Potential Copyright Class Action Could Answer the Question of AI-Generated Art: Theft or Innovation?

Potential Copyright Class Action Could Answer the Question of AI-Generated Art: Theft or Innovation?

Art and science come head-to-head in the form of a potential class action suit against artificial intelligence (“AI”) art generators. Earlier this year, a group of artists filed a copyright infringement lawsuit against Stability AI, Midjourney, and DevianArt for allegedly training their artificial intelligence with the artists’ work without the artists’ knowledge or consent. The suit would be the first of its kind, and its outcome could shape the legal framework for the latest issue of man versus machine.

An Overview of AI-Generated Content

While artificial intelligence has not reached the levels of Skynet, its progress is startling. AI can calculate and write a perfect cover letter, summarize chunks of text, and now—create art.^[1] But what does “create” mean for artificial intelligence? AI-generated content requires the input of human-generated content to output its work.^[2] This means that to generate art, the AI must first be trained.^[3] Often, coders train the machines through a process called “data-scraping,” which copies billions of images from across the internet to be fed to the AI and analyzed for patterns.^[4] As a result, many artists are concerned with the protection of their exclusive intellectual property rights in the face of AI-generated art.

The Possible Lawsuit

Among the concerned artists are Sarah Andersen, Kelly McKernan, and Karla Ortiz.^[5] Andersen and McKernan discovered their art was used to train various AI content generators through a website titled “Have I Been Trained?”^[6] And while Ortiz has not directly spoken about how she came to be involved, she has extensively denounced AI-generated art on social media and through her role as a board member of an artist advocacy organization.^[7] The artists filed their complaint in California on January 13, demanding one billion dollars in compensation and for the court to prevent AI content-generating companies from using artists’ work without their permission.^[8] Allegations included copyright infringement, rights of publicity violations, and unfair competition law violations.^[9] In response, a spokesperson from defendant Stability AI stated, “Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.”^[10] Whether the court agrees is yet to be answered.

Class Action

Artists and machines may not find satisfaction in the court as the case could fail to achieve class certification. Under Rule 23 of the Federal Rules of Civil Procedure, a class must have numerosity, commonality, typicality, and adequacy.^[11] The plaintiff artists here may not have an adequately common claim or may be the representative of too few injured parties.^[12] Lack of commonality and numerosity are merely the two most apparent hurdles this case would face in certification—a hurdle that, if not cleared, could result in the case being dismissed. While the artists may choose to pursue their claims individually, the financial reality makes an individual pursuit unlikely.

Fair Use

Beyond the looming hurdle of the case’s survival is the issue of fair use. This defense is a fact-heavy analysis that would likely vary from piece to piece rather than be applied as a blanket defense for all AI art generators.^[13] For the defendants’ pieces to qualify for fair use protection, the works must be sufficiently transformative so as to “significantly [vary] from the originals.”^[14] Creating new works from compiled data is not unique to AI-generated art, and this issue has been deemed transformative by the court before.^[15] But the appearance of distorted watermarks and snippets of an artist’s work in an AI’s new image could add another layer of complexity to a fair use analysis.^[16]

Implications

If the case can survive to litigation, its outcome will influence the tide of AI-generated content. As technology improves, so increases the complex questions posed to jurisprudence. Matthew Butterick, a member of the plaintiffs’ representation, called the suit “another step toward making AI fair & ethical for everyone.”^[17] Others, however, worry that these cases will stifle the innovation and research of artificial intelligence technology.^[18] Either way, both proponents and disparagers of AI art generators should be keeping a close eye on this potential lawsuit.