> I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???
Yeah, fascinating that a 43-view blog post would go all the way to the federal court like this. Surely the plaintiff often has people give up and pay because they fear the case? Otherwise the economics of chasing down copyright violations of this scale surely don't make sense.
Economics could make sense if they outsourced the enforcement and the enforcement company gets paid regardless of how prolific the usage is. Don't know if that is what happened in this case, but seems plausible.
Years ago, like around 2000, I had a personal blog where I mentioned a local TV celebrity talking about something. The post was about 90% the topic, but in referencing the guy himself, I said something like, "this guy's cool." The local celeb had a trademarked moniker "The Car Czar," and I used it in reference to him.
I swear, on a busy week I had about 5 people reading that blog and they were all coworkers. The next day, I had a 6th visitor from Los Angeles and got excited. Who was this mysterious visitor? I found out when I opened my email and saw a C&D from Universal's lawyers saying I was abusing the trademark.
I blogged the next day, "Wtf, Universal?" and a few days later, got an email from the local celeb apologizing for the overzealous legal team. He was indeed totally cool about it.
Essentially, the judge found that this qualifies as fair use because (a) publishing this with commentary is "transformative" even through "Defendants used the exact, unaltered [photo] in the blog post"; (b) "the blog post is not focused on the [photo]"; and (c) "there is no indication that [the use] impacted or has potential to impact the market or value of the Photo".
As an amateur photographer, this doesn't give me warm fuzzy feelings about posting anything I shoot online. By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
> By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
That is how copyright has worked since forever. This isn't something new. Copyright is primarily about protecting your ecconomic rights (and attribution rights. In some countries also the integrity of the work). Its not meant as a way for you to fully control what happens to your creative output.
This particular case does seem very borderline though, if you are selling (or potentially selling) your photos, them using it as an illustration without permission is something that would be commercially negative to you and speak against fair use. I wonder to what extent the judge wasn't thrilled to be bothered by something with so few views and as a result was more sympathetic to thd blogger. I'm somewhat doubtful this would go the same way if it wasn't about something so inconsequential.
Somehow we'll all have to endure a world where you don't post your amateur photos online because you are "troubled" that you might not be able to shake down a personal stylist for incidental use on their blog.
> Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
Obviously there are cases where it could be infringing, its going to depend how close the output is to the original.
I guess it depends on how you read the post, is it saying use gen-AI to intentionally recreate the photo, something that sounds danger-zone, or are they saying use gen-ai to make some other photo suitable for purpose?
Sometimes human writers sit down to write and accidentally end up verbatim reproducing an NYT paywalled article, too, and no one bats an eye, but AI does it and allll of a sudden we’re in court? Poppycock!
I'm largely out of this space now but my understanding is that some copyright cases around model training are winding through courts but I haven't seen anything definitive come out. The IP lawyers I know are skeptical but we'll see.
EU AI Act is moving towards genAI output being non-copyrightable and that you'd need to actually prove derivative character from a specific copyrighted work(s) to claim infringement.
AFAIK american law is going towards similar setup.
On one hand aggressively punitive copyright claims stifle creativity and innovation in transformative art. On the other hand, generative AI reopens that transformative creativity.
another day another reason why copyright should be for commercial use only (yes that means piracy will be legal). you can throw out entire categories of bad faith cases. art stealing companies still have to pay up and its easier to get what you deserve as an artist when the courts not filled with a backlog of useless low value claims.
That would be great. I'm a photographer outside of my day job, and commercial use is really the only thing I give a crap about. Use my photos by all means for whatever personal use or reasons you have, I (and I'm sure other copyright holders as well) really only care when someone is using the work in direct competition with my/their own business.
Personal/non-commercial use should be fair game for everything for everyone.
> there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog ... Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.
That’s a bit rich, isn’t it? Why did she not simply search the file name, nevermind reverse image searching the photo itself? Since when is ignorance an excuse - especially in a case like this, when claiming ignorance/negligence could easily cover for deliberate intent?
Do you search the name of the photographer every time you download a creative commons image? The vast majority of people simply do not care about copyright.
> I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???
Yeah, fascinating that a 43-view blog post would go all the way to the federal court like this. Surely the plaintiff often has people give up and pay because they fear the case? Otherwise the economics of chasing down copyright violations of this scale surely don't make sense.
It was a prior case that 44 views, not this one. But this one was similar in its low view counts.
Economics could make sense if they outsourced the enforcement and the enforcement company gets paid regardless of how prolific the usage is. Don't know if that is what happened in this case, but seems plausible.
Years ago, like around 2000, I had a personal blog where I mentioned a local TV celebrity talking about something. The post was about 90% the topic, but in referencing the guy himself, I said something like, "this guy's cool." The local celeb had a trademarked moniker "The Car Czar," and I used it in reference to him.
I swear, on a busy week I had about 5 people reading that blog and they were all coworkers. The next day, I had a 6th visitor from Los Angeles and got excited. Who was this mysterious visitor? I found out when I opened my email and saw a C&D from Universal's lawyers saying I was abusing the trademark.
I blogged the next day, "Wtf, Universal?" and a few days later, got an email from the local celeb apologizing for the overzealous legal team. He was indeed totally cool about it.
This seems... troubling to me.
Essentially, the judge found that this qualifies as fair use because (a) publishing this with commentary is "transformative" even through "Defendants used the exact, unaltered [photo] in the blog post"; (b) "the blog post is not focused on the [photo]"; and (c) "there is no indication that [the use] impacted or has potential to impact the market or value of the Photo".
As an amateur photographer, this doesn't give me warm fuzzy feelings about posting anything I shoot online. By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.
> By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.
That is how copyright has worked since forever. This isn't something new. Copyright is primarily about protecting your ecconomic rights (and attribution rights. In some countries also the integrity of the work). Its not meant as a way for you to fully control what happens to your creative output.
This particular case does seem very borderline though, if you are selling (or potentially selling) your photos, them using it as an illustration without permission is something that would be commercially negative to you and speak against fair use. I wonder to what extent the judge wasn't thrilled to be bothered by something with so few views and as a result was more sympathetic to thd blogger. I'm somewhat doubtful this would go the same way if it wasn't about something so inconsequential.
If a company stops publishing a book or piece of software, is it free to share because there's no longer an economic interest?
Well, it ought to be.
I'm okay with that. What troubles me is that there seem to be two sets of rules at play.
Somehow we'll all have to endure a world where you don't post your amateur photos online because you are "troubled" that you might not be able to shake down a personal stylist for incidental use on their blog.
Lots to comment on but this stood out:
> “A lawsuit like this heightens the demand for Generative AI replacements.”
Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
> Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.
Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.
Obviously there are cases where it could be infringing, its going to depend how close the output is to the original.
I guess it depends on how you read the post, is it saying use gen-AI to intentionally recreate the photo, something that sounds danger-zone, or are they saying use gen-ai to make some other photo suitable for purpose?
Sometimes human writers sit down to write and accidentally end up verbatim reproducing an NYT paywalled article, too, and no one bats an eye, but AI does it and allll of a sudden we’re in court? Poppycock!
I'm largely out of this space now but my understanding is that some copyright cases around model training are winding through courts but I haven't seen anything definitive come out. The IP lawyers I know are skeptical but we'll see.
EU AI Act is moving towards genAI output being non-copyrightable and that you'd need to actually prove derivative character from a specific copyrighted work(s) to claim infringement.
AFAIK american law is going towards similar setup.
There is plenty of precedent being written here. It does not seem to be the case at all for the average use of this technology.
https://www.congress.gov/crs-product/LSB10922
Ye olde double edged sword
On one hand aggressively punitive copyright claims stifle creativity and innovation in transformative art. On the other hand, generative AI reopens that transformative creativity.
Reminder that the original copyright term was 14 years, with a single 14-year extension.
If this were still the norm, it would feel crazy that blockbuster movie studios are still recycling comic book characters from the 1950s.
Even if the specific image being infringed were not in the corpus, it's possible that a court would return a judgment of copyright infringement.
Consider the case where someone deliberately prompts the AI to build a facsimile image and the AI does a creditable job after some tweaking.
same goes for anything you output :)
Except everyone who has tried to argue that in court has lost.
Has this been argued? I'd love to read some actual court decisions.
Here are some cases (mined from Wikipedia sources):
Tremblay v. OpenAI, Inc., No. 3:23-cv-03223 (N.D. Cal.) (https://dockets.justia.com/docket/california/candce/3:2023cv...)
Andersen v. Stability AI Ltd., No. 3:23-cv-00201 (N.D. Cal.) (https://law.justia.com/cases/federal/district-courts/califor...)
Authors Guild v. OpenAI, Inc., No. 1:23-cv-08292 (S.D.N.Y.) (https://law.justia.com/cases/federal/district-courts/new-yor...)
Getty Images (US), Inc. v. Stability AI, Inc., No. 1:23-cv-00135 (D. Del.) (https://dockets.justia.com/docket/delaware/dedce/1:2023cv001...)
The New York Times Co. v. Microsoft Corp., No. 1:23-cv-11195 (S.D.N.Y.) (https://law.justia.com/cases/federal/district-courts/new-yor...)
Richard Kadrey et al. v. Meta (https://www.documentcloud.org/documents/25984135-richard-kad...)
Bartz v. Anthropic (https://www.documentcloud.org/documents/25982181-authors-v-a...)
---
Further reading:
"Generative AI Systems Tee Up Fair Use Fight" (Feb 2024) https://natlawreview.com/article/generative-ai-systems-tee-f...
"Meta’s AI copyright win comes with a warning about fair use
The federal judge who ruled in Meta’s favor still isn’t convinced its use of copyrighted materials for AI training qualifies as fair use." (Jan 2025) https://www.theverge.com/news/693437/meta-ai-copyright-win-f...
"Anthropic wins a major fair use victory for AI — but it’s still in trouble for stealing books
Judge William Alsup determined that Anthropic training its AI models on purchased copies of books is fair use." (Jun 2025) https://www.theverge.com/news/692015/anthropic-wins-a-major-...
"Copyright Office Weighs in on AI and Fair Use Amid Major Leadership Shakeup" (May 2025) https://ipwatchdog.com/2025/05/12/copyright-office-weighs-ai...
Image in question: https://static-assets.artlogic.net/w_1600,h_1600,c_limit,f_a...
Hell of a photo, it almost looks like an oil painting!
another day another reason why copyright should be for commercial use only (yes that means piracy will be legal). you can throw out entire categories of bad faith cases. art stealing companies still have to pay up and its easier to get what you deserve as an artist when the courts not filled with a backlog of useless low value claims.
That would be great. I'm a photographer outside of my day job, and commercial use is really the only thing I give a crap about. Use my photos by all means for whatever personal use or reasons you have, I (and I'm sure other copyright holders as well) really only care when someone is using the work in direct competition with my/their own business.
Personal/non-commercial use should be fair game for everything for everyone.
This blog had a commercial purpose, according to the article.
> there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog ... Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.
That’s a bit rich, isn’t it? Why did she not simply search the file name, nevermind reverse image searching the photo itself? Since when is ignorance an excuse - especially in a case like this, when claiming ignorance/negligence could easily cover for deliberate intent?
> Since when is ignorance an excuse
Since 1998. This is a claim under 17 USC 1202, created by the DMCA, which explicitly says requires intent.
Do you search the name of the photographer every time you download a creative commons image? The vast majority of people simply do not care about copyright.