Tag: contributory-liability

Contributory liability for torts, copyright infringement or trademark infringement

The Top 3 Generative-AI Copyright Issues

What are your favorite generative-AI copyright issues? In this capsule summary, Cokato attorney Tom James shares what his three favorites are.

Black hole consuming a star. Photo credit: NASA
Black hole consuming a star. Photo credit: NASA.

Having outlined the top AI legal issues, the time has come now to pick favorites. In this capsule summary, Cokato attorney Tom James shares what his three favorite generative-AI copyright issues are.

Generative artificial intelligence refers collectively to technology that is capable of generating new text, images, audio/visual and possibly other content in response to a user’s prompts. They are trained by feeding them mass quantities of ABC (already-been-created) works. Some of America’s biggest mega-corporations have invested billions of dollars into this technology. They are now facing a barrage of lawsuits, most of them asserting claims of copyright infringement.

Issue #1: Does AI Output Infringe Copyrights?

Copyrights give their owners an exclusive right to reproduce their copyright-protected works and to create derivative works based on them. If a generative-AI user prompts the service to reproduce the text of a pre-existing work, and it proceeds to do so, this could implicate the exclusive right of reproduction. If a generative-AI user prompts it to create a work in the style of another work and/or author, this could implicate the exclusive right to create derivative works.

To establish infringement, it will be necessary to prove copying. Two identical but independently created works may each be protected by copyright. Put another way, a person is not guilty of infringement merely by creating a work that is identical or similar to another if he/she/it came up with it completely on his/her/its own.

Despite “training” their proteges on existing works, generative-AI outfits deny that their tools actually copy any of them. They say that any similarity to any existing works, living or dead, is purely coincidental. Thus, OpenAI has stated that copyright infringement is an “unlikely accidental outcome.”

The “accidental outcome” defense seems to me like a hard one to swallow in those cases where a prompt involves creating a story involving a specified fictional character that enjoys copyright protection. If the character is distinctive enough — and a piece of work in and of itself, so to speak — to enjoy copyright protection (such as, say, Mr. Spock from the Star Trek series), then any generated output would seem to be an unauthorized derivative work, at least if the AI tool is any good.

If AI output infringes a copyright in an existing work, who would be liable for it? Potentially, the person who entered the prompt might be held liable for direct infringement. The AI tool provider might arguably be liable for contributory infringement.

Issue #2: Does AI Training Infringe Copyrights?

AI systems are “trained” to create works by exposing a computer program system to large numbers of existing works downloaded from the Internet.

When content is downloaded from the Internet, a copy of it is made. This process will “involve the reproduction of entire works or substantial portions thereof.” In Comment of OpenAI to the USPTO for example, OpenAI acknowledges that its programs are trained on “large, publicly available datasets that include copyrighted works” and that this process “involves first making copies of the data to be analyzed….” Making these copies without permission may infringe the copyright holders’ exclusive right to make reproductions of their works.

Generative-AI outfits tend to argue that the training process is fair use.

Fair use claims require consideration of four statutory fair-use factors:

  • the purpose and character of the use;
  • the nature of the work copied;
  • the amount and substantiality of the portion copied; and
  • the effect on the market for the work.

OpenAI relies on the precedent set in Authors Guild v. Google for its invocation of “fair use.” That case involved Google’s copying of the entire text of books to construct its popular searchable database.

A number of lawsuits currently pending in the courts are raising the question whether and how, the AI training process is “fair use.” For more information, have a look at Does AI Infringe Copyright? 

Issue #3: Are AI-Generated Works Protected by Copyright?

The Copyright Act affords copyright protection to “original works of authorship.” The U.S. Copyright Office recognizes copyright only in works “created by a human being.” Courts, too, have declined to extend copyright protection to nonhuman authors. (Remember the monkey selfie case?) A recent copyright registration applicant has filed a lawsuit (Thaler v. Perlmutter) against the U.S. Copyright Office alleging that the Office wrongfully denied registration of an AI-generated work. A federal court has now rejected his argument that human authorship is not required for copyright ownership. Thaler v. Perlmutter, 1:22-cv-01564, (D.D.C. Aug 18, 2023) ECF No. 24.

In March 2023, Copyright Office Guidance was published. It states that when AI “determines the expressive elements of its output, the generated material is not the product of human authorship.” Moreover, an argument might be made that a general prompt, such as “create a story about a dog in the style of Jack London,” is an idea, not expression. It is well settled that only expression gets copyright protection; ideas do not.

In September 2023, the Copyright Office Review Board affirmed the Office’s refusal to register a copyright in a work that was generated by Midjourney and then modified by the applicant, on the basis that the applicant did not disclaim the AI-generated material.

The Office also has the power to cancel improvidently granted registrations. (Words to the wise: Disclose and disclaim.)

These are my favorite generative-AI legal issues. What are yours?

Visit my extensive Copyright FAQs page.

Does AI Infringe Copyright?

A previous blog post addressed the question whether AI-generated creations are protected by copyright. This could be called the “output question” in the artificial intelligence area of copyright law. Another question is whether using copyright-protected works as input for AI generative processes infringes the copyrights in those works. This could be called the “input question.” Both kinds of questions are now before the courts. Minnesota attorney Tom James describes a framework for analyzing the input question.

The Input Question in AI Copyright Law

One of the top three generative-AI issues in copyright law is the question whether AI-generated creations are protected by copyright. This is what I call the “output question.” . Another question is whether using copyright-protected works as input for AI generative processes infringes the copyrights in those works. This could be called the “input question.” Both kinds of questions are now before the courts. In this blog post, I describe a framework for analyzing the input question.

The Cases

The Getty Images lawsuit

Getty Images is a stock photograph company. It licenses the right to use the images in its collection to those who wish to use them on their websites or for other purposes. Stability AI is the creator of Stable Diffusion, which is described as a “text-to-image diffusion model capable of generating photo-realistic images given any text input.” In January, 2023, Getty Images initiated legal proceedings in the United Kingdom against Stability AI. According to this Getty Images Statement, the company is claiming that Stability AI violated copyrights by using their images and metadata to train AI software without a license.

The independent artists lawsuit

Another lawsuit raising the question whether AI-generated output infringes copyright has been filed in the United States. In Andersen v. Stability AI, a group of visual artists are seeking class action status for claims against Stability AI, Midjourney Inc. and DeviantArt Inc. The artists claim that the companies use their images to train computers “to produce seemingly new images through a mathematical software process.” They describe AI-generated artwork as “collages” made in violation of copyright owners’ exclusive right to create derivative works.

The GitHut Copilot lawsuit

In November, 2022, Github announced a class action lawsuit has been filed in a U.S. federal court against GitHub, Microsoft, and OpenAI. The lawsuit claims the GitHut Copilot and OpenAI Codex coding assistant services use existing code to generate new code. By training their AI systems on open source programs, the plaintiffs claim, the defendants have allegedly infringed the rights of developers who have posted code under open-source licenses that require attribution.

Large computer with a woman reading a notebook and flipping a switch, B&W, from 1950's

How AI Works

AI, of course, stands for artificial intelligence. Almost all AI techniques involve machine learning. Machine learning, in turn, involves using a computer algorithm to make a machine improve its performance over time, without having to pre-program it with specific instructions. Data is input to enable the machine to do this. For example, to teach a machine to create a work in the style of Vincent van Gogh, many instances of van Gogh’s works would be input. The AI program contains numerous nodes that focus on different aspects of an image. Working together, these nodes will then piece together common elements of a van Gogh painting from the images the machine has been given to analyze. After going through many images of van Gogh paintings, the machine “learns” the features of a typical Van Gogh painting. The machine can then generate a new image containing these features.

In the same way, a machine can be programmed to analyze many instances of code and generate new code.

The input question comes down to this: Does creating or using a program that causes a machine to receive information about the characteristics of a creative work or group of works for the purpose of creating a new work that has the same or similar characteristics infringe the copyright in the creative work(s) that the machine uses in this way?

The Exclusive Rights of Copyright Owners

In the United States, the owner of a copyright in a work has the exclusive rights to:

  • reproduce (make copies of) it;
  • distribute copies of it;
  • publicly perform it;
  • publicly display it; and
  • make derivative works based on it.

(17 U.S.C. § 106). A copyright is infringed when a person exercises any of these exclusive rights without the copyright owner’s permission.

Copyright protection extends only to expression, however. Copyright does not protect ideas, facts, processes, methods, systems or principles.

Direct Infringement

Infringement can be either direct or indirect. Direct infringement occurs when somebody directly violates one of the exclusive rights of a copyright owner. Examples would be a musician who performs a copyright-protected song in public without permission, or a cartoonist who creates a comic based on the Batman and Robin characters and stories without permission.

The kind of tool an infringer uses is not of any great moment. A writer who uses word-processing software to write a story that is simply a copy of someone else’s copyright-protected story is no less guilty of infringement merely because the actual typewritten letters were generated using a computer program that directs a machine to reproduce and display typographical characters in the sequence a user selects.

Contributory and Vicarious Infringement

Infringement liability may also arise indirectly. If one person knowingly induces another person to infringe or contributes to the other person’s infringement in some other way, then each of them may be liable for copyright infringement. The person who actually committed the infringing act could be liable for direct infringement. The person who knowingly encouraged, solicited, induced or facilitated the other person’s infringing act(s) could be liable for contributory infringement.

Vicarious infringement occurs when the law holds one person responsible for the conduct of another because of the nature of the legal relationship between them. The employment relationship is the most common example. An employer generally is held responsible for an employee’s conduct,  provided the employee’s acts were performed within the course and scope of the employment. Copyright infringement is not an exception to that rule.

Programmer vs. User

Direct infringement liability

Under U.S. law, machines are treated as extensions of the people who set them in motion. A camera, for example, is an extension of the photographer. Any images a person causes a camera to generate by pushing a button on it is considered the creation of the person who pushed the button, not of the person(s) who manufactured the camera, much less of the camera itself. By the same token, a person who uses the controls on a machine to direct it to copy elements of other people’s works should be considered the creator of the new work so created. If using the program entails instructing the machine to create an unauthorized derivative work of copyright-protected images, then it would be the user, not the machine or the software writer, who would be at risk of liability for direct copyright infringement.

Contributory infringement liability

Knowingly providing a device or mechanism to people who use it to infringe copyrights creates a risk of liability for contributory copyright infringement. Under Sony Corp. v. Universal City Studios, however, merely distributing a mechanism that people can use to infringe copyrights is not enough for contributory infringement liability to attach, if the mechanism has substantial uses for which copyright infringement liability does not attach. Arguably, AI has many such uses. For example, it might be used to generate new works from public domain works. Or it might be used to create parodies. (Creating a parody is fair use; it should not result in infringement liability.)

The situation is different if a company goes further and induces, solicits or encourages people to use its mechanism to infringe copyrights. Then it may be at risk of contributory liability. As the United States Supreme Court has said, “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005). (Remember Napster?)

Fair Use

If AI-generated output is found to either directly or indirectly infringe copyright(s), the infringer nevertheless might not be held liable, if the infringement amounts to fair use of the copyrighted work(s) that were used as the input for the AI-generated work(s).

Ever since some rap artists began using snippets of copyright-protected music and sound recordings without permission, courts have embarked on a treacherous expedition to articulate a meaningful dividing line between unauthorized derivative works, on one hand, and unauthorized transformative works, on the other. Although the Copyright Act gives copyright owners the exclusive right to create works based on their copyrighted works (called derivative works), courts have held that an unauthorized derivative work may be fair use if it is “transformative.: This has caused a great deal of uncertainty in the law, particularly since the U.S. Copyright Act expressly defines a derivative work as one that transforms another work. (See 17 U.S.C. § 101: “A ‘derivative work’ is a work based upon one or more preexisting works, . . . or any other form in which a work may be recast, transformed, or adapted.” (emphasis added).)

When interpreting and applying the transformative use branch of Fair Use doctrine, courts have issued conflicting and contradictory decisions. As I wrote in another blog post, the U.S. Supreme Court has recently agreed to hear and decide Andy Warhol Foundation for the Visual Arts v. Goldsmith. It is anticipated that the Court will use this case to attempt to clear up all the confusion around the doctrine. It is also possible the Court might take even more drastic action concerning the whole “transformative use” branch of Fair Use.

Some speculate that the questions the Justices asked during oral arguments in Warhol signal a desire to retreat from the expansion of fair use that the “transformativeness” idea spawned. On the other hand, some of the Court’s recent decisions, such as Google v. Oracle, suggest the Court is not particularly worried about large-scale copyright infringing activity, insofar as Fair Use doctrine is concerned.

Conclusion

To date, it does not appear that there is any direct legal precedent in the United States for classifying the use of mass quantities of works as training tools for AI as “fair use.” It seems, however, that there soon will be precedent on that issue, one way or the other. Several lawsuits raising this generative-AI copyright issue are pending in the courts. In the meantime, generative-AI system users should proceed with caution.

Visit my extensive Copyright FAQs page.

The Top Copyright Cases of 2022

Cokato Minnesota attorney Tom James (“The Cokato Copyright Attorney”) presents his annual list of the top copyright cases of the year.

My selections for the top copyright cases of the year. (For my bio. visit my About Thomas B. James page.)

“Dark Horse”

Marcus Gray had sued Katy Perry for copyright infringement, claiming that her “Dark Horse” song unlawfully copied portions of his song, “Joyful Noise.” The district court held that the disputed series of eight notes appearing in Gray’s song were not “particularly unique or rare,” and therefore were not protected against infringement. The Ninth Circuit Court of Appeals agreed, ruling that the series of eight notes was not sufficiently original and creative to receive copyright protection. Gray v. Hudson.

“Shape of You”

Across the pond, another music copyright infringement lawsuit was tossed. This one involved Ed Sheeran’s “Shape of You” and Sam Chokri’s “Oh Why.” In this case, the judge refused to infer from the similarities in the two songs that copyright infringement had occurred. The judge ruled that the portion of the song as to which copying had been claimed was “so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it.” Sheeran v. Chokri.

Instagram images

Another case out of California, this one involves a lawsuit filed by photographers against Instagram, alleging secondary copyright infringement. The photographers claim that Instagram’s embedding tool facilitates copyright infringement by users of the website. The district court judge dismissed the lawsuit, saying he was bound by the so-called “server test” the Ninth Circuit Court of Appeals announced in Perfect 10 v. Amazon. The server test says, in effect, that a website does not unlawfully “display” a copyrighted image if the image is stored on the original site’s server and is merely embedded in a search result that appears on a user’s screen. The photographers have an appeal pending before the Ninth Circuit Court of Appeals, asking the Court to reconsider its decision in Perfect 10. Courts in other jurisdictions have rejected Perfect 10 v. Amazon. The Court now has the option to either overrule Perfect 10 and allow the photographers’ lawsuit to proceed, or to re-affirm it, thereby creating a circuit split that could eventually lead to U.S. Supreme Court review. Hunley v. Instagram.

Maud Stevens Wagner, Fe,male tattoo artist, 1907 public domain

Tattoos

Is reproducing a copyrighted image in a tattoo fair use? That is a question at issue in a case pending in New York. Photographer Jeffrey Sedlik took a photograph of musician Miles Davis. Later, a tattoo artist allegedly traced a printout of it to create a stencil to transfer to human skin as a tattoo. Sedlik filed a copyright infringement lawsuit in the United States District Court for the Southern District of New York. Both parties moved for summary judgment. The judge analyzed the claims using the four “fair use” factors. Although the ultimate ruling was that fact issues remained to be decided by a jury, the court issued some important rulings in the course of making that ruling. In particular, the court ruled that affixing an image to skin is not necessarily a protected “transformative use” of an image. According to the court, it is for a jury to decide whether the image at issue in a particular case has been changed significantly enough to be considered “transformative.” It will be interesting to see how this case ultimately plays out, especially if it is still pending when the United States Supreme Court announces its decision in the Warhol case (See below). Sedlik v. Von Drachenberg.

Digital libraries

The Internet Archive lawsuit, about which I wrote in a previous blog post, is still at the summary judgment stage. Its potential future implications are far-reaching. It is a copyright infringement lawsuit that book publishers filed in the federal district court for the Southern District of New York. The gravamen of the complaint is that Internet Archive allegedly has scanned over a million books and has made them freely available to the public via an Internet website without securing a license or permission from the copyright rights-holders. The case will test the “controlled digital lending” theory of fair use that was propounded in a white paper published by David R. Hansen and Kyle K. Courtney. They argued that distributing digitized copies of books by libraries should be regarded as the functional equivalent of lending physical copies of books to library patrons. Parties and amici have filed briefs in support of motions for summary judgment. An order on the motions is expected soon. The case is Hachette Book Group et al. v. Internet Archive.

Copyright registration

In Fourth Estate Public Benefits Corp. v. Wall-Street.com LLC, 139 S. Ct. 881, 889 (2019), the United States Supreme Court interpreted 17 U.S.C. § 411(a) to mean that a copyright owner cannot file an infringement claim in federal court without first securing either a registration certificate or an official notice of denial of registration from the Copyright Office. In an Illinois Law Review article, I argued that this imposes an unduly onerous burden on copyright owners and that Congress should amend the Copyright Act to abolish the requirement. Unfortunately, Congress has not done that. As I said in my case note on Unicolors v. H&M Hennes & Mauritz,  Congressional inaction to correct a harsh law with potentially unjust consequences often leads to exercises of the judicial power of statutory interpretation to ameliorate those consequences. Unicolors v. H&M Hennes & Mauritz.

Unicolors, owner of the copyrights in various fabric designs, sued H&M Hennes & Mauritz (H&M), alleging copyright infringement. The jury rendered a verdict in favor of Unicolor, but H&M moved for judgment as a matter of law. H&M argued that Unicolors had failed to satisfy the requirement of obtaining a registration certificate prior to commencing suit. Although Unicolors had obtained a registration, H&M argued that the registration was not a valid one. Specifically, H&M argued that Unicolors had improperly applied to register multiple works with a single application. According to 37 CFR § 202.3(b)(4), a single application cannot be used to register multiple works unless all of the works in the application were included in the same unit of publication. The 31 fabric designs, H&M contended, had not all been first published at the same time in a single unit; some had been made available separately, exclusively to certain customers. Therefore, they could not properly be registered together as a unit of publication.

The district court denied the motion, holding that a registration may be valid even if it contains inaccurate information, provided the registrant did not know the information was inaccurate. The Ninth Circuit Court of Appeals reversed. The Court held that characterizing the group of works as a “unit of publication” in the registration application was a mistake of law, not a mistake of fact. The Court applied the traditional rule of thumb that ignorance of the law is not an excuse, in essence ruling that although a mistake of fact in a registration application might not invalidate the registration for purposes of the pre-litigation registration requirement, a mistake of law in an application will.

The United States Supreme Court granted certiorari. It reversed the Ninth Circuit Court’s reversal, thereby allowing the infringement verdict to stand notwithstanding the improper registration of the works together as a unit of publication rather than individually.

It is hazardous to read too much into the ruling in this case. Copyright claimants certainly should not interpret it to mean that they no longer need to bother with registering a copyright before trying to enforce it in court, or that they do not need to concern themselves with doing it properly. The pre-litigation registration requirement still stands (in the United States), and the Court has not held that it condones willful blindness of legal requirements. Copyright claimants ignore them at their peril.

Andy Warhol the artist whose work is at the center of Warhol Foundation v Goldsmith

Andy Warhol, Prince Transformer

I wrote about the Warhol case in a previous blog post. Basically, it is a copyright infringement case alleging that Lynn Goldsmith took a photograph of Prince in her studio and that Andy Warhol later based a series of silkscreen prints and pencil illustrations on it without a license or permission. The Andy Warhol Foundation sought a declaratory judgment that Warhol’s use of the photograph was “fair use.” Goldsmith counterclaimed for copyright infringement. The district court ruled in favor of Warhol and dismissed the photographer’s infringement claim. The Court of Appeals reversed, holding that the district court misapplied the four “fair use” factors and that the derivative works Warhol created do not qualify as fair use. The U.S. Supreme Court granted certiorari and heard oral arguments in October, 2022. A decision is expected next year.

Because this case gives the United States Supreme Court an opportunity to bring some clarity to the extremely murky “transformative use” area of copyright law, it is not only one of this year’s most important copyright cases, but it very likely will wind up being one of the most important copyright cases of all time. Andy Warhol Foundation for the Visual Arts v. Goldsmith.

Visit my extensive Copyright FAQs page.