Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues

December 28, 2022Media Mention
Bloomberg Law

Aaron Moss, Litigation Department Chair and author of Copyright Lately, shared his insights with Bloomberg Law on some of the most important copyright issues heading into 2023. Among the topics he discussed were the application of copyright to generative artificial intelligence, an impending ruling from the U.S. Supreme Court involving fair use in artistic works in the case of The Andy Warhol Foundation v. Goldsmith, as well as the legality of embedding and continued applicability of the the "server test."


On whether training an AI programs using copyrighted art falls under the fair use defense:

“It’s an interesting question because the pictures are not really, strictly speaking, being scanned and scraped for their expressive content, but rather for their data."

On how the Supreme Court may decide Warhol:

The question presented to the high court by the foundation focused only on transformativeness, which falls under the first of four statutory fair use factors. But Moss noted that during oral argument in October the justices “did not seem to feel at all constrained by the question presented.”

On the developing split between federal courts in California and New York concerning the legality of embedding:

Moss said the conflicting rulings across the country make “it very difficult for anyone engaged in publishing.”