Warhol, Copyright & Fair Use for AI
In 2017, the Andy Warhol Foundation launched a preemptive lawsuit against photographer Lynn Goldsmith, who captured photos of the late musician Prince in 1981 for Newsweek. Warhol was later commissioned by Vanity Fair in 1984 to produce a pop art recreation of one of the images, after licensing it for $400. However, Warhol continued to use the image for his portfolio, taking his own spin on the original photo (see above). In response to being sued for her own copyrighted photograph, Goldsmith filed a countersuit and she lost.
New York State District Judge John G. Koetl, ruled in favor of the Andy Warhol Foundation. Koetl argued that though Warhol used Goldsmith’s photograph as a reference image, he “removed nearly all the photograph’s protectible [sic] elements.” Thus, Warhol did not violate the photograph’s copyright. Koetl states,
The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure….The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.
As a general rule, if you use a copyrighted work without the copyright owner’s permission, you will be liable for copyright infringement. “Fair use” is a limited exception to this rule for certain kinds of use. The most well known examples of fair use are parody and news reporting, but many other types of use could qualify. The copyright statute sets forth four factors for courts to consider in determining whether a particular unauthorized use qualifies as fair use:
- The purpose and character of the use, including whether you’ve made a new transformative work, and whether your use is commercial.
- The nature of the original work, such as whether it is more factual than fictional.
- How much of the original work was used.
- Whether the new use affects the potential market for the original work.
So far machine or AI-generated work cannot be copywrighted. However, AI-assisted work is still in a gray area. This means, when I use an AI-generated image as a reference image for an artwork it should be copyright-able, right? Well, time will tell. In the image above, I used /describe in Midjourney to generate four text-based prompts (see below). Then, I added text of my own to the #2 prompt to create these thumbnails:
At this point I can “upscale” one or more of these thumbnails, I can run the prompt again, or I can upscale and make variations of (remix) the upscaled image. In the following example, I remixed one of the upscaled images to create four more thumbnails:
Next, I upscaled again, then blended that image with another of my pre-existing AI-assisted images to create these thumbnails:
The final image looks nothing like the original photo, where I started. This image (see below) and it is new and transformative, which should (I argue) fall under Fair Use. On top of that, I used the upscale image in Deep Dream Generator (image style transfer) to create this image:
When we return to Warhol’s Prince series of works we can see how AI takes the process to another level and, for me, this opens up many more doors and possibilities for digital imaging, as well as deeper collaborations between humans and machines.