Retrofitting Fair Use: Art & Generative AI After Warhol

Abstract

The fair use doctrine has been tech companies’ most valuable legal justification for systematically extracting and scraping content from the internet to train their generative artificial intelligence tools. Although fair use has historically protected the public from the monopolization of creative expression and intellectual property, in its current state, the doctrine enables powerful tech companies and movie studios alike to hoard copyrighted content while disenfranchising individual artists and creators. In May 2023, the United States Supreme Court ruled on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a dispute about whether Andy Warhol’s use of Lynn Goldsmith’s original photo of Prince is a fair use. The Court concluded that a copy is not transformative under fair use when it is used commercially for a substantially similar purpose as the original. The decision affirms that the fair use inquiry must look beyond mere similarities and differences between a copy and the original. Instead, courts must grapple with how a copy is used.

This Article examines the Supreme Court’s reinterpretation of the fair use doctrine in the Warhol decision in the context of creative expression and generative AI. More specifically, the majority’s emphasis on purpose and market competition tips the scale in favor of artists and creators concerned about generative AI models trained on copyrighted work. This Article also argues that the fair use analysis in Warhol recontextualizes Authors Guild v. Google, weakening a defense tech companies have relied on for ingesting copyrighted material to train AI models. Lastly, this Article considers the entertainment industry’s response to generative AI, including the WGA and SAG-AFTRA strikes, and proposes changes to the fair use doctrine to avoid a bleak future for art and creative expression.

Ultimately, the Warhol ruling introduces some refreshing complexity back to the issue of fair use, particularly in context of generative AI and AI image generators. Still, many legal and existential questions remain. For instance, given the potential of AI to relieve society of dangerous and unfulfilling labor, why have tech companies opted to devalue labor that is abundant, meaningful, and undervalued?

Keywords: art, artificial intelligence, ai, generative ai, andy warhol, lynn goldsmith, photography, fair use, intellectual property, copyright, technology, entertainment, media, machine learning, supreme court, scotus, circuit court, district court, intellectual property

JEL Classification: K11, K30, L82, O32, O33, O34