Judge Dismisses Most Of The First Of The Many ‘How Dare AI Train On My Material’ Lawsuits

There are now a bunch of these lawsuits accusing AI companies of some sort of copyright infringement for training their models on works of plaintiffs. However, the first high profile one was the case brought by Sarah Andersen, Kelly McKernan, and Karla Ortiz against Stability AI, MidJourney, and (bizarrely) DeviantArt. We covered the case back in April when the companies moved to have the case dismissed.

As we noted at the time, somewhat incredibly, the artists hadn't even registered the copyright in their their works before suing, which is the kind of error that dooms cases. It's also embarrassing for their lawyers, Joseph Saveri and Matthew Butterick, who have been behind a bunch of these lawsuits, and present themselves as knowledgeable lawyers, yet couldn't even think to make sure the works they sued over were registered? (For the non-copyright experts among you, you don't need to register your works to have a copyright, but you do need to register them if you intend to sue).

Now the judge, William Orrick, had mostly dismissed the case, as we expected after the oral arguments made it pretty clear how weak this case was.

The first issue was the lack of registrations:

Each defendant argues that McKernan and Ortiz's copyright claims must be dismissed because neither of them has registered their images with the Copyright Office. They also move to limit" Anderson's copyright claim to infringement based only on the 16 collections of works that she has registered....

In opposition, plaintiffs do not address, much less contest, McKernan or Ortiz's asserted inability to pursue Copyright Act claims. At oral argument, plaintiffs' counsel clarified that they are not asserting copyright claims on behalf of these two plaintiffs. July 19, 2023 Transcript (Tr.), pg. 17:1-5. As such, McKernan and Ortiz's copyright act claims are DISMISSED WITH PREJUDICE.

Likewise, plaintiffs do not address or dispute that Anderson's copyright claims should be limited to the collections Anderson has registered. The scope of Anderson's Copyright Act claims are limited to the collections which she has registered.

Even in the limited case of Andersen, who had registered some works, the defendant companies pointed out that no actual arguments were made regarding which actual works the AI systems were trained on, but the judge says that part can at least move forward with discovery.

As we had noted earlier, the inclusion of DeviantArt never quite made any sense at all in this lawsuit, and again seemed to show that Saveri and Butterick had no clue what they were doing. DeviantArt did not create an AI system, but instead, the argument was that Stability's AI was trained on DeviantArt works. As the court notes, that doesn't make DeviantArt liable for any direct infringement:

Plaintiffs fail to allege specific plausible facts that DeviantArt played any affirmative role in the scraping and using of Anderson's and other's registered works to create the Training Images. The Complaint, instead, admits that the scraping and creation of Training Images was done by LAION at the direction of Stability and that Stability used the Training Images to train Stable Diffusion.... What DeviantArt is specifically alleged to have done is be a primary source" for the LAION-Aesthetic dataset" created to train Stable Diffusion.... That, however, does not support a claim of direct copyright infringement by DeviantArt itself.

The court does allow the plaintiffs to amend their complaint to argue that compressed images" of the infringing works are somehow included in the AI training database, but seems skeptical.

There was another theory presented that because users of DeviantArt can use the DreamUp tool that is based on Stability that it is creating infringing works, but that's not how any of this works. DeviantArt notes that no matter what prompt you put into the system, you're not going to get substantially similar" works out of the system, and they need to be substantially similar to infringe.

The plaintiffs argue that you don't need substantial similarity because the new works are inherently derivative of the works it was trained on, but the court says that's wrong:

Plaintiffs rely on that line of cases and point to their allegation that all elements of plaintiff Anderson's copyrighted works (and the copyrighted works of all others in the purported class) were copied wholesale as Training Images and therefore the Output Images are necessarily derivative....

A problem for plaintiffs is that unlike in Range Road - observed wholesale copying and performing - the theory regarding compressed copies and DeviantArt's copying need to be clarified and adequately supported by plausible facts. See supra. The other problem for plaintiffs is that it is simply not plausible that every Training Image used to train Stable Diffusion was copyrighted (as opposed to copyrightable), or that all DeviantArt users' Output Images rely upon (theoretically) copyrighted Training Images, and therefore all Output images are derivative 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 a derivative theory can survive absent substantial similarity" type allegations. The cases plaintiffs rely on appear to recognize that the alleged infringer's derivative work must still bear some similarity to the original work or contain the protected elements of the original work. See, e.g., Jarvis v. K2 Inc., 486 F.3d 526, 532 (9th Cir. 2007) (finding works were derivative where plaintiff delivered the images to K2 in one form, and they were subsequently used in the collage ads in a quite different (though still recognizable) form. The ads did not simply compile or collect Jarvis' images but rather altered them in various ways and fused them with other images and artistic elements into new works that were based on- i.e., derivative of-Jarvis' original images.") (emphasis added); ITC Textile Ltd. v. Wal-Mart Stores Inc., No. CV122650JFWAJWX, 2015 WL 12712311, at *5 (C.D. Cal. Dec. 16, 2015) (Accordingly, even if Defendants did modify them slightly, such modifications are not sufficient to avoid infringement in a direct copying case. . . . Thus, the law is clear that in cases of direct copying, the fact that the final result of defendant's work differs from plaintiff's work is not exonerating.") (emphasis added); see also Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (a work is not derivative unless it has been substantially copied from the prior work"); Authors Guild v. Google, Inc., 804 F.3d 202, 225 (2d Cir. 2015) (derivative works over which the author of the original enjoys exclusive rights ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content").

Then there's MidJourney. The complaint argues that MidJourney uses Stable Diffusion, but MidJourney hasn't actually said that anywhere, so the judge asks for clarification:

Plaintiffs need to clarify their theory against Midjourney-is it based on Midjourney's use of Stable Diffusion, on Midjourney's own independent use of Training Images to train the Midjourney product, or both?

The vicarious infringement claims are all dismissed as well, with leave to amend, specifically regarding the claims that Stable Diffusion supposedly has compressed copies" of the images it was trained on:

Plaintiffs have been given leave to amend to clarify their theory and add plausible facts regarding compressed copies" in Stable Diffusion and how those copies are present (in a manner that violates the rights protected by the Copyright Act) in or invoked by the DreamStudio, DreamUp, and Midjourney products offered to third parties. That same clarity and plausible allegations must be offered to potentially hold Stability vicariously liable for the use of its product, DreamStudio, by third parties.

There's also a claim over DMCA 1202(b), alleging that the defendants removed copyright information from the images, but as the defendants note, there are no allegations of any actual removal.

In response, plaintiffs point to paragraphs180 and 191 of their Complaint, where they allege generally that plaintiffs and others" in the putative class included various categories of CMI in their works and the removal or alteration" of that CMI by defendants, including the creator's name" and the form of artist's signatures." These allegations are wholly conclusory. In order to state this claim, each plaintiff must identify the exact type of CMI included in their online works that were online and that they have a good faith belief were scraped into the LAION datasets or other datasets used to train Stable Diffusion. At the hearing, plaintiffs argued that it is key for the development of generative AI models to capture not only images but any accompanying text because that accompanying text is necessary to the models' ability to train" on key words associated with those images. Tr. at 9:13-24. But there is nothing in the Complaint about text CMI present in the images the named plaintiffs included with their online images that they contend was stripped or altered in violation of the DMCA during the training of Stable Diffusion or the use of the end-products. Plaintiffs must, on amendment, identify the particular types of their CMI from their works that they believe were removed or altered.

The publicity rights claims also go nowhere:

The problem for plaintiffs is that nowhere in the Complaint have they provided any facts specific to the three named plaintiffs to plausibly allege that any defendant has used a named plaintiff's name to advertise, sell, or solicit purchase of DreamStudio, DreamUp or the Midjourney product. Nor are there any allegations regarding how use of these plaintiffs' names in the products' text prompts would produce an AI-generated image similar enough that people familiar with Plaintiffs' artistic style could believe that Plaintiffs created the image," and result in plausible harm to their goodwill associated with their names, in light of the arguably contradictory allegation that none of the Output Images are likely to be a close match" for any of the Training Images... Plaintiffs need to clarify their right of publicity theories as well as allege plausible facts in support regarding each defendants' use of each plaintiffs' name in connection with advertising specifically and any other commercial interests of defendants.

There were also unfair competition claims, but those are pre-empted by the Copyright Act (basically, the UCL claims are really an attempt to argue infringement under a different law, and you can't do that).

DeviantArt also brought an anti-SLAPP motion, which the judge says he'll take up after the plaintiffs present an amended version.

So, the end result is that only the claim by Andersen (misspelled as Anderson throughout the ruling) of direct infringement against Stability AI can move forward for its apparent collection of images for its training database. Even that may still end up on the losing end after discovery. But this at least allows for discovery to happen first. Basically all the other claims are dismissed, though the plaintiffs can still amend those, but they're going to have to overcome some pretty massive inherent weaknesses.

The lawyers for the plaintiffs are claiming victory because of the one claim being allowed to go to discovery, but this is a pretty embarrassing outcome for them overall.