Art for Art’s Sake? Art, IP and AI – Defining Copyright and Fair Use

“Art for art’s sake” is taking on a new context with the generative AI tools and paths to creating and creativity.?

Art for art’s sake – defined by ChatGPT (out of irony) – “is a phrase that encapsulates the idea that art should be created and appreciated solely for its own intrinsic value and aesthetic qualities, without any ulterior motives or external considerations. It emphasizes that art should exist independently, free from moral, political, or utilitarian purposes.”

Among the criteria ChatGPT states to validate this definition is – “Rejection of instrumentalization: The concept rejects the idea of instrumentalizing art for external purposes such as political propaganda, social commentary, commercial gain, or moral instruction. It asserts that art should be valued in and of itself, rather than serving as a means to an end.”

If art is to exist for art’s sake, should an artist always have agency over their work? And who owns the idea, the art, and the artifact expressing it – whether it be a painting, sculpture, photograph, or other creative media?

With the latest AI tools applied to creative work, there is an upheaval in the art world about copyright infringement, who owns what, and what comprises fair use.

Art in America notes that Artists Are Suing Artificial Intelligence Companies and the Lawsuit Could Upend Legal Precedents Around Art.?

The Verge details the three artists that have launched a lawsuit against Stability AI and Midjourney, creators of AI art generators Stable Diffusion and Midjourney, and artist portfolio platform DeviantArt, which recently created its own AI art generator, DreamUp. The artists — Sarah Andersen, Kelly McKernan, and Karla Ortiz — allege that these organizations have infringed the rights of “millions of artists” by training their AI tools on five billion images scraped from the web “without the consent of the original artists.”

The Verge notes the lawsuit filed by lawyer and typographer Matthew Butterick and the Joseph Saveri Law Firm, where the suit claims generative AI art tools violate copyright law by scraping artists’ work from the web without their consent.

US Copyright Office defines Copyright as a form of protection provided by the laws of the United States for “original works of authorship", including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.?

Fair use defined by the US Copyright Office promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances; the framework for determining fair use can be found in Section 107 of the Copyright Act.

Simply put, fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster.

A Lewis and Clark Law School blog cites Harvard Law Professor Larry Lessig, renowned for his work in copyright and fair use, who famously declared? “[F]air use in America simply means the right to hire a lawyer….” The blog author notes that the view of fair use seems to accept that fair use is a defense to a claim of infringement and suggests that the burden of proving a use is fair lies with that user.?

And therein lies the challenge – the “user(s)” in this case are these organizations that have purportedly infringed the rights of “millions of artists” by training their AI tools on five billion images scraped from the web “without the consent of the original artists.”

Artist Karla Ortiz tweeted “As I learned more about how the deeply exploitative AI media models practices I realized there was no legal precedent to set this right. Let’s change that.”

The Verge notes that “Generative AI art models are trained on billions of images collected from the web, generally without the creators’ knowledge or consent. AI art generators can then be used to create artwork that replicates the style of specific artists.”??

Art in America cites that Midjourney and Stability AI now have more than 10 million users. An artist asserts that the technology for digital artists "represents lost jobs and stolen labor.”

Both articles note that the courts have yet to decide; the context of ownership and any violation of fair use is nebulous as “the artists and their lawyers are trying to establish copyright over style, something that has never before been legally protected.” Midjourney and Stable Diffusion have asked the US Court to dismiss the artists’ lawsuit, arguing that “the AI-generator images are not similar to the artists’ work and that the lawsuit did not note specific images that were allegedly misused.”

Engadget notes the US Government ruled that AI-generated images from text can't be copyrighted. According to the US Copyright Office, images produced by giving a text prompt to current generative AI models cannot be copyrighted in the US, asserting that "the level of human creativity involved in a work is a significant consideration as to whether it will grant copyright protection. It suggested that current AI models can't generate copyrightable work."?

These questions are playing out in real-time, with definitions and contexts evolving almost as soon as they are created. Where is the line in AI being fair and ethical? How do we define laws with no legal precedent??

Art, IP, and AI are an arena to keep our eye on along with the challenges tied to who owns IP in the metaverse and other questions of ownership created by generative AI (How To Manage The Evolving Rules Of AI And Intellectual Property.)?

The overarching point is that AI-generated ideas and digital representations of art may be seen as a jumpstart into a creative process that can lead to IP – these tools can accelerate the path. Every one of us should be thinking about the value of IP as an asset expressing our unique, creative ideas – contributing to the history and intellectual footprint of a subject area – transforming our ideas into action that will give back to us tenfold.