by Victoria Lee and Daniel Lopez

Art has always been a medium of human expression, creativity, and innovation. Currently, the field of art is transforming with the emergence of Artificial Intelligence (AI) generated art. AI-generated art is the product of machine learning algorithms that analyze enormous amounts of data and create new forms of art based on that analysis. Programs like Stable Diffusion, Deep AI, and Jasper Art allow users to create unique works of art by simply inputting text-based prompts that describe a specific image they want to generate. Although AI-generated art has gained widespread attention for its ability to create images, musical compositions, and even animations that rival human-created work, this innovative technology has raised many complex and novel issues surrounding copyright law.

Machine learning, a subset of AI, enables computer programs to learn from specific datasets and improve automatically, without being explicitly programmed. Machine learning algorithms require large amounts of data to learn from, and this data often includes copyrighted material such as images.

Stability AI, a world leading AI company, created a machine learning algorithm called Stable Diffusion. This model was trained on billions of image-text pairings from datasets that borrowed content from various websites. Earlier this year, Getty Images claimed that Stability AI used datasets that contained thousands of copyrighted images and text that were copied from its website. Consequently, Getty Images sued Stability AI for copyright infringement.

An important legal question that AI-generated art raises is whether the use of copyrighted work in machine learning can be subject to fair use.

Fair use is one possible defense against copyright infringements claims involving AI-generated work. This legal doctrine allows limited use of copyright material without permission from the owner, under certain circumstances. The purpose of this doctrine is to balance the protections that copyright grants to its owners with the public interest in promoting creativity and allowing the free exchange of ideas.

The four factors used to determine fair use are:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the potion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work

Although machine learning algorithms can generate images that are similar to the original works, they also have the ability to produce new works of art. This raises questions about the extent to which the resulting AI-generated art can be considered a transformative work or whether it is simply a derivative work that infringes on the original copyright. To benefit from the protections of the fair use doctrine, machine learning algorithms, like Stable Diffusion, need to demonstrate that there is a transformative use. Transformative use involves using the copyrighted material in a way that creates something new and adds value, rather than simply copying the original work.

Getty Images claims that Stable Diffusion can produce images that are highly similar to and derivative of their copyrighted work. However, the purpose of this model is not to create an exact replica of the original work, but rather to give artists an effective tool to create new, original works. It enables artists to create unique pieces of art without the need for expensive equipment or specialized training. The resulting products are an infinite variety of images and styles that are entirely different from the original work. This transformative use can also lead to a different market or audience for the new artwork.

Stable Diffusion’s use of copyrighted work to train its model is very similar to Google’s use of copyrighted works in creating Google Books. Google was sued for copyright infringement because it created digital copies of print books and made portions of the book available online through a public search function. The court ruled in favor of Google’s fair use defense because their purpose in using the books were different from the purpose of the original author. Google used the books to build a database, not to copy the contents of the book.

When comparing Stable Diffusion to Google, a judge would probably find that the four factors weigh in favor of fair use. Stability AI copied bits and pieces of copyrighted works to train Stable Diffusion. Just like Google, the copyrighted material was used to create a database, not for creative purposes.

In conclusion, a finding of fair use will help create new possibilities for creativity and expression. As AI-generated art is continuing to advance and transform the field of art, AI companies need reassurance that their methods of training models will not be subject to copyright infringement claims. This would be the more practical solution, than having to get approval to use every single copyrighted work.

U.S. Law Group routinely advises clients on issues related to copyright infringement and Fair Use. Our attorneys are at the forefront of cutting-edge areas of the law as applied to emergence of Artificial Intelligence. Please visit our site to learn more about our Intellectual Property practice areas.  Content in this article should not be considered legal advice.