"In early 2023, the bill came due. Two parties—a group of artists (Andersen et al.) and Getty Images—separately sued AI image generators for copyright infringement."

"Copyright got its start in an unexpected place: royal courts. About 500 years ago, European monarchs began doling out privileges and licenses to their favorite artists."

"No one else but chosen creatives were allowed to publish and distribute works of art."

"These publishers’ exclusive rights to print and make copies came to be known as “copyright.”"

"For a time, royally appointed publishers were the only ones who could afford printing presses. They adhered to and later enforced censorship standards because they were on the hook for what they printed. You published heresy or sedition? Jail time or the stakes for you."

"Everything changed in the mid-1500s, after the rise of Gutenberg’s more affordable printing press."

"Censor-publishers attempted to punish creators of unlicensed work, but they couldn’t keep up with printed seditions and heresies anymore."

"Public opinion about royal copyright began to shift in the 1600s as English poet John Milton spoke out for the “liberty of unlicensed printing.”"

"Finally, the Copyright Act of 1710 passed in England. It was the first law to grant copyrights to authors."

"Ironically, it was a Hail Mary from the royal publishers who had failed to wrest back printing power from the masses."

"U.S. Constitution, Article I, Section 8, Clause 8, known as the Copyright Clause."

"For better or worse, copyright evolved with the times. Early on, no one could reproduce work without the consent of the copyright owner, who would charge hefty licensing fees."

"The Copyright Act of 1976 fixed that by introducing the concept of “fair use.” Some entities could use copyrighted materials for free under certain conditions."

"Initially, fair use was reserved for nonprofits and government entities. In recent years, courts started to grant allowance for commercial use if other factors were compelling."

"In 2006, a Playboy competitor called Perfect 10 sued Google for indexing the magazine’s covers and displaying their thumbnails."

"In 2015, Authors Guild sued Google for scanning copyrighted library books and providing snippets of them in search results."

"In both cases, courts ruled that Google’s search engine was a “highly transformative” use of the images and snippet texts. In other words, Google cataloged these artifacts for people’s research purposes, not entertainment."

"It was a unique enough application of the data to be considered fair use, “particularly in light of its public benefit,” as the judge on the Perfect 10 case said."

"A different judge on the Authors Guild case said something similar, granting the fair use of the books in part because it “augment[s] public knowledge.”"

"The concept of “transformative” use has been at the center of many copyright lawsuits in the past 30 years."

"Unfortunately, the determination is subjective and there’s no clear line. Things are decided on a case-by-case basis in court, weighing the specific factors involved in each case."

"Judges don’t just look at how much the purpose or use changed in reproduction. They also consider the content of the copying."

"50 Shades of Gray is so transformative of Twilight that most people who read the former never realize it was influenced by the latter."

"If Meyer sued for copyright infringement, it would’ve been a tough case for her to win."

"When creators adapt copyrighted material from one creative medium to another—film, books, musicals, songs, photography, translations, even sculptures and architecture—that reproduction is often considered a “derivative work.”"

"If they don’t change enough aspects of the story, then they must pay licensing fees."

"Fan fiction falls in a gray area, and courts have ruled in different ways depending on the case."

"Fair use also protects many parodies, criticism, commentaries, and reviews (as does the First Amendment)."

"Despite legal risks, transformative works are everywhere in our culture. But creators don’t have a definitive way of knowing if their use qualifies unless they get taken to court."

"The concepts of “transformative” and “fair use” are at the heart of the lawsuits around AI image-generators."

"First, they used copyrighted images without permission while training the AI."

"Two, they produce derivative versions of copyrighted work. (Getty claims only some AI-generated images are derivative, whereas Andersen et al allege all are.)"

"As we’ve covered, that doesn’t necessarily protect a reproduction in the eyes of copyright law. It’s one small factor in the massive “fair use” mixing bowl judges must sift through."

"One of the plaintiffs goes even further in their lawsuit claims. The artists suing Stability AI argue that when the AI generators produce work “in the style” of an artist, Stability AI must pay to commission or license work from that artist."

"If similar precedents were set, we could risk infringing on copyright anytime we take inspiration from others’ work."

"I wish I could say Andersen et al’s lawsuit is overreaching, and judges are unlikely to decide in favor of it, but a recent high-profile case in music upheld a similar copyright infringement claim."

"Over time, copyright could regress to its original form: a way for the few chosen artists who “own” ideas to create monopolies and enforce their favorite forms of censorship."

"The creators who are left would have no legal means to publish and distribute their work. What a dystopian world that would be."

"They should have sought permissions from copyright holders before using the data to train AI models."

"Scraping publicly available data on the internet may not be illegal, but using that data to train AI models is a legal and ethical gray area—an open question if you will."

"Now the courts must decide if the whole operation is legal to begin with, and if using publicly available, copyrighted data to train AI is fair use."

"At the very least, AI companies should be giving attributions to artists. Even the most lax of creative commons permissions usually require that."

"I also think AI-generated images should stay in the public domain for free, with no copyright, if they haven’t been modified by a person"

"Machines and algorithms are not humans, so they shouldn’t get the creative protection rights that people do."

"“[T]his industry, by invading the territories of art, has become art’s most mor­tal enemy…If photography is allowed to supplement art in some of its functions, it will soon have supplanted or corrupted it altogether…”"

"Photography has supplemented our art, but it’s never supplanted or corrupted us. May AI do the same."