Emilia Antiglio
On October 10, Elon Musk presented Tesla’s long-awaited robotaxi, the Cybercab, at the Warner Bros. Studios in Burbank, California.[1] During the presentation, Musk showed the image of a man standing in an orange desert, overseeing a desolate skyline.[2] The image eerily resembled a scene from the trailer to the movie Blade Runner 2049, in which Officer K, played by Ryan Gosling, stands in front of the ruins of Las Vegas. While showing the image, Musk commented “I love Blade Runner, but I don’t know if we want that future”, directly linking it to the movie.[3] Four days later, Alcon Entertainment, the studio that produced Blade Runner 2049, sued Musk and Tesla for copyright infringement and “false affiliation” in a U.S. District Court in Los Angeles.[4]
The complaint alleges that Tesla used “A.I.-created images mirroring scenes” from Blade Runner 2049 after Alcon denied a request by Musk to use imagery from the movie for its marketing event.[5] Alcon asks for an injunction to bar defendants from further copying, displaying or using protectible elements related to the Blade Runner 2049 franchise.[6] It also seeks impoundment of all copies of the image used in the presentation and an awarding of profits derived from the alleged infringement.[7] The plaintiffs allege that the use of the image is intended “to link Tesla’s Cybercab to strong Hollywood brands at a time when Tesla and Musk are on the outs for Hollywood.”[8]
Although it is still unclear whether the suit will proceed, it raises new questions over the use of AI-generated imagery to refer to brands and cinematic universes. Courts have so far considered that the output of generative AI was in general non-copyrightable, as it fails the human authorship requirement of copyright law.[9] The Alcon Entertainment lawsuit, however, presents an opportunity for courts to further define copyright infringement by generative AI companies or by users of generative AI systems.
The Copyright Act of 1976 provides a copyright owner with the exclusive right “to prepare derivative works based upon the copyrighted work.”[10] Unauthorized derivative works, however, are not entitled to copyright protection.[11] As independent creation is a complete defense to copyright infringement, Alcon Entertainment will need to show both that (1) any similarity between the image shown by Musk and the corresponding scene in Blade Runner 2049 is due to copying, and (2) that such similarities are “substantial.”[12] AI generated images, however, complicate this task. Because current copyright law only protects the human-generated prompts applied to a generative AI platform, Mark Lemley has posited that copyright’s freedom to create independently “arguably extends to ‘reverse engineering’ of prompts—looking at a finished image and trying to get an AI to generate a similar image by writing your own, different prompts.”[13] Unless it can be shown that Tesla or Musk purposely copied a prompt, or fed an unauthorized image into an AI system to produce the image shown at Tesla’s marketing event, it is unlikely that they will be found to have infringed Alcon Entertainment’s copyright.
AI companies, however, can also infringe copyright—by either training on copyrighted material that has not been licensed, or by reproducing copyrighted material when users enter a prompt.[14] Recently, a series of tests asked whether image-generating models be induced to produce plagiaristic outputs based on copyright materials. Using the generative AI service Midjourney, scientist Gary Marcus found that A.I. models may “memorize” their training inputs to the point where an end user might inadvertently produce “plagiaristic outputs”—outputs so similar to copyrighted material that, if a human created them, they could constitute prima facie instances of plagiarism.[15] While A.I. companies have attempted to patch such issues on a case-by-case basis, plagiaristic images remain an issue that has not yet been addressed by the courts.[16]
The Alcon Entertainment lawsuit, then, raises complex issues regarding copyright as applied to “evocations” of cinematic universes or personalities for marketing purposes. It provides an opportunity for courts to clarify copyright law as applied to users of generative AI or to generative AI platforms themselves, depending on how the facts of the case pan out. It has broader implications, however, for the adequacy of current Copyright Law as applied to generative AI, bringing to light ethical questions. Leveraging AI’s ability to produce plagiaristic images, a user acting in bad faith could indeed purposely generate images trained on copyrighted material that are dissimilar enough to not constitute copyright infringement while remaining similar enough to evoke a specific cinematic universe or emulating an endorsement. Whether Copyright Law should address such bad faith uses of generative AI remains a question for the courts.
[1] Kyle Melnick, Elon Musk Sued By “Blade Runner 2049’ Producers Over Look-alike Image, Wash. Post (Oct. 22, 2024), https://www.washingtonpost.com/nation/2024/10/22/elon-musk-tesla-blade-runner-lawsuit/ [https://web.archive.org/web/20241113162820/https://www.washingtonpost.com/nation/2024/10/22/elon-musk-tesla-blade-runner-lawsuit/].
[2] Id.
[3] Id.
[4] Brooks Barnes, ‘Blade Runner 2049’ Producers Sue Elon Musk Over ‘Robotaxi’ Imagery, N.Y. Times (Oct. 21, 2024), https://www.nytimes.com/2024/10/21/business/media/elon-musk-alcon-entertainment-robotaxi-lawsuit.html [https://web.archive.org/web/20241113163235/https://www.nytimes.com/2024/10/21/business/media/elon-musk-alcon-entertainment-robotaxi-lawsuit.html].
[5] Todd Spangler, ‘Blader Runner 2049’ Producers Sue Elon Musk, Tesla and Warner Bros. Discovery, Alleging Copyright Infringement, Variety (Oct. 21, 2024), https://variety.com/2024/biz/news/blade-runner-2049-lawsuit-elon-musk-tesla-warner-bros-discovery-1236184961/ [https://perma.cc/64T8-KGFB] [https://web.archive.org/web/20241113165335/https://variety.com/2024/biz/news/blade-runner-2049-lawsuit-elon-musk-tesla-warner-bros-discovery-1236184961/].
[6] Complaint at 38, Alcon Ent. v. Tesla, Inc., No. 2:24-cv-09033 (D. Cal. Oct. 21, 2024).
[7] Id. at 27.
[8] Id. at 3.
[9] Thaler v. Perlmutter, No. 1:22-cv-01564-BAH (D.D.C., Aug. 18, 2023) (holding that “human authorship is a bedrock requirement of copyright”).
[10] 17 U.S.C. § 106(2).
[11] Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989) (holding that unauthorized derivative works are not entitled to copyright protection).
[12] See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (defining the two-parts copyright infringement test) and Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (further refining the substantial similarity test).
[13] Mark A. Lemley, How Generative AI Turns Copyright Upside Down, 25 Sci. & Tech. L. Rev. 21, 40 (2024).
[14] Stuart A. Thompson, We Asked AI to Create the Joker. It Generated a Copyrighted Image, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/interactive/2024/01/25/business/ai-image-generators-openai-microsoft-midjourney-copyright.html [https://perma.cc/9AQK-R9UH ] [https://web.archive.org/web/20241113165707/https://www.nytimes.com/interactive/2024/01/25/business/ai-image-generators-openai-microsoft-midjourney-copyright.html].
[15] Gary Marcus & Reid Southen, Generative AI Has a Visual Plagiarism Problem, IEEE Spectrum (Jan. 6, 2024), https://spectrum.ieee.org/midjourney-copyright [https://perma.cc/53V5-L8MY] [https://web.archive.org/web/20241113170158/https://spectrum.ieee.org/midjourney-copyright] .
[16] Id.