Warning to Small Business about Using Generative AI - Implications of SCOTUS Ruling in "Andy Warhol v Goldsmith"

 "The US Supreme Court’s recent guidance on how courts must evaluate copyright law’s fair use doctrine will have major implications on the debate over generative artificial intelligence models that are trained on billions of images, texts, and other copyrighted works." Bloomberg Law, May 30, 2023

The case was "Andy Warhol Foundation v Goldsmith." Bloomberg Law provides a copy of the SCOTUS opinion. 

Essentially the issue the generative AI industry has to worry about is how the legal concept of "fair use" will be applied to machine learning. Historically the argument has been that the process results in the creation of something new and therefore there wasn't infringement of the copyright.. In the 7-2 decision SCOTUS indicated it didn't agree.

"Andy Warhol" has been a high-profile challenge to the use of copyrighted material in AI. But there are others. For example, in 2023, Getty Images and a group of artists sued Stability AI Inc., DeviantArt Inc., and Midjourney Inc. The litigation contends infringement of copyright. 

The IP legal business is always busy. Now it will be even more so. The SCOTUS ruling and the threat posed by other litigation leave the issues ambiguous. In "Warhol" the Justices focused on if the unauthorized copying was for commercial purposes in the context of fair use. In addition, there is the competitive context. For instance, does the new image compete with the original image in the same market? That puts to the test what generative AI pushes: The process is transformative. 

What the ruling made clear was that what will be examined will be, yes, the actual use. Not an abstraction. If that is commercial, that seems to be what the legal story will be about. If the material had been placed in a non-profit setting such as a museum that might have gotten a pass on fair use.

Obviously, the amazing capabilities of generative AI could be constrained by the law. Very quickly society has moved from the gee-whiz phase of a technology to how the legal system could circumscribe the applications. 

In my career coaching I am warning small businesses to factor in possible copyright infringement in how they use a version of generative AI for their graphic communications. 

What is your career story? Or, what do you assume it is? That narrative may be ot-of-date and holding you back.

Take advantage of a complimentary consultation. Please contact intuitive career coach Jane Genova at janegenova374@gmail.com or text 203-468-8579.

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