AI Litigation Update

Dateline: July 23, 2023

Legal challenges to generative AI are on the rise. This post, an AI litigation update, is a snapshot in time looking at what is going on in two of the active cases:

• Andersen, et al. v. Stability AI Ltd. The case brought by three artists on behalf of themselves and a class of similarly situated individuals against the AI image generator companies Stable Diffusion, MidJourney and Deviant Art. ("Artists' Class Action")
• Getty Images (US), Inc. v. Stability AI. Getty Images claims Stability AI ‘unlawfully’ scraped millions of copyright protected images from its site to train its AI machine.

Andersen v. Stability: AI Litigation Round 1

The Artists' Class Action was brought in January 2023. In April, all the defendants filed motions to dismiss the case. A hearing on the motions was held a few days ago.

There was no ruling from the judge at the hearing, but he said said he was inclined to toss "almost everything" in the case. His skepticism of the artists' claims seems to come from his belief that there is no "substantial similarity" between the artists' works and the output from the AI image generators.

Before I talk about why I think the judge's comments during the hearing miss the mark, let's quickly review what it takes to prove copyright infringement.

There are two ways to prove copyright infringement. The first is by showing direct copying. Direct copying in the context of copyright infringement refers to the act of exactly or very closely duplicating original, copyrighted material without the authorization of the copyright holder. Getting evidence of direct copying is difficult which is why most cases rely on the second way of proving infringement.

The second way to prove infringement is by showing that the defendant had access to the original protected work and that the infringing work is substantially similar.

"Access" refers to the opportunity or ability of the alleged infringer to view, hear, or otherwise come into contact with the copyrighted work. If the alleged infringer had no reasonable opportunity to access to the work, it is less likely that they could have copied it.

"Substantial similarity" refers to the degree to which the accused work resembles the copyrighted work. If the two works are substantially similar, it may tend to prove that copying occurred.

The Artists Allege Direct Copying, Not Access + Substantial Similarity

During the hearing Judge Orrick is reported to have said, "I don't think the claim regarding output images is plausible at the moment, because there's no substantial similarity between images created by the artists and the AI systems."

I don't know what the judge was looking at when he made that statement, but in her opinion piece in the New York Times, lead plaintiff Sarah Andersen included a visual comparison of her work with work generated by the AI image generator. As she says, "It’s not perfect — but it has captured the signature elements of my drawing style."

This is where I'm stuck, the judge's comment doesn't make sense to me. I don't think the case should turn on whether the output is substantially similar. Andersen alleges direct copying in her complaint.

If I go to the library and take out some books, then make copies for my home library and return the originals, the copies of those books in my house are a direct infringement. It can't be otherwise, regardless of what I do with those books.

The Artists' complaint alleges that is exactly what Stability did -- "Stability has embedded and stored compressed copies of the Training Images." It's direct infringement regardless of the output.

Without expert testimony and a clear understanding of how AI machine training works, I don't think the judge should dismiss this piece of the case. AI is complicated and technical. It deserves close, informed scrutiny.

AI is a series of complex computer algorithms and programs that process and analyze (massive amounts of) data in order to identify patterns and make predictions. The second step: "process and analyze data" is what the AI companies want a free pass on in this case and in all AI litigation. They want to use all the data they can get their hands on.

Correction: They have used all the data they can get their hands on.

For the AI companies, there are two best possible outcomes in any AI litigation. The first best outcome is a dismissal of the case against them. The second best outcome is a finding that the "process and analyze data" step in their business model is considered to be fair use.

I don't see how a judge can dismiss a well-pled case without understanding how AI machines use the input data. That understanding can only come from expert testimony. And expert testimony comes during the discovery phase of the case and at trial.

The problem with the Artists' Class Action complaint is that the judge does not think it is well-pled. He wants more facts and specificity.

And, not for nothin' (to borrow a favorite phrase from Brian Tyler Cohen), to address the judge's concern that the output from the AI image generator is not substantially similar to the protected creative work, research has proven that identical images can be generated from the input data, not just those that are substantially similar.

What's Next for the Artists' Class Action

To be clear, this post only addresses the part of the Artists' Class Action complaint that alleges direct copyright infringement of Sarah Andersen's work. She is the only named plaintiff who has copyright registrations on her work. The other artists had not, at the time the complaint was filed, registered their work with the U.S. Copyright Office.

In the United States, if you want to enforce your rights in court, you must have a copyright registration on your creative work. Without a copyright registration, the infringement claims of the other artists should get dismissed.

The judge did signal that while he is likely to dismiss most of the case, he will give the artists the opportunity to amend their complaint to address some of its deficiencies. We need to think of this complaint as a first pancake, an initial attempt that is not going to turn out as well as the next one.

Getty v. Stability: AI Litigation Round 0

Getty's lawsuit against Stability for copyright infringement (and other claims like trademark tarnishment) has gotten bogged down in procedural and jurisdictional matters that aren't particularly interesting. It's as though Stability is playing a corporate shell game, "You sued the wrong entity. We're Stability Ltd., not Stability, Inc."

Stability is trying to get the case either dismissed or moved out of Delaware to California where the Artists' Class Action is pending. Getty has spent the time since filing its complaint in March 2023 trying to sort these preliminary issues out.

Getty's case, on the face of its complaint, is stronger than the Artists'. Getty has filed for copyright registrations on thousands of the images that it licenses. Getty also has a copyright registration on its database of images. The database includes all the image meta data containing information like the alt-text, or description of the image, that tells the AI machine what it is looking at.

The above image of the woman with a magnifying glass was licensed from Adobe and used in a PowerPoint deck. PowerPoint used AI to generate the alt-text description of the image.

Getty can prove that Stability used its images and database to train its AI machine because examples of the output, the AI-generated images, contain the Getty watermark.

Getty included this AI-generated image in its complaint. It's ugly, but it is clearly using information gleaned from the Getty database of images. The grotesqueness of the image supports a claim for trademark tarnishment, according to Getty.

A Final Word

There are lots of open questions on AI-generated content, not the least of which is how the Supreme Court's recent decision on fair use in Warhol v. Goldsmith will play in these cases.

AI litigation is not like an algebra text. There are no answers in the back of the book. Perhaps there will be some answers from these two cases. It's worth keeping an eye on them.

I'll continue to provide updates.