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Tag: Copyright

Navigating the Intersection of Copyright and AI: Understanding Digital Replicas

Posted on Modified on by Lynn Dudinsky

In our last blog in this series on AI, we discussed how to identify and overcome AI Hallucinations when utilizing AI for business purposes. In today’s blog, we are touching on another issue that has been on the forefront of AI as the use of artificial intelligence has grown and new features have been added to the long list of capabilities; namely, digital replicas. These are AI-generated imitations of human voices, images, or appearances that are so realistic, they are often indistinguishable from the real thing. While these digital replicas offer exciting possibilities for creativity and innovation, they also present complex legal challenges, particularly concerning copyright and individual rights. In an ongoing effort to bring awareness to the potential issues with AI and to push lawmakers to address the growing potential threat with legal frameworks, the U.S. Copyright Office (USCO) in 2023 launched an initiative to examine copyright and policy issues raised by AI. Since launching this initiative, the USCO has received over 10,000 comments and is in the process of publishing a multi-part report addressing various topics and analyzing the issues, which will be published as they are completed. On July 31, 2024, the Office published Part 1 of the Report, which addresses the topic of digital replicas.

Understanding the Concept of Digital Replicas

Digital replicas refer to AI-generated content that mimics the voice, image, or appearance of a real person. These can range from AI-generated voices in music tracks to digital images used in movies or advertisements. The sophistication of AI technology has made it possible to create these replicas with minimal human intervention, raising concerns about authenticity, consent, and ownership. If you have ever interacted with these digital replicas, you would realize how powerful the technology is and the high level of risk associated with the creation of near-perfect copies of a person’s likeness, tone and manner of speaking if used in an unauthorized manner.

The Legal Landscape: Existing Protections and Gaps

The USCO’s report highlights the current legal frameworks addressing the protection against unauthorized digital replicas. These include:

  1. State Privacy and Publicity Laws: These laws offer some protection, particularly through rights of publicity and privacy. However, their effectiveness varies by state, and they often fall short of addressing the complexities introduced by AI-generated replicas.
  2. Federal Laws: The report discusses several federal laws, such as the Copyright Act, the Federal Trade Commission Act, and the Lanham Act, which provide some level of protection. Yet, these laws were not designed with AI in mind and thus may not fully cover the nuances of digital replicas.
  3. The Need for New Legislation: The report strongly advocates for the creation of new federal laws specifically designed to address the challenges posed by AI-generated digital replicas. It argues that existing laws are inadequate to protect individuals from unauthorized use of their likenesses or voices, particularly when such replicas can be easily created and distributed without consent.

The Impact on Creativity and the Arts

The proliferation of AI-generated digital replicas has sparked debates within the creative community. On the one hand, these technologies can be powerful tools for artists, enabling new forms of expression and creativity. On the other hand, they pose a threat to traditional forms of artistic labor, potentially displacing human artists and performers.

For example, in the music industry, AI-generated songs featuring the voices of well-known artists without their consent have already caused controversies. Similarly, in the film industry, the use of digital replicas for actors could lead to fewer opportunities for real actors, raising ethical and economic concerns. The counter to this argument is the ease at which non-artists are able to create custom works using tools like text-to-video which allows people like myself, with no artistic skills, to generate short videos and creative images with simple prompts. In a few years, it is likely that I could use a series of prompts to create a 2-hour custom movie with my son as the main character. Whether this stifles the industry or opens up new industries, in a similar way as people predicted when the internet reached average users, is the trillion dollar question.

Moving Forward: Balancing Innovation and Rights

As AI continues to evolve, so too must our legal frameworks. The USCO’s report emphasizes the importance of balancing technological innovation with the protection of individual rights. It calls for new federal legislation that would:

  • Provide clear guidelines on the use of digital replicas.
  • Protect both celebrities and private individuals from unauthorized exploitation of their likenesses.
  • Ensure that individuals retain control over their digital replicas, with the ability to license or refuse the use of their likeness.

Conclusion

The intersection of copyright law and AI is a rapidly developing area, with significant implications for both creators and consumers. The USCO’s report on digital replicas is a crucial step in addressing the legal challenges posed by AI-generated content. As we navigate this new frontier, it is essential to find a balance that promotes innovation while safeguarding individual rights and creative integrity. Unfortunately, the concerns by most in the industry will not be resolved through the publication of multi-part reports and will ultimately be determined by members of Congress or the judiciary with the latter being the most likely source of future guidance. One concern with this approach is that it is, by definition, reactionary if left to the judiciary. Many artists, designers and others in the creative arts will be required to be harmed before judicial intervention is realized. We have seen a recent example of this in the 2023 Writers Guild of America Strike which lasted nearly 150 days and was targeting issues pertaining to a variety of issues, one of which was the use of AI and ChatGPT and the threat of replacing artists as opposed to these being tools to facilitate research and script ideas.  If the US decides to lead the world in creating frameworks for the legal uses of AI, it is incumbent upon our elected representatives to take action based on the feedback and create these guidelines for the industry to follow which will allow the US take a leading position in the regulation of AI and the use of Digital Replicas.

Impact of Warhol v. Goldsmith: Kat Von D and the Miles Davis Portrait

Posted on Modified on by Lynn Dudinsky

Following the Supreme Court decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith in 2023, we published a blog titled “The Supreme Court’s Decision in Warhol v. Goldsmith: Interpreting Copyright Fair Use.” In that blog, we discussed the concept of Fair Use in the copyright context while also highlighting the key facts of the Warhol decision which we recommend reviewing prior to continuing to read this blog, if you need a refresher. We are revisiting this topic as a new case has been revived due to the precedent set by the Supreme Court, a case that involves a portrait of the acclaimed jazz musician, Miles Davis, which was taken by a Los Angeles-based photographer and used by a celebrity tattoo artist as the reference photo for a tattoo.

As a quick refresher, the term Fair Use is often mentioned in relation to the use of portion of a copyrighted material for purposes such as criticism, comment, news report, teaching, scholarship or research. When used for such purposes, the court has generally held that unauthorized use of the copyrighted material is not considered infringement as long as the use does not fail the four-factor test described in more detail in our previous post. The most scrutinized factor of the four-factor test is commonly referred to as the transformative use test which seeks to determine whether the use of the copyrighted work in question transformed the purpose and character of the work into something else, such as parody or commentary. In the Warhol case, Andy Warhol was commissioned by Vanity Fair to create a cover for the magazine’s story on the artist Prince. Andy Warhol was given a portrait of Prince taken by a rock-and-roll photographer, Lynn Goldsmith, for use as a reference photo under a license between Lynn Goldsmith and Vanity Fair. The license stipulated that Andy Warhol could use the photo for one time only and Lynn Goldsmith was paid $400. Andy Warhol, without executing additional license agreements, created 15 additional works using the reference photo. Importantly, one of these works by Andy Warhol was later licensed to Conde Nast for the specific purpose of using the work in a magazine article about the artist Prince. This use of Andy Warhol’s Prince artistic work, was ultimately the basis for the Supreme Court’s determination that Fair Use was not applicable due to the lack of transformative use. The fact that Andy Warhol used his artistic abilities to alter the reference photo was not transformative because the purpose and character of the unauthorized use was identical to the original – authorized – use of the reference photo: depicting Prince in a magazine story about Prince.

The above summary was intended to refresh the Fair Use discussion in the context of a well-known artist as this fact pattern as once again emerged in the case of Jeffrey Sedlik v. Katherine Von Drachenberg (aka Kat Von D). The facts of this case are pretty straightforward: Sedlik is a professional photographer and a professor who created and owns the copyright to a photographic portrait of the famous jazz musician, Miles Davis, that was created in 1989 and first published in JAZZIZ magazine in that same year (copied below and used under the Fair Use exclusion of commentary). This photo has been featured in magazines around the world and was featured in Life magazine’s annual “Picture of the Year” issue. Sedlik has sold licenses to the portrait which authorized reproduction, distribution, and display of the portrait for commercial and non-commercial purposes since it was created.

The other party to this case, Kat Von D, is well known in certain circles as a world-renowned tattoo artist who has appeared in various reality TV shows and magazines which can be found on her personal website. According to the complaint, Kat Von D is also a recording artist, TV and film producer and owns and operates a tattoo parlor, an art gallery, a cosmetic company, a clothing company, and a shoe company, all of which have earned her 7.4 million followers on Instagram and 12 million followers on Facebook. In 2017, Kat Von D used the Miles Davis portrait, without Sedlik’s authorization, to create a reproduction of the image in the form of a tattoo on the arm of friend whom she did not charge for the service. She featured the portrait and her work tattooing the portrait on her social media channels which Sedlik claims was done to promote and solicit the sale of goods and services of Kat Von D and her various commercial brands, as seen in the image below which was taken from the complaint.

When the case was initially brough before the court, the Andy Warhol case was not yet decided and the judge initially ruled for Kat Von D in a summary judgement decision but paused the proceeding until the Supreme Court rendered its opinion on the Warhol matter. Following the Supreme Court holding, the stay was lifted and the lawsuit was set for trial based on the Supreme Court’s opinion on the transformative use, or lack thereof, in the Warhol case. The trial for this case is set to begin in early 2024 in the United States District Court for the Central District of California and poses a number of interesting questions about the reach of Fair Use under the new precedent established in the Warhol decision. While we will have to wait and see the final outcome of this case, there would be material impacts on various industries such as the tattoo industry, and perhaps even on generative AI. In the tattoo industry, use of copyrighted reference photos is common and has largely continued without disruption due to the costs of litigation compared to the typical damages for copyright infringement and the difficultly is placing a value on the personal display of an infringing work on the body of the person displaying said work. More broadly, when viewing this issue through the lens of visual works created through generative AI based on training models using copyrighted works without license, the growing body of legal decisions following the Warhol decision by the Supreme Court may pose a barrier to the field as these AI tools generate countless derivative works that may be violating the Fair Use conditions. We will keep a close eye on the trial in this case and provide an update to the blog series as the trial progresses.

The Supreme Court’s Decision in Warhol v. Goldsmith: Interpreting Copyright Fair Use

Posted on Modified on by Lynn Dudinsky

There have been many conflicting opinions regarding the impact of the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, with some circles claiming that the decision “Changed the Future of Art” and others applauding the Court for providing clarity on fair use in copyright. Given the varied opinions on the outcome, the purpose of this article is to highlight the changes and the potential impact of the decision. In order to do that, it is important to first explain the fair use framework before diving into the details of the Court’s decision.

Fair use in copyrights enables someone other than the copyright owner to copy, perform, transmit, distribute copies, or display a copyrighted work under certain circumstances without it being considered infringement. The concept of fair use as a limitation on the exclusive rights of a copyright holders is codified in the Copyright Act, 17 U.S. Code Section 107, which describes fair use for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not infringement and lays out a four factor test to assist in the determination of whether a use is protected as fair use. That four factor test includes the following factors to be considered:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educations purposes;
  2. The nature of the copyright work,
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

The first factor has traditionally been the primary focus of the fair use analysis and is commonly referred to as the transformative use test. This test was first established in a case between the rap group, 2 Live Crew, which used portions of the song “Oh, Pretty Woman” in the opening of one of their songs. The Court in that decision ruled that 2 Live Crew’s use of the portion of “Oh, Pretty Woman” was transformative because it was a parody of the original. Similar examples of transformative use of copyrighted materials typically involve use of copyrighted material for educational or commentary purposes but also extends to libraries making digital copies of books for the purpose of 1) preservation, 2) full-text search and 3) electronic access for disabled patrons who cannot read print versions which the court determined was transformative use.

Stepping back to the Supreme Court’s Warhol decision while keeping the transformative use in mind, we can go into the relevant details of the Warhol case. The case involved two artists, Andy Warhol and Lynn Goldsmith. Lynn Goldsmith specialized in rock-and-roll photography and had her work published in magazines including Life, Time, Rolling Stone and People. Andy Warhol was a visual/pop artist with works appearing in museums around the world. In 1984, Lynn Goldsmith licensed one of her photographs of the artist Prince to Vanity Fair for use as an artist’s reference. This reference photograph was then used by Andy Warhol to make a silkscreen which was featured in Vanity Fair. Lynn Goldsmith was credited as the owner of the source photograph and was paid $400. The license between Lynn Goldsmith and Vanity Fair in 1984 under the condition that the photo be used for one time only.

Unbeknownst to Lynn Goldsmith, Andy Warhol not only created the one silkscreen for Vanity Fair, he also derived 15 additional works of Prince using the reference photo. One of those additional works was later licensed by the Andy Warhol Foundation for the Visual Arts to Conde Nast for $10,000. Importantly, the purpose of this license to Conde Nast was to publish an article on the artist Prince, the same purpose as the original license with Vanity Fair. When Lynn Goldsmith approached the Andy Warhol Foundation expressing her belief that their use of her photograph and the resulting work that was licensed to Conde Nast infringed her copyright, the Andy Warhol Foundation sued Lynn Goldsmith for declaratory judgement that the works were non-infringing or, in the alternative, that they made fair use of Lynn Goldsmith’s photograph.

The District Court granted summary judgement for the Andy Warhol Foundation, focusing on the first factor and determining that the use was transformative because looking at the works of Andy Warhol and the reference photograph side-by-side, the court opined that they have difference character and give a new expression to Lynn Goldsmith’s photograph. It is important to see the side-by-side, which is copied below, because speaking as someone who is not artistic it is easy to argue that adding what appears to mostly be an orange background does not transform the photo from a picture of Prince to something more, but that is the difficulty with a test that can oftentimes hinge on subjective interpretation of artistic expression that is not typically in the wheelhouse of the average attorney or judge. The District Court believed the Warhol silkscreen on the right transformed the Prince depicted on the left from a vulnerable, uncomfortable person to an iconic, larger-than-life figure and that the picture on the right is immediately recognizable as a Warhol rather than a photograph of Prince.

The Court of Appeals, perhaps being less knowledgeable about artist expression or perhaps viewing the works from a more objective perspective that both images are clearly Prince, reversed and remanded after holding that all four fair use factors favored Lynn Goldsmith. Focusing on the first factor, the Court of Appeals rejected the lower court’s argument that transformative is met when any new aesthetic or new expression is added to source material. The Court of Appeals focused on whether the work’s (orange Warhol on the right above) use of its source material (Lynn Goldsmith photo on left) is in service of a fundamentally different and new artistic purpose and character, adding that the transformative purpose must be something more than the imposition of another artist’s style on the primary work. The opinion also made clear that the lower court’s belief that the work was transformative because it is immediately recognizable as a Warhol was wrong and would only create a celebrity-plagiarist privilege.

The Supreme Court granted certiorari and summarized the issue fairly succinctly by describing the first factor purpose test for fair use in this case as portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and the Andy Warhol Foundation’s copying use of it share substantially the same purpose and that purpose was commercial in nature. The last part of that summary by the Court is important because the preamble to the fair use defense to copyright infringement lays out a number of examples that reflect the sorts of copying that courts and Congress have found to be fair use such as criticism, comment, news report, teaching, scholarship or research. Each of these uses serve “a manifestly different purpose from the work itself.” When viewed together, the commercial use of a portrait of Prince to depict Prince in articles about Prince, based off of a reference photo that has been licensed for commercial use on its own to depict Prince in magazine stories about Prince, is not transformative use simply because it was created by Andy Warhol.

The Court rightly refocused the test, in this specific instance, away from the subjective review of the level of transformation by one artist of another artist’s work and directly to the purpose of the use in determining whether fair use is a viable defense to copyright infringement. The 2 Live Crew example described above was not a case where 2 Live Crew used the full lyrics and simply sang it differently to make it recognizable as 2 Live Crew, instead, it was a parody that used an immaterial amount of the source material to mimic the original. The Court provides an additional and pointed example referencing Andy Warhol’s use of the Campbell’s Soup can and logo to create his Soup Can series. Andy Warhol’s Soup Can series depicts Campbell’s copyrighted logo that it uses for advertising purposes; however, Andy Warhol’s purpose in creating the Soup Can series was not to advertise and increase sales on behalf of Campbell’s but was for the purpose of artistic commentary on consumerism. The fact that Campbell’s benefitted from the purpose behind Andy Warhol’s series and sold more soup cans had no bearing on the purpose being commentary which is directly implicated in the preamble to the fair use exemption.

Dissenting opinions by the Court and substantial commentary by artists and others who have relied on fair use paint a picture that would have one believe that the fair use exemption has been forever changed and that under this new approach, no amount of artistic creativity will provide a fair use defense for commercial works. In my opinion, those concerns are overblown due to Supreme Court’s narrow ruling in this cases that benefited from a very specific set of facts which the Court highlighted when describing the purpose of the allegedly infringing use of portraits of Prince used to depict Prince in magazine stories about Prince. This is further narrowed by the original license that restricted the use of the source photograph to one time use by Vanity Fair. With those limitations in mind, the narrow ruling by the Supreme Court aligns with the purpose of the original copyright act and the balance that must be met between creative freedom and protecting original works of authorship.

 

 

 

Allen v. Cooper: North Carolina’s Piracy of Blackbeard’s Pirate Ship

Posted on Modified on by Lynn Dudinsky

In a recent decision by the Supreme Court in Allen v. Cooper, Governor of North Carolina the Court opined that States are immune from copyright infringement. While the Court noted that Congress may still act to remove this blanket immunity that the States have over copyright infringement, this holding makes clear that States generally have freedom to behave as copyright pirates until Congress acts. Following this decision, we have already seen action by multiple members of Congress, asking the U.S. Copyright Office and U.S. Patent and Trademark Office to begin a study on the extent of patent and copyright infringement by State governments.

This case dates back to 1996 when a marine salvage company named Intersal discovered the shipwreck of the Queen Anne’s Revenge off the North Carolina Coast. The ship at the center of this case was a French slave ship that was captured by Blackbeard and became his flagship before running aground on a sandbar in North Carolina. Following the discovery, ownership of the shipwreck was held by North Carolina under federal and state law but the State hired Intersal to conduct recovery operation. Intersal then hired videographer Frederick Allen to document the recovery efforts. Allen recorded videos and took photos of the recovery efforts for over a decade and registered copyrights in all of his works.

The actions the led to the suit started when North Carolina began using Allen’s works in various publications. In 2013, Allen altered the State that it was infringing his copyrights and a settlement was reached where the State paid Allen $15,000 and defined the parties’ respective rights to Allen’s works. Allen later alleged that the State had, without permission and presumably in breach of the settlement, posted more of his videos and photos. The State refused to admit any wrongdoing and Allen filed suit in Federal District Court charging the State with copyright infringement. North Carolina then moved to dismiss the lawsuit on the grounds of state sovereign immunity. Allen argued that the Copyright Remedy Clarification Act (“CRCA”) of 1990 removed the States’ sovereign immunity in copyright infringement cases and the District Court agreed, finding a clear congressional intent in the Act’s text that supported Allen’s argument. The Fourth Circuit then reversed based on an alternative reading of case law and the case was then heard by the Supreme Court.

The primary argument here is whether Congress has the authority to abrogate the State’s immunity. As a general principle, a federal court may not hear a suit brought by any person against a nonconsenting State. However, such a suit is allowed if Congress has (1) enacted unequivocal statutory language abrogating the State’s immunity from suit and (2) there is some constitutional provision that allows Congress to encroach on the State’s sovereignty. In the early 1990s, Congress passed two statutes related to the abrogation of State’s immunity from patent and copyright infringement suits and this case addresses the copyright statute and whether the statue has the necessary constitutional basis to allow a person to file a suit against a nonconsenting State.

The Supreme Court discussed the history of the two statutes passed in the 1990s that intended to remove the States’ immunity from patent and copyright suits. The CRCA specifically states that a State stands in the identical position as a private defendant – exposed to liability and remedies in the same manner and to the same extent. The Court concluded that the first prong described above was met and that there could be no doubt that Congress intended to abrogate the States’ immunity from copyright infringement suits. This left the final prong, whether Congress had authority, as the only question remaining to determine if Allen could bring his case against North Carolina.

The Court then addressed the authority that Allen believed provided Congressional authority. The first was Article I where Congress was provided the power to promote the progress of science and use arts by granting copyrights and patents. However, previous decisions by the Court held that Article I cannot be used to circumvent the limits sovereign immunity places upon federal jurisdiction. The Court summarized this by stating that “the power to secure an intellectual property owner’s exclusive Right under Article I stops when it runs into sovereign immunity.” Next, Allen argued that Section 5 of the Fourteenth Amendment provides the necessary constitutional authority because it gives Congress the power to enforce limitations on the States’ authority it the States’ deprive any person of life, liberty, or property, without due process of law. However, the Court went into detail about how the statute, when created, was not aimed to redress or prevent unconstitutional conduct by the States’ and was therefore does not trigger the power provided by Section 5 of the Fourteenth Amendment. The majority of the Court concluded their opinion by saying that while the arguments presented in this case to do not support the removal of States’ immunity from copyright infringement, Congress is not prevented from utilizing the series of opinions, including Allen v. Cooper, to tailor a statute that would abrogate States’ immunity and “bring digital Blackbeards to justice.”

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