Warfare of Art & Law Podcast
Warfare of Art and Law Podcast sparks conversation about the intriguing – and sometimes infuriating – stories that arise in the worlds of art and law with artist and attorney Stephanie Drawdy.
Warfare of Art & Law Podcast
Fair Use and AI - A 2ND Saturday Exploration
Show Notes:
0:00 Yelena Khajekian
1:30 Warhol v Goldsmith decision by SCOTUS
3:00 USCO NOI’s Question 8
4:00 Google LLC v. Oracle America, Inc., 593 U.S. ___ (2021)
4:20 liability question
4:45 Emily Gould - fair use
6:30 Alan Robertshaw - Warhol court’s focus on use of the work
7:50 Khajekian - artists’ perspective on Warhol decision
9:00 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
10:20 confusion of fair use analysis and court’s aesthetic analysis
12:00 USCO NOI’s Question about fair use
13:00 Robertshaw - UK’s fair dealing analysis
15:50 Gould - big players like Getty
17:45 text and data mining exception
20:10 Drawdy - private contracting as a solution
21:00 Robertshaw - Getty
22:15 Khajekian - conceptual art
25:55 Warhol’s 2 Cir decision
26:50 Gould & Khajekian - Richard Prince decision held not fair use
27:20 Khajekian - equity issue
28:40 Gould - UK courts’ emphasis on purpose, e.g., Stormtrooper helmet case
30:30 Drawdy - amount and substantiality of use
31:10 Gould - Australian case about Men at Work’s use of folk song Kookaburra in its pop song Down Under
32:20 Robershaw - dispute over Vanilla Ice’s Ice Ice Baby
33:00 Ed Sheeran
34:15 Getty case pending in UK
35:00 Khajekian - international versus US issues
37:30 Robershaw - test that contemplates level of effort or end result regarding AI output
40:30 Gould - risks involved with AI
40:50 EU’s application-based approach
41:10 AI for medical applications
41:55 detecting forgeries will still require humans, e.g., conflicting AI results regarding Raphael
42:50 implicit bias in AI
43:15 dogs detecting forgeries
43:40 chickens detecting shapes
Please share your comments and/or questions at stephanie@warfareofartandlaw.com
Music by Toulme.
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To leave questions or comments about this or other episodes of the podcast and/or for information about joining the 2ND Saturday discussion on art, culture and justice, please message me at stephanie@warfareofartandlaw.com.
Thanks so much for listening!
© Stephanie Drawdy [2025]
Art is just in a lot of ways incompatible, I think, with what law tries to do, which is try to have standards and predictability, and art is doing the exact opposite of that.
Speaker 2:Welcome to Warfare of Art and Law, the podcast that focuses on how justice does or doesn't play out when art and law overlap. Hi everyone, it's Stephanie, and that was artist and law student Yelana Kajakian from a recent second Saturday Art and Justice online gathering. What follows is the remainder of that conversation, during which Yelana and I are joined by Institute of Art and Law Assistant Director Emily Gould and Barrister Alan Robert Shaw in a discussion about artificial intelligence and the doctrine of fair use. Yelana, you were the one who had inspired today's topic, so I don't know if you would like to start off with sharing anything. I have some questions from the US Copyright Office that we can start with, unless you would prefer to give us some overview of what you're working on and your takeaway, and what inspired you to focus on this for your paper.
Speaker 1:I think that sounds great. I've just been working on my note on fair use and I've been thinking about the well, my notes kind of centering on the Andy Warhol Foundation versus Goldsmith case, basically like how the decision might be used to argue for like works of visual art, like silk screens or paintings that are not like within, I guess, the narrow holding, but how the opinion can still be used to kind of argue for argue that a lot of works of like a probation art might not be fair use. So I've been trying to think about that and I remember we were talking a couple weeks ago about how like thinking about fair use in the context of generative AI is also kind of like an interesting topic and how it might also be helpful for artists right, it might kind of it might be good for artists. So I haven't been thinking about AI for my note, but I've been kind of dipping my toes in it just to see how I can maybe like like weave it in there somehow.
Speaker 2:But that's that's what I've been working on, yeah, I think it is a fascinating topic in general, even without the AI, and I do think the AI just compounds the question. And I don't know if you guys have looked at the US Copyright Office's Notice of Inquiry, but question eight has multiple sub parts that are all focused on this fair use question and the current situation with the lawsuits in the US and how this will go. It's very timely. I find it interesting that prior to the Warhol decision, my understanding is that entities like open AI felt strongly that their training data use was fair use and it seems that they're still on that side of the fence and I do think it's. It's certainly more concerning as a position these days.
Speaker 2:Looking at back at the history of the cases and I don't know if you want to share anything more, ilana, about like what you've taken away from like the historical US case law that's been cited a lot on this topic the Google versus Oracle case it calls for something new and different that further develops in that case, basically further develops technology, and so you could kind of see where that might support AI developers as well as the users of AI tools, and so that's one point that the US Copyright Office when they asked questions about fair use. One of the things is if it's found not to be fair use, where does the liability fall? Does it fall on both the developer and the user? With all that said, you know if anybody wants to jump in with comments or thoughts, or maybe just before Ilana funds with her thoughts from her paper.
Speaker 3:Can I just sort of ask a question really about the warhol and goldsmiths decision because something I mean. I have to confess I haven't read the whole thing in detail at all, but I've read quite a few reports about it and listened to commentary about it and what I guess don't quite understand or I think seems really strange is that when I think about fair use and what it really means and the whole transformative use argument, I think about the use of the original work to make the allegedly infringing work, whereas the court in the warhol and goldsmith case seems to be talking much more about sort of the commercial use of the output of the allegedly infringing work versus the commercial use of the original work. So there's more kind of what are you doing with what you've created, rather than does the process of creating the new work, the allegedly infringing work, infringe the original work?
Speaker 3:I mean they're not unconnected, obviously, but they seem to me to be quite different questions. The warhol case seemed to decide the issue purely on the basis of the use of the infringing allegedly infringing work being just too similar to the use and the potential use of the first work ie both could be licensed to, you know put on the front of the magazine cover. So yeah, I don't know if that is just me and I haven't read into the detail enough, but it struck me as a really odd kind of reasoning.
Speaker 4:Well, I just stuck a video up. That I did because I came to exactly that conclusion where it was talking about all the issues. Now, the two dissents. Well, the two dissents, and one of them is really interesting because one of the dissents really goes into everything about transformative use and how far you have to go, but the actual decision was just made purely on the purpose clause where they said these are both commissions for magazines, for money, and therefore that you know that who similar. So that was very interesting because it seems to be suggesting that if you'd have done something completely different but with the same image, I'm trying to think what you could have done with it, because obviously you know it got used on in that magazine retrospective and they said that was the trigger and they did say that they might have reached a different conclusion had the works been used in different ways. So that's very interesting in terms of where that puts the test, because all of a sudden, all the transformative and they went into all the tensions between people should be rewarded for their efforts.
Speaker 4:But at the same time, art always builds on the shoulders of giants and arts always being sort of cumulative. And it was a fantastic, really interesting philosophical debate about. You know the history of art and the culture of art and you know what is art and when you know and when it what's new about and you got this is really interesting. And then you read the actual five cases and they go. They were both used for the same thing. Therefore it's infringing.
Speaker 1:Yeah, I think that. So, yeah, I think that that every like subsequent use of the work being subject to various analysis. It's so hard because I was thinking about this and I asked my advisor and she was like I have to think about this because I don't like she was. She was like I didn't think about that. So I'm going to get back to you. So I want to, I want to, I'm going to share what she says when I bother her again.
Speaker 1:But I was thinking like if an artist because I think thinking about this opinion like artists are not going to read artists are not going to read this opinion like, like they're, they're not like it's really hard to even understand fair use, like even like when you're, when you've read a lot of the other cases and you've been thinking about like it's just very confusing. So I was just thinking of like an artist is probably like even if they, even if an artist wants to use a photograph, like, asks the photographer like can I, can I license this photograph? And there's also, there's also like the Campbell case. That's like the get it trying to get a license and not ending up being able to get it is not going to weigh against fair use. But I still feel like an artist, like who ends up appropriating that photograph and let's say it's not, it doesn't a court or judge doesn't think it's fair use, like if someone, like their foundation or somebody else, uses that, that work later which is kind of what happened, which is basically what happened in this case like what, how does, how does that, how would that or how would, maybe, how wouldn't that hinder artists from from making appropriate, from working like in appropriation mediums, and and I think it just becomes really complicated because artists are always going to be trying to make money from their work, like it's hard, but the point is, like your, the goal is basically to make money off your work, and then, if you make it and then later it's used for I don't know, like merch or something like that, you're still the court is still engaging in like aesthetic analysis of the underlying work, but there is also, like that added commerciality weight, so it I think it gets just really confusing, because now there's just it's it, they're kind of purporting not to, not to talk about the underlying artwork, like it's the very narrow use of, like this commercial license, but they're talk, they're not only like in the opinion, they are not only like analyze the orange prints, but they are also I analyze the Warhol soup can.
Speaker 1:So it's so it that I think make would confuse artists even more, because it there's just too much of saying one thing and doing another, and already fair use is is is hard. So I don't know that's.
Speaker 2:I've talked a lot, but that's basically like what I've been thinking about the idea that in the Campbell case that there was a license requested, it was denied and that that doesn't weigh against that.
Speaker 2:That definitely was a very interesting caveat that thank you for raising that.
Speaker 2:Fair use, like you said, like it makes you very hesitant to put work out there that has any nod to any other artist.
Speaker 2:I felt that way myself for a long time. Going back to the US Copyright Office question that they put about fair use in reference to Supreme Court decisions like Warhol, as well as the Google versus Oracle case, it asks how should the purpose and character of the use of copyright it works to train AI models be evaluated? The US Copyright Office is acknowledging by all these questions that this is such a a revolving and concerning space, like I've heard many people question whether or not fair use should even be applicable in AI cases at all or if it's an outdated doctrine. There are just so many variables about AI, but also so many open variables about just art in general, like you're pointing out, like it just gets exponentially more complicated when you take it to the tech level and whether or not tech and the promotion of technology would perhaps somehow give them a pass it's interesting to see whether that would be a different decision over here, because, cause we'd have fair use.
Speaker 4:We have fair dealing and ours is a lot more. Here are the categories that count as fair dealing and you either fit in them or you don't, whereas the US law takes that much more broad brush approach. But yeah, I mean, we've seen a lot of cases here tend to go down the did you actually put some effort into it so you could have a picture that was like functionally identical and you couldn't spot the difference between that and the original? But if somebody actually hand drawn it with a quill or something, that will count because you've actually put some effort into that. And I think, looking a lot of the English decisions, I think just going, you know, oh, you just got AI to do it, I think they'd be going like you know, cause what was that?
Speaker 4:There was that photocopying case wasn't a way somebody just did loads of photocopying and didn't kept doing it and it, you know, it was like multiple iterations and that was the artist, you know, not worse. And they I can't remember that was an English case but they said no, no, just running through something, through a photocopy loads of times, there's no skill or judgement in that, so we're not going to allow that. Whereas what was the case where there was somebody actually did pencil drawings of photographs that looked like the photograph, but they said that counted because even though to me it was not really transformative, because you literally cannot tell the difference between the original artwork and the finished artwork. It's just somebody went a really long way but like a very difficult way of reproducing it. But yeah, I did wonder whether it would be, you know, a different decision here.
Speaker 4:I was also a bit sorry. Sorry just because I always found that the wall were a bit bullying. So I'm glad they lost, because You've got this, no, because it always used to be the thing.
Speaker 3:It was quite a David and Goliath case, there wasn't it?
Speaker 4:Yeah, because you know it's like they would, you know war would just blatantly rip off everybody else and it's like, oh, you should be flattered that even those who exist, you know that was always their argument. But when it was the other way around, it's like, oh, somebody's been vaguely influenced by Warhol and done something you know. I mean then you know there's nothing new about Warhol. Because who was the other? We'll just chat about somebody with James Payne the other day. Who, who? How was it?
Speaker 4:Another, somebody else on the background, you know, oh my great. Because you know he was working in an advertising agency, so he was doing all that. Let's just bring mass production of artworks and kitcheness into art. So you know he was doing the Warhol thing well before Warhol was. So I think for Warhol to be complaining about other people ripping off other ideas, I mean the old fairness. Warhol said he was influenced by that. So I suppose that's fair enough. But you just see it, it's good to see. To me it was to see an organization that I see as being a bit of a bully, say a condona peg.
Speaker 3:Yeah, talking sort of big organizations involved in this whole space.
Speaker 3:I was talking to someone the other day in a general conversation about AI, about the fact that there are going to be some really big players who will, in a sense, have a foot in both camps and getty images would be the prime example, Because, of course, they have their own massive image bank, but at the same time, they want to make sure that you know other people are using their data for training, so that you know they are bringing a case against other people, and so that, yeah, so I guess they're trying to say you know, we know that all of this is going on, but we're sort of doing things properly, we're going to make sure that we have proper licenses in place, but we're going to make sure that, hey, all of the rest of you, you can't use our stuff, but you know, hopefully at some stage.
Speaker 3:But you know that maybe there are images within the Getty data bank which are problematic, and so I think that it's going to be interesting to see how those cases involving the really big players in this space are going to play out, and the aggregators and Google and all with their massive art projects.
Speaker 3:And I had a kiss Sorry just quickly, sorry, and was when you yeah, I was thinking exactly what you just verbalised about the different, whether that case would have been the Warhol case would be different and whether the decisions on AI generally will be different in the UK from in the US, because we have a completely different system. We don't have that fluid notion of fair use and transfer, you know, with its basis in sort of transformative use. We have those very specific fair dealing exceptions and the most relevant one that was talking about is the text-to-date mining one which, interestingly, certainly within kind of the cultural heritage sphere, isn't one that we tend to talk about that much historically but now it's become very, very relevant in the sphere of AI and there's been a lot of discussion. And it's very, very contentious because the idea initially in the UK when the government's plan was to make the UK it's all a little bit bound up with Brexit, I think these arguments to make the UK the best place for tech companies to want to tell all their business. Then the idea was that this text and data mining exception, which allows you to use data for within the fair dealing exceptions for non-commercial purposes, that should be expanded to include all purposes, including commercial purposes, and that really sent the creative industries into a bit of a spin and worried artists very much that they were not going to be able to make money out of the fruits of their labours, and so the government has kind of backpedalled. There was a big debate in the house, lords, I think, not so long ago, about this and I think that probably, you know, things have moved on from that original stance to a slightly more conservative, slightly more protective of the creative industries approach because of that big backlash. But even again, that is different from the approach within Europe.
Speaker 3:And one of the things that I just keep thinking about is that there's got to be some sort of international harmonisation overall of this. It just doesn't make sense for different jurisdictions to be furrowing an entirely different path. It's just not going to work. But I keep wondering, you know who might be, who's going to take you forward internationally, who might be the sensible body, and will it in fact? I mean, in a sense I suppose I keep thinking, will it be kind of the people on the tech side that actually somehow sort of these issues by way of kind of standards, like you have standards for, you know, internet provision generally, but I think somewhere along the line it would be. It has to be a kind of combination of that as well as legal standards. So that's just why I'm too penfue at the moment.
Speaker 2:When I had listened to that World IP Organization conference a couple of weeks ago, one of the participants had mentioned and was promoting the idea of definitely there needs to be international understanding and that she was the head of a group that brings entities together to create contract terms and licenses that can be dealt with on a private level, because the idea of an international, more formal organisation between countries seems so far off or you know if it all possible, but it speaks to that.
Speaker 3:That's a way to address that kind of concern Something like Creative Commons, like that kind of thing. Yeah, pretty interesting.
Speaker 4:So you were saying about the Getty thing. I had a case earlier in the year where Getty were chasing somebody because they'd used Getty images for to. Perhaps on the website that's actually the artist people I'm sure Paul will be talking about this because he's got very strong opinions about this and they did the letter before claim and the defence. Basically we just went all guns blazing and said, actually we welcome this case because we don't think you actually own the copyright in those photographs yourself, because the actual offending photograph was a photograph of some Kara Walker silhouettes. So I just went back and said well, why have you got copyright in that? That is literally just the photograph of somebody else's work. How have you transformed that in any way? You've literally just set a camera up, framed the silhouettes and taken the picture. That's a really old debate, isn't?
Speaker 3:it. That goes back to the Bridgeman case from 1999 and I think it's never really been resolved.
Speaker 4:Exactly so what's interesting is they never formally withdrew, but they did go away. We went backwards and forwards for a little bit and said we just went and bring it on because actually I think a lot of people will be interested to know if you can charge for these photographs, and I don't think they want you to risk it. Because what if the court had come back and said yeah, checking photographs of artwork doesn't for copyright?
Speaker 1:That also made me think of a lot of there. There's a couple of like I forget. I think it's like the. I think they spread this also in the Patrick treatise where a lot of people talk about like Sherry LeVine's, like re-photography series and kind of in the same way, like what about it's not? It's not just like taking a photo of someone else's work, but it's also supposed to. It's like a recontextualization, but there's no objective, tangible recontextualization, it's more like conceptual. So I think the Patrick, his argument in that was like that's, that's 100% infringing, like it's definitely not fair use.
Speaker 1:But I guess I also I think about that too, because especially where I, where I went to art school, like that that's conceptual art is, is, is about like subverting, like rules and and it's it's not, it's not nest doesn't necessarily have to do it with, maybe in the way that, like a lot of these opinions Talk about art having to have like objective and dish of, of, like Transformativeness, like sometimes it's it's not like that, like sometimes people make work where it's it's hard to, it's really hard to get there without having some kind of a Context, either Because you know that person work a little bit or they've given you a little bit of. They've talked about it or written about it. Like it it's not immediately apparent. So I think about that too, like for, for, for artists that especially, maybe like more avant-garde are, are like what, what happens, what, what might happen for those like, especially where Maybe people are not like, oh it, you, you can't really expect everyone to have like training in the arts, obviously. So how, how do you, how do you make sure that you're not infringing? If it's not?
Speaker 1:Maybe I forgot what, the what, the what the term of art was for. I think it was like reasonably, reasonably perceptible or something like what if it's not reasonably perceptible? Like what if the what, if the reasonable person it doesn't think that it's transformative or it's, it isn't for doing so. And I think that that's really hard to in art because Sometimes, like, your audience is not the reasonable hurt, the reasonable person like, sometimes your audience is like a very specific or niche, like artist audience or something. So I think that Maybe think about that also.
Speaker 2:And that kind of goes back to the point I think you were making earlier, ilana, that talking about the courts and and make them making these judgment calls, like it. I was just looking at the language of the second circuit in the underlying decision in Warhol and talking about Whether or not they significantly added to or alter to the work and what the judge thinks and what the niche audience of that work thinks most likely is going to vary greatly. I would just guess maybe not, but you know it's there and it's these these decisions have always been. It is such a landmine area, I think, because the judge, what they bring to their decisions, or a jury even, is going to vary so wildly and it already has from case to case, and so it does leave you unsure of one how to advise clients that are artists and how, as artists, to advise yourself as you're making decisions.
Speaker 3:I'm trying to remember what happened to Richard Prince in those cases where he just sort of took photos of people's Instagram and I think did he add a few words or something. Yeah, what's that fans been in from?
Speaker 1:these. Yeah, they said, they said it wasn't very used, it wasn't very, it wasn't enough. Yeah, that's that's what's really interesting. To like it something not being enough for the courts, like it's. So I find that like really, I think there's a lot there, and especially like how you guys are talking about these big players being bullies. I think the courts, especially to report in, so do my worst decision. Like it's definitely.
Speaker 1:I think what's underlying is like the equity issue. Like they're they don't want they, they don't want people to just be able to like pull their weight like that, even even if it's like someone who is adding to the culture, like through their commercial, commercial art, because that's most of the most of the artists that are going to get involved in this kind of litigation are, like well resourced artists. So it's I think they're that's that's a huge thing, and I think I agree. Like I think I don't think that they they decided the case. I don't think that. I think I'm like also agree with how it turned out, but I think there is you're so right, stephanie Like it's there's so many things that are just unavoidable. There's so much that gets like confusing and muddled, so it's hard.
Speaker 3:Yeah, something like this is a much more kind of general point, but something I always think is quite interesting to think about. In quite a few of the art related cases in the UK Generally copyright claims, where the court has to effectively decide whether something is an artistic work such that it could be protected by copyright there tends to have been certainly strongly an emphasis on the purpose of the artist. So there's a really famous case about a stormtrooper helmet from the Star Wars films and it was decided, I mean that went all the way to the Supreme Court. So clearly you know the balance. There are arguments on the side but ultimately it was decided that it wasn't. It wasn't a sculpture shouldn't be protected by copyright Mainly because it was created not for an artistic purpose but to use as a prop in a film.
Speaker 3:I mean, obviously that was, like I say, it was a pretty controversial decision or it wouldn't have gone all the way to Supreme Court. But I always find this notion of you know, this sort of emphasis on purpose really problematic, because who's to say? Who's to say what an artist's purpose was and you know, as any contemporary artist today, what their purpose is in creating those, and there's a whole multitude of things you know and what is to make a living maybe. So yeah, I just I find that really that kind of line of reasoning problematic and difficult and interesting.
Speaker 2:Even the amount and substantiality of the work, one of the other factors for fair use. I mean, I think that's even problematic, what? How people look at a work and decide that it a large amount of it, like with a song say the Campbell case where it's just the opening line and the opening base riff. But if you're looking at a piece of visual work, I don't know like sometimes I think it's it's less easy to define how much has actually been used in a work. And even even if it's just a few seconds of a song, to someone that is enough to constitute an infringement and to someone else it's not. So I would be curious to hear what you think.
Speaker 3:There's a brilliant Australian case on that point where there's an Australian, a famous Australian folk tune called the Cucarbarra song and there's also a famous pop song called Land Down Under yeah, land Down Under, and that is quite a complicated pop song, whereas the folk song is a very, very simple kind of eight line, simple folk tune and in the pop song it's just one little flute riff which takes the one of the main themes. Well, there aren't many main things, just the tightness is quite short, sort of just tuned the folk song. So it takes that, uses it in this flute riff and that was held to be an infringement. That was enough, even though it was any, you know, one line of music, not not that many notes. It was enough because you know it was so distinctive and you'd immediately recognize it. And I think that kind of test, or does what you're hearing immediately make you think of that, that underlying work.
Speaker 4:But I mean that is so sort of subjective, because you know, unless you do like vanilla ice and actually say this is the hook of the bit that you've illegally sampled. Because you know vanilla ice sampled under pressure and they were trying to argue that oh, it was just incidental use and it's so diminumous, it's not, you know, it doesn't matter, but literally goes. Listen to the hook while my DJ revolves it.
Speaker 3:You know the one that's kind of like you just hit it.
Speaker 4:This is the hook of the song, so that didn't really that's. That's on bouncy levels of shooting yourself in the foot.
Speaker 3:Some of the Ed Sheeran cases are really interesting. I think a couple of the judgments I've read of those are really good. I thought they kind of although you know they're musical cases versus kind of visual arts, but yeah, I think some of the I think they're really really interesting and I've watched a few sort of YouTube videos of people playing a line from the Sheeran song and then the line from the song that it's supposed to have come from. Yeah, all of that stuff, because I mean that's really fascinating because so much of that has got to be subliminal. You know you don't go out to. We all have a million tunes going around our heads and yeah, yeah, fascinating.
Speaker 3:Apparently, I've just read the other day that so for old Ed Sheeran so I think it was the latest case was it the Marvin Gaye song? Let's get it on or something, and that was supposed to have been copied. And then he, ed Sheeran, I think now was a successful defense. I think that's right, but I think they're going to appeal that. So we'll hear a little bit more about that later.
Speaker 2:And since we talked earlier about the Getty case, I was curious is there any update? Is it still going forward in the UK?
Speaker 3:I haven't heard everything, stephanie. I mean I haven't gone out to look, but I haven't heard. Don't have you, alan, heard anything about that? I just heard that they'd launched the claims quite some time back, and I haven't heard any more.
Speaker 4:Nothing. So I mean that's the trouble with these cases, because you know there's so much behind the scenes negotiations, WP stuff that you never know. You know actually what the reality is, you know and how the court may have decided. I mean, you know, I was actually looking. There's very you know when you look actually over here how rare copyright and written claims are in the artistic sphere. You know you get lots of commercial ones. But I think we're going to get more music cases than we ever do art cases.
Speaker 2:Well, yolana, is there any other point on in this discussion, or that you're working on, that you'd want to raise, or have us mull over with you in the last few minutes?
Speaker 1:They were definitely, they're definitely is. I'm blanking right now. I think, like I think the the well, now that now that we've talked, like I really was not thinking about looking at international frame of alternative like approaches because I was, I was thinking about the quill, the quill drawing example, and how that like is just it. There's like a lot of precedent and now I think the Warhol case it didn't change. This is like I really would not be fair use at all and I think that's. I just was not thinking about that. I wasn't thinking about how it's not trust the US, which is, which is crazy, because I always think about this like we are.
Speaker 2:So I think, or we're just very much and um think about what's going back to the point, and it's so hard to see an alternative, like perspective without somebody telling you like, and I think that goes for everything, it's not just the law, like it's like interpersonal stuff is just like you living your life and then somebody says something and you're like oh my god, that was not in my that was not in my life until you said it, so I think that blew my mind a little bit today, but it's really helpful.
Speaker 1:That's awesome, definitely.
Speaker 2:What do you guys think if there was, like, an AI fair use burning issue that you think would be the one that would be most concerning to you or most interesting to you?
Speaker 4:I'm just gonna say it might be just a British thing, but I do sort of fall into that. You know, to me it seems AI. I know you've got to put a lot of effort into the coding and everything to sort of scripts, but I do find that, because it's a sort of one that's supposed to mechanical process, I do find myself applying personally. Did you put some effort into that test? That's the test I like. I mean, yes, if it's something, we go, wow, that's absolutely brilliant what they've done there. They've taken this and it's a whole new concept, it's a whole new way of thinking about something. That's great. But when it comes to the actual the process, I do find and it's weird because the end result might be the same, but I do find the fact that you're just using some machines to do all the work.
Speaker 4:But at the same time, I've got the conflict because I follow a lot of the AI cases because of the personhood elements and obviously the more AI people argue that AI has personhood, which obviously IP rights would be one of them. I come back to all my animal stuff because, as you know, I still believe that monkey owns the copyright in that photograph. I think that monkey was ripped off. So there is this idea that I'm always pushing. I just put some. I'm always. I'm somebody who seriously argues for personhood, for trees. So when it comes to machines, I grew up on Star Trek. I think that time that they tried to dismantle commander data or commander data, that was very much on his side. So I am on the side of the machines.
Speaker 4:But fundamentally, there's just something. It's like tracing or photocopying to me. You've got to and that's it. Is the test how much effort you put in, or is the test the end result? I mean, at the moment the test seems to be in America. What was it used for? So these are all irrelevant considerations.
Speaker 4:But yeah, I do feel that you know, I've got look, I've got very broad opinions as to what art is. Okay, just about anything is art as far as I'm concerned, or can be. But at the same time, there is just something I think it's the fact that it's people ripping off other people's hard work. That's what it seems to be to me, and it might be that the coding is incredible. There's so much skill and judgment in the coding that it's almost a work of art itself. But the fact that, basically, people and what I really annoys me is they are exploiting the people being nice to people with like visual impairments, because your art is totally safe if you don't do any old text. So if you just go sod it, there's the picture. Can you do old text or describe it? No, because then the AI will scrape it. So you know, it's the fact that people are cashing in on the fact that people are trying to be nice to other people. So I mean, that's not legal judgment.
Speaker 3:Yeah, no, I was just thinking that I mean, the risks involved in AI are. They're not about the technology, they're about, obviously, about what people do with it. And so I mean, at the moment, the EU regulatory approach seems to be to take a sort of application-based approach, and I don't, you know, the people have said that all that kind of there are loopholes in that, and I think there are. But I think, sort of taking a step back philosophically and from a policy standpoint, I think that might be right. I mean, using AI to, for example, detect breast cancer much more quickly and much more efficiently than current techniques is something that we should do all we possibly can to facilitate, whereas, you know, it's difficult to compare that with other very, very different sorts of applications.
Speaker 3:So that was one thing that I think about quite a bit, and something else is that, you know, with all technology and technological developments, the use of AI in many contexts and for many applications is going to be, it will constitute one tool amongst many, and this is a tiny, tiny little example, but it's used for within the art world, for detecting forgeries or for analyzing paintings. I was reading a report the other day about that being this painting that people have suspected for some time might be a FIL. So the use of one AI algorithm concluded that it was something like 85% definitely was a FIL. The use of another academics algorithm said 85% not. So it's always, I think, and that's just one you know sort of authentication within that sphere, one particular context or application or you know way of using AI and one example where you know you're still going to need our experts to analyze what the AI is telling us, to think about it and to look at it in the context with the other tools we might use to make that analysis.
Speaker 4:So and AI is only as good as the. It has all the implicit bias of everybody of the people who set it up. So, ironically, dogs are really good at detecting cancer, and there is some.
Speaker 3:Yeah, yeah, yeah. As a champion of cancer detection, I know somebody who used to be, I think, the chair of the trustees of the Dog Cancer Detection Trust. It's absolutely. It blows your mind.
Speaker 4:But dogs can also detect forgeries. They've done things where for some reason they've done some like I mean it's not a massive number of rules, but yeah, it's basically like here you go, there's loads of paintings. Here's some real ones, here's some fake ones. If it's a real one, you get a biscuit right Now. Go in there and see what you like, and for some reason they you know they sniff the pigment out. I like to think they're sort of going hmm, interesting use of brushstrokes there. That's obviously you know.
Speaker 3:Okay, we should maybe end on this, but chickens can recognise shapes. They can distinguish a star from a triangle, from a square from a circle. I'm going to leave you with that.
Speaker 2:If you are intrigued by this podcast, you'll be much appreciated if you could leave a rating, a review and tag Warfare of Art in Law podcast. Until next time, this is Stephanie Drotti bringing you Warfare of Art in Law. Thank you so much for listening and remember injustice anywhere is a threat to justice everywhere.