Photography Archives - Martin IP Law Group

ARTISTS, AUTHORS, COPYRIGHTS, INNOVATION, INTELLECTUAL PROPERTY, MOVIES, Photography, SONGWRITERS

AI-Generated Content + Copyright Law

There has been rapid advancement in the capabilities of artificial intelligence (AI) this year, posing many advantages and challenges to both consumers and business owners. These AI tools have the ability to create, interpret, and manipulate creative works, which is raising questions in the intellectual property world about potential copyright infringement.

Many platforms, including Canva, Grammarly, and Zoom, have even started to include AI tools to help users create original and unique works. Although these AI-generated works can be interesting and convenient, the question still remains as to who “owns” the content. The AI developer? The AI user? The AI itself?

What is a Copyright?

A copyright is a type of intellectual property that protects original works as soon as the author creates the work into a tangible medium of expression. This can include a painting, any written work, movies, and much more. When a copyright is created, there must be an author who claims the work. When an AI generator creates the content, the line becomes blurry as to who is the “author.”

Does Copyright Infringement Apply to AI Creations?

Although these conversational and generative AI technologies are fairly new, there are still relevant laws that can apply to and protect ownership rights. AI generators are capable of accidentally producing content that is similar to existing works due to its unpredictability. For common copyright infringement, the plaintiff must be able to prove that the defendant “copied” the work with unauthorized access. For AI outputs, access or “copying” might be shown by evidence that the AI program was trained using their original works to create similar outputs.

There have already been many litigations with this issue since 2021. In 2022’s Andersen vs. Stability AI et.al, three artists formed a group to sue the Stability AI platform developers on the basis that the AI platform was using the group’s original works to train their AI generator, allowing users of the platform to generate content from their existing and protected works. The case is still being observed, but if the court finds that the AI-generated work is unauthorized, substantial infringement penalties may apply.

Just as with generative AI itself, the requirements and litigation process for copyright infringement will continue to evolve as more challenges emerge. It is crucial that respected rights between users and creators are established to uphold the overall principles of intellectual property.

If you have any questions regarding the use of generative AI in your business or the protection of your intellectual property, contact Martin IP Law Group! We are experts in helping you harness the power of your creations while ensuring that they are protected. Let’s connect today!

ARTISTS, COPYRIGHTS, INTELLECTUAL PROPERTY, Photography

2022 Party Over its Out of Time – Does Andy Warhol’s Illustration of Prince Infringe Lynn Goldsmith’s 1981 Copyrighted Photo?

A Case of You – What Brought this About?

In 1984, artist Andy Warhol created a series of silkscreen prints and pencil illustrations depicting the musician Prince (Warhol’s illustration is shown above on the right). Warhol’s prints and illustrations were based on a photograph of Prince that was taken by photographer Lynn Goldsmith in 1981 in which she holds copyright (Goldsmith’s photo is shown above on the left). Goldsmith licensed the photograph to Vanity Fair magazine for use as an artist reference. Unbeknownst to Goldsmith, that artist was Warhol. Also unbeknownst to Goldsmith (and remaining unknown to her until 2016), Warhol did not stop with the image that Vanity Fair had commissioned him to create, but created an additional fifteen works, which together became known as the Prince Series.

The Question of U – What is Fair Use?

Copyright protection extends both to the original creative work itself and to derivative works, which it defines as, in relevant part, “a work based upon one or more preexisting works, such as a[n] . . . art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.”

The fair use doctrine seeks to strike a balance between an artist’s intellectual property rights to the fruits of his/her own creative labor and the ability of others to express themselves by reference to the original work. The statute provides a nonexclusive list of four factors that courts are to consider when evaluating whether the use of a copyrighted work is “fair use.” These factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fair use determination is an open ended and context-sensitive inquiry, “not to be simplified with bright-line rules[.] . . . All [four statutory factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”

Controversy -Transformative Work or Derivative Work?

While a determination of whether “fair use” exempts a work from infringement, this post, and the case involving the Prince Series, focuses primarily on the first factor – the purpose and character of the use. This factor requires consideration of the extent to which the secondary work is “transformative” or “derivative” in nature. In making this determination, one must consider “whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The intent of the artist to create something of a different nature or character is not controlling. Rather, one must consider how the secondary work may “reasonably be perceived” in relation to the original work.

Congress, in defining “fair use” in the Copyright Act, specifically recognized certain uses as being transformative. Criticism, comment, news reporting, teaching, scholarship, and research are all considered by statute to be “transformative” and thus not an infringement. The Supreme Court has further recognized parody as transformative in that it “needs to mimic an original to make its point”. In each of these situations, it is quite easy to see how the secondary work serves a manifestly different purpose from the original work itself.

The “transformative uses” listed in the statute are not exclusive. Courts have determined many secondary works to be transformative that do not fall into these enumerated categories. For example, in another case similar to this one, a court considered secondary works that incorporated, among other materials, various black-and-white photographs of Rastafarians
from the primary work. In determining that at least some of the secondary works were transformative, the court observed that the secondary artist had incorporated the primary photographer’s “serene and deliberately composed portraits and landscape
photographs” into his own “crude and jarring works . . . [that] incorporate[d] color, feature[d] distorted human and other forms and settings, and measure[d] between ten and nearly a hundred times the size of the photographs.”

On the other hand, lets consider a film adaptation of a novel. Such adaptations commonly add a significant amount to their source material: characters are combined, eliminated, or created out of thin air; plot elements are simplified or eliminated; or new scenes are added to name a few. These modifications are further filtered through the creative contributions of the screenwriter, director, cast, camera crew, set designers, cinematographers, editors, sound engineers, and myriad other individuals integral to the creation of a film. Courts have long recognized that “[w]hen a novel is converted to a film . . . [t]he invention of the original author combines with the cinematographic interpretive skills of the filmmaker to produce something that neither could have produced independently.” Despite the extent to which the resulting movie may transform the aesthetic and message of the underlying literary work, film adaptations are almost universally considered to be derivative works rather than transformative. For instance, even though one familiar with his work can readily recognize the Godfather films as a product of Francis Ford Coppola, they nonetheless are still too closely based on the novel by Mario Puzo to be considered transformative.

Nothing Compares 2 U – Goldsmith’s Photo compared to Warhol’s Illustrations

One can see that in the case of the Prince Series, there is no clear cut answer. Warhol’s secondary work cannot reasonably be perceived as commentary, criticism, parody, or any of the other recognized uses that are routinely considered transformative. On the one hand, Goldsmith argues that the pose in which Prince is depicted in her photo bears a number of striking similarities to the pose in Wahol’s illustration – the angle, expression, even Prince’s hair style are “substantially similar”. Goldsmith further argues that in copying these aspects of her photo into his illustration, Warhol has failed to transform the meaning or message of the work into something different from the original. Goldsmith concludes that the Warhol illustration shared the same purpose as her photograph and retained its essential artistic elements, and therefore is not transformative.

Warhol, on the other hand, points to the removal of certain elements from the Goldsmith Photograph, such as depth and contrast, and embellishing the flattened images with “loud, unnatural colors” as transformative in portraying Prince as an “iconic” figure rather than the “vulnerable human being” depicted in Goldsmith’s photograph. While these changes clearly turn the work into something that is readily recognized as a work by Warhol, the appeals court considered this to be akin to the adaptation of a novel into a film. Just as Coppola’s adaptation of Puzo’s The Godfather was not transformative, even though it is readily recognized as a Coppola film, the court concluded that Warhol’s adaptation of Goldsmith’s photo was not transformative.

Sign O’ The Times – SCOTUS to make final decision

On March 25, 2022, the U.S. Supreme Court agreed to review the appellate court’s finding that the Worhol painting was not transformative. The Court could either side with the lower court finding that the Worhol work was transformative, or affirm the appeals court finding that it was not. In any event, the Court will almost certainly give some additional guidance on how to apply the fair use test to determine when such works do, or do not, qualify as a transformative use that does not infringe. The Court isn’t expected to hear the case until the fall term commences in October, so a decision won’t be made until probably sometime in early 2023. Stay tuned and we will provide updates when the case is heard and decided. In the meantime, if you have issues or concerns regarding copyright infringement, contact us – we would be happy to help you!

ARTISTS, AUTHORS, COPYRIGHTS, INTELLECTUAL PROPERTY, Photography, SOCIAL MEDIA

SOCIAL MEDIA POST MAY FORFEIT COPYRIGHT PROTECTION

Posting your artwork or photographs to social media sites Instagram and Facebook (and possibly others) may forfeit your ability to prevent copying by other users. Best case scenario – you give control to the social media platform (Instagram or Facebook) as to how, where, when and under what circumstances the image can be reused. Worst case scenario – you grant a license to any other user on that platform to use the image and the works depicted therein without paying you or getting your approval as to how, where and when the image will be used.

BEST CASE SCENARIO – INSTAGRAM OR FACEBOOK HAS CONTROL OVER HOW, WHEN AND WHERE OTHERS CAN USE YOUR WORK

Copyright protection for a work of authorship (photographs, videos, graphic designs, paintings, sculptures, songs, etc.) attaches upon creation of the work and the author owns the exclusive right to control the use and reproduction of that work. Copyright ownership gives the holder of the copyright in an original work of authorship the following exclusive rights:

The right to reproduce and make copies of an original work;
The right to prepare derivative works based on the original work;
The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
The right to publicly perform the work; and
The right to publicly display the work.

The author may, by agreement, transfer that right to another party or parties. This is typically done by way of an assignment, where the author transfers ownership of a work to another party, or a license, where the author retains ownership but authorizes another party to use or reproduce the work. In the case of social media platforms such as Instagram and Facebook, the Terms and Conditions of Use, which every user must agree to before being granted access, have provisions governing the ownership and license of intellectual property rights, including copyright. The relevant portions of the Terms & Conditions for Instagram and Facebook as of the date of this blog are as follows:

INSTAGRAM Permissions from Terms of Use:

When you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This license will end when your content is deleted from our systems.

FACEBOOK Permissions from Terms of Use:

Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as service providers that support our service or other Facebook Products you use.This license will end when your content is deleted from our systems.

TRANSLATION OF LEGALESE:

Note that in both permissions, the license is described as being royalty-free. That means Instagram and Facebook don’t have to pay you a dime for authorized use. The language in both also indicate that the licenses are transferable and sub-licenseable. That means that Instagram and Facebook may, without the author’s further permission, authorize others to use the work at its discretion. Moreover, the rights granted by the license – hosting, using, distributing, modifying, running, copying, publicly performing or displaying, translating, and creating derivative works – when compared to the rights listed above that are granted to the author upon creation, strongly suggests that the licenses applies to ALL rights of the author. Bottom line – by posting on Instagram or Facebook, you are allowing them (for free) to do anything with your work that you otherwise could do yourself, AND you are allowing them to authorize anyone else they choose (also for free) to do the same.

COURT CASES DO NOT FAVOR THE CREATOR

This is not just my interpretation. Last year, in two separate cases, the United States District Court for the Southern District of New York came to the exact same conclusion! The first case, Sinclair v. Ziff Davis, LLC and Mashable, Inc., involved the use of professional photographer Sinclair’s copyrighted photograph entitled “Child, Bride, Mother/Child Marriage in Guatemala”. Sinclair posted the image on her Instagram account. Mashable contacted Sinclair to request a license, and Sinclair refused. Shortly thereafter, Mashable published an article on its website which included a copy of the copyrighted photograph by way of an embedded link to Sinclair’s Instagram post. Mashable filed a motion to dismiss the complaint for copyright infringement, alleging that it used the photograph pursuant to a valid sub-license from Instagram. The court agreed, finding that Sinclair, by creating an Instagram account, agreed to Instagram’s Terms of Use, and therefore “granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph.” In the second case, McGucken v. Newsweek, Inc., McGucken, a photographer who focuses on landscapes and seascapes, operated a public account on Instagram where he posted some of his photographs. One day after he posted a photograph depicting a large lake in Death Valley National Park, Newsweek published an article on its website incorporating the photograph from McGucken’s Instagram post through embedding. In ruling against McGucken, the court made flattering reference to the judge’s decision in Sinclair, and went on further to say that “insofar as [McGucken] contends that Instagram lacks the right to sublicense his publicly posted photographs to other users, the Court flatly rejects that argument. The Terms of Use unequivocally grant Instagram a license to sublicense [McGucken’s] publicly posted content.”

WORST CASE SCENARIO – ANY USER OF INSTAGRAM OR FACEBOOK CAN USE YOUR WORK HOWEVER, WHENEVER, AND WHEREVER THEY CHOOSE

In its original opinion, without any evidence of an agreement between Instagram and Mashable beyond the Terms of Use, the Court in Sinclair further concluded that “Instagram granted Mashable a sublicense to embed the Photograph on its website, and Mashable exercised its right pursuant to that sublicense.” After Sinclair moved for reconsideration, the Court took a step back from this ruling, but did not foreclose the possibility that such a license may exist solely on the basis of the Terms of Use. The Court on the request for reconsideration concluded that although Instagram’s Terms of Use clearly authorized Instagram to grant a sublicense to users like Mashable, the pleadings in that case did not contain sufficient evidence that Instagram exercised its right to grant a sublicense to Mashable. Similarly, the Court in McGucken denied Newsweek’s motion to dismiss on the grounds that “there is no evidence before the Court of a sublicense between Instagram and Defendant.” Both the Mashable and McGucken cases are still active and further rulings on this issue are expected in the forseeable future. It is interesting to note that the Court in McGucken specifically stated “that it may be possible to read Instagram’s various terms and policies to grant a sublicense to embedders”, leaving open the possibility that an artist or photographer who posts his or her works on Instagram automatically grants a blanket license to the copyrighted work to all other users!

HOW DOES AN ARTIST OR PHOTOGRAPHER PROTECT HIS OR HER WORKS IN LIGHT OF THESE RULINGS?

With roughly one billion active monthly users, Instagram is almost certainly the most popular public photo sharing platform in the world. This creates quite a dilemma for artists and photographers. Posting to Instagram and Facebook is a very inexpensive way to get their works in front of billions of potential patrons and customers. However, based on the Sinclair and McGucken decisions, the photographer or artist may be giving up his or her rights to receive royalties from other users who copy that work. Moreover, the artist or photographer clearly abdicates control over the work to the social media platform and/or other users of the platform. So what can an artist/photographer do to protect his/her rights? Click here to get our FREE REPORT with details and suggestions on actions that you can take to protect your rights.