What Does Andy Warhol Have to do With the New York Times vs. Open AI Lawsuit?

The concept of fair use in copyright law has evolved significantly over time, reflecting changes in technology, society, and the way we interact with media. Its roots can be traced back to the early 18th century, when the English courts began to recognise certain limitations to copyright in specific cases, such as for criticism or news reporting. This was a fundamental shift from the original, more rigid interpretations of copyright, which were primarily aimed at protecting the rights of authors and publishers. However, it was not until the 19th century that the principles of fair use started to be more formally articulated and codified in legal doctrine, both in the United Kingdom and the United States.

In the United States, the legal framework for fair use was established with the Copyright Act of 1976. This act defined Fair Use as a balancing act between the copyright holder’s interests and the public’s interest in the wider dissemination of knowledge and culture. The act outlined four factors to be considered in determining whether a use is fair: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the market for or value of the copyrighted work. These guidelines were intentionally left broad to allow for flexibility and adaptability to different contexts and technologies.

Unsurprisingly, the digital era has brought new challenges and complexities to the concept of fair use. The advent of the internet, digital media and technologies like file sharing, AI and streaming have significantly altered how content is created, distributed and consumed. This has led to landmark legal cases that have further shaped and refined the application of fair use, taking into account the nuances of digital media. As a result, fair use continues to be a dynamic and evolving area of law, adapting to the ever-changing landscape of media and technology, and playing a crucial role in balancing the rights of creators with public interest in accessing and using copyrighted materials.

In the last week of December 2023, the New York Times filed a lawsuit against Microsoft and OpenAI, the creators of ChatGPT. The Times alleges that the tech companies have used “millions” of its articles in order to develop and train their generative AI software – which works by scanning the internet for text, acquiring an understanding of the relationships between words and concepts and learning to anticipate the subsequent word in a sentence, thereby enabling them to emulate human writing and speech. A large concern for organisations such as the Times is that these softwares may become top competitors, providing potential readers with answers from their reporting without proper acknowledgement. This is especially true within search engine settings: “If, when someone searches online, they are served a paragraph-long answer from an AI tool that refashions reporting from the Times, the need to visit the publisher’s website is greatly diminished.” While many other media organisations are currently in negotiations with tech companies about compensation, the Times has reportedly refused to do so. If a judge rules in the Times’ favour, ChatGPT will likely be forced to destroy its dataset and rebuild using only content that has been deemed Fair Use.

The suit is just the latest in several, as society – particularly creatives – comes to terms with the rapidly growing technology. While supporters of the suits argue that tech companies have denied creators appropriate compensation, others point to the fact that OpenAI has already engaged in deals with several other news companies, including the Associated Press. The decisions made in the Times case look set to shape the future of media and AI for decades to come.

But what exactly does this have to do with Warhol, who has been dead since 1987?

Since Warhol’s time, contemporary art has seen a surge in the practice of appropriation as artists deliberately incorporate or replicate existing images, objects and ideas from popular culture or other artworks into their creations. Although artists such as Roy Lichtenstein have utilised this methodology since the mid-20th century, this has increasingly become a focal point for both acclaim and controversy. Notable contemporary artists like Barbara Kruger, Jeff Koons and Richard Prince have frequently utilised appropriation in their work, often leading to heated debates over originality, copyright and artistic expression. Kruger is renowned for her bold, text-layered collages often repurposing commercial imagery to critique consumerism and gender roles. Koons, on the other hand, has faced legal challenges for his recontextualisation of mundane objects and popular media imagery in high art settings, blurring the boundaries between kitsch and fine art. Prince’s work – particularly his recent use of Instagram photos without explicit permission – has further ignited the debate. His involvement in ongoing copyright infringement cases highlights the contentious nature of appropriation in the digital age, where the ease of accessing and reproducing images online complicates traditional notions of copyright and ownership.

The approach championed by Warhol, characterised by the replication and alteration of recognisable imagery from consumer and media culture, has only gained more traction since his death and laid the groundwork for contemporary appropriation artists. His legacy lives on in the way modern creatives challenge and transform pre-existing content, continually pushing the boundaries of what is considered original. It is now set to change the way our world engages with any sort of content, as evidenced by the New York Times vs. OpenAI lawsuit. It underscores a fundamental shift in contemporary society, where appropriation is not only a method of creation but also a form of commentary on the interconnectedness of culture, media and artistic expression in the modern world. It remains to be seen when and how we draw the line between this and plagiarism.