Ryn Forquer Blogpost #2: Is AI Art Stealing from Artists?

As AI becomes more advanced, something we have seen more and more controversy around is AI-generated art. AI-generated art raises many questions, such as, what is art? What makes someone an artist? Does using technology in your art make it less “artful”? But besides the philosophical questions it raises, we are now beginning to see the questions it raises around copyright. The New Yorker's article, "Is AI Art Stealing from Artists?" showcases that artists worldwide are raising complaints as they see AI create art eerily similar to theirs. The article mentions explicitly artist Kelly McKernan, who is participating in a class-action lawsuit against specific A.I. generators, including Midjourney, Stable Diffusionm, and DreamUp. The central claims of this lawsuit center around the database that informs these generators, which is called Laion-5B. Laion-5B, simply put, is a database full of billions of images, which AI generators can pull from to generate new photos/pieces of art. The issue is that many artists’ copyrighted works are in this database without the artists’ consent. In addition to that, there are two other main issues outlined in the lawsuit. The second issue is that although many AI tools charge users for their services, no artists are compensated for the works used in the Laion-5B database. Thirdly, many artists take issue with the fact that though their works are included in the Laion-5B database and inform the generation of AI art, they are not being credited for their contribution to the piece– though without their work, the pieces generated by AI would change.


Fig. 1, McKernan, Kelly. Empathetic, Watercolor and Acrylic, 2018, https://www.kellymckernan.com/shop/empathic. 


Fig. 2, image generated by Midjourney. Image in the style of Kelly McKernan 3. December 11, 2022. https://thaeyne.com/2022/12/11/image-in-the-style-of-kelly-mckernan-3/ 


Regardless of how reasonable these claims may sound, the unfortunate reality is that America’s current copyright laws don’t have the nuance to rule on AI art and use existing, copyrighted artwork in AI tools. Copyright laws have exceptions, fair use, which allow people to borrow from an existing, copyrighted work for the purpose of criticism, comment, or transformation. Fair use can be argued in the case of parodies or when only a portion of a copyrighted work is used as a part of a more significant, original piece. Fair use is a complex and context-specific law, but it has protected artists’ ability to repurpose works from other artists throughout art history. However, there are still many nuances that even well-known artists are not immune to. This past May, the Supreme Court ruled that Andy Warhol violated photographer Lynn Goldsmith’s copyright by creating a set of silk screens of musician Prince heavily inspired by a portrait Goldsmith took of Prince. One of the Justices who ruled against Warhol stated, “If an original work and a secondary use share the same or highly similar purposes, it is unlikely that fair use applies.” (Vogue)

So, even in cases of human-made art, the issues of copyright and fair use are nuanced, convoluted, and highly situational. The confusion is only compounded by the rapid rise of AI and the fact that it often takes years for federal law to catch up to technology. 

Overall, the issue of AI artwork raises questions about the nature of art– what makes art art? What makes an artist an artist? Does the process matter more than the result when defining art? How much creative self-sufficiency must an artist have to maintain creative integrity? These questions are already prominent in the art world today, and they will only get louder as AI becomes more advanced.





Works Cited:

Chayka, Kyle. “Is A.I. Art Stealing from Artists?” The New Yorker, February 10, 2023. https://www.newyorker.com/culture/infinite-scroll/is-ai-art-stealing-from-artists.

Vogue, Ariane de. “Supreme Court Rules against Andy Warhol in Copyright Dispute over Prince Portrait | CNN Politics.” CNN, May 18, 2023. https://www.cnn.com/2023/05/18/politics/supreme-court-prince-andy-warhol/index.html.

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