The Andy Warhol Copyright Case That Could Transform Generative AI


“Copyright is meant to be an incentive for creation, and AIs don’t need that incentive,” says Merkley. “I think if you let AIs make copyright, it will be the end of copyright, because they will immediately make everything and copyright it.” To illustrate this, Merkley describes a world where AI systems make every potential melody and chord change and then immediately copyright them, effectively barring any future musician from writing a song without fear of being sued. This is why, he adds, “copyright was meant for humans to make.”

Now imagine that same tactic applied to prescription drug formulations or computer chip architecture. And that’s where steering the massive ship that is copyright runs into choppy waters. Copyright is a keystone in global trade agreements: The North American Free Trade Agreement, the Trans-Pacific Partnership, and others rely on a shared recognition of copyright between nations. Granting AI copyright would fundamentally alter trade policy. It could further erode or destabilize international relations.

“AI is funded by extremists,” says technology entrepreneur and Prince fan Anil Dash. He points out that the investment capital required to create and develop artificial intelligence at scale is so huge that only a handful of people or companies could access it, and now they have total control of the technology. The extractive practice of training large language and image models on the collective commons of the internet without consent is, after all, no different from taking advantage of public roads to drive for Uber or Lyft.

“Their feeling is, any obstacle that is legal, procedural, policy-based, especially judicial or legislative, is a temporary distraction, and they can just throw money at that for a few years and make it go away,” Dash says.

“The no-code ecosystem is in general focused on extractive uses of technology,” says Kathryn Cramer, a science fiction editor and AI researcher at the Computational Story Lab at the University of Vermont. “There may be great things that can be accomplished with AI, but in the short term, what’s going to happen is a massive effort for people to make large amounts of money … as fast as possible, with as shallow as possible an understanding of the technology.”

Like Warhol and Prince, Goldsmith’s work is iconic. After becoming the youngest member of the Directors Guild of America, and co-managing Grand Funk Railroad, she started an image licensing company. Decades before DSLR, Goldsmith carried cameras, lenses, film, and lights on her back, while standing for hours offstage. She kept shooting through the awful moment in 1977 when Patti Smith broke her neck onstage in Tampa. And in 1981, she took a photo of Prince that Warhol used to create an iconic and valuable series of images.

Prince himself vigorously defended both his image and his work. In 1993, during his fight to leave his contract with Warner Bros., he changed his name to a genderless, unpronounceable symbol. His press release said: “Prince is the name that my mother gave me at birth. Warner Bros. took the name, trademarked it, and used it as the main marketing tool to promote all of the music that I wrote.” As negotiations dragged, he wrote “SLAVE” on his cheek during performances. He called his next album Emancipation.

Speaking about it to Spike Lee in Interview magazine (itself cofounded by Warhol), Prince said, “You know, I just hope to see the day when all artists, no matter what color they are, own their masters,” referring to the very same type of master recordings (and rights agreements) that later caused Taylor Swift to rerecord entire albums.

This approach extended to the use of his likeness. Later in life, Dash says, Prince licensed images of himself so that he could ensure Black photographers earned the royalties. And he refused collaboration with artists who weren’t equally savvy. “He used to tell fans,’” Dash says, “‘if you don’t own your masters, your master owns you.’”

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