Derivative or Not? IP Attorneys Weigh In on Major AI Art Copyright Class Action

Director Ivy Clarice Estoesta was quoted in the article “Derivative or Not? IP Attorneys Weigh In on Major AI Art Copyright Class Action,” published by Legaltech News. She provided the below commentary on the motions to dismiss granted in the copyright class action litigation filed against Stability AI, DeviantArt and Midjourney.

“Ivy Estoesta, director in Sterne Kessler Goldstein & Fox’s trademark and brand protection practice: There Was a Better Argument to Be Made By the Plaintiffs

‘I think the [motion to dismiss] will have a substantial impact on the case, because it’s the basis of the complaint that the outputted images are infringing derivative works, and the complaint itself is saying the outputted images are not substantially similar, so quite the contradictory position.

But the better argument—and I have the benefit of hindsight—I think would have been to allege that the intermediary images that were created were derivative images. Because the way this technology works is they use training images, and in order to train the AI to learn, they add things to that training image. So the underlying image still has portions of what was the original. But then again, the question is going to turn on whether or not the the modified images that are used to train are derivatives. And there is just no side-by-side comparison of what types of images are actually training images and how Stability AI has modified them in order to train the AI.'”