SYLVIE DOUGLIS, BYLINE: NPR.
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DARIAN WOODS, HOST:
You might remember last summer, when it seemed like everybody was making these strange images from something called DALL-E mini. You'd go to this website, and you'd type in some text, and it would make a picture of whatever you wrote. Like, I don't know, Albert Einstein in a hot air balloon in the style of Claude Monet. And then it would show you something that - it would kind of look like Albert Einstein in a hot air balloon, kind of in the style of Claude Monet.
ADRIAN MA, HOST:
I mean, that's amazing.
WOODS: I mean, the faces - can you remember? They were pretty melted and scary-looking. But, hey, it was a pretty fun distraction for at least a few minutes that summer.
MA: And since then, the artificial intelligence art generators, they've gotten a lot better. The faces are a little less melty. The styles are more precise - so much so that some artists are getting a little freaked out. And that includes Kelly McKernan. Kelly makes these ethereal kind of paintings with femme figures. And one day, Kelly learned that a lot of people on the internet had been using the name Kelly McKernan a lot when they were trying to create prompts for these AI art generators.
KELLY MCKERNAN: It's as if it studied my sketchbook or, like, a part of my brain that I don't share, you know? It felt really intimate.
WOODS: These images were incredibly similar to Kelly's style, and so much so that Kelly decided to take action. This is THE INDICATOR FROM PLANET MONEY. I'm Darian Woods.
MA: And I'm Adrian Ma. AI-generated art opens up a lot of possibilities, but it has also gotten some artists angry. When AI gets so good it can replicate your style in seconds, that could put entire livelihoods at risk, and maybe even human-created art itself.
WOODS: Today on the show - AI art versus the law.
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WOODS: Kelly McKernan is a visual artist and well-respected in a certain scene.
MCKERNAN: Right now, I'm working with Evanescence, the band. I don't know...
WOODS: Oh, yeah. Wake me up inside.
MCKERNAN: Wake me up inside. Yes.
WOODS: Yeah, wake me up inside. That was their song.
MCKERNAN: And it's funny because, when I was 17 and their first album came out, I was that kid in my car, like, crying to their music and sketching.
WOODS: Yeah. Heavy mascara, with tears falling down your face.
MCKERNAN: Oh, yeah. Absolutely - all the emotions.
MA: So at the time, Kelly started posting paintings onto an art website called DeviantArt - not for money, but just for the love of it.
MCKERNAN: Just starting out very eager for feedback and community - you know, just really excited to share whatever I was working on.
WOODS: And Kelly built a solid following, continuing to post on DeviantArt over the next two decades. But despite this following, making art still didn't pay well.
MCKERNAN: I, myself, am a single mother. I almost barely make rent most months. I will spend, you know, 30 hours on a painting, and I won't see any money from that until it sells.
MA: When the first widely used AI art generators came online last year, Kelly saw it as a curiosity at first. That delight, for Kelly, soon faded away. And that is because Kelly found out that, when people were typing in their prompts to these art generators, they were using the words in the style of Kelly McKernan a lot - in fact, over 12,000 times.
MCKERNAN: There's more and more images with my name attached to it that I can see my hand in, but it's not my work. I'm kind of feeling violated here. I'm really uncomfortable with this. And when it went from OK, I feel violated to I'm mad is when I could see a lot of these people trying to sell this stuff - putting it on Facebook, using my name as a prompt, and then selling that art on sites like Redbubble.
WOODS: And then, DeviantArt did something that made Kelly livid. So remember, this is the website that Kelly had been uploading artwork to for free over the last 20 years. DeviantArt was now offering a new service where website viewers could pay a monthly subscription fee to get access to an AI art generator. And this AI art generator had been trained on countless images from artists like Kelly, but the DeviantArt artists wouldn't get a cent.
MA: And DeviantArt tried to talk with artists about this. They held a virtual talk on Twitter.
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LIAT GURWICZ: See - well, speak to you - not see you again.
RJ PALMER: Yeah, sure. It's been about a year, right?
GURWICZ: Yeah. Yeah. It's been a while.
WOODS: Somebody recorded the chat and put it online. And this talk was between artist RJ Palmer and DeviantArt's chief marketing officer. And a lot of this discussion revolved around artists who were frustrated that they hadn't given consent to having their work trained on the AI models.
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GURWICZ: We cannot decide for you. It's not...
PALMER: But you can because you already have. When you did...
MA: After this heated exchange, DeviantArt made some changes. But Kelly McKernan was not impressed.
MCKERNAN: The way they talked about it felt very predatory. And it felt very - like, look at this tool we have that's going to be so exciting for us.
WOODS: Kelly started writing about this on social media. And soon, another artist got in touch, and she wanted Kelly to join a class-action lawsuit. Kelly said yes.
MA: The lawsuit was filed in mid-January against DeviantArt and two AI companies. And it alleges, among other things, that the companies violated copyright law.
WOODS: The claim argues that the AI companies compressed those billions of images and stored those images' information, which it then uses to make new works. And so that copying of information, they allege, breaches copyright. And what the AI art models then spit out, therefore, would be a derivative work in the claim. The lawsuit argues that the AI companies are making a 21st century collage tool.
MA: Andres Guadamuz is a legal scholar at the University of Sussex, and he's got a different interpretation of what AI models are doing when they learn. Andres describes models as learning patterns from the original images and brushstrokes and styles, and those are things that are not covered by copyright law. So he doesn't think that collage is actually the right metaphor here.
ANDRES GUADAMUZ: Even if it was, I think that they would have a problem with copyright anyway because collage is an accepted art form. It's considered to be fair use.
WOODS: Collages are often decided on a case-by-case basis, hinging on whether it's fair use. Fair use means exceptions to copyright law that allow certain uses of copyrighted works, like for education, or if the new work radically transforms the original into something new. And whether the AI companies were engaging in fair use when they copied some kind of information from the original work - that will potentially be what determines this case.
MA: We asked the companies involved for interviews. All of them either declined or didn't respond. Though, one of the companies, Stability AI, did come back with a written statement, which we read out loud to Kelly McKernan.
WOODS: Stability AI said in a statement, quote, "please note that we take these matters seriously. Anyone that believes that this isn't fair use does not understand the technology and misunderstands the law," end quote. What do you have to say to that?
MCKERNAN: Yeah. I think they vastly underestimate what we know about the technology and what we know about copyright law. I think that statement's really funny because it's as if they - we know a lot more than than I think they think we do. So it's a very interesting response.
WOODS: Whether or not this legal challenge is successful, it is clear that something fundamentally doesn't feel fair to Kelly and other artists when anybody can use their names to generate artworks in 30 seconds that they would have taken 30 hours to make. This is one of a few lawsuits going on that will determine the legal status and norms around AI in the future. This case could set a precedent, and not just for Kelly, and not even just for the visual arts. This case will help us answer huge new questions about ownership and creativity surrounding AI.
MA: Maybe podcasters will be next.
WOODS: Podcasters will be next. I mean, I prefer to work with the robots, not against the robots.
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WOODS: This episode was produced by Noah Glick and Corey Bridges. It was engineered by Katherine Silva. Sierra Juarez checked the facts. Viet Le is our senior producer. Kate Concannon edits the show, and THE INDICATOR is a production of NPR.
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