Getty Images, one of the powerful players in the stock image market, is suing the owner of AI tool Stable Diffusion for copyright infringement, a case that could help define the limits of what AI art can legally generate.
The Verge has learned that Getty is suing Stability AI, the maker of Stable Diffusion, in London, alleging that Stability AI infringed copyright owned or represented by Getty Images. “Getty Images’ position that Stability AI has illegally copied and processed millions of copyrighted images and associated metadata owned or provided by Getty Images is not licensed for the commercial interests of Stability AI and to the detriment of content creators,” Getty said in a statement.
Basically, Getty claims that Stability AI benefits from training its model on images published by Getty on the web without compensation. Getty images are published online with a visible watermark; licensed images have the watermark removed. Getty said that Stability AI did not request a license to use the Getty images.
The lawsuit will help establish what the AI model can do with images it finds on the public internet, especially those that are copyrighted. “We believe these generative models should also take into account the intellectual property rights of others, which is the point,” Craig Peters, chief executive of Getty Images, told The Verge. “And we’re taking this action to bring clarity.”
Interestingly, Getty is not suing OpenAI, the creator of the original Dall-E and Dall-E 2 models, which used 400 million pairs of images and captions taken from the Internet, but without details of who owns them. Instead, the company is suing Stability AI, the developer of the Stable Diffusion model that lets you create AI art on your own PC. (Stable Diffusion is also available as a cloud service at DreamStudio.ai.) The company doesn’t explicitly state where it trained its model, but notes that images generated with Stable Diffusion 2 contain an invisible watermark marking them as AI-generated.
Presumably, the decision against Stability AI will block AI models from using copyrighted images without a license — either by forcing Stability AI and other developers to pay licensing fees, or otherwise simply excluding copyrighted images from their training models. This would remove a significant amount of training images from the Stability models, possibly degrading the model output. On the other hand, this would preserve the copyright of the Getty and presumably those who created their own unique copyrighted art.
The arguments put forward by both sides seem to boil down to the concept of fair use, an idea originating in US law that allows limited use of copyrighted material without first obtaining permission from the copyright owner. This is a somewhat vague argument that attempts to restrict copyright in the public interest by allowing parodies of copyrighted works, but essentially preventing musicians from taking snippets of other artists’ snippets without their permission. It also allows the computer code to be reconstructed.
However, since the claim is being filed in the United Kingdom, it will be tested against the UK’s “fair dealing” doctrine, a “fair use” variant, but less liberal. Once a violation is proven, the possible defense falls under one of three exceptions: when the use is for research or private study purposes, when it is for criticism or review, and when it is used to report current events, according to Wikipedia. It also affects how much copyrighted material has been used.
Artists such as Andy Warhol can become central figures in this endeavor. Warhol, a popular pop artist who died in 1987, was known for taking established images – like a can of Campbell’s soup or a photograph of Marilyn Monroe – and using them in his work. Marilyn Warhol Diptych Wins Warner Bros. publicity frame of Monroe, colorized it and published it as his own work. According to an essay by Kate Donoghue in The Columbia Journal of Law & the Arts, Warhol, and after his death, his foundation, were sued by artists claiming that Warhol took their photographs and adapted them under his own name. He settled with many of them.
Under the American fair use doctrine, the question would be whether Warhol’s work was “transformative” enough to slip through the fair use loophole, and whether the essence of AI art is transformative in nature. However, in the UK, Stability AI may have more limited protection. In any case, it is likely that a UK court will help decide what AI art can and cannot do with copyrighted works, helping to determine the future of AI in art.