Judge Appears Likely to Dismiss AI Class Action Lawsuit by Artists

On Wednesday, Judge William Orrick of the US District Court for the Northern District of California heard oral arguments on defendants’ motion to dismiss in the case of Andersen v Stability Ltd, a closely-watched class action complaint filed by multiple artists against companies that have developed AI text-to-image generator tools like Stability AI, Midjourney, and DeviantArt.

During the hearing, the judge appeared to side with AI companies, thus making it likely that he would dismiss the case.

“I don’t think the claim regarding output images is plausible at the moment, because there’s no substantial similarity [between the images by the artists and images created by the AI image generators],” Orrick said during the hearing, which was publicly accessible over Zoom.

The issue is that copyright claims are usually brought against defendants who have made copies of pre-existing work or work that uses a large portion of pre-existing works, otherwise called derivative works. In other words, a one-to-one comparison typically needs to be made between two works to establish a copyright violation.

But, as explained in the most recent Art in America, the artists in the lawsuit are claiming a more complex kind of theft. They argue that AI companies’ decision to include their works in the dataset used to train their image generator models is a violation of their copyrights. Because their work was used to train the models, the artists argue, the models are constantly producing derivative works that violate their copyrights.

The defendants’ lawyers pointed out various issues with the artists’ arguments. To begin with, out of the three named plaintiffs—Sarah Andersen, Karla Ortiz, and Kelly McKernan—only Andersen has registered some of her works with the U.S. Copyright Office. That Ortiz and McKernan don’t hold registered copyright is a major obstacle to claiming valid copyright infringement claims. Meanwhile, it didn’t seem that Andersen was in a much better position, despite having sixteen of her works registered.

“Plaintiffs’ direct copyright infringement claim based on output images fails for the independent reason that Plaintiffs do not allege a single act of direct infringement, let alone any output that is substantially similar to Plaintiffs’ artwork,” Stability AI’s counsel wrote in their motion to dismiss. “Meanwhile, Plaintiffs’ allegations with respect to Andersen are limited to only 16 registered collections but even then, Plaintiffs do not identify which “Works” from Andersen’s collections Defendants allegedly infringed.”

Orrick was also skeptical of how much of an impact these three artist’s works could have had on the models, insofar as they are likely to produce derivatives, given that these models were trained on billions of images. While the judget has not yet filed his official decision, if he dismisses, the artists will have the opportunity to refile and address the weak aspects of the suit.

Orrick’s reaction to the suit appears to confirm legal and technology analysts’ assessment that current copyright law is not equipped to address the potential injustices engendered by AI.

An ongoing study by technologists under the name Parrot Zone have tested image-generator models and found that the system is capable of recognizing and reproducing the styles of thousands of artists. Out of 4,000 studies done, they found that these models can reproduce the style of 3,000 artists, both living and dead, all without recreating any specific works. The issue is that, even as these models are appear to credibly copy existing artists’ styles, “style” is not protected under existing copyright laws, leaving a kind of loophole that AI image-generators can exploit to their benefit.

[To learn more about this lawsuit, read “Artists Are Suing Artificial Intelligence Companies and the Lawsuit Could Upend Legal Precedents Around Art“]