By Eric D. Morton
A few months ago, I wrote an article about the dangers of blindly using Artificial Intelligence. The issues that arose were the phenomenon of “hallucinations” by A.I. that give the user false information and biases in the training/programming that were illegal. Another danger has also recently arisen – copyright infringement.
Recently, The New York Times published an article on creating an image of the Joker that was identical to the the Joker portrayed by Joaquin Phoenix in the 2019 movie “The Joker”. Using the AI program Midjourney, a movie concept artist prompted the program to create a joker image based on the movie. Midjourney created an image that was an almost exact duplicate image of a still from the movie for which Warner Bros owns the copyright. The left image is owned by Warner Bros. The right image was created by Midjourney.
Legal implications
If the Midjourney image were used commercially, the user would infringe on Warner Bros copyright. Even if the creator of the AI image had never seen or heard of the movie, it would still be infringement.
Copyright law holds that a work – such as an image – can infringe on another, earlier created work if the author of the infringing work knew of the first work, or if the author was exposed to the first work. Musicians have been successfully sued for infringing on the copyrights of songs even though the musicians didn’t directly copy the songs or parts of the songs. The copyright owner proved that the infringing musician was exposed to the song and unconsciously copied the song or portions of the song.
AI programs are trained by scraping the Internet of billions of images, sounds and other content. The correct prompt can produce an image that would be an infringement of a copyright protected image or music. The owners of copyrights have bots that monitor the web for infringing images and music. If an AI program creates an infringing work, the company using the work can be sued even if its graphic designer can claim that they didn’t know of the copyright protected work. The AI program knew of the copyright protected work and the graphic designer, and the company using the infringing work, will be held liable.
One can easily image an scenario in which a business owner hires a web developer to create a website. The developer uses AI to create the images for the site. The developer assures that business owner that no licenses need to be paid because all the content on the website is unique since it was created with AI. Everyone is happy until the business owner receives demand letters from the copyright owners of images that the AI program used as a basis for the images on the website.
Our suggestion to graphic designers, web developers and businesses is to not blindly rely on A.I. Any content that will be used publicly, on a website or in advertising, must be unique. If a content creator – images or music – is using A.I., then we suggest that the content creator significantly edit the A.I. created work. We also suggest that content creators invest in programs to check the Internet for similar images. Do not use any image, music or written content that is similar to any existing work.
Eric D. Morton is the principal of Clear Sky Law Group, P.C. He can be reached at 760-722-6582, 510-556-0367, and emorton@clearskylaw.com
