Using AI Artwork To Avoid Copyright Infringement – Copyright

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AI-generated art isn’t perfect, but it’s become a
viable option for license-free set decoration in motion pictures
and other commercial productions. Here’s what you need to
know.

Pandas, Monkeys and Clearance Culture

“Nobody cleared the panda.”

I was barely out of law school when a senior partner muttered
those words as he handed me a scathing demand letter sent to one of
the firm’s commercial director clients. The letter claimed
that the director, an ad agency, and a popular theme park had all
committed copyright infringement because a panda appeared in the
background of their TV commercial.

It was actually a panda poster, which was tacked to a
child’s bedroom wall. The poster was out of focus and only
visible for a few seconds. It wasn’t a focal point of the
commercial. But nobody involved in the production had asked for
permission from the copyright owner to use her image in the scene,
as the demand letter made sure to mention several times.

Arguably, permission wasn’t legally required given the
poster’s fleeting and incidental appearance in the
commercial, but nobody really wanted to find out. After some
back-and-forth negotiation, our panda poster dispute was settled
before a lawsuit was filed.

This was the late ’90s, and the entertainment industry was
still reeling from a well-publicized copyright infringement case
involving the movie 12
Monkeys
. In that case, artist 
Lebeus Woods
claimed that a torture device used in the Terry
Gilliam film had been unlawfully copied from his drawing of a
wall-mounted chair.

Even though the movie had already been in theaters for nearly a
month, 
the judge issued a preliminary injunction
 preventing
further exhibition of the film’s chair scene. This prompted a
quick settlement which allowed the chair to remain in the picture.
While folks who wanted to see Bruce Willis strapped to a torture
device were happy, entertainment lawyers were anxious.

1250030a.jpg

A still from 12 Monkeys (left) and Lebbeus
Woods’ “Neomechanical Tower (Upper) Chamber.”

However, for every “
Hey, that’s my church picnic quilt!
” incident that
results in a published court decision, there are dozens of others
that are resolved quickly and quietly out of court. Fair use
and 
de minimis
 defenses are often unreliable, and even if you
have a solid case, defending copyright infringement lawsuits is an
expensive proposition.

That’s why uncleared art and other props can be a set
decorator’s worst nightmare. While decorative items often
have thematic relevance to a story, they’re just as often
used to avoid blank walls and unadorned coffee tables. When filmed,
these items may be obscured, out of focus, and virtually
unidentifiable. But if they appear on film without permission, even
fleetingly, they could prompt a copyright infringement lawsuit.

The desire to avoid litigation at all costs has helped to
create a “clearance culture” in which the standard
operating procedure is for content creators to obtain a license
(often at substantial expense) for every use of copyrighted
material appearing in a production, regardless of whether
permission is legally required.

1250030b.jpg

In 1997, the Second Circuit reversed a district court’s
finding that BET made fair use of Faith Ringgold’s
“Church Picnic Story” quilt. The parties ultimately
settled the case before trial.

AI-Generated Art to the Rescue?

Could AI-generated art offer an alternative? With tools
like DALL·E
2
 and Midjourney now able to
produce unique, hyper-realistic images in a wide variety of
different styles, the prospect of using these programs to create
inexpensive set pieces and other artwork has suddenly become a
viable option for all types of commercial productions.

Before exploring the copyright considerations involved in
creating and using AI-generated art, I need to briefly raise a
couple of points that aren’t the main subject of this
post.

First, it’s an open question as to whether AI-generated
art is itself eligible for copyright protection. The U.S. Copyright
Office has taken the position that AI art created without an
element of “human authorship” 
doesn’t qualify for protection and can’t be
registered
; that decision is 
now being challenged in federal court
. So long as AI-generated
art is simply used as a starting point for subsequent creative
refinement by a human artist, the resulting work should be
protected by copyright. But if you’re exploiting AI art
generated without any human contributions, understand that you may
have no legal recourse if others later copy that work. An image
generation tool’s terms of
service
 may further limit your rights contractually.

Second, and more importantly, there are a whole host of 
ethical and moral implications
 surrounding the use of
AI-generated artwork, especially when the technology is used to
produce outputs that are specifically designed to replicate the
styles of living human artists without credit or compensation.
It’s not my intent to minimize these issues; they just
aren’t the focus of this article. I also recognize that there
are lots of situations in which a set designer may want to include
a specific copyrighted work that needs to be cleared. As I discuss
below, using AI tools to create deliberate knockoffs carries major
risks and it’s bad karma to boot.

That said, there are also plenty of times when a set
designer’s goal is to dress a child’s bedroom with a
panda poster, and pretty much any panda poster will do.

1250030c.jpg

An image I created using the DALL·E 2 prompt “A
cute oil pastel drawing of two pandas hugging.”

The often rough and imperfect nature of AI art creations makes
them particularly good candidates for use on film sets in which the
art will appear only fleetingly or out of focus. Likewise, AI art
as a “stock image replacement” would certainly be a
better alternative than simply right-click-saving a random image
you find on the internet and using it without a license. Companies
like Prepared
Food Photos, Inc. have made an entire business out of suing
individuals and companies
 for using relatively generic and
utilitarian photos that could, in many instances, be easily
replaced by AI-created art.

1250030d.jpg

An image I created using the DALL·E 2 prompt “a
photograph of a pepperoni pizza.”

Is AI-Generated Art Copyright Infringement?

Of course, using AI-generated art as a license-free alternative
for motion pictures and other commercial productions is only a
viable option if the resulting artwork doesn’t itself
infringe a preexisting copyrighted work. As 
TechnoLlama author Dr. Andrés Guadamuz has explained
,
the infringement issue needs to be examined at both the input phase
and output phase of the generation process.

Inputs

AI tools are created by scraping hundreds of millions of images
from the open internet and then training computer algorithms to
recognize patterns in those images and their text-based captions.
Eventually, the algorithms can start predicting which captions and
images go together en route to generating entirely new images from
new captions.

OpenAI, the
research lab behind DALL·E, says that it
trained that tool by scraping and analyzing more than 650 million
captioned images, but its data is proprietary. However, Stability.AI, the
company that created DALL·E competitor Stable
Diffusion
, has made the data used to train its program publicly
available. Andy Baio, a technologist who 
analyzed
 12 million of the 600 million images used to
train Stable Diffusion, found that a large number of the images
scraped were from websites like Pinterest and Fine Art America.

While the Ninth Circuit earlier this year reaffirmed that
scraping publicly available data from internet sources
doesn’t violate the Computer Fraud and Abuse Act, no court
has yet decided whether the ingestion phase of an AI training
exercise constitutes fair use under U.S. copyright law.

In many ways, the process is like Google’s scanning of
millions of books to create its Google Book Search tool.
After 
years of litigation between Google and the Authors Guild
, the
Second Circuit held in 2015 that Google’s conduct in scanning
the books and making short fragments or “snippets”
available to end users qualified as fair use. Key to the
court’s decision was the fact that Google scanned the books,
not for their expressive content, but rather for use as a
searchable research tool. Consistent with that purpose,
Google’s search tool doesn’t give users substantial
access to a book’s expressive content.

Similarly, AI tools aren’t copying images so much to
access their creative expression as to identify patterns in the
images and captions. In addition, the original images scanned into
those databases, unlike Google’s display of book snippets,
are never shown to end users. This arguably makes the use of
copyrighted works by OpenAI and Stability.AI even more
transformative than Google Book Search.

Outputs

There are certainly interesting questions surrounding the
potential liability companies behind AI tools could face for the
copying that occurred at the input stage when the tools were first
trained. But for the end user, the more important question is
whether the output—the resulting image—is substantially
similar to the protectable expression of any particular image used
to train the dataset.

As I noted above, AI models are trained on hundreds of millions
of image-text pairs. At the risk of over-simplifying (by a lot),
once an algorithm is able to predict what an
image should look like based on its caption, it
can then be used to generate entirely new images from new
captions.

It’s important to understand that the newest AI generation
tools don’t simply cut and paste from any existing images.
Instead, they use a technique called 
diffusion
 to generate entirely new images using the data
on which they were trained.

OpenAI has admitted that
its early AI-generative models would sometimes reproduce training
images verbatim. “This behavior was undesirable, since we
would like DALL·E 2 to create original, unique images by
default and not just ‘stitch together’ pieces of
existing images.” Recognizing that the verbatim reproduction
of training images could also give rise to copyright issues, newer
tools such as those used in DALL·E 2 were trained to
recognize duplicates and avoid generating those images even when
prompted to do so. According to OpenAI, “the new model never
regurgitated a training image when given the exact prompt for the
image from the training dataset.”

Assuming the truthfulness of OpenAI’s documentation, none
of the outputs generated by DALL·E 2 should be identical to
any other preexisting image. One way to verify this is to use a
reverse image search app like Google Reverse Image
Search
 or TinEyeto compare the output to other
images on the internet. More sophisticated tools like Google
Lens
 can compare images (and individual objects within an
image) to other images, and can then rank them based on their
similarity and relevance to the objects in the original
picture.

Below are three sample images I generated using DALL·E 2,
none of which (at least according to Google’s Lens and
Reverse Image Search tools) exists in a similar form on the
internet:

1250030e.jpg

“A whimsical painting of a cute bunny rabbit in pajamas
reading a book in bed.”

1250030f.jpg

“A hand-drawn sketch of a city in the late
1800s.”

1250030g.jpg

“An impressionist style painting of an old timey baseball
game.”

Here are the results when I run my “whimsical painting of
a cute bunny rabbit in pajamas reading a book in bed” image
through the Google Lens tool. You can see that some of the
preexisting images on the right-hand side capture the same
(unprotectable) idea of a cartoon bunny reading a book, but none of
them are substantially similar to the expression in my picture.

1250030h.jpg

Results of a Google Lens search on my “bunny rabbit in
pajamas reading a book in bed” image.

How to Avoid Infringement

As you might expect, there are a few important caveats.

First, even if an image produced by one of
these AI tools isn’t substantially similar to any preexisting
image, the generated output could still infringe one of the
copyrighted elements found within a preexisting work.
For example, prompts that specifically reference well-known or
highly delineated characters are likely to produce infringing
output. Here’s the result of my Stable Diffusion prompt
“mickey mouse as a lawyer sitting at a desk with a bookcase
of law books behind him”:

1250030i.jpg

An image I created using Stable Diffusion with the prompt
“mickey mouse as a lawyer sitting at a desk with a bookcase
of law books behind him.”

While this precise image has never existed before, there’s
no question that I’d be infringing Disney’s copyright
in the Mickey Mouse character if I were to use my picture in any
sort of commercial context—as the reverse image search
quickly shows:

1250030j.jpg

A comparison of the image of Mickey Mouse created using Stable
Diffusion to existing images on the internet using Google Image
Search.

This is not to say that every prompt referencing a copyrighted
work will infringe, but you need to be careful. This may also be a
good time to remind you that a lot of AI-generated art isn’t
exactly ready for prime time:

1250030k.jpg

“Well, well, well. How the turntables,” says
one-eyed Charlie Brown.

Second, some AI tools, like Midjourney,
another DALL·E competitor, allow users to upload their own
reference images in addition to descriptive prompts that can help
point the program toward a desired output. It probably goes without
saying, but if you’re looking to avoid infringing a
preexisting image or copyrighted work, you shouldn’t use one
as a reference image. Here are the variations that Midjourney came
up with when I uploaded my “bunny reading a book in
bed” reference image. While they have slightly different
features, they’re all substantially similar to my
original.

1250030l.jpg

If you upload a preexisting reference image, AI tools like
Midjourney may generate output substantially similar to that
image.

Third, while artistic styles are not
protectable in and of themselves, if you create art specifically
designed to replicate the style of a preexisting work, the output
will necessarily share some degree of similarity to the original.
This is even more likely if you upload a reference image to help
guide the AI tool. Prompts that refer to the style of a particular
living artist could result in a legal claim, depending upon how
similar the work is to one of that artist’s originals. Think
of it as the 
“Blurred Lines” case
, but with images rather than
music.

Case in point: You may recall the scene
in Titanic when Rose shows off a collection of
artwork she purchased in Europe. When she’s asked who created
one of the pieces, Rose responds, “Oh, something
Picasso.” The painting Rose is holding is similar to
Picasso’s Les Demoiselles d’Avignon, but
it’s not an actual reproduction. That didn’t stop
the Artists
Rights Society from complaining on behalf of the Picasso
estate
.

1250030m.jpg

Titanic‘s “Something Picasso”
scene

1250030n.jpg

Pablo Picasso, Les Demoiselles D’Avignon

Is it infringing? Perhaps not, but do you really want to find
out? The point is to stay far enough away from the line that you
won’t trigger even a nuisance claim. Since our goal is
to avoid copyright infringement, it’s best
to use prompts that don’t reference any particular
copyrighted work. Also, if you’re going to replicate art in
the style of a particular artist and want to be totally safe from a
copyright perspective, pick an artist who’s been dead for at
least 70 years. Better yet, use generic descriptors in your
prompts.

Some Tips for Avoiding Copyright Infringement When Using
AI-Generated Art

If you’ve made it this far, here are some takeaway
points:

  • Make sure your AI tool’s terms of
    service
     allow for the commercial use of output
    images.

  • Use relatively generic prompts for style
    descriptors—e.g., steampunk, bauhaus, claymation.

  • Check outputs using reverse image search tools.

  • Save the prompt used to generate each image you create in the
    image file’s metadata or filename for later reference.

  • Don’t include references to preexisting copyrighted works
    or characters in your prompts.

  • Don’t upload preexisting reference images unless you own
    the copyright in those images.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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