In defense of AI, Warhol V. Goldsmith
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. V. GOLDSMITH, 598 U.S. 508 (2023)- https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf
We need to start using AI and algorithms to lay down some hard rules for identifying what images, writing, performances, audio or content is unique, what is derivative, what is a forgery and what is unlicensed use.
The initial case ruled the ANDY WARHOL FOUNDATION (AWF) image was ‘heavily transformed’ and favored Warhol concluding all four fair use factors favored AWF. I.e. looking at the images side-by side, they had different characters and new aesthetics. Even though arguably the image from the original was clearly visible and prominent in the work. If AWF had asked and paid to use the image it wouldn’t have been an issue. But we cannot ask AI where the “pieces” or entire images came from.
Now we get into potential ‘Copyright trolling’ territory… the 2nd circuit court heavily influenced by appointments by the 45th president drawn from conservative think tanks I suspect would lock up anything even mildly representative or derivative under these terms.
We really need a formula of direct pattern relationships to a work to determine if it is ‘in part’ or a ‘derivative’ or a whole ‘forgery‘ or duplication (theft) of a non-licensed original work!
If we cannot do that we are facing a dystopia which would preclude anyone from creating any work that mildly or stylistically represented another. E.g. a manufactured Vase could be sued if an owner of a similar vase declared they were slighted. Are we really covering ideas of a work or the effort put into works themselves? The law doesn’t cover style explicitly, nor should anyone own a device to assist siting with one or more legs and a hard or padded seat. Extrapolate this hyperbolically- no one can copy or independently create any image, text, or object that resembles any other if that is copyrighted by another creator… at least until that creator dies. Imagine If the sovereign Rome Italy decided to copyright Davinci-style images, everyone will have to pay to use it, even if that style evolved naturally.
A decision by the second circuit swung hard the other way favoring the Photographer Goldsmith. The second use wasn’t truly transformative, I.e. In my opinion - the image is obvious, identifiable, and prominent and because of that prominence is not substantially different; making AWFs work derivative, requiring AWF to purchase the right to use the image in a derivation; Which AWF didn’t do. The second court went on to say AWF’s use was substantially the same, i.e. an image or portrait work of art to sell, as a commercial work. “crucially, that a secondary user needed independent justification to copy a photo"
There is a lot of law I phrased in my own language below as I wrestle with understanding it in layman's terms... but refer to the original text for the source; from my perspective most if not all AI work is so far gone from the originals provided it is purely generated that it should all fall under fair use. A google image search focused on parts would most likely offer at least one means to perform due diligence.
GOLDSMITH’S EXCLUSIVE RIGHTS
RE: https://www.law.cornell.edu/uscode/text/17/106
17 U.S. Code § 106 - Exclusive rights in copyrighted works (Paraphrased)
The owner of copyright under this title has the exclusive rights to make copies, Create derivative works, Distribute(sell, lease, lend) ownership, Perform the work (theater, movies, music, drama, dance) or 'perform' sound recordings live (ASCAP rights paid every time a song is played).
RE: https://www.law.cornell.edu/uscode/text/17/106A
17 U.S. Code § 106A - Rights of certain authors to attribution and integrity (Paraphrased) Author of a “Work of visual art” has the right to assert ownership to prevent others from using that work in their name (e.g. as a forgery). They may also prevent use of their work and name that is distorted in such a way to be a detriment to their honor or reputation. And have the right to prevent destruction of any work “of recognized stature” (the ‘arts’ community or the public thinks is significant) {RA: If I recall Mapplethorpe was a/the impetus of 106a in the 90’s} The exceptions listed that the wear of time, conservation works (including lighting), unless by gross negligence, and rights do not extend to any reproduction in the previous sections.
Ownership is retained as long as the creator is alive – including works created before the establishment of the law in 106A.
Joint works are owned by the surviving creator up until the last creators death.
The ownership and rights MAY NOT be transferred but may be waived by the creator(s) in writing (“Instruments”) by one or any of the creators; NOTE: if one decides to waive the rights of ownership- it waives the rights for all co-creators.
RE: https://www.law.cornell.edu/uscode/text/17/107
17 U.S. Code § 106A - Rights of certain authors to attribution and integrity
Use of a work for criticism, comment, news reporting, teaching(Including copies for classroom distribution), scholarship or research is NOT AN INFRINGEMENT OF COPYRIGHT.
The determination of fair use uses the works use of a commercial nature, nonprofit, or educational use, what the copyrighted work is, the amount of the original work’s use (‘substantial presence’) in another (derivative) work as a whole, and the (negative? Or ‘infringed’? ) effect on the potential market value of the original work. Regardless of/if the work is published or not.