AI Companies Take Hit as Judge Says Artists Have ‘Public Interest’ In Pursuing Lawsuits

From Art News:

Artists have secured a small but meaningful win in their lawsuit against generative artificial intelligence art generators in what’s considered the leading case over the uncompensated and unauthorized use of billions of images downloaded from the internet to train AI systems. A federal judge refused to acknowledge that the companies can avail themselves of free speech protections and stated that the case is in the public interest.

U.S. District Judge William Orrick, in an order issued last week, rebuffed arguments from StabilityAI and Midjourney that they are entitled to a First Amendment defense arising under a California statute allowing for the early dismissal of claims intended to chill free speech. They had argued that the suit targets their “speech” because the creation of art reflecting new ideas and concepts — like those conveyed in text prompts to elicit hyper-realistic graphics — is constitutionally protected activity.

The suit, filed last year in California federal court, targets Stability’s Stable Diffusion, which is incorporated into the company’s AI image generator DreamStudio and allegedly powers DeviantArt’s DreamUp and Midjourney.

In October, the court largely granted AI art generators’ move to dismiss the suit while allowing some key claims to move forward. It declined to advance copyright infringement, right of publicity, unfair competition and breach of contract claims against DeviantArt and Midjourney, concluding the allegations are “defective in numerous respects.” Though a claim for right of publicity was not reasserted when the suit was refiled, DeviantArt moved for its motion to strike the claim for good to be decided so it could recover attorney fees and resolve the issue, which could impact other cases in which AI companies assert First Amendment protections. Artists, in response, cried foul play. They stressed that the companies are abusing California’s anti-SLAPP law and attempting to “strongarm and intimidate [them] into submission.”

The right of publicity claim concerned whether AI art generators can use artists’ names or styles to promote their products. The suit argued that allowing the companies to continue doing so cuts into the market for their original works.

Orrick sided with artists on the issue of whether the companies can dismiss the claim under the state’s anti-SLAPP statute, finding that the “public interest exemption is met here.” He noted that the claim was initially dismissed because the suit failed to substantiate allegations that the companies used the names of Sarah Andersen, Kelly McKernan or Karla Ortiz — the artists who brought the complaint — to advertise their products.

“Had plaintiffs been able to allege those facts, they would have stated their claims,” the order stated. “That does not undermine that their original right of publicity claims were based on the use of their names in connection with the sale or promotion of DreamUp, a type of claim that would undoubtedly enforce California’s public policy to protect against misappropriation of names and likenesses.”

Lawyers for the artists have reserved the right to reassert their right of publicity claim pending discovery.

Though the court in October dismissed most of the suit, a claim for direct infringement against Stability AI was allowed to proceed based on allegations that the company used copyrighted images without permission to create its AI model Stable Diffusion. One of its main defenses revolves around arguments that training its chatbot does not include wholesale copying of works but rather involves developing parameters — like lines, colors, shades and other attributes associated with subjects and concepts — from those works that collectively define what things look like. The issue, which may decide the case, remains contested.

Link to the rest at Art News

2 thoughts on “AI Companies Take Hit as Judge Says Artists Have ‘Public Interest’ In Pursuing Lawsuits”

  1. The judge was covering their options in case the copyright office gets a brain cramp.

    The whole thing, simplified, says: “You proved nothing but if you could prove something you might have some justification to sue, even if you end up losing.”

    As to the headline spin, note where it comes from.

    Also, if they think suing OpenAI and the other big tech companies and somehow managing a “win”, will achieve anything, there is *this* coming for them:

    “NVIDIA does a lot of interesting things around AI, but its consumer-facing business is still predominantly focused on gaming. It’s now aiming to bring both categories together with the introduction of Chat with RTX, an AI chatbot that runs locally on your PC. The software leverages Tensor-RT cores built into NVIDIA’s gaming GPUs — you’ll need an RTX 30 or 40 card to use it — and uses large language models (LLM) to provide useful insights into your own data.

    “The key difference is that unlike ChatGPT and Copilot, Chat with RTX runs entirely on your PC, and it doesn’t send any data to a cloud server. You feed it the relevant dataset, and it offers answers based on the information contained within. Another cool feature is that you can share YouTube links, and Chat with RTX interprets the content in the video and answers questions — this is done by pulling from the data from the closed captions file.

    “Chat with RTX is available as a free download, and the installer is 35GB. There are a few prerequisites; you’ll need an RTX 30 or 40 series card with at least 8GB of VRAM, and a machine with at least 16GB of RAM. While NVIDIA recommends Windows 11, I had no issues running the utility on my Windows 10 machine. Right now, Chat with RTX is only available on Windows, with no mention on when it will be coming to Linux.”

    TLDR: You can now run a good enough chatbot locally on any recent vintage Windows PC with a $550 NVIDIA graphics card and 16Gb of Memory or more. That brings the total cost under $1000. No remote service needed, no external data needed; you run it against your own data, privately.

    To be clear: this has been doable since last summer (more or less) but you needed some techie chops to figure out the hoops. That is *not* what ChatRTX is. This is a consumer grade tool: download, run, and start chat-ing. And there are a million or so Gaming PCs that meet the requirements. Zero investment required. And this is just the beginning.

    And remember, we’re still in the early days. And the models this bot runs are Open Source.

    Lawsuits will achieve nothing but generate billable hours.

  2. Well, that got carved up about as expected.

    It’s entirely plausible to create an infringing work by use of an insufficient dataset, but most generators put in quite a bit of effort against that.

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