[co-author: Diana Milton]

On Oct. 30, Judge William Orrick of the U.S. District Court for the Northern District of California largely sided with defendants Stability AI, DeviantArt and Midjourney in the generative AI-copyright infringement suit brought by a trio of artists. Judge Orrick found plaintiffs’ complaint “defective in numerous aspects” and gave plaintiffs leave to amend “to provide clarity regarding their theories of how each defendant separately violated their copyrights, removed or altered their copyright management information, or violated their rights of publicity and plausible facts in support.”

In a recent order, Judge Orrick dismissed plaintiffs’ direct copyright infringement claims against DeviantArt and Midjourney, the entirety of plaintiffs’ vicarious infringement claims, and plaintiffs’ Digital Millennium Copyright Act claim, right of publicity claims, unfair competition claims and breach of contract claim. Not without recourse, Judge Orrick granted plaintiffs leave to amend their complaint on all listed claims within 30 days of the order.

While Judge Orrick dismissed a majority of plaintiffs’ claims, Judge Orrick has enabled plaintiff Andersen to continue pursuing her key claim of direct copyright infringement against Stability AI. Judge Orrick found that this plaintiff adequately alleged direct infringement against Stability AI, the allegations being that Stability AI downloaded/acquired copies of billions of copyrighted images without permission to create its generative AI, Stable Diffusion, and used, stored and incorporated those protected images into the AI as compressed copies for training purposes. In its motion to dismiss, Stability AI opposed the truth of plaintiff Anderson’s assertions but did not otherwise oppose the sufficiency of the allegations, and such position did not bear weight at this juncture. By denying Stability AI’s motion to dismiss, the court invited exploration into the question of “whether copying in violation of the Copyright Act occurred in the context of training Stable Diffusion or occurs when Stable Diffusion is run.” Judge Orrick dismissed with prejudice the copyright infringement claims of the other plaintiffs, McKernan and Ortiz, in their entireties because neither plaintiff had registered their images with the Copyright Office.

Notably, with regard to plaintiffs’ direct copyright infringement claims, Judge Orrick is “not convinced” that allegations based on a derivative theory and Stable Diffusion’s output images being the product of training on plaintiffs’ copyrighted images could survive without a showing of substantial similarity between the output images and plaintiffs’ protected works.

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