The reality is that there’s a bunch of court cases and laws still up in the air about what AI training counts as, and until those are resolved the most we can make is conjecture and vague moral posturing.
Closest we have is likely the court decisions on music sampling and so far those haven’t been consistent, and have mostly hinged on “intent” and “affect on original copy sales”. So based on that logic whether or not AI training counts as copyright infringement is likely going to come down to whether or not shit like “ghibli filters” actually provably (at least as far as a judge is concerned) fuck with Ghibli’s sales.
court decisions on music sampling and so far those haven’t been consistent,
Grand Upright Music, Ltd. v. Warner Bros. Records Inc. (1991) - Rapper Biz Markie sampled Gilbert O’Sullivan’s “Alone Again (Naturally)” without permission
Bridgeport Music, Inc. v. Dimension Films (2005) - any unauthorized sampling, no matter how minimal, is infringement.
VMG Salsoul v. Ciccone (2016) - to determine whether use was de minimis it must be considered whether an average audience would recognize appropriation from the original work as present in the accused work.
Campbell v. Acuff-Rose Music, Inc. (1994) - This case established that the fact that money is made by a work does not make it impossible for fair use to apply; it is merely one of the components of a fair use analysis
It’s not quite cut and dry as there’s also the recent decisions by the supreme court:
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023) - “At issue was the Prince Series created by Andy Warhol based on a photograph of the musician Prince by Lynn Goldsmith. It held Warhol’s changes were insufficiently transformative to fall within fair use for commercial purposes, resolving an issue arising from a split between the Second and Ninth circuits among others.”
Jack Daniel’s Properties, Inc. v. VIP Products LLC (also 2023) - “The case deals with a dog toy shaped similar to a Jack Daniel’s whiskey bottle and label, but with parody elements, which Jack Daniel’s asserts violates their trademark. The Court unambiguously ruled in favor of Jack Daniel’s as the toy company used its parody as its trademark, and leaving the Rogers test on parody intact.”
The aforementioned Rogers test was quoted in both decisions but with pretty different interpretations of the coverage of “parody.”
One thing seems to be the key: intent
As long as AI isn’t purposefully trained to mimic a style to then it’s probably safe, but things like style LoRAs and style CLIP encodings are likely gonna be decided on whether the supreme court decided to have lunch that day.
Note that both of those rulings are for the original rights holders (and therefore against AI tech).
What’s interesting to me is that we now have a goliath vs goliath fight with AI tech in one corner and mpaa and riaa (+ a lot of case history) in the other.
Either was I can’t see David (us) coming out on top.
This isn’t quite correct either.
The reality is that there’s a bunch of court cases and laws still up in the air about what AI training counts as, and until those are resolved the most we can make is conjecture and vague moral posturing.
Closest we have is likely the court decisions on music sampling and so far those haven’t been consistent, and have mostly hinged on “intent” and “affect on original copy sales”. So based on that logic whether or not AI training counts as copyright infringement is likely going to come down to whether or not shit like “ghibli filters” actually provably (at least as far as a judge is concerned) fuck with Ghibli’s sales.
Grand Upright Music, Ltd. v. Warner Bros. Records Inc. (1991) - Rapper Biz Markie sampled Gilbert O’Sullivan’s “Alone Again (Naturally)” without permission
Bridgeport Music, Inc. v. Dimension Films (2005) - any unauthorized sampling, no matter how minimal, is infringement.
VMG Salsoul v. Ciccone (2016) - to determine whether use was de minimis it must be considered whether an average audience would recognize appropriation from the original work as present in the accused work.
Campbell v. Acuff-Rose Music, Inc. (1994) - This case established that the fact that money is made by a work does not make it impossible for fair use to apply; it is merely one of the components of a fair use analysis
That case is about fair use for parody.
Case law suggests using AI for parody is legal.
It’s not quite cut and dry as there’s also the recent decisions by the supreme court:
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023) - “At issue was the Prince Series created by Andy Warhol based on a photograph of the musician Prince by Lynn Goldsmith. It held Warhol’s changes were insufficiently transformative to fall within fair use for commercial purposes, resolving an issue arising from a split between the Second and Ninth circuits among others.”
Jack Daniel’s Properties, Inc. v. VIP Products LLC (also 2023) - “The case deals with a dog toy shaped similar to a Jack Daniel’s whiskey bottle and label, but with parody elements, which Jack Daniel’s asserts violates their trademark. The Court unambiguously ruled in favor of Jack Daniel’s as the toy company used its parody as its trademark, and leaving the Rogers test on parody intact.”
The aforementioned Rogers test was quoted in both decisions but with pretty different interpretations of the coverage of “parody.”
One thing seems to be the key: intent As long as AI isn’t purposefully trained to mimic a style to then it’s probably safe, but things like style LoRAs and style CLIP encodings are likely gonna be decided on whether the supreme court decided to have lunch that day.
Note that both of those rulings are for the original rights holders (and therefore against AI tech).
What’s interesting to me is that we now have a goliath vs goliath fight with AI tech in one corner and mpaa and riaa (+ a lot of case history) in the other.
Either was I can’t see David (us) coming out on top.
Agreed, Scylla and Charybdis, as it is.
Much better allegory than G vs G. Thanks.