AI and Fair use

Fair Use and AI: Finding Balance for Copyright and Innovation

The intersection of artificial intelligence (AI) and copyright law raises crucial questions, particularly concerning fair use—the doctrine that allows limited use of copyrighted material without permission. This blog explores the intricate relationship between fair use and AI, examining two landmark cases that present insight into how the courts may approach AI created material.

These cases shed light on copyright protection, technological innovation, and the dynamic landscape of creative expression in the digital era.

Fair Use: An Essential Framework for Copyright Law

Fair use plays a pivotal role in copyright law, safeguarding innovation, creativity, and freedom of expression. It permits the use of copyrighted material under specific circumstances without the need for explicit permission. The statutory four factors include:

  • the purpose and character of use,
  • the nature of the copyrighted work,
  • the amount and substantiality of the portion used, and
  • the effect on the potential market.

These factors are evaluated independently and then the courts make a determination, weighing the factors together.  Historically, one factor does not carry more weight than the others. However, with the recent decision Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, seems to indicate the first factor’s “transformative” aspect is emerging as the dominate factor to determine fair use. This is because of a new focus for transformative uses, focusing on the specific use surrounding the infringement, rather than the work. Historically, the first factor is divided into two separate subfactors that consists of the commercial nature of the work, and whether the use was transformative. Campbell v. Acuff-Rose Music, 510 US 569 (1994).  Traditionally, transformation was defined as “whether the new work merely ‘supersede[s] the objects’ of the original creation.” After nearly a decade of following this definition, the courts applied this same logic to internet usage. The primary example of this is the case: Perfect 10.

Perfect 10: Thumbnail Images and Transformative Use

Perfect 10 centered on the use of thumbnail images by Google’s search engine. The company, Perfect 10 is an adult content provider, claimed that Google’s display of thumbnail images in search results violated their copyrights. However, the court ruled in favor of fair use, highlighting the transformative nature of Google’s use. The thumbnails served a distinct purpose, acting as a visual search index, and did not harm Perfect 10’s potential market for selling adult content.

The ruling in Perfect 10 established a significant precedent. It recognized the potential transformative uses of technology and its ability to facilitate new forms of creative expression. The court acknowledged that search engines contribute to information retrieval and that their use of copyrighted material in thumbnail images serves the public interest.

Authors Guild: Digital Library and Access to Knowledge

Authors Guild involved Google’s book-scanning project, aiming to create a vast digital library accessible to the public. The Authors Guild claimed that this project infringed authors’ copyrights. The Second Circuit Court ruled in favor of fair use, emphasizing the transformative nature of the project. Focusing on how the digitization effort enhanced research capabilities, increased access to knowledge, and introduced new search functionalities.

The Authors Guild ruling emphasized the positive impact of technology on collective knowledge and education. Fair use was instrumental in promoting transformative uses of copyrighted material, fostering innovation, and expanding the boundaries of human understanding.

Striking a Balance: Copyright Protection and Technological Innovation

Balancing copyright protection and technological advancement is essential. While fair use promotes innovation and creativity, copyright holders have legitimate concerns about pAI generated image related to AI and fair use.rotecting their rights and receiving fair compensation.

To achieve this balance, policymakers, legal experts, and stakeholders must engage in ongoing dialogue to adapt copyright laws to the evolving landscape of AI and technological advancements. Legislation or case law should be established to address concerns such as potential market harm and provide clear guidelines for the use of copyrighted material in AI-generated works. Such measures can protect creators’ rights while fostering an environment conducive to innovation and societal progress. Which the US Copyright Office seems to be doing in their AI Initiative.

The complex relationship between fair use and AI has far-reaching implications for copyright protection and technological innovation. The rulings in Perfect 10 and Authors Guild highlight the transformative nature of AI technologies and their potential to drive creative expression and enhance knowledge accessibility. Striking a balance between copyright protection and innovation requires ongoing dialogue and adaptive copyright laws that consider the unique challenges posed by AI. Ultimately, fair use acts as a crude tool in navigating these complexities, relying on the transformative uses of copyrighted material.  The US Copyright Office needs to provide more guidance on this matter, which we look forward to reading.

If you have any questions about registering your work that was created in part by AI content generation, please feel free to reach out to me at or if you want additional information, please visit our website or check out our other posts, including Who Owns the Copyright to AI-Generated Content? or Intellectual Property: Back to the Basics. One final note, this blog is for educational purposes and does not constitute legal advice.  This article, or contacting the Apex Law Group, does not form an attorney client relationship.


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