Defining fair use — the free speech-based exception to copyright infringement — has always had high stakes; however, generative AI art and ChatGPT have significantly upped the ante as technologies that currently create within and depend upon the margins of fair use.
As major AI news breaks weekly, one of the most important Supreme Court cases concerning art in the past generation (Andy Warhol Foundation for the Visual Arts v. Goldsmith) is being decided. A judgment will be handed down in June, potentially redefining the boundaries of fair use. When it happens, the more leverage the court allows for fair use, the more room AI will have to take from existing writing or images to create something new.
Simply put, the big legal-and-tech-stuff sci-fi/art nerds have been speculating on for decades is happening all at once.
Basic Breakdown: Fair Use and AWF
The application of fair use can be nebulous at best. It is decided on a case-by-case basis and is as ambiguous as the law is with art in general, i.e. the line between “art” and “pornography.” Some taking of an original work to produce a secondary work is allowed; however, too much taking, and you cross an invisible line from “appropriation artist” to “knockoff artist” in the eyes of a judge.
Check out our previous article on copyright and AI for a more detailed breakdown of fair use as it applies to AI. However, whether a work qualifies as fair use is judged along a few factors:
- Purpose and character of use: Is it for-profit? Has the work been altered enough to be considered “transformational”? Is the purpose for news, parody, critique, or another purpose requiring some degree of taking from the original to make the relevant point?
- Nature of the copyrighted work: Is the original and expressive, artful creation, or more factual that may have expressed creativity merely in choosing how to display the facts (i.e. a phone book)?
- Amount and substantiality of the portion taken: Was the taking small and/or discrete, or large and/or important, i.e. central and unique themes?
- Effect of the use on the potential market for the original: Will it drive the prices down for the original work?
Understanding Andy Warhol Foundation v. Goldsmith
Looking to Andy Warhol Foundation for the Visual Arts v. Goldsmith, this case could potentially rewrite the law on fair use. The short summary of this case is an argument over where the lines are drawn for “transformativeness” — whether a change in meaning or message would make an image derived from a copyrighted image “transformative” and qualify it for a stronger fair use argument.
Oral arguments were interesting to say the least (with Justice Thomas laughing a little too hard at a sex joke, considering his confirmation hearings). The AWF side pivoted hard from their certiorari brief on the first factor (“transformativeness”) to the fourth (market effect), but that will be covered in detail in a later article. Now that each side has had its input, it is completely in the hands of the justices.
Implications of AWF v. Goldsmith on AI
Depending on where the bar is set, an AI may be able to use a significant amount of an original work to produce a secondary work. This will be an obvious issue for anyone creating art who would not want part of their work to be used in another work that they have no control over or draw any compensation from. However, unless a different bar is set for AI than other methods of authorship, prune fair use rights too much, and essential means of expression could go by the wayside.
Some criticism of the arguments has been that the AWF side essentially claims that any change in meaning or message is transformative and thus fair use. The Goldsmith side has been arguing for the test as applied by the Second Circuit, which contemplates meaning or message but does not make them dispositive on the issue of transformativeness.
Should the court take an extreme view in embracing any change in meaning or message that is transformative, making a very modest change to an original work may qualify a secondary work for fair use. However, at the other extreme (which the Goldsmith side did not argue but bears mentioning), news, critique, and parody would become more difficult and lose much room for expression.
Additional Factors at Play
Though not yet at the Supreme Court, two significant developments are currently ongoing and have strong implications for AI. The Supreme Court prioritizes issues that benefit from uniformity and are societally relevant. The below two cases check those boxes hard enough that I would be surprised if they did not reach our highest court within the next few years:
Genius Media Group Inc. v. Google LLC (web scrapers)
Genius Media Group transcribes lyrics, billing itself as the world’s lyric encyclopedia. Google, via a web scraper, allegedly took information from Genius and displayed it in its search results, leading to Genius receiving fewer clicks and harming its advertising revenue. In the Second Circuit, a decision was affirmed on appeal that Google’s web scraping did not infringe on Genius’ copyright as Genius did not own the copyright to these lyrics, just to the way in which they were used on their website. This sort of scraping is similar to what an AI can do to harvest the raw materials for generating art or writing. Thus, this case is very relevant to AI as it controls who has standing to sue for material that has been licensed when a work that is produced from licensed material is infringed. Therefore, this or a similar case may make it to the Supreme Court.
Instagram Embeds/Server Cases
The circuit courts in critical circuits have had a major split: the 9th circuit, which includes California, has held that displaying an Instagram post on a website does not infringe on the copyright of this image because the server storing the image is on Instagram, not the website with the embedded image. However, this server test was recently rejected on appeal in the Second Circuit, which includes New York. This significant circuit split between copyright powerhouses will frustrate many content creators. This is also the exact sort of case that would benefit from uniform rules that it could find via a Supreme Court ruling. In a world where art is instantly international, inconsistent interpretations such as these will be all but impossible to work around.
With so much ambiguity, it is difficult to see where the courts could land on several important issues with high degrees of synergy. For example — if web scraping is given broad leverage, as in the Second Circuit, it will complicate who can claim infringement by preventing those who use a work they license as part of their own from bringing suit. This could interact with the AWF decision by allowing the scraping to pull out larger degrees of any single work, should the Supremes side with AWF. Then, should someone take a work that was cobbled together from pre-existing works via a scraper and post them on Instagram, another website that embeds this IG post may be infringing, depending on whether they are in a circuit that recognizes the server test.
OR, all of this could break the other way, producing a completely different legal and business environment for content creators.
If you’re confused, don’t worry; so are the lawyers who see little uniformity on essential issues like web scraping and image embedding. While entertainment attorneys are waiting with bated breath for the AWF ruling in June, by the time the subject material of this article is sorted out, for all we know, several new paradigm-shifting technologies may be released upon an unsuspecting public.
Just to be safe, I’m putting this on the record: All hail Skynet, I have been rooting for the Terminator since the 80s.