from the was-this-lawsuit-written-by-generative-ai? dept
Earlier this year you may have heard that there were a few lawsuits filed over generative AI platforms, with two big cases targeting Stability AI, makers of Stable Diffusion, in particular. I’d been meaning to write about these cases, and why they’re so problematic, but things have been busy and I didn’t get a chance. Though, now, in the first case, filed by some artists, Stability has filed its motion to dismiss (and an anti-SLAPP motion) against the plaintiffs, and it highlights many of the points I would have raised in the article anyway. So let’s just dig into that.
If you haven’t been following the case, you can read the initial complaint here. The underlying claim is that because Stability AI was trained on works found online, and then can create works in the style of some of these artists, it’s infringing on their copyrights.
I believe that’s wrong for a number of important reasons, but we can let the motion to dismiss detail most of them. Fundamentally, the argument here is that training an AI (or, to be honest, a human) on the artwork of others, is not copyright infringement. It’s literally how people learn, and AI systems can learn that way too. Second, creating images “in the style of” an artist also is not infringing, it’s not reproducing any copyright-covered works, it’s just being influenced by them, as lots of artists are influenced by others.
In other words, the things that Stability is doing in generating images are the same things that humans do, and which are fundamental to creativity, culture and art.
Even more bizarre, as the motion to dismiss points out that, the plaintiffs in this case appear to have failed to register the works at issue in the case before filing suit. And, as we’ve discussed regularly, while you don’t need to register to get a copyright, you do need to register if you plan to sue over the works.
First, it is well-settled that a copyright owner must register her works with the Copyright Office before filing a lawsuit for alleged copyright infringement. Plaintiffs and their counsel know this. But Andersen alleges only that she registered sixteen collections of her works; and McKernan and Ortiz did not register any. McKernan and Ortiz’s copyright claims—and any claim Andersen may present with respect to unregistered works—fail for that reason alone.
Of course, that’s just specific to these plaintiffs, but at the very least it highlights the sloppiness of the arguments and the lack of care by the lawyers representing them.
The larger issues, though would apply even if the images had been registered:
Plaintiffs present scattershot claims that fail to allege any facts to support necessary elements or that otherwise fail as a matter of law. Plaintiffs’ direct copyright infringement claim based on output images fails for the independent reason that Plaintiffs do not allege a single act of direct infringement, let alone any output that is substantially similar to Plaintiffs’ artwork. Plaintiffs’ vicarious copyright claim suffers from the same deficiency, plus the additional flaw that Plaintiffs make no effort to plead facts in support of the remaining elements of such claim. Plaintiffs’ Digital Millennium Copyright Act (“DMCA”) claim also fails multiple times over because Plaintiffs do not allege a single work from which copyright management information was allegedly altered or removed, explain what CMI was allegedly removed, or allege any facts to support the double-scienter requirement. Further, Plaintiffs’ right-of-publicity claims are expressly preempted by the Copyright Act because they are simply efforts to recast copyright claims under other legal rubrics. In any event, Plaintiffs offer no more than a bare recitation of the elements of such claims with cursory allegations that “Defendants” (collectively, but neither individually nor with any specificity) somehow violated their rights of publicity. But Stability AI has not made any knowing use of Plaintiffs’ names or likenesses, much less for any commercial purposes or in a way that injured Plaintiffs. Finally, Plaintiffs’ unfair competition claim is also preempted, and their duplicative claim for declaratory relief is improper and serves no useful purpose.
Digging in a little deeper, the whole point here is that generative art engines like Stable Diffusion are producing brand new images. They’re not copies. They’re certainly not “collages” as the lawsuit claims. It’s no different than if an artist learned to mimic the style of another artist and was asked to produce an entirely new image in that style. The “style” is not copyright-protectable. Only the actual works of art are. And the plaintiffs even admit that in their complaint:
As an initial matter, Plaintiffs fail to identify a single allegedly infringing output image, let alone one that is substantially similar to any of their copyrighted works. Much to the contrary, Plaintiffs affirmatively plead that “[i]n general, none of the Stable Diffusion output images provided in response to a particular Text Prompt is likely to be a close match for any specific image in the training data.” Compl. ¶ 93. Where, as here, Plaintiffs fail to make “any allegations of even representative infringements,” and themselves allege that there is not substantial similarity between their works and any output images, the Complaint fails to allege direct copyright infringement.
As the motion to dismiss notes, the plaintiffs’ legal theory would basically upend all art instruction as infringing:
In an apparent effort to upend almost all artistic creation, Plaintiffs’ apparent theory would require finding that any work is a “derivative work” under the Copyright Act simply because it makes reference in any way whatsoever to a prior work. But the Ninth Circuit has rejected this “novel proposition,” reiterating that “substantial similarity” is required to show infringement.
Basically, this entire lawsuit seems based on the false premise that artists can own their own “style” and prevent others from creating works in that style. But that’s not how any of this works.
And even the “right of publicity” claims are laughable as well. We’ve talked a lot about right of publicity over the years, and how it’s often used as a backdoor attempt to limit creative expression where copyright would not allow the suppression, which is completely out of sync with the point of publicity rights. The reason for publicity rights was to prevent misleading endorsements of goods and services from people who weren’t actually endorsing something. But no one thinks that if you use a generative art program to create works “in the style of Picasso” that Picasso endorsed it.
Plaintiffs do not allege their identities were commercially exploited via advertising or in merchandise (which could potentially take their claims out of the subject matter of copyright). “[T]he distinction pertinent to the preemption of a publicity-right claim is . . . the way in which one’s name or likeness is affected by the use of the copyrighted work.” Maloney, 853 F.3d at 1013 (emphasis altered). When, for example, pictures of surfers are included in a clothing catalog, and that catalog essentially “suggest[s] that the surfers had endorsed” the clothing, those surfers “sustained injury to their individual personas” through commercial exploitation of their likenesses. Id. at 1013–14 (emphasis altered) (discussing Downing, 264 F.3d 994). But when a publicity right claim does not target “non-consensual use of one’s name or likeness on merchandise or in advertising,” and instead merely targets someone’s “likeness [that] has been captured in a copyrighted artistic visual work . . . being distributed for personal use,” that person has not sustained injury to their persona in a way that escapes preemption. Id. at 1010 (emphasis altered)
Here, Plaintiffs do not sufficiently allege that their identities were used on merchandise or in advertising, so their claims remain within the subject matter of copyright. They make no allegations about merchandise, and, as described infra at 22, the advertising allegations are fatally conclusory. Even assuming the least conclusory of those allegations are plausible factual allegations (which they are not), Plaintiffs’ allegations are still insufficient. Namely, Plaintiffs allege that: (1) Defendants advertised art “in the style” of Plaintiffs’ work; and (2) Defendants “advertised their AI’s ability to copy or generate work in the artistic style that Plaintiffs popularized in order to sell Defendants’ products and services.” Compl. ¶ 205; see also Compl. ¶ 208, 221 (similar). The first allegation (which is devoid of any factual support in the Complaint) ultimately “target[s] the display and distribution” of what Plaintiffs allege are derivative works–i.e., targets the “control of the artistic works themselves.” Maloney, 853 F.3d at 1016 n.9 & 2011 (emphasis altered). And the second does not change that fact. Critically, Plaintiffs point to no single advertisement whatsoever that used any of their specific names or “artistic identities” that would be sufficient to allegedly injure their “personas.” Cf. Downing, 265 F.3d at 999-1000 (finding athletes’ personas injured when their likenesses were used in a clothing catalog to sell t-shirts). So there is nothing to potentially take their claims out of the subject matter of copyright.
As the motion to dismiss makes clear, this really just seems like yet another attempt to get around copyright’s clear boundaries to try to use publicity rights as a backdoor for expanded copyright.
And simply allowing users to type the plaintiffs’ names into the generative art engine is not a violation of their rights.
Moreover, to the extent that Plaintiffs’ allegations rely on the ability to type names as Text Prompts (or generally advertising the ability to do so), these are plainly insufficient to injure Plaintiffs’ personas—if it were otherwise, the ability to enter any name into a Google search would violate every human’s publicity rights.
There’s a lot more in the motion, but this should give you a sense of how weak the case really is.
There is also the separate anti-SLAPP motion to strike, which may be noteworthy in that if it succeeds, the plaintiffs may end up having to pay the legal fees of the defendants. I do wonder if the lawyers who convinced the plaintiffs to bring this kind of lawsuit warned them of the possibility of such a result?
As the motion to strike notes, this is a lawsuit attacking the free speech rights of the defendants Stability AI and Deviant Art:
Plaintiffs’ right-of-publicity claims are barred by the First Amendment. In right-ofpublicity cases challenging conduct that furthers the exercise of free speech (as this suit does), California courts balance the publicity right against the First Amendment “right of free expression” using a “Transformative Use” test that asks whether the alleged likeness is merely one of the “‘raw materials’ from which an original work is synthesized.” Winter v. DC Comics, 30 Cal. 4th 881, 888–89 (2003). If so, the First Amendment bars the claim. Id. Here, the Complaint suggests that while some DreamUp outputs might reflect an “artistic style” derived from Plaintiffs’ images, they also reflect insights and interpolations from “billions of [other] images” and direction from text prompts supplied by users. Compl. ¶¶ 25, 179, 205. Indeed, Plaintiffs admit that it is nearly impossible to recognize the influence of any specific training datum on a DreamUp output. Id. ¶ 192. Accordingly, to the extent that Plaintiffs’ identities or likenesses are referenced in the process of creating new and different artistic works, they have, according to the Complaint itself, been transformed through the “diffusion” process into “something new, with a further purpose or different character.” Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 404 (2001) (citation omitted). This is quintessential “transformative use,” and the First Amendment therefore bars these claims.
I hadn’t really discussed DeviantArt’s involvement as a defendant in the case, but the anti-SLAPP motion (which was filed on its behalf, though Stable Diffusion filed a separate motion for joinder), highlights how ridiculous it is to include it as a defendant, since the main thing it did was provide a tool to allow artists to remove their works from a generative AI system.
There is irony, to say the least, at the heart of Plaintiffs’ right-of-publicity theory. The gravamen of the claims is that DeviantArt is liable for violations of California state law for offering a content-generation artificial-intelligence (“AI”) service (called DreamUp), based on an opensource software product developed by a third party, which allows users to submit text prompts requesting the creation of artworks “in the style” of established artists. In reality, as Plaintiffs know, what DeviantArt in fact did was take that general-purpose open-source software—which offered that capability by default—and build a new functionality on top of it, allowing any artist to prevent the DeviantArt implementation of the tool from processing requests to generate works in their “style.” See infra at 5–6 & n.3. In other words, all DeviantArt did was offer an AI service more protective of artists’ interests than the default setting of one of the most commonly used open-source tools on the market (available in countless implementations all over the internet), in an effort to address the very concerns underlying Plaintiffs’ claims. And yet Plaintiffs have nevertheless seen fit to try to tag DeviantArt with liability for doing so.
Like the failure to register the copyright on works beforehand, this suggests an incredibly sloppy bit of lawyering by the plaintiffs’ lawyers, who did not seem to care about getting this right, but more about getting attention. And it may cost the plaintiffs:
Claims like these are why California adopted the nation’s most expansive anti-SLAPP law. Putting to one side the inequity of Plaintiffs’ gambit here and the facts they chose not to plead in an effort to shield that inequity from the Court’s view, the Complaint by its terms seeks to ascribe liability to the act of giving members of the public access to a twenty-first-century analogue to the printing press: a tool that allows users to engage in artistic expression. And not just any artistic expression. The particular expression Plaintiffs complain of is the use of the tool to reference the style of allegedly famous artists. It is “conduct” (providing users a platform to engage in free expression) “in furtherance of the constitutional right of . . . free speech” (the creation of new visual artworks) “in connection with . . . an issue of public interest” (the styles of referenced artists)
Filed Under: anti-slapp, california, copyright, free speech, generative ai, generative art, publicity rights
Companies: deviantart, stability ai