Getty Images, a global visual content creator and leading source for visual content, has filed a lawsuit against startup technology company Stability AI for allegedly scraping more than 12 million photographs from Getty Images’ portfolio without consent or compensation. According to Getty Images, Stability copied Getty’s photographs with associated text and metadata to train its Stable Diffusion model, which uses AI to generate computer-synthesized images in response to text prompts. Getty Images alleges that Stability’s actions constitute copyright infringement, false copyright management information, removal or alteration of copyright management information, trademark infringement, unfair competition, trademark dilution, and deceptive trade practices under Delaware law.

Getty Images generates revenue by licensing the right to use its assets to businesses and consumers. Stability AI is a startup technology company that created an image-generating platform called Stable Diffusion that relies on various images to generate a synthesized version of the user’s requested image. To use an example from the Complaint, you could ask Stable Diffusion to generate an image of a cat wearing a scarf, and in response, Stable Diffusion would generate an image of a cat wearing a scarf based on images that have been provided to the AI platform to teach the platform what a cat is and what a scarf is. The resultant image will not be a real image, but instead, it will be a computer-synthesized image that utilizes the assets that the owner of the platform uploaded to teach the platform. The extent to which the resultant image borrows from the original assets varies from one image to another.

Getty Images claims that its assets are highly desirable for use in connection with AI and machine learning, and it has licensed millions of digital assets to technology innovators for various purposes. However, Stability AI allegedly did not attempt to negotiate a license with Getty Images for the content but instead copied the images without Getty’s consent. According to Getty, this is clear copyright infringement.

But according to a variety of AI technology companies, the practice of using copyrighted materials to train an artificial intelligence platform constitutes fair use under United States copyright law. However, the fair use doctrine is a multi-factor analysis that takes several items into consideration when determining whether a use was fair. Two of the most significant factors are the purpose or nature of the use and whether the allegedly fair use has an effect on the market for the protected work. It remains to be seen how the courts will apply the fair use doctrine in the context of AI technology, but it may be the case that using copyright-protected works to train a platform constitutes fair use, while using it to generate new content may not. I believe that the courts will need to analyze these issues on a case-by-case basis to balance the interests of the intellectual property owners and those engaged in expressive speech protected by the First Amendment.

For example, if millions of photos were provided to an image-generating platform, and it generated a novel image, it seems unlikely that that would constitute copyright infringement. On the other hand, if the platform only had a small sample of photos to work with, and if perhaps those photos were from the same creator, the resultant product may constitute infringement because it would likely be very similar to the source material. This is a complex issue dealing with sophisticated technology. This isn’t an issue that can be decided through one case.

With that said, it is likely that at least some of the issues in this context will be affected by the Andy Warhol Foundation for the Visual Arts v. Goldsmith case that is currently before the Supreme Court. In that case, the Court will seek to provide clarity on the scope of the fair use doctrine and how different a work must be from the original protected work to be considered transformative and, therefore, not infringing. The decision will have far-reaching implications for creators, as well as some AI technology companies.