Home News Will the Warhol v. Goldsmith ruling mark a before and after in art made with Artificial Intelligence (AI)?

Will the Warhol v. Goldsmith ruling mark a before and after in art made with Artificial Intelligence (AI)?

June 19, 2023

AI is here to stay. It created quite a stir when the winning entry “Théâtre D’opéra Spatial” at the Colorado State Fair art competition was generated by image-generating artificial intelligence Midjourney by video game creator Jason Allen.

Midjourney is one of the tools that along with Dall-E or Stable Diffusion have impacted the creative world at a rapid pace, being praised and questioned in equal parts.

After the initial astonishment came the inevitable reflections: What is the future for art as we know it? What implications will this have in the field of intellectual property? Who should be considered the legitimate author and copyright holder? Can an AI tool be legally considered an “author”?

Also came the first defense by 3 artists Sarah Andersen, Kelly McKernan and Karla Ortiz who collectively sued Midjourney and Stable Diffusion for the use of their original works by these technologies.

While these issues are still being addressed and debated without a clear consensus, the U.S. Supreme Court comes with the May 18, 2023 ruling in the ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL case, which was initiated years ago.

The ruling refers to Andy Warhol‘s “Prince Orange,” which depicts the late artist Prince, based on a photograph by the hotographer Lynn Goldsmith without her consent.

Warhol’s transformation of Lynn Goldsmith’s original work is not considered a “fair use” since it is considered that Warhol’s transformation does not provide the “Prince Orange” work with sufficient differences, since both works share the same purpose or use.

It is therefore established that for the transformation to be sufficient to benefit from fair use when the use is the same in both works (original and derivative), it would have to be much clearer and more evident.

This may have a significant impact on the use of artificial intelligence for the creation of images, illustrations, among others, although it does not close the door to minor changes being accepted as “transformations”, provided that the purpose/use of the derivative work is different from the original work.

Likewise, the Judgment considers that Warhol’s work may have detracted from the market (business opportunities) of the original work since “Orange Prince” deprived Goldsmith of the opportunity to sell his original photo to Vanity Fair where it was published by the Warhol Foundation.

So, if “Orange Prince” is not protected by “fair use” and Lynn Goldsmith should have consented to the use of her original photograph and/or been compensated for such use what happens to the AI then?

Will AI still be able to use banks of original works and trained on collected data to create its own works without accountability?

At the very least, it seems that this ruling puts some limitations on the table and another step towards a fairer and more ethical AI.

Controversial Ruling of the US Supreme Court, which comes at a time of change and debate on the valuation of authorship of such works without doubt.

The “Warhol Ruling” could complicate the legal defense of Midjorney and Stable Diffusion and leaves us even more expectant.

Article by Susana Correa.

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