A California federal judge has largely sided with Stability AI, DeviantArt, and Midjourney in the latest round of an AI-centric lawsuit waged against them by a trio of artists. In an order on Monday, Judge William Orrick of the U.S. District Court for the Northern District of California dismissed Sarah Andersen, Kelly McKernan, and Karla Ortiz’s direct copyright infringement claims against two of the defendants, keeping only Andersen’s copyright claim against Stability AI in place. At the same time, the court dismissed the entirety of their vicarious copyright infringement, Digital Millennium Copyright Act, right of publicity, California unfair competition law, and breach of contract claims.
Not without recourse, Judge Orrick granted the visual-artist-plaintiffs leave to amend their complaint in order to “provide clarity regarding their theories of how each defendant separately violated their copyrights, removed or altered their copyright management information, or violated their rights of publicity and plausible facts in support.”
Some Background: Stability AI was named in a copyright infringement, unfair competition, and right of publicity lawsuit in January 2023, along with fellow defendants DeviantArt and Midjourney. In furtherance of the lawsuit, Andersen, McKernan, and Ortiz accuse Stability AI and co. of engaging in “blatant and enormous infringement” by using their artworks – without authorization – to enable AI-image generators, including Stable Diffusion, to create what are being characterized as “new” images but what are really “infringing derivative works.” They also claim that the defendants are running afoul of their right of publicity by “using [their] names and advertis[ing] the AI’s ability to copy or generate work in the artistic style that [they] popularized in order to sell [the AI] products and services.”
The defendants have pushed back against the headline-making lawsuit, with Stability AI arguing this spring, for instance, that while Stable Diffusion was “trained on billions of images that were publicly available on the Internet … training a model does not mean copying or memorizing images for later distribution. Indeed, Stable Diffusion does not ‘store’ any images.” Meanwhile, in a filing of its own in April, text-to-image generator DeviantArt urged the court to toss out the claims against it and to strike the right of publicity claims, as they “largely concern the potential for DreamUp to create art,” which falls neatly within the bounds of free speech. As such, the Los Angeles-based online art (and AI) platform argued that the plaintiffs’ claims should be barred by California’s anti-SLAPP statute.
Motions to Dismiss
Finding the complaint to be “defective in numerous respects,” Judge Orrick granted the bulk of the defendants’ motions to dismiss and held off on deciding DeviantArt’s special motion to strike until the plaintiffs have amended their complaint and “clarified their theories of liability for the right to publicity claims.” At a high level, Judge Orrick held the following …
Direct Copyright Infringement: Each defendant argues that McKernan and Ortiz’s copyright claims must be dismissed because neither of them has registered their images with the Copyright Office, which is a prerequisite to waging a copyright infringement action. They also move to “limit” Andersen’s copyright claim to infringement based only on the sixteen collections of works that she has registered with the Copyright Office. At oral argument, the plaintiffs’ counsel clarified that they are not asserting copyright claims on behalf of McKernan and Ortiz, and as such, the court dismissed their Copyright Act claims with prejudice.
In terms of the Andersen’s copyright infringement cause of action, the court held that the plaintiffs do not dispute that the scope of her Copyright Act claims are limited to the collections that she has registered. Delving into their primary theory of direct copyright infringement, the court stated that the plaintiffs’ focus on Stability’s creation and use of “Training Images” that it scraped from the internet into the LAION datasets and then used to train Stable Diffusion. Here, the court found that the plaintiffs “have adequately alleged direct infringement based on the allegations that Stability ‘downloaded or otherwise acquired copies of billions of copyrighted images without permission to create Stable Diffusion,’ and used those images to train Stable Diffusion and caused those ‘images to be stored at and incorporated into Stable Diffusion as compressed copies.’”
As such, the court denied Stability AI’s motion to dismiss Andersen’s direct copyright infringement claim.
The court granted DeviantArt and Midjourney’s motion to dismiss the plaintiffs’ direct copyright infringement claims against them, finding that, among other things, the plaintiffs fail to allege “specific plausible facts that DeviantArt played any affirmative role in the scraping and using of Andersen’s and other’s registered works to create the Training Images,” and fail to present any facts regarding “what training, if any, Midjourney conducted for its Midjourney product.”
Vicarious Copyright Infringement: The court swiftly did away with the vicarious liability claims waged against DeviantArt or Midjourney on the basis that the plaintiffs have not alleged claims of direct infringement. (The existence of direct infringement is required to establish a claim of vicarious infringement.) Turning to Stability AI, Judge Orrick determined that the plaintiffs “adequately alleged direct infringement against Stability AI given their allegations regarding Stability’s involvement in the scraping, copying, and use of Training Images to train Stable Diffusion.” However, he still dismissed the claim against Stability AI, finding that the plaintiffs need to “clarify their theory and add plausible facts regarding ‘compressed copies’ in Stable Diffusion and how those copies are present (in a manner that violates the rights protected by the Copyright Act) in or invoked by [Stability AI’s] DreamStudio, [DeviantArt’s] DreamUp, and Midjourney products offered to third parties.”
Digital Millennium Copyright Act: The court dismissed the DMCA claims against all three defendants given that the plaintiffs failed to “identify the particular types of [copyright management information] from their works that they believe were removed or altered.” Specifically, the judge dismissed the DMCA claims against DeviantArt and Midjourney, which are in a “stronger position [than Stability AI] because there are no allegations that either of them was involved with LAION or directly with the training of Stable Diffusion where, presumably, the removal or alteration of the copyright management information occurred.”
Right of Publicity Claims: According to Judge Orrick, the plaintiffs allege “two species of right of publicity claims.” In support of their statutory claim (under Cal. Civ. Code § 3344), they assert that the defendants “knowingly” used their names in connection with the AI products (by allowing users to request art in the style of their names) and that their names are uniquely associated with their art and distinctive artistic styles. In support of their common law claim, they allege that defendants are violating their rights in their “artistic identities” – not just their rights in their works – because the AI products allow users to request output Images “in the style” of the plaintiffs’ artistic identities.
On both fronts, Judge Orrick stated that “the problem for plaintiffs is that nowhere in the complaint have they provided any facts specific to the three named plaintiffs to plausibly allege that any defendant has used [any of their] name[s] to advertise, sell, or solicit purchase of DreamStudio, DreamUp or the Midjourney product.” Nor are there “any allegations regarding how use of the plaintiffs’ names in the products’ text prompts would produce an ‘AI-generated image similar enough that people familiar with the plaintiffs’ artistic style could believe that the plaintiffs created the image,’ and result in plausible harm to their goodwill associated with their names, in light of the arguably contradictory allegation that none of the Output Images are likely to be a ‘close match’ for any of the Training Images.”
As such, the court dismissed the entirety of the plaintiffs’ right of publicity claims with leave to amend.
Unfair Competition Claims: The court dismissed the plaintiffs’ unfair competition claims, noting, among other things, that they “cannot tie the unlawful prong [of their unfair competition] claim to purported copyright violations [as] those claims are preempted by the Copyright Act.”
Breach of Contract: Finally, the plaintiffs separately allege a breach of contract claim against DeviantArt based on the agreement of McKernan and unspecified “others” to DeviantArt’s website Terms of Service. The court sided with the DeviantArt here, finding that the plaintiffs failed to “identify the exact provisions in the TOS they contend DeviantArt breached and facts in support of breach of each identified provision.”
The Bottom Line
While Judge Orrick dismissed the bulk of the plaintiffs’ claims, including all of the claims that they have made against DeviantArt and Midjourney, he kept what is likely the most critical claim in play: Andersen’s direct copyright infringement claim against Stability AI. In doing so, the court has enabled Andersen to continue pursuing her key claim – which is that Stability AI made unauthorized use of her artwork as part of the “Training Imagery” that was “scraped from the internet, [put] into the LAION datasets, and used to train Stable Diffusion,” thereby, infringing her copyrights – without any need for amendment.
Put another way (by Judge Orrick), the question at the heart of Andersen’s claim is “whether copying in violation of the Copyright Act occurred in the context of training Stable Diffusion or occurs when Stable Diffusion is run.”
Looking beyond the specifics of Andersen’s direct copyright infringement claim against Stability AI, Judge Orrick’s overall decision is also notable in that it provides some early insight into how courts may treat claims in the growing number of cases being waged over generative AI platforms – no shortage of which include copyright infringement causes of action. And as Seyfarth Shaw’s Lauren Gregory Leipold and Owen Wolfe stated in a note this summer on the heels of Judge Orrick’s tentative decision in July, his decision will likely “provide both plaintiffs and defendants with a roadmap for how to allege or defeat AI-related copyright infringement claims going forward.”
The case is Sarah Andersen, et al., v. Stability AI LTD., et al., 3:23-cv-00201 (N.D. Cal.).
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