March 20, 2023
This is the second entry in a series of posts by our team about AI generative tools such as ChatGPT and related legal issues (our first was ChatGPT: The Future May Be Bright, But on What Terms?). Many people are aware of recent copyright litigation around the use of AI generative tools (AI Products). That litigation, along with legal terms provided with AI Products, require the re-examination of common intellectual property issues for businesses. In short, it is often unclear whether you have the rights to use the AI Products for the intended purposes or for the output created by them. There are also different types of AI Products emerging that are more “bespoke” and that are not trained on or do not use “public” information from the Internet to create output. This blog focuses on intellectual property issues around using AI Products, and we provide a list of things to consider at the end of this blog.
To begin, here is a refresher on some of the copyright litigation:
Getty Images Inc. v. Stability AI Inc.
Getty Images (US), Inc. sued Stability AI, Inc. for copyright infringement for the Stable Diffusion AI generative tool. Stable Diffusion uses text prompts to generate computer synthesized images. Stability AI also offers a user interface called DreamStudio that is powered by Stable Diffusion that allows subscribers to generate images on their personal computers. A diffusion model uses hundreds or even thousands image-texts pairs from open-source databases (or in this case copyrighted images from Getty Images, allegedly) to “train” the machine and allow it to produce images based on a prompt. For example, to get an image of a dog, the machine would learn the patterns between text that describes a dog and the pictures themselves. Then, it can reproduce its “own” image of a dog when prompted by the user and create a “unique” image.
Getty Images alleges that Stability AI copied more than 12 million copyrighted images from Getty Images’ collection without permission or compensation and used these images to train the Stable Diffusion tool. Getty Images states that they have routinely licensed images to other similar companies for similar uses related to AI and machine learning. In this case, Getty Images is asking for $150,000 per infringement of the more than 12 million alleged infringing photographs, totaling about $1.8 trillion in alleged damages.
Andersen et al. vs. Stability AI et al.
Stability AI is also being sued in a class action lawsuit, along with Midjourney, Inc. and DeviantArt alleging that the Stable Diffusion tool is a collage tool that violates artists’ copyrights. Like the Getty Images case, the plaintiffs allege that the model infringes on the copyright of original works because their art works were used without their consent or compensation and used to “train” the tool that now produces competing works. While this case is another example of infringement of visual works, the outcome of this case and the others discussed will impact Chat GPT and other AI Products, and also challenge the intellectual property rights of their “learned” outputs.
“[Y]ou may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”). Input and Output are collectively Content. As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title, and interest in and to Output."
OpenAI leaves “open” whether it has rights under law to provide any comfort of use or ownership in Output when the Output is a function of the Input and the program itself. In fact, the terms go further and state “[Y]ou are responsible for Content, including for ensuring that it does not violate any applicable law or these Terms.” As discussed above, the Output is exactly what is the subject to copyright infringement litigation. And, finally, the terms disclaim any warranty of non-infringement or indemnity for infringement.
So, what does this all mean?
Here are some things to consider when using AI Products as it relates to intellectual property rights:
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.