable nor desirable on human skin.