back to article Midjourney, DeviantArt face lawsuit over AI-made art

On Friday three artists filed a proposed class action suit against major AI image generating companies – Stability AI, Deviant Art and Midjourney – alleging they infringed copyright laws through the use of collage tool Stable Diffusion. "Stable Diffusion contains unauthorized copies of millions – and possibly billions – of …

  1. Yet Another Anonymous coward Silver badge

    Humans cannot help bringing their own humanity into art.

    So long as they have never seen any other artist's work or studied any other art technique.

    I'm assuming the owners of all those Renaissance masters have a copyright on the use of perspective - and the Vatican have their own army

  2. teknopaul

    I hope they have a case

    It just feels wrong that you can scrape an artist's work for free, then setup an auto-art service that literally accepts the name of the artist as input, makes money, and doesn't share any of the proceeds at all.

    1. Jellied Eel Silver badge

      Re: I hope they have a case

      It just feels wrong that you can scrape an artist's work for free, then setup an auto-art service that literally accepts the name of the artist as input, makes money, and doesn't share any of the proceeds at all.

      YT's been doing that for years, and AlphaGoo is just fine with it. Plus they're currently changing their ToS so they can claw back money, just in case your videos do manage to stay monetised. Well, monetised with the money going in your direction. When videos are demonentised, YT of course still slaps ads all over them, just keeps all the money for itself.

      The artists here may have a slightly better chance of winning given they're not challenging AlphaGoo's Army of Darkness, ie it's legal department, and prior case law relating to creation of derivative works.

    2. Yet Another Anonymous coward Silver badge

      Re: I hope they have a case

      >t just feels wrong that you can scrape an artist's work for free,

      So if you asked a human artist to paint a landscape "in the style of" Van Gogh - without trying to pass it off as an original - would that be legal ?

      1. Richard 12 Silver badge

        Re: I hope they have a case

        Yes.

        In fact, it'd be absolutely fine to feed all of Van Gogh's work into one of these things to create an "AI" that can produce anything in the style of Van Gogh.

        Because that stuff is out of copyright.

        The line is crossed when a single in-copyright image is inserted that's not licensed for that purpose.

        1. Trigonoceps occipitalis

          Re: I hope they have a case

          Sun Flowers may be out of copyright but was the photograph that was scraped also in the public domain?

          1. HandleAlreadyTaken

            Re: I hope they have a case

            >Sun Flowers may be out of copyright but was the photograph that was scraped also in the public domain?

            In this context, wouldn't the photography itself be a much more serious violation of the original's copyright than any processing done on it by AI? I mean, the photography reproduces the whole original work including the signature (if one exists), so why is taking pictures of any artwork even allowed?

            1. Trigonoceps occipitalis

              Re: I hope they have a case

              As I understand the law (IANAL etc.) the photographing of an out of copyright painting is controlled by the premises. The photograph has its own copyright but who holds it depends upon the agreement made. I don't know the legal position of a surreptitiously taken photograph. There is a copyright but it may have been ceded to the gallery under the general conditions of entry.

    3. Orv Silver badge

      Re: I hope they have a case

      I feel like it got a little gross when the image generators not only started accepting specific artists' names, but also started trying to imitate their signatures and copyright watermarks.

    4. Ken Hagan Gold badge

      Re: I hope they have a case

      If you ask one human artist to create a work in the style of anotger human artist, does the second have a case against either you or the first?

      That's either a settled point of case law or so obviously not actionable that no-one has ever brought a case.

      The difficulty with AI is that we have trouble accepting that the AI isn't "just copying" whereas we have no trouble accepting that a human artist can emulate a style.

      1. Orv Silver badge

        Re: I hope they have a case

        I also feel like there are certain moral lines that human artists tend not to cross; for example, human voice artists will sometimes decline jobs where they know they're just being hired as a cheaper replacement for someone else who is being fired. AIs have no such qualms. I think that's the source of some of the discomfort here.

        1. stiine Silver badge

          Re: I hope they have a case

          You don't know any people, do you?

    5. mpi Silver badge

      Re: I hope they have a case

      Erm...isn't that exactly how art always worked?

      Often, artists learn from other artists, and create work based on the things they learned, including mimicking other artists styles.

      And I am not a lawyer, but based on all I know, this is legal, as long as they don't try to pretend that the work was done by someone else (eg. people trying to sell fake Monet paintings). Style can't be copyrighted, and with good reason, it would make it almost impossible to create new art without risk of getting sued.

      1. Michael Wojcik Silver badge

        Re: I hope they have a case

        Copyright does not extend to people's minds; it does extend to machines. That's pretty clear in the law. So incorporating copyrighted material into the training dataset and then allowing the systems to reproduce it either falls under fair use (in the US; other jurisdictions differ) or is a violation. That's what the courts need to decide.

      2. Glenn Amspaugh

        Re: I hope they have a case

        [looks at print of Rembrandt's Anatomy Lesson of Dr. Tulp pinned on wall above drawing desk, overlaid with grid to aid in copying painting]

        From ten years ago when I was taking another swipe at learning to paint. Only got about half of it penciled onto canvas, never opened a tube of paint.

    6. cosmodrome

      Re: I hope they have a case

      Counterfeiters have been doing pretty much the same thing for ages. While some of them were really talented, smart and obsessive enough to earn some respect (and a couple of years in prison) counterfeiting AIs and their owners are nothing but tools and common criminals.

  3. IGotOut Silver badge

    Deja vu

    Remember the 80s and sampling (or breakbeats)

    Or the 70s with Synthesizers and drum machines and the effective ban by the Musician Unions?

    At some point there will be a common, sensible ground reached.

    1. Richard 12 Silver badge

      Re: Deja vu

      Sampling requires a license. There have been multiple lawsuits about this, it's settled law.

      Nobody is saying that these image generators shouldn't exist.

      Only that these particular ones have been created via an act of mass copyright infringement, and that every time they are executed another act of mass infringement occurs.

      If the training set was licensed for such usage, that would be absolutely fine.

      1. Anonymous Coward
        Anonymous Coward

        Re: Deja vu

        Unfortunately the TOS of most places images are stored gives those sites the right to use them however they want.

        So basically what Stable Diffusion have done wrong, is failing to pay Adobe, Facebook, Google and the other hosts, before scraping the images.

        If they had done that, most the of artists who uploaded work wouldn't have a leg to stand on.

        Land-grab terms of service need to be illegal.

        As an aside, the latest update of my freeware, now has the source encrypted inside the installer, and it is no longer unencrypted on Github (or anywhere else). Same for the open hardware design, it's now on an "ask me for the key" basis

        1. Anonymous Coward
          Anonymous Coward

          Re: If they had done that, most the of artists who uploaded work wouldn't have a leg to stand on.

          You say that like you think it's a good thing.

          It's not.

        2. Richard 12 Silver badge

          Re: Deja vu

          The ToS absolutely did not say that. It's probably legally impossible for them to do that.

          This is mass copyright infringement, unless they can explicitly prove that all the copyright holders specifically agreed that all the artworks used to program the model could be used for that purpose.

          Some of the works probably did say that they could be used for any purpose, including commercial use, but the vast majority did not.

          Quite a lot of works are explicitly "non-commercial", for example.

          The only difference between the music sampling case law and this is that most artists don't have much money to pay lawyers, unlike record companies.

          DeviantArt et al were probably assuming nobody would be able to afford to sue them.

          1. Anonymous Coward
            Anonymous Coward

            Re: Deja vu

            I'd like to direct your attention to Perfect 10, Inc. v. Amazon.com, Inc. - 508 F.3d 1146 (9th Cir. 2007). This is clearly transformative as far as copyright is concerned.

        3. JoeCool Silver badge

          Two problems

          Sadly, you are probably right about contract law have precedence, at least in the USA.

          But,

          Stable deserves to die just for that meandering, keyword spewing twit from it's CEO.

  4. Securitymoose
    Facepalm

    Art for art's sake?

    Money for God's sake?

    One argument goes along the lines that 'art' should be free for all, otherwise eventually everything you see will have to be paid for. The BBC practises this already by charging everyone for the licence fee.

    Are the accused to be considered as 'galleries', charging an entrance fee, or are they like Pixabay where all the artwork is free?

    Maybe the case hangs on whether artists using the platform agree, as part of the hosting agreement, to let everyone view (and use?) their material. After all, it is free publicity, and I know a number of excellent artists who have received commissions based on what they have exhibited. If they are really desperate for the cash, rather than spending it on lawyers (which suggests they are already awash with the stuff), one way to secure their work would be to watermark it and only release the clean version when paid. Is that an issue between artist and buyer and really nothing to do with the host?

    This case seems to me to be a very effective way of throwing money away, and as always, it will only be the lawyers who win.

    1. Richard 12 Silver badge

      Re: Art for art's sake?

      Unless mass infringement is stamped on, it will be done again and again.

      It's a class action, so every artist joining it knows they are very unlikely to receive enough to buy a pint - that's the nature of class action.

      The goal of these legal actions is to force the companies creating these models to obey the law, and only use works within the terms of the applicable licence agreements.

    2. Orv Silver badge

      Re: Art for art's sake?

      I mean, much like the alternative to a patent system is trade secrets, the alternative to honoring art licenses is that people stop publicly publishing their art online and start paywalling it.

  5. sabroni Silver badge

    re: Digital artists who use AI will outcompete those that don't.

    Use our shit or go out of business, ftfy.

    Sounds like someone else's business model, someone we don't like very much. Sounds like they are encouraging us to EMBRACE AI artists. I wonder what comes next.....

    1. Anonymous Coward
      Anonymous Coward

      Re: re: Digital artists who use AI will outcompete those that don't.

      I started googling these AI situations and Google returned information on anal intercourse so it's very exciting but I'm a snivelling, miserable coward and don't do AI at all.

  6. Anonymous Coward
    Anonymous Coward

    Aren't these the same "Learn to code" people? Seems like these artists need to get with the times and realize the market's moving passed them. They can cry, but you'll never beat automation, especially if you're doing hackey line drawn webtoons with the blandest of normie humor.

    1. Anonymous Coward
      Anonymous Coward

      WTF is wrong with you? The people who needed to learn to code were serving no purpose to society and destroying the planet. Art is so vital to society that they amended STEM to STEAM.

    2. Orv Silver badge

      Cartoons will probably be the last art form to be done successfully by AI, because attempts to get AI to write jokes have all ended in failure.

      I think the fundamental problem here is humor is, to some extent, based on surprise, and an AI can never surprise you. It can only regurgitate what it's already been fed.

      1. vekkq

        People mostly retell jokes too. The few jokes peeps come up with are often derivates of other jokes, or just not that funny to begin with.

        On the other hand, AI is unintentionally surprising. We wouldn't talk about it, if it was boring.

  7. Ryc

    Data grab at level 11

    Its not right that peoples work is harvested for free and put into the proverbial sausage machine for monetisation. It makes Facebook's data grab look like childsplay, at least the providers of the data got something out of it..a ahem social network...

    These AI companies need to continual harvest data to keep their results fresh. Artists will stop posting images and the well will dry up..

    I do wonder how the "right to be forgotten" laws will work. Once your data has been consumed by the AI engine I don't believe it can be extracted.

    This is next level stuff, a massive power grab is happening at break neck speed..the winner's aren't going to be the content creators that's for sure and governments will be too slow to appreciate the implications.. The company that wins this race..well the shareholders won't be flying Economy..

  8. Binraider Silver badge

    These AI articles have set me thinking. I'm writing an engine in my spare time to host a PBEM spaceship boardgame; mostly as an excuse to dust off certain skills that I've let rot. I am in no way, shape or form a good graphic designer. But I can task an AI with drawing me some space freighters and pirate ships for the playing pieces.

    I am the first to belittle AI's lack of intelligence, but certainly not it's lack of utility.

    1. Anonymous Coward
      Anonymous Coward

      That's exactly the problem. Why would you pay a professional when you can get 'good enough' for free? If people are allowed to choose freely, they won't make moral choices.

      1. breakfast Silver badge
        Flame

        That makes it sound like the choice is either use AI that steals art from others or pay a professional, but that's a false dichotomy. If you want to have good quality art but you can't afford to pay someone for it, you can just learn to draw - it's almost all technique. There are loads of free resources and if you're willing to put in the time and effort to practice you can get to a useful level of competence way quicker than you might expect. I've been following a free online course for six months or so and the entire cost has been a box of cheap-ass pens, a quarter of a ream of printer paper and a bit of my time. Already my technique has improved to the point I can create useful illustrations for projects I'm working on.

        In British schools it seems as though art lessons did almost nothing to teach us the techniques of recreating what we can see on the page, so we got the idea that art was all about talent because only people who grasped those techniques intuitively got good results. That's not how it works, though. Art, music, good writing, all the things that the corporations are trying to steal from us using AI, they're all skills we can learn.

        Artists aren't gatekeeping art, they're incredibly open about helping people learn to create it for themselves. The more we allow AI to replace them, the more we will allow AI corporations to gatekeep art, and they will pull up the ladder so fast it will be impossible to tell it was ever there if we let them.

        1. Anonymous Coward
          Anonymous Coward

          I agree, those that can learn, should, those that can't should hire a professional. It's like 3D printing, that's causing the death of plenty of small time machine shops that used to make prototypes or small run items. I have no problem with people learning to use a lathe or a mill but the plastic spewers are damaging.

          1. Anonymous Coward
            Anonymous Coward

            In what way? the 3d printing community very much does rapid prototyping (where it began, really) and for example, the four items I had to create for a case mod I finished required upwards of 4 iterations on each of the 4 parts I made to get everything right on; paying a machine shop to run those on the cheapest material they have (which would probably have been delrin or nylon!) would have run me four digits and multiple trips there and back. Whereas I used my 'hobbyist' 3d printer to run each iteration in PLA at the cost of electricity, machine time, and adding some plastic to the trash bukkit of bad parts.

            Most of the small machine shops in my area wouldn't have taken the job to begin with, because it's not cost effective for them to do a one-off job at all.

            Different horses for different courses, friend.

      2. mpi Silver badge

        > they won't make moral choices.

        It is completely normal in our society to rent an excavator for an afternoon instead of paying 10 people with shovels for a month. Technological progress has always transformed industries, this is just another example of that.

        In the future, small projects will be able to use art that were previously unable to do so. or for whom doing so would have been a substantial financial burden, large projects will be able to benefit from artists who, by using AI, can deliver incredible output much faster, quickly iterating over many ideas in projects with changing requirements. And lastly, specialised projects may even use "hand made art" as a selling point.

  9. Anonymous Coward
    Anonymous Coward

    Taking the piss

    How much were Elger paid by Duchamp for The Fountain? I doubt their terms of sale included use in art and, as far as I'm aware, they never received an additional penny for the millions subsequently paid.

  10. TheMaskedMan Silver badge

    DMCA

    Doesn't the DMCA include provisions for notice and takedown of material used without permission? I vaguely recall helping someone to get their material removed from a website many years ago.

    Why can't the disgruntled artists have their images removed from the training data? Then everyone would be happy. Except, that would probably still leave a fairly large amount of training data in use - non-arty types would still be able to generate images on a whim and that wouldn't do, would it?

    Somehow, I can't see this genie going back in its bottle. Maybe the arty types would do better to grasp the nettle and use the technology to increase their own output. Ask the thing to generate images in their own style, knock out a gallery's worth in an afternoon, sign them and adjourn to the nearest watering hole. Simples.

    1. J. Cook Silver badge

      Re: DMCA

      Part of the lawsuit is that the artists were not given any sort of chance to opt-out of the data scrape, nor is there any means to get images removed from the data scrape.

      1. Orv Silver badge

        Re: DMCA

        Data sets for some of these projects have also been found to contain other protected data, such as medical photos.

  11. arachnoid2

    How is this any different

    To theft of copyright code and software , there is hell to pay if you copy any of those?

    1. Orv Silver badge

      Re: How is this any different

      Right? I've been complaining for a while that tech bros think that copyright should apply only to software, and everything else should be fair game.

    2. Spazturtle Silver badge

      Re: How is this any different

      Because there is no copyright infringement here, the AI doesn't store any copy of the training data set, it simply uses the training data set to learn patterns much like what a human does.

      1. Orv Silver badge

        Re: How is this any different

        That's not necessarily true. Machine learning systems have been shown to memorize parts of their training set. For example there are cases of AI chatbots being coerced into divulging social security numbers that were in their datasets.

  12. SuperGeek

    DeviantArt are bad for deepfake

    I've had some of my work defaced by people using FaceApp to change faces and backgrounds on my work then reuploading as their own. DeviantArt don't care, maybe this will change it!

  13. vekkq

    Am I the only one to see the problem in that people have to worry about their livelihoods?

    Not wanting to sound like a derailed optimist, but change would be much easier to accept, if people's livelihoods would be taken care of, independent of what work they do or not do.

    If you gonna like it or not, AI-generated imagery is going to stay, since its far too convenient to ignore.

    1. Orv Silver badge

      I remember when automation was going to replace the most menial jobs, leaving people with more time for art and other creative pursuits. Instead AI is going for the interesting, creative jobs first, leaving only the menial ones for actual humans.

  14. Boolian

    AI - AA - OI !

    ....you can't do that! Of course they can and will.

    AI 'Art Generators' are another palette, another tool of the 'artist'. Perhaps they are artificial minds, which observe the world and are 'inspired' to create. Why not both.

    Sucks to be an artist in any genre, Once your 'masterpiece' has been revealed, it is gone.

    The best one can hope, is that in your lifetime, someone pays you at least once for the piece and you receive recognition as being the OG, and prime influence on the derivitives.

    Occasionally it is the derivitves which drive interest in the OG.beyond any reach they could achieve - preferably before they are found mouldering, pennyless in a lonely garret- but it was ever thus.

    I find AI generated art patently AI generated, and not my cup of Tetley. However, it didn't drag itself to a gallery on a twisted metal limb and with blinking red eye, rasped "Exhibit this if you want to live" The 'artist' is surely the person (or collective) who used the AI palette, the canvas, the tool.

    I have sympathy with all original creators, who see others rake the riches. Many of us have created something and never reaped our just rewards.

    Perhaps we didn't realise how just the rewards could have been, and were quite happy with the price of a bottle of absinthe and a weeks rent...until we saw our patron ride past in the fancy carriage.

    Perhaps it even was an original work - So far as we could tell at least, before someone else pipes up "AA! OI! I came up with that idea mate, you're ripping me off!"

    Nothing new here.

  15. AbeSapian

    It Isn't Just Art

    Not only is pictorial art being used to produce images "in the style of", but it's happening to music, novels, short stories, plays, screen plays, etc. It's the whole creative market. Besides streaming residuals, the actors' strike is about is their images being scanned to be used to generate performances without just compensation. Anyone that creates is at risk of having their body of work stolen and used without permission and compensation.

    It's one thing when someone searches for an image to look at. It's quite another when they download it, tweak it, and upload it as their own work. That's what DMCA is all about. The entire movie industry exists because of intellectual property rights. All of that can be destroyed by unethical use of generative AI.

    People have a right to profit from their work. What these generative AI products are doing amounts to theft.

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