Judge Orrick’s order dismissing, with leave to the defendants to amend their complaint, rejected the theory of the plaintiffs Sarah Anderson et al. that all of DeviantArt’s Output Images are infringing derivative works because DeviantArt’s AI program was allegedly trained on copyrighted images.
Sarah Anderson’s theory of collage tool: “The resulting image is necessarily a derivative work, because it is generated exclusively from a combination of the conditioning data and the latent images, all of which are copies of copyrighted images. It is, in short, a 21st-century collage tool.” Complaint, paragraph 93.
Judge Orrick rejected the plaintiffs’ overbroad theory and required analysis of specific works infringed:
A problem for plaintiffs is that unlike in Range Road – observed wholesale copying and performing – the theory regarding compressed copies and DeviantArt’s copying need to be clarified and adequately supported by plausible facts. See supra. The other problem for plaintiffs is that it is simply not plausible that every Training Image used to train Stable Diffusion was copyrighted (as opposed to copyrightable), or that all DeviantArt users’ Output Images rely upon (theoretically) copyrighted Training Images, and therefore all Output images are derivative images. Even if that clarity is provided and even if plaintiffs narrow their allegations to limit them to Output Images that draw upon Training Images based upon copyrighted images, I am not convinced that copyright claims based a derivative theory can survive absent “substantial similarity” type allegations. The cases plaintiffs rely on appear to recognize that the alleged infringer’s derivative work must still bear some similarity to the original work or contain the protected elements of the original work. See, e.g., Jarvis v. K2 Inc., 486 F.3d 526, 532 (9th Cir. 2007) (finding works were derivative where plaintiff “delivered the images to K2 in one form, and they were subsequently used in the collage ads in a quite different (though still recognizable) form. The ads did not simply compile or collect Jarvis’ images but rather altered them in various ways and fused them with other images and artistic elements into new works that were based on— i.e., derivative of—Jarvis’ original images.”) (emphasis added); ITC Textile Ltd. v. Wal-Mart Stores Inc., No. CV122650JFWAJWX, 2015 WL 12712311, at *5 (C.D. Cal. Dec. 16, 2015) (“Accordingly, even if Defendants did modify them slightly, such modifications are not sufficient to avoid infringement in a direct copying case. . . . Thus, the law is clear that in cases of direct copying, the fact that the final result of defendant’s work differs from plaintiff’s work is not exonerating.”) (emphasis added); see also Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (“a work is not derivative unless it has been substantially copied from the prior work”); Authors Guild v. Google, Inc., 804 F.3d 202, 225 (2d Cir. 2015) (“derivative works over which the author of the original enjoys exclusive rights ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content”).
Defendants make a strong case that I should dismiss the derivative work theory without leave to amend because plaintiffs cannot plausibly allege the Output Images are substantially similar or re-present protected aspects of copyrighted Training Images, especially in light of plaintiffs’ admission that Output Images are unlikely to look like the Training Images. Compl. ¶ 93. But other parts of plaintiffs’ Complaint allege that Output Images can be so similar to plaintiff’s styles or artistic identities to be misconstrued as “fakes.” Compl. ¶¶ 44ii, 171-172. Once plaintiffs amend, hopefully providing clarified theories and plausible facts, this argument may be re-raised on a subsequent motion to dismiss. DeviantArt’s motion to dismiss Claim I is GRANTED with leave to amend.Judge Orrick in order granting motion to dismiss in part