On copyright infringement and AI

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Source- The post is based on the article “On copyright infringement and AI” published in “The Hindu” on 25th May 2023.

Syllabus: GS3- Issues related to intellectual property rights

Relevance– Copyright related issues

News- The recent decision of the U.S. Supreme Court in the Andy Warhol Foundation for the Visual Arts Inc. versus Goldsmith et al. has added more unpredictability to the process of being exempted from copyright infringement liabilities.

To what extent does copyright law protect artists?

Copyright law protects the work of diverse artists. It provides a set of exclusive rights for artists over their creative output. This includes controlling the manner in which others reproduce or modify their work.

However, these exclusive rights are balanced with the rights of the users of such work. It includes other artists who might want to build on or comment on them. There are diverse exceptions under the copyright law.

What is exempt from infringement liability?

Different jurisdictions follow different approaches to exceptions. Some countries, particularly those in continental Europe, adopt the ‘enumerated exceptions approach’.

The use of copyrights needs to be specifically covered under the statute for considering it as an exception to copyright infringement.

Some others, including the U.S., follow an open-ended approach. It does not specify exemptions beforehand. Instead, they have guidelines about the types of uses that can be exempted.

The U.S. courts primarily consider four factors when determining whether a particular use can be considered to be an instance of fair use.

These factors are the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken by the defendant, and the effect of the use on the potential market of the plaintiff’s work.

The U.S. courts have been giving the highest importance to the first factor.

This open-ended approach to exceptions provides U.S. copyright law considerable flexibility and strength to deal with challenges posed by emerging technologies.

However, it has a major limitation. There is no way to know whether an activity will be exempted from liabilities until after litigation.

What is the AWF case?

Lynn Goldsmith photographed the famous musician Prince in 1981. One of those photos was licensed in 1984 to Vanity Fair magazine for use as an “artist reference”.

The licence specifically said the illustration could appear once as a full-page element and once as a one-quarter page element, in the magazine’s 1984 November issue. Vanity Fair paid Ms. Goldsmith $400 for the licence.

It hired Andy Warhol to work on the illustration. Mr. Warhol made a silkscreen portrait of Prince using Goldsmith’s photo. But while the licence had authorised only one illustration, Mr. Warhol additionally created 13 screen prints and two pencil sketches.

In 2016, Condé Nast, which publishes Vanity Fair, approached the Andy Warhol Foundation (AWF) to reuse the 1984 illustration as part of a story on Prince.

But when they realised that there were more portraits available, they opted to publish one of them instead. As part of the licence to use it, they paid $10,000 to AWF. But they paid nothing to Ms. Goldsmith.

When the AWF realised that Ms. Goldsmith may file a copyright infringement suit, it filed a suit to declare that it had not committed infringement. Ms. Goldsmith then counter-sued AWF for copyright infringement.

What are the findings of the US Supreme Court?

The majority of judges of the US Supreme Court concluded that there may be a situation where an original work and secondary work have more or less similar purposes and the secondary use is of a commercial nature.

Then, the first factor related to purpose and character of the use may not favour a fair-use interpretation unless there are other justifications for copying.

Both Ms. Goldsmith’s photos and Mr. Warhol had more or less the same purpose to portray Prince. The majority said that copying may have helped convey a new meaning or message. That in itself did not suffice under the first factor.

How does this affect generative AI?

The implications of the court’s finding are bound to ripple across the visual arts at large.

The majority position could challenge the manner in which many generative artificial intelligence tools, such as ChatGPT4, MidJourney, and Stable Diffusion, have been conceived.

The majority’s reliance on the commercial nature of the use may also result in substantial deviation from the established view that the commercial nature of the use cannot negate a finding of fair use.

What may be its implications on Indian copyright law?

There may not be any direct implications for Indian copyright law. The framework of exceptions in India is different.

India follows a hybrid model of exception in which fair dealing with copyrighted work is exempted for some specific purposes under Section 52(1)(a) of the Copyright Act 1957. India also has a long list of enumerated exceptions.

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