Unique nature of AI generates enforcement confusion – The courts do not have the precedents to deal with AI copyright law

[Christopher, 9-29-23, Congressional Research Service, “Generative Artificial Intelligence and Copyright Law”, Vol 6, pages 4-5, , accessed July 9, 2024, CT

AI programs might also infringe copyright by generating outputs that resemble existing works. Under U.S. case law, copyright owners may be able to show that such outputs infringe their copyrights if the AI program both (1) had access to their works and (2) created “substantially similar” outputs.

First, to establish copyright infringement, a plaintiff must prove the infringer “actually copied” the underlying work. This is sometimes proven circumstantially by evidence that the infringer “had access to the work.” For AI outputs, access might be shown by evidence that the AI program was trained using the underlying work. For instance, the underlying work might be part of a publicly accessible internet site that was downloaded or “scraped” to train the AI program.

Second, a plaintiff must prove the new work is “substantially similar” to the underlying work to establish infringement. The substantial similarity test is difficult to define and varies across U.S. courts. Courts have variously described the test as requiring, for example, that the works have “a substantially similar total concept and feel” or “overall look and feel” or that “the ordinary reasonable person would fail to differentiate between the two works.” Leading cases have also stated that this determination considers both “the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” For AI-generated outputs, no less than traditional works, the “substantial similarity” analysis may require courts to make these kinds of comparisons between the AI output and the underlying work.

There is significant disagreement as to how likely it is that generative AI programs will copy existing works in their outputs. OpenAI argues that “[w]ell-constructed AI systems generally do not regenerate, in any nontrivial portion, unaltered data from any particular work in their training corpus.” Thus, OpenAI states, infringement “is an unlikely accidental outcome.” By contrast, the Getty Images lawsuit alleges that “Stable Diffusion at times produces images that are highly similar to and derivative of the Getty Images.” One study has found “a significant amount of copying” in less than 2% of the images created by Stable Diffusion, but the authors claimed that their methodology “likely underestimates the true rate” of copying.

Two kinds of AI outputs may raise special concerns. First, some AI programs may be used to create works involving existing fictional characters. These works may run a heightened risk of copyright infringement insofar as characters sometimes enjoy copyright protection in and of themselves. Second, some AI programs may be prompted to create artistic or literary works “in the style of” a particular artist or author, although—as noted above—some AI programs may now be designed to “decline” such prompts. These outputs are not necessarily infringing, as copyright law generally prohibits the copying of specific works rather than an artist’s overall style. Regarding the AI-generated song “Heart on My Sleeve,” for instance, one commentator notes that the imitation of Drake’s voice appears not to violate copyright law, although it may raise concerns under state right-of-publicity laws. Nevertheless, some artists are concerned that AI programs are uniquely capable of mass-producing works that copy their style, potentially undercutting the value of their work. Plaintiffs in one lawsuit against Stable Diffusion, for example, claim that few human artists can successfully mimic another artist’s style, whereas “AI Image Products do so with ease.”

A final question is who is (or should be) liable if generative AI outputs do infringe copyrights in existing works. Under current doctrines, both the AI user and the AI company could potentially be liable. For instance, even if a user were directly liable for infringement, the AI company could potentially face liability under the doctrine of “vicarious infringement,” which applies to defendants who have “the right and ability to supervise the infringing activity” and “a direct financial interest in such activities.” The lawsuit against Stable Diffusion, for instance, claims that the defendant AI companies are vicariously liable for copyright infringement. One complication of AI programs is that the user might not be aware of—or have access to—a work that was copied in response to the user’s prompt. Under current law, this may make it challenging to analyze whether the user is liable for copyright infringement.