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Artists sue AI art generators over copyright infringement

Stability AI, DeviantArt, and Midjourney named in class-action suit

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A group of artists — Sarah Andersen, Kelly McK­er­nan, and Karla Ortiz — have filed a class-action lawsuit against Midjourney and Stability AI, companies behind AI art tools Midjourney and Stable Diffusion, and DeviantArt, which recently launched its own artificial intelligence art generator, DreamUp.

The suit alleges that these companies “violated the rights of millions of artists” by using billions of internet images to use train its AI art tool without the “consent of artists and without compensating any of those artists.” These companies “benefit commercially and profit richly from the use of copyrighted images,” the suit alleges. “The harm to artists is not hypothetical,” the suit says, noting that works created by generative AI art are “already sold on the internet, siphoning commissions from the artists themselves.”

The three plaintiffs are artists whose work has been used to train these generative AI tools. Andersen is the creator of popular webcomic Sarah’s Scribbles . McK­er­nan is a full-time artist whose works have been featured in galleries and who makes illustrations for comics, books, and games. Ortiz is a concept artist and illustrator whose clients include Marvel Film Studios and Wizards of the Coast.

1/ As I learned more about how the deeply exploitative AI media models practices I realized there was no legal precedent to set this right. Let’s change that. Read more about our class action lawsuit, including how to contact the firm here: https://t.co/yvX4YZMfrG — Karla Ortiz (@kortizart) January 15, 2023

Attorney Matthew Butterick filed the suit, working with Joseph Saveri Law Firm, a California-based firm specializing in antitrust and class-action law. The Stable Diffusion litigation blog describes Stable Diffusion, and generative AI like it, as “a parasite that, if allowed to proliferate, will cause irreparable harm to artists, now and in the future.”

The group is seeking a jury trial and unspecified damages.

AI - generated art has grown in prominence since last summer, as tools like Stable Diffusion and Midjourney became available for broad use. And as AI-generated art has become more prominent, artists have pushed back. AI art tools are trained with billions of images from the internet, and artists often don’t have a way of opting in or out. Stable Diffusion, for example, was trained using LAION-5B, a database of 5.85 billion text-image pairs with sources including Flickr, DeviantArt, Wikimedia, and overwhelmingly, Pinterest. Using an AI art tool like Stable Diffusion is as easy as typing in a thread of words. You can even create an image in the style of an artist whose work was scraped.

Artists have since begun sharing tools and resources for determining whether their work was scraped as part a dataset used to train Midjourney and Stable Diffusion.

Here are two documents containing the names of 100s of artists whose work has been trained on for Midjourney & Stable Diffusion. If you see your name, you have grounds to join the class action lawsuit. Contact [email protected] - please share w/ artists! — Kelly McKernan (@Kelly_McKernan) January 16, 2023

Whether or not AI art tools violate copyright law can be difficult to determine. Images within these massive databases, that these AI tools “learn” from, may be protected by fair use doctrine . As The Verge reported , it’s a complicated matter of evaluating both the “inputs” (the images scraped from these databases) and the “outputs” (the images that the AI art generators create), for copyright law violations.

In response to the suit, a Stability AI spokesperson told Polygon, “Please note that we take these matters seriously. Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law.”

Polygon has reached out to Midjourney, DeviantArt, and Matthew Butterick and will update this story when they respond.

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AI art tools Stable Diffusion and Midjourney targeted with copyright lawsuit

The suit claims generative ai art tools violate copyright law by scraping artists’ work from the web without their consent..

By James Vincent , a senior reporter who has covered AI, robotics, and more for eight years at The Verge.

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A trio of artists have launched a lawsuit against Stability AI and Midjourney, creators of AI art generators Stable Diffusion and Midjourney, and artist portfolio platform DeviantArt, which recently created its own AI art generator, DreamUp.

The artists — Sarah Andersen, Kelly McKernan, and Karla Ortiz — allege that these organizations have infringed the rights of “millions of artists” by training their AI tools on five billion images scraped from the web “with­out the con­sent of the orig­i­nal artists.”

The lawsuit has been filed by lawyer and typographer Matthew Butterick along with the Joseph Saveri Law Firm, which specializes in antitrust and class action cases. Butterick and Saveri are currently suing Microsoft, GitHub, and OpenAI in a similar case involving the AI programming model CoPilot, which is trained on lines of code collected from the web.

In a blog post announcing the suit , Butterick describes the case as “another step toward mak­ing AI fair & eth­i­cal for every­one.” He says the capacity of AI art tools like Stable Diffusion to “flood the mar­ket with an essen­tially unlim­ited num­ber of infring­ing images will inflict per­ma­nent dam­age on the mar­ket for art and artists.”

Since AI art tools exploded in popularity over the past year, the art community has reacted strongly. While some say these tools can be helpful, much like past generations of software like Photoshop and Illustrators, many more object to the use of their work to train these money-making systems. Generative AI art models are trained on billions of images collected from the web, generally without the creators’ knowledge or consent. AI art generators can then be used to create artwork that replicates the style of specific artists .

• Anyone can use this AI art generator — that’s the risk
• An AI-generated artwork’s state fair victory fuels arguments over ‘what art is’
• The scary truth about AI copyright is nobody knows what will happen next

Whether or not these systems infringe on copyright law is a complicated question which experts say will need to be settled in the courts . The creators of AI art tools generally argue that the training of this software on copyrighted data is covered (in the US at least) by fair use doctrine . But cases involving fair use still need to be litigated and there are numerous complicating factors when it comes to AI art generators. These include the location of organizations behind these tools (as the EU and US have subtly different legal allowances for data scraping) and the purpose of these institutions (Stable Diffusion, for example, is trained on the LAION dataset , which is created by a German-based research non-profit, and non-profits may be treated more favorably than regular companies in fair use cases).

The lawsuit launched by Butterick and the Joseph Saveri Law Firm has also been criticized for containing technical inaccuracies . For example, the suit claims that AI art models “store com­pressed copies of [copyright-protected] train­ing images” and then “recombine” them; functioning as “21st-cen­tury col­lage tool[s].” However, AI art models do not store images at all, but rather mathematical representations of patterns collected from these images. The software does not piece together bits of images in the form of a collage, either, but creates pictures from scratch based on these mathematical representations.

The Verge has reached out to Matthew Butterick, Stability AI, Midjourney, and DeviantArt for comment. We will update the story if we hear back.

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Judge bins AI copyright lawsuit against DeviantArt, Midjourney – Stability still in the mix

Artists' lawyers vow to fight on.

A judge has dismissed copyright infringement claims against DeviantArt and Midjourney in the US – and has allowed a case against Stability AI to continue.

In January, three artists - Sarah Andersen, Kelly McKernan, and Karla Ortiz - sued the three aforementioned startups, accusing the businesses of using people's copyrighted artwork without permission to build text-to-image AI tools. 

The artists argued the startups not only made unauthorized copies of people's art when collecting up images and training neural networks on those pictures, but also the content generated by those models – incorporating themes, elements, and styles created by human artists – was unlawful derivative work.

It was therefore claimed humans were being unfairly ripped off . The trio sued DeviantArt and Midjourney, which built text-to-image tools based on Stability's open source Stable Diffusion software, as well as Stability.

On Monday federal district Judge William Orrick in San Francisco dismissed all copyright violation claims made by McKernan and Ortiz since neither of them registered their work with the US Copyright Office. He decided, however, to keep Andersen's case going.

Her allegations against DeviantArt and Midjourney, however, were also thrown out. Judge Orrick said the cartoonist and illustrator had failed to show how those two defendants had directly infringed upon her rights, considering they didn't scrape any images nor train Stable Diffusion themselves. 

Instead, the training dataset was collected by LAION, a non-profit organization that reportedly scraped public images from the internet at the direction of Stability, who then went on to develop Stable Diffusion using that data. For that reason, Judge Orrick threw out the case against DeviantArt and Midjourney but not Stability for Anderson.

"The motions to dismiss are granted in full, except for the direct copyright infringement claim asserted by plaintiff Anderson against Stability," he ruled [ PDF ], referring to the defendants' efforts to have the proposed class-action suit binned.

"Plaintiffs are given leave to amend and attempt to cure the deficiencies. The amended complaint, if any, must be filed within thirty days of the date of this order," he said.

• Midjourney, DeviantArt face lawsuit over AI-made art
• Judge lets art trio take another crack at suing AI devs over copyright
• Bad Vibrations: Music publishers sue Anthropic AI for using copyrighted lyrics
• Google offers some copyright indemnity to users of its generative AI services

Orrick advised the artists to clarify whether their cases against DeviantArt and Midjourney are based on both companies' use of Stable Diffusion, or their own custom products, or both. He also cast doubt on whether it was possible to claim that every image in LAION training dataset was copyrighted, and that all AI-generated outputs are unlawful derivatives of images. 

"Even if that clarity is provided and even if plaintiffs narrow their allegations to limit them to output images that draw upon training images based upon copyrighted images, I am not convinced that copyright claims based [on] a derivative theory can survive absent 'substantial similarity' type allegations," he said.

In short, Orrick doesn't seem to be persuaded by their arguments that AI-generated outputs are merely derivatives of images, even if they are based on copyrighted works; they may not be similar enough to original images to meet the legal standard needed for infringement claims. 

The fight goes on

The plaintiffs' lawyers confirmed to The Register they would be filing an amended complaint.

"Judge Orrick sustained the plaintiffs' core claim pertaining to direct copyright infringement by Stability AI, so that claim is now on a path to trial," lawyers Matthew Butterick and Joseph Saveri told The Register in a statement.

"As is common in a complex case, Judge Orrick granted the plaintiffs permission to amend most of their other claims. We're confident that we can address the Court's concerns. We will be filing an amended complaint in November. In the meantime, discovery in the case is proceeding."

Stability AI, which is now firmly in the legal cross-hairs, told The Register it believes it has a legitimate business model.

"We are committed to putting Stability AI’s tools in the hands of every day creators through open models that uphold the highest standards of fairness, safety, and legality," it said.

"We acknowledge that AI raises important questions about the integration of these models and tools in our everyday lives. While we don’t have all the answers, we remain focused on developing the best open models for our millions of users worldwide through open and constructive dialogue, innovative technologies, and best practices in the application of fair, competitive, and practical rules governing AI development."

The Register has also asked DeviantArt and Midjourney for comment. ®

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DeviantArt, Midjourney Face Lawsuit for Using 'Billions of Copyrighted' Images in AI Art

A new lawsuit claims DeviantArt, Midjourney and Stability AI violated thousands of artists' intellectual property rights with their "A.I. art."

A lawsuit on behalf of a group of plaintiff artists has been filed in the United States District Court for the Northern District of California against three companies: Stability AI, DeviantArt, and Midjourney, over the alleged infringement of the copyright of the artists in the creation of so-called "artificial intelligence" art."As burgeoning technology continues to change every aspect of the modern world, it's critical that we recognize and protect the rights of artists against unlawful theft and fraud. This case represents a larger fight for preserving ownership rights for all artists and other creators." said Joseph Saveri, founder of the Joseph Saveri Law Firm, LLP, who is representing the plaintiffs along with Matthew Butterick, and Lockridge, Grindal, Nauen P.L.L.P. RELATED: AI-Created Comic Could Be Deemed Ineligible for Copyright Protection

What Is the Basis for This Legal Claim Against A.I. Art?

The three companies all share the use of Stable Diffusion, an artificial intelligence product that was based on the billion of images contained in the LAION-5B dataset. The lawsuit alleges that there are billions of copyrighted images involved in the creation of Stable Diffusion. Therefore, the lawsuit alleges the use of those images leads to direct copyright infringement, vicarious copyright infringement related to forgeries, violations of the Digital Millennium Copyright Act (DMCA), violation of class members' rights of publicity, breach of contract related to the DeviantArt Terms of Service, and various violations of California's unfair competition laws.

Not only is the lawsuit seeking damages for the alleged violations, but want an injunction to avoid future problems until some sort of system could be created that would allow for artists to be fairly compensated for their artwork being used in "A.I. art." As the claim alleges, music streaming services have found a way to compensate musical artists, so there should be a way for this to work, as well.

RELATED: The Comics Industry Takes A Collective Stance Against AI Art Usage

One of the Plaintiffs Speaks Out About the Case

One of the artist plaintiffs in the case, Karla Ortiz, took to social media to discuss her excitement about the lawsuit.

She noted, "I am proud to be one of the plaintiffs named for this class action suit. I am proud to do this with fellow peers, that we’ll give a voice to potentially thousands of affected artists. I'm proud that now we fight for our rights not just in the public sphere but in the courts!"

Source: Joseph Saveri Law Firm, LLP

• The Inventory

Do AI Art Tools Break Copyright Laws? Two New Lawsuits Will Find Out.

Getty images and a group of artists take on stability ai, midjourney, deviantart, and the ai business in cases that could shape the future of tech..

To build an AI art generator, engineers train their algorithms on large databases of photos, drawings or graphics. A lot of the most popular AI art tools got their databases by scraping content from the web, often without explicit permission from the artists who created images. Now the artists are asking: Did the algorithms violate copyright law?

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The courts don’t have an answer, but they will soon. The AI art industry now faces two lawsuits, one from artists in the US and the other from Getty Images in the UK, arguing that AI art generators stole billions of images in violation of intellectual property rights. It’s the beginning of an oncoming wave of legal action that will shape the future of AI tech.

Three artists filed a class-action lawsuit in San Francisco against AI art tools built by Stability AI, Midjourney, and DeviantArt. Stability AI faces a second case filed by Getty in the UK.

“AI image products are not just an infringement of artists’ rights; whether they aim to or not, these products will eliminate ‘artist’ as a viable career path,” according to a statement from Joseph Saveri Law Firm, representing the artists.

A statement from Getty Images isn’t quite as sour on AI, suggesting that “artificial intelligence has the potential to stimulate creative endeavors.” But Getty’s legal claim is similar. Stability AI “chose to ignore viable licensing options and long-standing legal protections in pursuit of their standalone commercial interests,” the company said.

A lot of artists have complained that AI art tools spit out images that appear to blatantly copy their styles. Getty Images can make a similar claim. Some AI art tools actually include the Getty Images watermark in the graphics they produce, making it plain how big of a role Getty’s intellectual property plays in the algorithms.

“Anyone that believes that this isn’t fair use does not understand the technology and misunderstands the law,” said a Stability AI spokesperson, in reference to the artists’ class-action lawsuit. The company declined to comment on the Getty Images lawsuit, saying it hasn’t received any documents about the case. Midjourney and DeviantArt did not immediately respond to requests for comment.

It’s likely that this just the begin of a drawn out legal battle with a lot more cases on the horizon. Though you might count on US courts to lean in favor of corporate goals, there are giant corporations on both sides of this fight. As of now, the owners of the source material in the enormous databases that forms the building blocks of AI tools aren’t compensated or even consulted.

AI content generators could replace large swaths of human labor, and a number of companies are already turning to AI tools as a cheap or free alternative to flesh-based content creators. The publication CNET, for example, has been publishing articles written by ChatGPT for months. (OpenAI, the maker of ChatGPT and the image generator DALL-E-2, has escaped lawsuits so far, in part because it’s less clear where the company got the content used to train its algorithms.)

Individual artists look at each other’s work and draw inspiration to create new pieces. Iterating and building on collective ideas is how art works—perfectly legal, often even blatant ripoffs. The question is, are AI image generators just doing the same thing, or are they breaking the law?

There are good arguments in either direction. When you set your algorithm’s digital sites on a set of images, you could say you’re just using a computer program to recreate the processes of the human mind, creating new cultural content based on what you learned from old cultural content. On the other hand, these AI tools use artists’ work in a much more direct way. Through statistical analysis, other people’s art is quite literally built into the algorithm.

More to the point, a lot of artists have complained that AI art tools spit out images that appear to blatantly copy their styles. Getty Images can make a similar claim. Some AI art tools actually include the Getty Images watermark in the graphics they produce, making it plain how big of a role Getty’s intellectual property plays in the algorithms.

The issue gets at another legal problem already working its way through the legal system. The Supreme Court is set to rule on a case against the Andy Warhol foundation , alleging some of the pop artist’s work, which often incorporates other people’s photographs, violates copyright law. The question there is essentially how and to what extent you can harness someone else’s intellectual property before you need permission. Judges may be forced to take on the role of art critics, adjudicating on the similarity between two pieces of art.

Some of the players in the AI art lawsuits are already trying to address these ethical and legal concerns. Getty Images doesn’t allow AI generated art on its platform to avoid copyright issues. Contrast that with Getty’s competitor Shutterstock, which said it will license AI art but plans to compensate artists whose work contributed to the algorithm. DeviantArt lets its users choose whether their work is incorporated into its AI art generator, called DreamUp. (But because DreamUp harnesses Stability AI’s Stable Diffusion tool, which is built on images scraped without explicit permission from copyright holders, DeviantArt’s user consent tool doesn’t factor into the complaint against the company.)

Update 1/17/2023, 4:35 p.m. ET: This story has been updated with a comment from Stability AI.

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DeviantArt’s Decision to Label AI Images Creates a Vicious Debate Among Artists and Users

By Christina Sterbenz

Christina Sterbenz

San Francisco–based concept artist RJ Palmer got his big break on DeviantArt . After joining the image-sharing platform in 2005, the 33-year-old began posting realistic drawings of Pokémon there in the style of the Japanese anime Monster Hunter . His work soon made the rounds online and, in 2016, the production designer for the movie Detective Pikachu reached out. Palmer has freelanced ever since for the entertainment industry, primarily for video games.

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With more than 75 million users, DeviantArt is one of the latest—and largest—online spaces to grapple with AI-generated images. Last month, the site announced that it would require users to disclose whether works they submitted were created using AI tools; the announcement followed one by Google in May of a similar plan to label “AI-generated images,” just weeks before the European Union urged other Big Tech platforms to follow suit.

Both the EU and Google’s argument for labeling AI-generated images has centered on misinformation. When an image of Pope Francis in a white puffer jacket went viral earlier this year, for example, many people didn’t immediately know it was faked. The threat of misinformation around news events or elections appears obvious. But another debate around AI labeling touches on the core of how we define art, who gets to make it, and who can profit from it. That conversation has enraged creators on both sides.

“[DeviantArt] can be like, ‘Oh, there’s suddenly all these people using our service, they’re uploading tons of images.’ It’s good for—at least they think it’s good for—the site’s health, even though it’s driving … actual longtime users and … regular artists away from the service,” Palmer said.

As a successful digital artist, Palmer has become a spokesman of sorts for artists on DeviantArt who object to AI-generated images on the platform.

The first issue, for Palmer and other digital artists, is how such generators were developed—by “stealing” other artists’ work, as he put it. Most programs were trained on the LAION dataset, a collection of 5.6 billion images scraped primarily from public websites. A class action lawsuit filed by artists in January against DeviantArt, Midjourney, and StabilityAI—the company behind Stable Diffusion— estimated that 3.3 million images in LAION were ripped from DeviantArt. (DeviantArt has said in public statements that it was never asked, nor did it give, permission for this.)

Artists like Palmer were already upset when those text-to-image AI generators launched early last year, but the conflict escalated in November when DeviantArt released its own version, DreamUp , that automatically included  users’ creations in its dataset. Opting out required users to delete each individual image, a prohibitive burden considering that many, like Palmer, have thousands of works on the platform.

Less than 12 hours after DreamUp’s launch, DeviantArt announced that it was reversing the policy and not keeping users’ artworks in the dataset by default. But that was mostly a feint: DreamUp was built on Stable Diffusion, and therefore, on the LAION dataset, which already includes countless images by DeviantArt users.

Palmer’s criticism of DeviantArt is as much about the platform’s tone-deaf execution of AI as about AI itself. The day DreamUp launched, Palmer conducted a Twitter Spaces conversation with several DeviantArt executives. One question on which Palmer pressed the company: If DeviantArt was intent on creating an AI image generator, why not use an “ethically sourced” dataset?

CMO Liat Karpel Gurwicz told Palmer that users would upload AI images even if the platform banned them. By introducing its own generator, DeviantArt retained some control. “We cannot go and undo what these datasets and models have already done … ” Gurwicz said. “We could build our own model, that’s true … But doing that would take us probably a couple of years in reality.”

Despite DeviantArt’s insistence that it was protecting artists, DreamUp fueled a massive user backlash. They spoke out to the media and launched online protests ; message boards were rife with complaints , and some users said they would leave the site entirely.

Beyond the ethics of AI training datasets, Palmer’s issue with AI-generated images—and why he supports labeling—comes down to time and creativity. Users say DeviantArt’s homepage and search are now flooded with low-quality, AI-generated images that likely took seconds or minutes to create, many of which aren’t labeled, despite the site’s new requirement. By Palmer’s measure, AI has turned a vibrant artistic community into an image dump.

Palmer has also noticed other users imitating his work using AI (and not well, he said). If the training improves, he’s worried AI could replace him or other artists entirely. Unfortunately, they can’t copyright style, only specific artworks. And according to the US Copyright Office, AI creators can’t even do that.

This past March, the office released an official position that only “human-authored” works are eligible for copyright. Many artists applauded the decision, as it seemingly eliminated corporations’ ability to profit from AI-generated images and, therefore, offered some hope for the protection of artists’ livelihoods. AI labeling, then, would help establish what images can and cannot be legally protected.

But for Jason M. Allen, the 40-year-old founder of tabletop games studio Incarnate Games, arguments over copyright miss the point. Artists and AI similarly create artworks influenced and derived from an amalgamation of images, experiences, and art.

“So really, every experience that you have, every book that you read, every piece of art that you look at, is going through your neural network. And then you’re using that experience and your recollection of these ideas and combination of concepts to then express yourself using your choice of medium and technique,” Allen said of the artistic process. “And I can’t? Because it’s artificial intelligence?”

This past September, Allen won first place at the Colorado State Fair annual art competition with his AI-generated image Théâtre d’Opéra Spatial. By Allen’s estimation, he spent more than 80 hours experimenting with different prompts on Midjourney to generate the image. He also founded Art Incarnate, where he sells prints and other upcoming AI creations.

The US Copyright Office’s decision, Allen argues, ignores the creativity in using AI tools, and he’s since appealed in an effort to copyright his award-winning piece. For Allen, forced AI-labeling produces a similar bias against AI creators and creates multiple “tiers” of artists.

“I feel like it’s impossible to remove the human element from the work,” said Allen, who doesn’t consider himself an artist. “There’s always a user, there’s always a person, there’s always a creative force.”

The idea that AI generators are just another tool for artists has parallels to 19th-century debates about photography, which was seen, at the time, as a mechanistic reproducer of fact rather than a conduit to creativity. In an 1884 US Supreme Court case, a lithograph company that reproduced a photograph of Oscar Wilde argued the original could not be copyrighted because photographs lacked originality , being the result of a simple button push. In the decision, Justice Samuel Miller deemed it an “original work of art,” noting the creative decisions that went into the portrait’s production. Similar debates and court cases were waged in France, the United Kingdom, and elsewhere at the time.

Ahmed Elgammal, a professor of computer science at Rutgers University and the director of the Rutgers Art and Artificial Intelligence Lab, sees photography and AI similarly, as tools.

“I think it might be fair to think of labeling [images] as AI the same as labeling an image a photograph or labeling an image as digitally created,” Elgammal told ARTnews , adding that fake images circulating on social media are “really problematic.”

Even if platforms agree that all AI-generated works should be labeled, the challenge remains how to do so. User reporting has obvious problems. Google’s AI labeling tool, rolled out in May , asks text-to-image generators to label works at the point of production. The company said Midjourney and others would join in the coming months. Meanwhile, using an algorithm or automated detection system to determine whether something was created with AI could introduce more problems than it solves.

“A technological solution to a technological problem, that’s gonna lead to more technological problems,” Jennifer Gradecki, assistant professor of art and design at Northeastern University, told ARTnews.

Derek Curry, also an art and design professor at Northeastern, told ARTnews that algorithmic detection would likely end up with false positives and false negatives. That could have a major impact on artists, depending on how platforms and governments choose to approach AI copyright in the future.

The real problem with labeling AI, Gradecki and Curry believe, is that the lines are blurry. Almost all smartphone cameras and many digital cameras already use AI to enhance images with image stabilization or color optimization. Image-editing software also offers AI enhancement. How much AI processing is acceptable before an image is deemed AI-generated?

“Even if you require large companies that are under some sort of regulation to label AI-generated content, within that even there’s a question of what constitutes AI-generated content,” Curry said.

While it’s clear that AI image generators are not going anywhere, Elgammal, the computer science professor, thinks the threat to artists will blow over.

“Soon people will realize that they are losing a lot by using these tools, their identity is lost, control is lost,” Elgammal said. “And at the end, art created by these kinds of tools will look the same. For me, anything produced by Midjourney looks the same.”

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