I Can't Get No Compensation: AI Image Generators And Copyright

Some say Pablo Picasso coined the adage, "good artists copy and great artists steal." Whether or not Picasso was truly the originator of the phrase, it captures a tension underlying copyright law. When is a work merely inspired by another, and when is it theft? Reasonable people and courts can and do differ. Recent monumental leaps in the use and availability of artificial intelligence ("AI") generative products, which produce new content such as art, music and text, have added a contemporary gloss on this tension. Such products require the ingestion of large amounts of content in order to train machine learning systems used to create new works.

In a 2018 blog post, we discussed the factors that courts might consider in applying fair use analysis when weighing claims of copyright infringement by owners of creative content, when their content is ingested into large databases and used in the AI training process to produce new works. In that post, we addressed the