In his order partly denying the motion to dismiss the copyright claims in Sarah Andersen v. Stability AI, Judge Orrick found it plausible that the alleged comments of former Stability AI CEO Emad Mostaque supported the plaintiffs’ theory that Stable Diffusion’s model stores “compressed copies” of the training images and the comments could even support the plaintiffs’ theory of active inducement based on the design of the model. Wow.
What former stability ai ceo emad mostaque allegedly said
Here’s what Mostaque allegedly said repeatedly in podcast interviews, according to the complaint:
Judge Orrick found these alleged comments by Mostaque, along with academic research papers of diffusion models cited in the first amended complaint, plausibly supported an inference that “that Stable Diffusion by operation by end users creates copyright infringement and was created to facilitate that infringement by design.” Judge Orrick also held that these alleged comments, along with the academic articles, were sufficient to “support assertions of direct copyright infringement” against Runway, even apparently “absent express identification of outputs that are ‘substantially similar’ to plaintiffs’ copyrighted works.”
What midjourney ceo David holz allegedly said in discord
The First Amended Complaint alleged that Midjourney CEO David Holz promoted, on Discord, a list of 4,000 artists whose styles Midjourney emulated:
Midjourney CEO David Holz’s alleged reference, on Discord, to this list of 4,000 artists whose styles were emulated by Midjourney was also cited by Judge Orrick in allowing the Lanham Act claims of false endorsement to proceed.
Judge Orrick explained: “As discussed above, judicial notice of other comments in the thread is not appropriate to dispute the facts plaintiffs otherwise plausibly assert, especially as the plaintiffs dispute the accuracy and inferences to be drawn from the totality of the messages in that thread. And even if the Names List itself was insufficient to support an inference of false endorsement, plaintiffs also allege that their names were used in connection with works included in Midjourney’s ‘showcase.’ FAC ¶ 325b. Whether or not a reasonably prudent consumer would be confused or misled by the Names List and showcase to conclude that the included artists were endorsing the Midjourney product can be tested at summary judgment.”
Judge Orrick further explained: “the plaintiffs have plausibly alleged that the use of their names by Midjourney in the List and showcase misleads consumers regarding source and endorsement. Open questions also remain whether Midjourney promoting its product for commercial gain for use by others to create artistic images is itself expressive use that creates “artistic relevance” to plaintiffs’ underlying works. Discovery may show that it is or that is it not. Unlike in Brown v. Elec. Arts, Inc., where plaintiff alleged only that his likeness was used in a video game, we do not yet have the sort of record, or sort of alleged use, that could support dismissal of the claim at the motion to dismiss stage.”
The names list also factored into Judge Orrick’s allowance of the theory that the artists’ styles were trade dress under the Lanham Act. Judge Orrick ruled, “Proof of intentional copying by Midjourney has been alleged, especially considering the allegations regarding the CLIP model functioning as a trade dress database, the express use of plaintiffs’ names in the Midjourney Names List to promote the product and the use of some plaintiffs’ names and likenesses of their works in the Midjourney showcase, and the ‘mental recognition’ of Midjourney’s calling out of plaintiffs by name.” Judge Orrick concluded that the allegations supported a claim for vicarious trade dress infringement.
Wow. Just wow.