Midjourney vs. Warhol — Who Stole It Better?
AI, IRL Artists and Copyright Infringement
Many artists are incensed because Midjourney and most of the other AI art generators create art by pulling data from every image they find online, including copyrighted ones.
Artists feel these AI art generators capitalize on their own works to put ’em out of business, basically.
FAIR USE
But we need to go into “fair use” to understand why they may or may not have something concrete to go to the courts on.
Fair use “allows limited use of copyrighted material without permission from the copyright holder. Artists are allowed to incorporate copyrighted works into their creations under certain conditions. The fair use must be transformative and serve a different purpose from the original work. But artists should exercise caution and seek legal advice when determining if their use qualifies as fair use to avoid copyright infringement liability.” — ChatGPT (edited as it must be for brevity).
One artist who squeezed every drop he could out of the fair use protocol (to the point where many felt it was unfair) was Andy Warhol. Most of what he did was flagrantly based on copyrighted photographs of celebrities and everyday objects. But his pop culture imagery was seen as genius commentary on consumerism and mass production. So, he got away with it.
What strikes my interest re: artists against AI is that the Warhol Foundation just lost a case heard in the Supreme Court of the United States.
“Goldsmith had sued the Andy Warhol Foundation for copyright infringement after the foundation licensed an image called Orange Prince, which utilizes Goldsmith’s image of the musician, to Conde Nast, the parent company of Vanity Fair magazine, in 2016. Orange Prince is one of 16 Warhol silkscreens based on her photo.” — CNBC, May 18, 2023
It wasn’t even about the fact that Warhol created the piece in the first place — which he did with Goldsmith’s permission.
It was because the Warhol Foundation licensed it to Conde Nast and made good money from it without her permission.
“The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original.”
“In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.” — Supreme Court Majority Opinion
Of course, there are differences between artists’ claims against AI art generators and Warhol. “Frankenstein” AI art seems to be completely covered by the fair use doctrine at this point.
But I’ve literally pulled up a screenshot from 80’s film Harry and the Hendersons in Midjourney via text prompts.
I knew what the picture was because I was a kid when that movie came out, so I made sure not to use it. But what repercussions will fall on an artist with no idea that the AI generated work s/he is using is way too close to the original it was based on?
In a marked difference to the complaints regarding AI, Warhol took already made content and applied his own style to it.
How close can AI output come to an artist’s unique style or particular recognizable piece without its prompter becoming liable for copyright infringement?
Although there are similar concerns regarding what he did and what AI does now re: the application of fair use, it’s interesting to imagine what ramifications this ruling will have for AI art generators going forward.
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