AI Art Theft: A Conversation with Hughes Media Law Group

So…. AI “art”, huh? 

If you are somehow here expecting that we’re going to be speaking kindly about AI “art” in any capacity, please know that is not the case. Instead, we wanted to take this chance to give some information about what’s going on currently, what actual lawyers (instead of just People on Twitter) have to say about this, and maybe give some tips on how we can fight back against AI generated theft. Let us be very clear: we never have and never will support AI generated art.

If you already know what’s going on with this, you can feel free to skip to the fair use or Q&A section; if you want a brief summary of what’s happening, how it works, and some details read on. 

What’s happening? 

In short, there are companies who are creating massive data sets of information utilizing images that they have “scraped” from the internet. This means that something (a bot, usually) is mass-saving images from different sites. Those data sets have been fed into a machine learning algorithm using the data scraped to learn the aspects that make up an image, which are associated with text keywords. Images don’t always include descriptive text keywords, however, and sometimes a person or multiple people have to do (often criminally low-paying) work to tidy up that data to make it usable. They’re doing this with your fanart, too.  While the linked Kickstarter was removed, it’s indicative of the route a lot of these ‘businesses’ want to take.

Utilizing this data, the machine learning algorithm is guided by the text prompts and the countless pictures it has been trained with to synthesize images. You can further refine and tailor that based on your prompts to get something close to what you want to see.

(Obviously this is a simplified explanation!)

I can’t draw, this sounds cool as hell? It’s going to draw for me and I just have to describe it? 

Effectively, yeah. I think the main point that a lot of people are missing as to why this sort of thing is so popular is for those who don't want to spend ten to twenty years honing their craft, the seemingly sudden 'accessibility' of creating art is a huge draw. I’ve always wanted to be able to create art, but I’ve never wanted to put in the time, practice, or energy into getting good at it. Instead, I have six characters who are at level 60 in WoW and one at 70. 

Being able to generate artwork as a non-artist sounds cool. If it weren’t predicated on theft or  borne from greed and disrespect, it would be cool! 

To be clear: if there were a dataset that was volunteer only (you opted IN), and the people who sanitized/cleaned up the data were paid a living wage (instead of underpaid on Fiverr or something similar) and that artwork could be utilized in very, very specific ways, I believe the reaction would be very different. Instead, you get AI artwork generated that still has the watermarks from the theft. 

Image from Fiverr, 12/14/22.

Here’s the thing though: it’s not. AI art, as it stands right now and in my opinion, is just theft. I believe anyone using it, whether or not they think they are, is supporting the theft of artists and creators and lining the pockets of people who could not give less of a shit about artists or creating real art. Art, by definition is: the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.

So. In simplest terms: there are a bunch of people who took a bunch of images that creators publicly posted and shared online never intending (in most cases) for it to ever be used for something like this. Those people are now monetizing those images that they never created, profiting off labor they have no right to profit off of. Full stop.

This is why your friends get mad at you for using Lensa. This is why your followers rag on you on Twitter dot com when you post AI generated artwork for your logo when there are countless skilled artists who have spent years honing their craft, and why it’s so insulting when you do it. A common retort to artists frustrated with use of these systems is that artists are “gatekeeping” art. No one is preventing you from learning how to draw. The only gatekeeping happening is artists trying to prevent their artwork from being stolen and utilized in a predatory fashion. 

But hey, I’m not here to argue. Instead, I’m here to educate. Part of the benefit of having your own company and lawyers you work with is when you have tricky legal questions, you can just…ask them! I chatted with our lawyers from Hughes Media Law Group. (As a note: if you’re looking for IP legal counsel, highly recommend!) 

Disclaimer one: Unless you hire them directly, HMLG are not your lawyers and as such the legal information given here is not legal advice for you specifically. 

Disclaimer two: AI technology is very new so currently there are not any laws or defining court cases that give solid and reliable guidance or protection for the copyright owner against possible infringement by newer technologies.

Starting off, the defense most of these people use is, “oh, well, it’s fair use.” So, what does that even mean? 

The tension is most evident when determining when and if someone’s commentary on a work of art actually becomes a copy of that art, and vice versa.

In the case of AI art, courts will be called upon to determine if scrubbing the internet for artwork to feed into AI and spit out a new image is Fair Use versus whether this action is actually making unauthorized and infringing use of protected photographs.

The U.S. Copyright Act states that the right to make derivative works of the original work is protected by copyright. Transformative use is considered non-infringing. When deciding if an allegedly infringing use of someone’s copyrighted work is allowable under Fair Use principles, courts consider all of the following (different jurisdictions weigh things a little differently):

1. PURPOSE & CHARACTER OF USE. Is it for a commercial purpose versus is it commentary, news, or an being used for an educational purpose. Differentiating these concepts can be confusing, and requires significant legal review to determine whether the use of the allegedly infringing material is transformative or is it a derivative. 

2. NATURE OF COPYRIGHTED USE. Does the allegedly infringing material originate from factual or creative material? Courts are more likely to allow the use of an article from an academic journal rather than, say, a novel or fictional story.

3. AMOUNT AND SUBSTANCE OF WORK USED. Many people mistakenly think using just a small amount of an original work is okay. This is not true; courts look at the substance of the material used – regardless of the amount. 

4. EFFECT ON THE MARKET. The final factor courts consider is whether the use of the original work negatively affects the value of that work on the current or potential market or value for the original work. If an unlicensed use of the work could deprive the owner of income, then it is less likely to be considered Fair Use.

Now that we know a little about the Fair Use doctrine, let’s chat about general questions and answers. Previously I reached out to folks on the AANI discord, Twitter and a few other places and consolidated those questions into a single document. HMLG’s answers are below the bolded questions.

1. What is the procedure for an individual artist to enter into a class-action lawsuit, if one exists?

HMLG: First, the party being sued (defendant) is supposed to identify any possible members of the class (people suing) and notify those people they may be members of the class. This can be done in a variety of ways. We’ve all seen the “if you’ve been harmed by…” ads on tv. Maybe you got a letter or postcard in the mail. If you believe you are a member of a class and haven’t been contacted, you should be able to find the lawsuit online easily and there will be contact information listed for you to contact the attorneys in charge.

2. What is the cost for an individual artist to enter into a class-action lawsuit? An individual lawsuit?

HMLG: For a class-action lawsuit, first there has to be a “class” of similarly situated individuals who all have similar legal claims. For example, a group of photographers whose copyrighted works were accessed from the same website and used for similar purposes. One benefit of class-action lawsuits is most lawyers handle this on a contingency basis. One detriment is the lawyers generally retain all of the rewards and the members of the class don’t retire on the amount they receive in a successful settlement.

For an individual lawsuit, you work with a lawyer to figure out all of the ways you are harmed and file claims and damages to compensate you for the harm. One benefit of an individual lawsuit is if you’re successful, you receive all of the compensation. One detriment is, unless you find a lawyer who will take your case on contingency (very few will for infringement matters), you will be required to pay a lot of money for your own attorney fees.

For any lawsuit, there are so many variables that affect the cost and legal fees. Duration of the matter (lawsuit, appeal, settlement), court fees, costs to gather and review evidence, travel costs if the case is not based where you live. If you think you have a legal claim against someone, find a reputable lawyer who will consult with you about the specific details of your case. Make sure you choose a lawyer who has demonstrated experience with the type of art you create. Do not be afraid to ask questions.

3. How would an artist go about assisting or instigating an infringement lawsuit? (either class-action or individual) Most artists I know are freelance with very narrow margins, and do not have the kinds of funds (or knowledge) to pursue litigation, particularly against a company like Microsoft. 

HMLG: Similar to the point above, check with a reputable lawyer for a consultation. Do research and see if a lawyer is already assembling a “class” of people just like that. Alternatively, you don’t have to go directly to full-blown litigation and, depending on your specific situation, there may be other ways to stop infringers.

4. What are the risks for an individual artist to enter into a class action lawsuit? What are the potential outcomes?

HMLG: If you qualify as a class member of an existing/ongoing class action suit, there is no cost to join the class. There are several potential outcomes. The defendant and the class may settle the claims and you would receive your portion of the settlement. The court may rule in favor of the defendant, and the class doesn’t receive any compensation. The court may rule in favor of the class and award damages to the class, where you would get your portion of the award. It also is important to remember many settlements and awards may not be cash and if there is cash it’s usually not much (have you ever got a check in the mail for a few cents?). The settlement or award may require the defendant to do something, like give each class member a discount on their next transaction with the defendant, or award replacement products for defective merchandise, or simply stop doing the activity they were doing that damaged the class members.

5. What kinds of information would an artist want to bring to the table to assist in pursuing a lawsuit of this type? (I presume things like: emails, specific evidence of art that has been stolen, etc)

HMLG: Evidence also is very case specific and your lawyer will help you identify helpful resources. It is always a good practice to keep copies of any business and creative records such as emails, sketches, notes, diaries, system backups, and similar records. You should be cautious if you consider recording (video or audio) meetings or conversations. States and countries have very different and strict laws related to how you legally are allowed to record other people without their permission or knowledge.

6. What kind of time commitment would an artist potentially be looking at when getting involved in this type of lawsuit? Would they need to potentially testify, or give a deposition? 

HMLG: One of the most draining parts of litigation is the energy and time your participation can consume. Again, because each case is unique, your lawyer should be able to help set your expectations.

7. How long is the typical time frame on this type of litigation?

HMLG: Unfortunately, there is no typical or average infringement case. If the plaintiff and defendant negotiate their own settlement, the case may be less time consuming. You also have an opportunity to hire a professional mediator (retired judge or experienced attorney) who can help the parties reach a settlement without going to court. Court cases can extend several years and go even longer if the parties appeal and continue the battle through different levels of the court system. 

8. Would it be beneficial to organize in such a way that artists are a larger entity when establishing precedent and a body of interest?

HMLG: That concept is addressed by the class action lawsuit format. Sometimes, if there are not enough plaintiffs to qualify as a class, each plaintiff may decide to file its own lawsuit against the same defendant. Some other plaintiffs may opt out of the class to conduct their own lawsuit, although class actions may have a requirement that if you opt out, you waive your right to sue the defendant separately. There are several legal strategies that you and your attorney can consider, including joinder (joining several claims together) and cross/courter complaints against multiple defendants.

9. Is livelihood or IP a better argument when it comes to this AI art situation (ie, this impacts my livelihood, or this is theft of my IP when pitching to a lawyer)

HMLG: This is a very new area of the law. As with any legal claim, stick to your own specific facts. Back them up with evidence. As hard as it is, try to keep emotion or your own “understanding” of the law out of it. Your lawyer will guide you through.

10. What course of action do artists have if a service they engage with (ex: Spoonflower, bought by Shutterfly in 2021) changes their TOS and allows their images to be scraped for AI Art on their own or a parent company’s platform  - but these were not the TOS at the time the content was uploaded? 

HMLG: Generally, if there is a change in the TOU, the new TOU will say something like, “you accept these new terms if you continue to use the service.” Because every situation is different, before you accept the new terms please run it past a lawyer to review. You can keep costs down by giving your lawyer a “do not exceed” budget. 

11. What's to stop a creator from demanding the release forms from all the artists whose art informed these drawings, and because they can't provide them, shutting it down until they can?

HMLG: Because this area of the law is so new, this would likely be the subject courts will determine.

12. Can you copyright fan art created by one of your fans?

HMLG: You should consult with an attorney if you believe your fan art represents a transformative version of the original art rather than a derivative of the art. There are a number of options you can try before going into a lawsuit, but your specific situation might be different from someone else’s, so it’s important you discuss with a lawyer. 

Okay, so if you’re still with us, that’s kind of depressing right? So what can you actually do to protect yourself, and your artwork? (emphasis in bold, mine.)

WHAT ARTISTS CAN DO TO TRY TO PROTECT THEIR ART

• Register your works with the Library of Congress (aka, the Copyright Office). Most courts will not accept a copyright infringement claim—and you cannot claim statutory damages for willful infringement— if you have not registered your copyright. Remember, a copyright exists from the moment you put your original idea into a tangible form (write a poem, take a picture, record a video). But you have not REGISTERED your copyright – i.e., told the world you are the owner, until you register with the Copyright office or similar agency in other countries. This is a nominal cost – and there are plenty of circulars on the Copyright site to help you. Most lawyers can also help you as well, if you feel more comfortable.
• Contact the company and request a DMCA take down. The Digital Millennium Copyright Act (DMCA) provides some protection to copyrighted works and allows the owners to tell a website to remove copyrighted materials. Here are basic instructions for takedown procedures. https://www.dmca.com/FAQ/How-can-I-file-a-DMCA-Takedown-Notice
• Contact the company and tell them to remove all of your personal information from their website under applicable privacy laws. Indicate that you consider your copyrighted property to be personally identifiable to you, and therefore should be removed as part of their privacy compliance.

Of course, these are not guaranteed to have a specific effect, but they can’t hurt.

What are some things out there other people are doing to fight this? 

• Joseph Saveri Law Firm (SF & NY) are currently working on a class action lawsuit. The details about it can be found here. If you believe that you are impacted (after reading the scope listed out here) please reach out to them. 
• The AOI is working in conjunction with the Creator’s Rights Alliance and British Copyright Council for protections. 
• Follow Greg Rutkowski or Karla Ortiz, some of the most outspoken folks (who are also some of the most frequently ripped off.) 
• Mass report these things when you see them. We have to put pressure on websites that are trying to dip their toes into this so they know this isn’t acceptable.
• Be careful when donating to funds or fundraisers who are going to “protect artists” until you know what they’re actually doing. Do they have a track record of actually protecting artists? Are they only protecting established artists, or will what they do actually help you?

If there’s anything I would recommend, I think it’s that artists, and creators (most specifically in fandom spaces) really need to consider how we are going to work together to combat these sorts of things. It’s not just AI artwork. It’s NFTs. It’s providing commissions that are too low to make a living wage. It’s working with companies who don’t respect you, your skillset, or just you as a person. 

Art is hard fucking work: it’s time people start paying for it.