Following the recent rise of AI-generated images, artists have been calling for the regulation of these artificial intelligence programs. Programs like Midjourney and Dall-E 2 use AI to produce images based on user-inputted prompts. Some artists claim these AI programs are stealing from them by scraping information from their art and using it to learn to create other images. Images are often taken without consent or attribution to the original artist and can be used by AI to make images similar in style to that of existing artists. Artists concerned with this theft may have just the case they are looking for, but there will be unintended consequences from such a large ruling.

The Supreme Court case Andy Warhol Foundation v. Goldsmith is important in determining whether AI-generated images are violating copyright infringement laws. This ongoing case does not directly deal with AI-generated art but will be the basis for cases going forward. The case seeks to determine whether art pieces created by Warhol, based on photos taken by Lynn Goldsmith depicting the musician Prince, are altered enough to not fall under copyright infringement. At the federal appeals level, Goldsmith convinced the court that Warhol’s art counted as infringement because it was derivative of her own photography. 

If the Supreme Court sides with Goldsmith, then artists like Warhol could be open to lawsuits as well as those who publish AI-generated images based on another artist’s style. Warhol was an artist whose name became synonymous with the pop-art movement of the 1960s. His screen print of Marilyn Monroe entitled “Marilyn” and his many prints of Campbell’s Soup Cans are some of his more famous works. Warhol’s art should not fall under copyright infringement, as it still has artistic merit. Warhol’s art is displayed in The Museum of Modern Art, Tate, The Metropolitan Museum of Art and The Broad. To say that his work — which is displayed in so many museums — is not his own would be ridiculous. The work and its significance to art history go beyond being simply derivative of Goldsmith’s photography.

This kind of large, blanket-style case is troubling to artists like Tim Guthrie, an Omaha-based visual artist, filmmaker and professor at Creighton University. More than theft, Guthrie worries about the Andy Warhols of the world. 

“The scary part is it’s not AI or Midjourney that’s going to suffer from these [court decisions],” Guthrie said. “It’s probably the modern Warhols and people like that, that are trying to do things that now suddenly are being told they’ve stolen something because they took references from Google or whatever.”

Guthrie believes the Supreme Court is likely to favor corporations in future cases, putting the responsibility of copyright infringement on the shoulders of AI users and not the companies themselves. 

“What happens when the Supreme Court changes things based on what’s happening?” Guthrie said. “And it’s not Midjourney that’s going to be footing the bills for this. It’s the rest of us who suddenly now have our creativity curtailed because copyright laws were changed in weird ways to protect the ‘Midjourneys’ and not everybody else.”

Regulating something like AI art is going to be difficult. Passing down large, all-encompassing decisions during this time will harm artists in the long run. Cases like Goldsmith’s are not a win for artists across the board but instead could simply be a guise to protect companies.

Edited by Molly Gibbs | mgibbs@themaneater.com

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