Part 2

Artificial Intelligence (AI) has become increasingly prevalent in the world of art, leading to new forms of creative expression that challenge our conventional notions on what constitutes art. AI-generated art is created using algorithms and machine learning, which allow computers to learn from and mimic human behavior. However, this new and rapidly developing form of art raises important questions about how (or whether) artists can protect their works through copyright law and the applicability of the “Fair Use Doctrine.”

The Fair Use Doctrine is a legal concept that allows for the use of copyrighted material without permission from the copyright holder, in certain circumstances. These circumstances include but are not limited to: criticism, news, reporting, teaching, scholarship, and research. Fair use is determined on a case-by-case basis, and courts consider four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. [1]

In the context of AI-generated art, the Fair Use Doctrine is particularly relevant because AI algorithms often use copyrighted works as inputs to create new, “original” works. This raises the question of whether the use of copyrighted material by AI algorithms falls under fair use. Just this past January, Stock photo provider Getty Images filed suit against Stability AI Inc. in Delaware federal court, which accused the artificial intelligence company of misusing more than 12 million Getty images to train its Stable Diffusion AI-image generation system in Delaware federal court. This action follows a separate Getty case against Stability in the United Kingdom and a related class-action complaint filed by artists in California against Stability, Midjourney Inc, and DeviantArt Inc., which are all companies in the field of AI-generated art.

One argument in favor of AI-generated art falling under fair use is that the use of copyrighted material by AI algorithms is transformative. Transformative use is a key factor in determining fair use. It refers to the creation of something new and original that is not merely a copy or imitation of the original work. AI algorithms create new works by processing and synthesizing existing works, resulting in a product that could be considered distinct from the original. As a result, AI-generated art can be seen as a form of transformative use, which would weigh in favor of fair use.

On the other hand, this argument is not without its limitations. Many argue that AI-generated art is simply a recombination or manipulation of existing works, without adding significant creative output. There is also the larger philosophical debate as to whether a machine can give “creative input” to its work. In such cases, it may be more difficult to argue that the use of copyrighted material is transformative and subsequently falls under fair use.

Another argument in favor of AI-generated art falling under fair use is that at least some portion of it is non-commercial. The fourth factor in determining fair use is the effect of the use upon the potential market for or value of the copyrighted work. If the use of the copyrighted material is non-commercial, meaning it is not used to directly generate revenue, then it is less likely to harm the potential market for the copyrighted work. In the case of AI-generated art that is created for personal or non-commercial use, it would weigh in favor of fair use.

Nevertheless, especially in the case of LENSA and some other diffusion models, commercialization is a growing concern. LENSA, as an example, charged users a fee in order to generate the AI-created self-portraits. Furthermore, a growing amount of AI-generated art is sold for profit. Many artists find their craft and livelihoods in jeopardy as AI-generated art’s use of copyrighted material may have a direct impact on the potential market for the copyrighted work. In turn, this makes it more difficult to argue that the use of copyrighted material falls under fair use.

Ultimately, the application of the fair use doctrine to AI-generated art will depend on the specific circumstances of each case. It is important to note that the fair use doctrine is an affirmative defense and only comes into play after a party has filed suit for infringement. In such cases, courts will need to consider factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work. They will also need to consider the unique characteristics of AI-generated art and how they affect the fair use analysis.

There is currently no legal precedent that directly addresses the application of the fair use doctrine to AI-generated art. As such, it is difficult to predict how courts will ultimately rule on this issue. We may see the outcome of how courts approach this issue in the actions filed against Stability. Nevertheless, it is clear that the use of AI in art is here to stay. Thus, it is important for artists, attorneys, and policymakers to grapple with the legal implications of this new form of creative expression.

Read Part 1: AI Art and Copyright: Do Androids Dream of Copyright Registration?

[1] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

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