AI Art

Artists Against AI: Recent Lawsuit Challenges the Blurred Line Between Style Emulation and Wrongful Copying

Emma QuinnNews & Insights

By Emma Quinn

Kelly McKernan is a visual artist who has posted their paintings on art-sharing website DeviantArt for the past twenty years.[1] When the first widely used AI art generators came online last year, McKernan was intrigued.[2] Later, however, they discovered that people would often use the words “in the style of Kelly McKernan” when prompting the generators, ultimately creating over 12,000 images with McKernan’s name attached, yet McKernan was not making a cent.[3]

On January 13, 2023, several artists, including McKernan, filed a proposed class-action suit against DeviantArt, as well as the AI-focused organizations Stability AI Ltd., Stability AI, Inc. (collectively “Stability”), and MidJourney.[4] The complaint alleges that these companies create, sell, market, and distribute AI image products throughout the United States, and are directly and vicariously infringing on the copyrights of thousands of artists’ works through the generation of AI art.[5] The plaintiffs claim that all three defendants use some iteration of Stable Diffusion, an AI image-producing software created by Stability,[6] which can “reconstruct” images that it has been fed and generate new images in response to text prompts.[7]

Specifically, the lawsuit alleges that Stability pulled over five billion images from the internet for use as “training images” for Stable Diffusion.[8] According to the lawsuit, these images are compressed and the companies store the information, using it to make new works that are meant to be duplicates of the training images.[9] The plaintiffs argue that the copying of that information constitutes a breach of the artists’ rights, and are seeking relief under 17 U.S.C. § 106(1)-(5), the Digital Millennium Copyright Act, unfair competition law, and several other causes of action.[10] According to the complaint, the defendants did not seek consent from the creators of the training images or from the websites that hosted them, did not attempt to negotiate licenses for any of the images, and did not share any revenue with the artists who created the images.[11] According to the plaintiffs, there may be thousands of potential class members geographically dispersed throughout the United States.[12]

However, experts say there may be issues with the lawsuit as currently constructed.[13] First, the lawsuit refers to AI image generators as “21st-century collage tools that violate the rights of millions of artists.”[14] If AI generators truly are like collage tools, then the images may be protected under the doctrine of fair use.[15] Since there is not a specific legal rule regarding collages as a fair use category, such an analysis could require a case-by-case application of the four fair use factors to each alleged collage.[16] Second, while specific images are protected by US copyright law, ideas, processes, and methods of operation are not.[17] A court could, in theory, find that AI-generated images are only copying the “ideas” underpinning the original images, and thus not infringing on the original artist’s copyright. On the other hand, according to Columbia Law professor Jane Ginsburg, an AI generator’s ability to draw directly from the works it is trained on may lead to a blurring of the line between style emulation and wrongful copying.[18]

Stability responded to the lawsuit, stating, “Please note that we take these matters seriously. Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.”[19] However, as the development of AI art generators continues, could 2023 be the year of lawsuits against AI companies? In a recent press statement, Getty Images stated it believes that Stability had “unlawfully copied and processed missions of images protected by copyright” and that Getty had “commenced legal proceedings in the High Court of Justice in London” against Stability.[20] These lawsuits bring to mind the ever-present copyright question of whether existing legal frameworks may be too outdated to properly deal with rapidly developing technologies. As these lawsuits move through the courts, they may have major implications on ownership and fair use in the age of AI. 


[1] Adrian Ma and Darian Woods, Artists File Class-Action Lawsuit Saying AI Artwork Violates Copyright Laws, NPR (Feb 3, 2023), https://www.npr.org/2023/02/03/1154091957/artists-file-class-action-lawsuit-saying-ai-artwork-violates-copyright-laws.

[2] Id.

[3] Id.

[4] Id.

[5] See Complaint, Anderson v. Stability AI Ltd., No. 3:23-cv-00201 (N.D. Cal. filed Jan. 13, 2023).

[6] Id. at 8 and 14.

[7] Id. at 15.

[8] Id. at 13.

[9] Id. at 17.

[10] Id. at 30.

[11] Id. at 1.

[12] Id. at 10.

[13] Ma & Woods, supra note 1.

[14] Complaint at 1.

[15] “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107.

[16] Linda Joy Kattwinkel, Fair Use or Infringement?, Graphic Artists Guild (Jan. 24, 2004), https://graphicartistsguild.org/fair-use-or-infringement/.

[17] “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102.

[18] Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, Bloomberg Law (Jan. 20, 2023), https://www.bloomberglaw.com/bloomberglawnews/ip-law/X43D8TBK000000?bna_news_filter=ip-law#jcite.

[19] Shanti Escalante-De Mattei, Artists File Class Action Lawsuit Against AI Image Generator Giants, Artnews (Jan. 17, 2023), https://www.artnews.com/art-news/news/artists-class-action-lawsuit-against-ai-image-generator-midjourney-stability-deviantart-1234653892/.

[20] Getty Images Statement, Getty Images (Jan. 17, 2023), https://newsroom.gettyimages.com/en/getty-images/getty-images-statement.