Can AI use copyright material for free?

James Cameron, director of “Titanic” and “Avatar”, is one of the directors of UK company Stability AI. Stability AI has just been allowed, by the English High Court, to construct an AI model using huge amounts of copyright material without the permission of the copyright owner/controller, Getty Images.

What was Getty’s claim?

Getty Images has a huge bank of copyright images which it licenses for profit. Getty sued Stability for infringement of its intellectual property, alleging the AI company copied millions of its images and fed them into its AI tool to enable it to spit out new images based on the machine-learned ones.

Getty claimed copyright infringement: that its images were used to train Stability AI’s model, allowing users to generate their own images with text prompts. Getty also claimed that Stability infringed Getty’s trademarks because some AI-generated images included Getty watermarks. Lastly, Getty claimed that Stability AI was also guilty of “passing off” their AI images as Getty’s images.

Getty had to drop its original copyright claim as there was no evidence the training took place in the UK, but it continued with its claim that Stability was still using copies of Getty’s images in its systems, arguing that Stability’s image-generation model Stable Diffusion produced infringing copies because they would have been infringing copies if the machine learning had been carried out in the UK.

The Court’s decision

The judge ruled, in this author’s view rather narrowly, that “an AI model such as Stable Diffusion which does not store or reproduce any copyright works (and has never done so) is not an ‘infringing copy’.” She declined to rule on the passing off claim and did rule in favour of some of Getty’s claims about trademark infringement concerning use of their watermarks by Stability.

Creative Industry concerns

The judge tried to balance the interests of the creative and AI industries, but her decision would clearly not be to the liking of creators wanting to stop AI taking their creations without permission, such as Elton John, Kate Bush, Dua Lipa and Kazuo Ishiguro, who have already been vocal about protecting creators’ copyright material from unpermitted use and duplication.

Government response: a new copyright exception?

The UK Government is wondering whether to introduce a “text and data mining exception” into copyright law, allowing copyright works to be used to train AI models in the UK unless a rights holder opts out.

This seems ripe for an appeal for the sake of clarification, because the narrow decision of the Court does not, in this author’s view, mean that it is ok to simply use someone else’s copyright material for your own purposes, generated or churned in another country, if those purposes do not actually produce a copy of it.

Legal commentary

I would argue that AI deconstructs existing material in a way that means copyright law needs to be interpreted differently, or that there needs to be further legislation on top of the Copyright, Design and Patents Act 1988, to alter or clarify the interpretation given in the Getty v Stability AI case.

Watch this space.

The law is moving fast.

If you have any copyright questions, please contact our Legal 500-recommended Brian Levine at [email protected].