“Groundbreaking Ruling: How a Landmark Case is Redefining Copyright in the Age of AI”
Factor one is the “nature of the use.” The Court looked “mainly at whether [the use] was commercial and whether it was transformative.” There was no dispute that the use was commercial. The Court also found that the use was not transformative. The reasoning is a bit complicated, but the Court seemed largely swayed by the Andy Warhol case, which, as I mentioned in a previous post, has been interpreted as putting the transformative use “blob back in the bucket.” The court was also swayed by the fact that ultimately defendant would have competed with plaintiff. Competition will, of course, be a mainstay of the pending AI litigations. Courts will need to evaluate others forms of competition, including without limitation (1) whether the unlicensed use of materials in training competes with licensed use of such materials, (2) whether the unlicensed use of materials in training competes with offers of licenses for use of such materials, and (3) whether the output competes with the input in a generative AI context.
