“The ruling in Thomson Reuters v. Ross Intelligence adds legal weight to concerns about AI’s impact on creative and commercial markets, including the sale of fine art through auction houses and galleries.”
Source: Christie‘s
On Tuesday, February 11, the U.S. Court of Appeals for the Third Circuit Judge Stephanos Bibas issued a partial summary judgment in Thomson Reuters v. Ross Intelligence, finding that Ross Intelligence (Ross) infringed on Thomson Reuters’ copyrighted case law headnotes and rejecting Ross’ fair use defense. The court found that Ross infringed Thomson Reuters’ copyrights in 2,243 Westlaw case law headnotes by using them to train its non-generative artificial intelligence (AI) legal research tool, determining that these headnotes met the copyright threshold of originality. Judge Bibas likened Westlaw’s editorial process to that of a sculptor carving away excess material from a marble slab, underscoring that the selection and phrasing of headnotes constitute protected expression.
Although two of the four fair use factors favored Ross, the court placed significant weight on the first and fourth factors: the purpose of Ross’ use was commercial and directly competed with Westlaw, undermining its market. Originally filed in 2020, this case was one of the first to address the legality of AI tools trained on copyrighted material obtained without permission or licensing.
This decision signals the growing judicial scrutiny of generative AI platforms and countless allegations that the AI models were trained on copyrighted material without permission. Many expect future fair use defenses to mirror Ross’ arguments, particularly regarding the extent to which AI-generated outputs compete with the copyright holder’s market, as identified in factor four of the fair use test. Notably, programs like DALL-E, Stable Diffusion, and Midjourney have drawn similar allegations and lawsuits from artists who argue that AI companies trained their models on their copyrighted works without permission or compensation.
AI in the Art World
The controversy surrounding AI and copyright extends beyond the courtroom to the art market, where AI-generated works are increasingly contested. Christie’s is facing backlash over its upcoming AI art auction, Augmented Intelligence, set to take place in New York. An online open letter, signed by over 5,000 individuals and counting, argues that some generative artworks in the sale were created using programs trained on copyrighted works that exploit human artists’ labor.
The sale, open for bids from February 20 to March 5, will feature over 20 lots of AI-generated artworks across various mediums, including sculptures, paintings, and prints, some dating back to the 1960s. Among the works included is Untitled Robot Painting by Alexander Reben, an artist who completed the first OpenAI artist residency last year. Reben’s work integrates live performance art with generative AI. During the auction, a 12-foot-tall robot will create an oil painting on a 10×12-foot acrylic canvas in real time at Christie’s New York location. The robot’s painting process will be guided by Reben’s AI model, with each new bid—starting at $100—triggering the robot to paint a blank section of the canvas. The final price, according to Christies, may reach $1.7 million.
Despite mounting criticism, the auction is planned to proceed at the time of this writing. Christie’s anticipates a total revenue around $600,000 and has announced that it will accept cryptocurrency as payment for most of the works.
Brush Up and Adapt
The ruling in Thomson Reuters v. Ross Intelligence adds legal weight to concerns about AI’s impact on creative and commercial markets, including the sale of fine art through auction houses and galleries, and its potential to compete directly with copyright holders. If courts continue to rule against unlicensed AI training on copyrighted materials, auction houses, galleries, collectors, and artists utilizing AI may face greater scrutiny over the provenance of AI-generated artworks, along with reputational risks. Whether AI-generated content and artworks can be framed as original and transformative remains uncertain. In light of this decision, both artists and AI companies may need to brush up on and adapt their approaches to improve transparency in data sourcing and training while ensuring copyright compliance.
