AI appropriation of intellectual property is the biggest issue in IP law right now. While we recently focused on a group of published authors, we now follow up on an August post focusing on claims made by illustrators Sarah Andersen, Kelly McKernan, and Karla Ortiz. On November 29, 2023, the artists amended their lawsuit previously struck down in court and added seven more artists (H. Southworth, Grzegorz Rutkowski, Gregory Manchess, Gerald Brom, Jingna Zhang, Julia Kaye, and Adam Ellis) to an amended class action case involving Stability AI, Midjourney and DeviantArt, along with new defendant Runway AI. There are also similar claims by others against giants like Google, Meta and Microsoft.
Plaintiffs in the amended claim maintain that AI learned their works without authorization and payment as training materials and can now create similar AI-generated pieces using the artists’ names in the prompts. For example, the user could input prompts saying, “Create a garden landscape that looks like late-period Claude Monet.” The living artists claim that AI-generated works are “indistinguishable” (in style only) from their own works.
The claim, in part, says that “AI image products are primarily valued as copyright-laundering devices, promising customers the benefits of art without the costs of artists.”
The amended claim alleges that Midjourney has about 16.4 million users, offering them a list of more than 4,700 artists’ names used as prompts, which is a violation of federal trademark law. One of the plaintiffs on the list, Kelly McKernan, found that the top hit in a web search of their name was a Midjourney-generated image created using McKernan’s name as a prompt.
Judges allow claimants to revise arguments
A judge dismissed parts of the artists’ initial claim (Andersen v. Stability AI, U.S. District Court for the Northern District of California, No. 3:23-cv-00201) because the judge deemed that the plaintiffs’ claims lacked evidence. Like other AI cases, the judge allowed the plaintiffs to reopen the claim with new evidence based on recent developments on this fast-moving issue. This firm is not involved in the specific cases cited here.