That “transformative” part of the analysis of fair use is often misunderstood. It doesn’t really mean that you altered the original work in some way, although that can be part of it. What it really means, though, is that the use is transformative. In other words, it serves a different purpose than the original. For example, if you are doing a critical review of a movie, and you include a clip of the original movie, your use is transformative, because it serves a different purpose than the original. The purpose of the original was to entertain. Your purpose is to critique. Thus, your use is transformative. Another way to look at it is can the the copy be used in substitution of the original. In the case of a movie review, generally no. The key here is what is the infringing use? It isn’t the art produced by the AI. The infringing use is the use of the original art to train the AI. That is likely a transformative use, because it’s clearly for a completely different purpose and character of the original. However, that’s only one factor in a 4 factor analysis used to determine fair use, and the engineer here is ignoring the other 3 factors. One of them is the nature of the copyrighted work. Creative works get more protection than factual works, is basically what that means. Here, the original copyrighted works are creative. That factor goes in Mengert’s favor. The third is how much of the original work you’re using. Movie reviewers use short clips, not the whole movie. Here, the AI engineer is using the entire artwork, and multiples of them, to train the AI. Another factor in Mengert’s favor. Lastly is the effect of the infringing work on the market for the original work. This one also seems to clearly favor Mengert. Three out of four factors in Mengert’s favor. If I were her, I’d consult a copyright attorney. I could be wrong, though. But I think she has a case.
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