How a Berlin artist is navigating the complexities of copyright infringement in the digital age

How widespread is IP theft, and should more artists and creatives be exploring legal representation?

"IP theft on a small scale is very widespread indeed, particularly in the social media era, where many people copy, repurpose and share material created by others without permission. Many unauthorised uses of an artist’s work will be infringing, except in limited circumstances where a copyright defence or exception applies.  

"There is, however, a practical challenge around enforcement. Where infringing use is widespread, it may not be feasible to pursue every single infringement, especially if overseas from the artist’s home jurisdiction, nor worthwhile, where the damage caused is minimal.  Indeed, in some cases artists may not be concerned with the usage: some, for example, like knowing that their work has in turn inspired a work of fan-fiction or adaptation.

"Hence artists tend to focus on the most prominent and/or harmful infringements by those with a significant platform, deep pockets to meet a claim, or that are causing damage to the value of the artist’s work or reputation. In these instances, it’s normally advisable for artists to seek legal representation – indeed larger rights holder organisations (such as Disney) do this all the time, constantly monitoring for infringing uses and issuing cease and desist notices."

Is this an issue that people are sufficiently aware of? Are people aware that copying off the internet, or using images they find online, opens them to litigation? Or is it often more malicious than that?

"Commercial enterprises are perhaps more likely to appreciate the issues and carry out a level of due diligence so as to seek permission as appropriate in relation to their intended use of third-party material. But even sophisticated businesses have been known to infringe, and might even take a risk-based decision on whether to use infringing content.  

"As for use by individuals, given the widespread use of artists’ work without permission, it seems that many people are unaware, or at least unconcerned, that their use of artists’ work may be infringing on that artist’s rights – sometimes this is for a profit-driven purpose, like selling unofficial merch, but sometimes this usage might be innocent, born out of the individual’s excitement to engage with their favourite artist’s work."

What are your thoughts on the current situation surrounding AI and its use of existing art/media?

"Generative AI is a powerful tool for creation that will revolutionise the creative process. Currently, though, where many generative AI platforms are not fully licensed by creators and rights owners, there is a risk of widespread infringement. The unauthorised ingestion of copyright works for AI training purposes is highly likely to be infringing, under the laws of England at least, and, in many cases, the narrow set of copyright exceptions and defences may not apply to such use."

With generative AI being trained on the work of creatives, often without consent and on an unprecedented scale, can we expect these kinds of cases – of artists fighting theft of their work – to increase?

"We can certainly expect to see more cases involving unauthorised AI use, and indeed have seen a significant amount of litigation proceedings in this area already.  Significant cases such as the New York Times suit against Open AI/Microsoft, and the publicised complaint by Scarlett Johansson on OpenAI’s use of a sound-a-like voice, are likely to set the tone for how the courts and the public approach issues to do with the ingestion of copyright works without permission for AI training."

What can we expect down the line? Do you think the dam is going to break regarding AI and its legality, given it is mostly unregulated?

"The dam is indeed beginning to break. Significant cases are in progress, such as the New York Times suit against Open AI/Microsoft.  AI is not totally unregulated – the existing framework of IP law and other protections, like laws around false endorsement, still apply, despite the enforcement challenges.  

"Rights owners are signalling their intention to protect their rights – for example, Sony Music has issued warning letters to AI operators, and the BPI, which represents UK record labels, has threatened action against an AI platform that enables users to mimic the voices of well-known musical artists. Also, several jurisdictions are enacting new AI-focussed legislation – the EU has recently passed an AI act and legislation is being developed in the US, the UK and other jurisdictions."

An extract of Nick’s comments was published in WIRED, 8 July 2024.