Sorry generative AI grifters. It's time to ask for permission to train on copyrighted artworks and images for commercial purposes and this will almost certainly be licensed. Even OpenAI already knew this with Shutterstock.
Stability AI on the other hand...
If anything, the fact that there was enough ambiguity that it took 35+ years for a court to decide that someone tracing a photograph was, in fact, not fair use is a good indication that it will be very hard to use current laws to stop outputs of generative AI that have been trained on copyrighted material.
The big problem for Warhol is that people paid for the image he produced instead of paying for the original photograph for use as a reference to Prince's likeness. So the works were for the same purpose.
If you use generative AI to produce a 3d State of Liberty for your video game I doubt you'll end up losing a case by a photographer of the Statue of Liberty because the purposes are actually different. But if you are using generative AI of stock imagery to produce stock imagery I think you're going to run into the same problem as Andy Warhol's foundation did.
That's a giant only.
If the resulting image is nothing close to the source image then yes I agree you're unlikely to lose any copyright case.
But its the cases where they are similar that anybody cares. I pick the word "stock imagery" for a specific reason; I do no see a way that you can have a transformative use of stock imagery since its use is so vague. And a reminder (with a quote this time) transformative does not refer to the production it refers to the use.
If you painted every single stock imagery you could find and let companies license those paintings (or pictures of your paintings) instead of using the source stock imagery I believe you'd lose a copyright lawsuit.
> [1] AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character
[1]: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf
It's non-transformative in the legal sense that {an original image by X} and {a generated image in the style of X} are likely used for the exact same purpose (be it display, advertisement, whatever).
If you have a Picaso style advertisement for Ford its probably transformative w.r.t. any of Picaso's works since none of them as-is could be used for that advertisement. There's no way Picaso painted any Ford motor vehicles.
As well as if you used those imagery as an example of the generative capabilities the originals wouldn't suit that purpose. Or if you had a collection of AI generated art then the originals also wouldn't work.
No, it's not close at all. Did you look at the images in question for the ruling? Warhol's picture is very clearly a tracing of the photograph. Unless you're using the AI to generate an almost-exact copy of one of the training images, this ruling does not apply.
> Supreme Court rules Andy Warhol’s Prince art is copyright infringement
And fair use is the main exemption to copyright, and that was decided here.
Maybe, but that is not how dalle and other generative AI work right now it is trained on a huge number artists and images. Not just mixing and matching from images from one artist even if you ask for something in one artists style. Generated an images that falls under copyright seems possible, but automatic.
Stable Diffusion starts with random noise and attempts to denoise that random information into a coherent picture. That it has in the past learned that certain types of pictures should have say something resembling a watermark is just it being incredibly dumb but ultimately no different than it learning that horses should have something resembling manes or people’s hands having something resembling fingers.
Also, I can do this all day long if I am not selling my output.
I don't know the details, or enough to have a real opinion on it, but it seems like if you have a system that you can request something from and an input image comes out mostly intact on the other end, that shares a lot of similarities to a database and lossy compression. If that's actually possibly, then I have questions about how much of an original is used in the output even if it's changed, and at what point it becomes transformative.
Again, I'm not sure about most of this, and don't even have the source comment I'm remember, much less their source for their assertions, but I do have lots of questions and suspicions, if indeed what we think we know about these models based on prior statements ends up being wrong in some cases as we learn more.
Transformative refers to how the works of art are used. For example, if I make a compilation of every single Barry Bonds homeruns the clips of the games are copyrighted but the video I produced isn't a substitute for an actual baseball game so the resulting work is transformative even if none of the video footage has been altered.
But certainly the copyright holders would succeed in getting your video taken down from YouTube since it wouldn't be a DMCA request. (Fair Use doesn't mean a private company must host your video).
[1]: https://www.citizen.org/article/a-guide-to-fair-use-in-posti...
A derivative work is typically what the generative AI produces where you could see elements of an original work but there are changes (i.e. the source work but shaded purple).
A transformative work may be literally the source work but used in a different context/purpose (i.e. a 5s clip of a 2h soccer game used to show proper throw-in technique as opposed to the original purpose of a sports game).
In the big picture, I expect generative AI to replace stock imagery and in this area I think this court case throws a huge wrench into that. If you're licensing generative AI instead of licensing the source stock imagery this case is going to be cited as why what you've done is illegal.
I think a better foundation for generative AI regulation is the moral rights of the artist [1], not copyright law.
But the courts will take years, if ever, to get that far.
1. https://en.wikipedia.org/wiki/Moral_rights#In_the_United_Sta...