Recently there has been an explosion in the technology of artificial intelligence. Several different large software companies are working on AI applications. You have probably heard of ChatGTP. ChatGPT is an artificial intelligence chatbot developed by OpenAI and launched in November 2022. It is built on top of OpenAI’s GPT-3 and GPT-4 families of large language models and has been fine-tuned (an approach to transfer learning) using both supervised and reinforcement learning techniques.
In other words, what can ChatGTP do? Almost everything. Although the core function of a chatbot is to mimic a human conversationalist, ChatGPT is versatile. For example, it can write and debug computer programs, compose music, teleplays, fairy tales, and student essays; answer test questions (sometimes, depending on the test, at a level above the average human test-taker); write poetry and song lyrics; play games like tic-tac-toe.
What else can artificial intelligence do? It can create pornographic images.
One of the sites that is being used to create realistic looking pornographic images is;
Here are a few photos that were created using PornPen.ai;
While there may be some debate as to how realistic these photos appear, rest assured that as the technology advances so will its ability to create images that are indistinguishable from photos of real human models. And eventually, photos will give way to videos.
What does that mean to models, content creators and studios?
Soon, the sheer volume of content that will be available on the Internet is going to grow exponentially. And that content may end up being free for consumers to use and enjoy. Without getting into the debate of how that may impact the industry, the question really comes down to can it be stopped – legally?
The answer to that question is going to be decided shortly. A case has recently been filed by an artist and lawyer against Stable Diffusion and Midjourney, and artist portfolio platform DeviantArt. The claim is that these companies have violated the copyright of the artist because these companies scanned the Internet for images/photos/art to help train the artificial intelligence that then uses this training (and the images/photos/art) to create new images/photos/art.
You can read more about the litigation here; https://www.theverge.com/2023/1/16/23557098/generative-ai-art-copyright-legal-lawsuit-stable-diffusion-midjourney-deviantart
and here; https://stablediffusionlitigation.com/
While the copyright infringement (direct and vicarious infringement as well as DMCA violations) aspect of this litigation is interesting, it is not where I believe their strongest claim lies.
I believe their strongest part of the case is in this cause of action;
California Right to Publicity Law
In California, the right of publicity is protected by both common law and statutory law. California Civil Code section 3344 states in part that someone who utilizes “another’s name, voice, signature, photograph, or likeness” on products or in advertising without that person’s prior consent will be liable for damages suffered by that person. Under the statute, the damages would be the actual damages suffered by the plaintiff, or $750 per unauthorized use, whichever is greater, plus any profits from the unauthorized use that really are attributable to the use. Depending on the circumstances, a court may also award punitive damages to punish the unauthorized user. Attorney fees may also be awarded to the plaintiff.
Obviously it may be difficult to prove that an AI image resembles you but here is a photo I copied from Pornpen.ai that looks surprisingly similar to pornstar Tera Patrick.
At this point, I do not have any conclusions or opinions on this litigation other than it will be interesting to follow and as it works it way to the courts, it may provide a roadmap as to how courts will approach the legal issues of AI programs scrapping the Internet to learn to how to create adult content.
But it does lead us to our next blog post – Model Releases and AI Content. Did you sign away your rights?
AdultBizLaw.com 