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In addition to pushing for a dismissal of the copyright-centric case waged against it early this year over its DreamUp generative AI model, DeviantArt, Inc. is calling on a California federal court to strike the right-of-publicity claims lodged against it by artists Sarah Andersen, Kelly McKernan, and Karla Ortiz (the “plaintiffs”), as they “largely concern the potential for DreamUp to create art,” which falls neatly within the bounds of free speech. As such, the Los Angeles-based online art (and AI) platform says that the plaintiffs’ claims should be barred by California’s anti-SLAPP statute. 

According to the special motion to strike that it filed with the U.S. District Court for the Northern District of California on Tuesday, DeviantArt asserts that the plaintiffs’ case against it “arises from ‘protected activity’ under the anti-SLAPP statute,” namely, its offering of an AI tool that “allows users to create new works of visual art referencing the style of existing, recognized artists.” For a bit of background, Andersen, McKernan, and Ortiz filed suit against DeviantArt, as well as Stability AI and Midjourney in January, accusing the companies of engaging in “blatant and enormous infringement” by using their artworks – without authorization – to enable their respective AI-image generators to create what are being characterized as “new” images but what are actually “infringing derivative works.” 

On the heels of filing a motion to dismiss on Tuesday, in which it argues that the plaintiffs fail to plead facts sufficient to hold it liable for their copyright infringement, unfair competition, right-of-publicity, breach of contract, etc. claims, DeviantArt doubles-down on its qualms with the right-of-publicity claims in a separate motion to strike. On this front, DeviantArt asserts that the plaintiffs’ “specific factual allegations against [it] largely concern the potential for DreamUp to create art, at the behest of third-party users, ‘in the style’ of artists who have not availed themselves of the option to exclude their names from DreamUp’s text prompts.” 

The court should strike the plaintiffs’ right-of-publicity claims – which center on the defendants’ alleged use of their names and advertising of the AI’s ability to copy or generate work “in the artistic style that [they] popularized” – for a couple of key reasons, DeviantArt argues. Primarily, the claims fall within the scope of the state’s anti-SLAPP law, and second, the claims are legally deficient because they are preempted and even if they weren’t, the plaintiffs do not plead a prima facie right-of-publicity claim. 

Anti-SLAPP – First things first, DeviantArt states that the plaintiffs’ right-of-publicity claims should be shielded by California’s anti-SLAPP law, as they arise out of conduct in furtherance of free speech and in connection with a public issue. 

Specifically, DeviantArt alleges that the plaintiffs’ claims stem from its offering of “a tool that facilitates the creation of new visual works that reference the artistic styles that the plaintiffs have allegedly ‘popularized.’” Citing Ninth Circuit precedent that“[visual works] always communicate some idea or concept to those who view [them], and thus, are entitled to full First Amendment protection,” DeviantArt says that that DreamUp’s AI-generated outputs “are no exception, as the Complaint alleges that each output reflects new ideas and concepts, including those communicated by users in text prompts.” It is “beyond dispute,” according to DeviantArt that “DreamUp ‘assists’ in the creation of new visual works,” and “by attacking DreamUp, the plaintiffs’ right-of-publicity claims attack conduct ‘in furtherance of the exercise of … free speech.’” 

As for the “public issue” element, DeviantArt asserts that “by the plaintiffs’ own telling, their ‘artistic styles’ easily meet this standard.” DeviantArt contends that the plaintiffs allege in the complaint that the “public is interested” in their artistic styles. At the same time, DeviantArt states that “the creation of new visual artworks referencing the ‘artistic style’ ‘popularized’ by a prior artist qualifies as ‘participation in … discourse’ regarding that style,” and therefore, the creation of new works by referencing popular styles is “conduct ‘in connection with’ an ‘issue of public interest.’” 

Claims are Legally Deficient – Aside from its anti-SLAPP arguments, DeviantArt asserts that the plaintiffs’ right-of-publicity claims are legally deficient because: (1) the claims are preempted by the Copyright Act; (2) the plaintiffs fail to state a prima facie violation of California’s common law or statutory publicity right; and (3) the claims are barred by the First Amendment under the Transformative Use test. 

Aside from arguing that the claims fall within the scope of the Copyright Act and pushing back on the basis that the right of publicity “does not protect all conceivable uses of someone’s name or personal attributes,” and in fact, “generally does not restrict truthful references to individuals or their public activities,” DeviantArt maintains that “because the plaintiffs’ right-of-publicity claims against [it] mainly target the creation of new works of visual art, they are subject to a First Amendment defense.” 

Against that background, DeviantArt argues that California courts employ a “Transformative Use” test to “balance a celebrity’s right to control the commercial exploitation of his or her likeness or identity and the First Amendment right of free expression,” which is relevant here. 

In this case, DeviantArt asserts that the plaintiffs’ allegations “establish that DreamUp’s outputs are necessarily transformative.” While the plaintiffs allege that the visual works created using DreamUp reflect their likeness by incorporating their “artistic style[s],” DeviantArt says that “any such likeness is completely transformed by the diffusion process into ‘something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’” (DeviantArt also states that the plaintiffs “admit that the resulting visual works are far from visually identical to the originals.”) This is “quintessential ‘transformative use,’” the company claims, and “the First Amendment therefore bars these claims.” 

As for the use of their names, DeviantArt argues that even if the plaintiffs could allege that such use occurred, “any use of those names to create DreamUp outputs would be transformative under the same logic.” 

For the foregoing reasons, DeviantArt urges the court to grant its anti-SLAPP motion and to strike the plaintiffs’ right-of-publicity claims. 

Fellow defendants Stability AI and Midjourney also filed respective motions to dismiss the plaintiffs’ claims on Tuesday, arguing that, among other things, they fail to sufficiently plead their copyright infringement, Digital Millennial Copyright Act, and unfair competition claims, and that their declaratory judgment claim is redundant of their other claims and thus, improper. 

The case is Sarah Anderson, et al., v. Stability AI LTD., et al., 3:23-cv-00201 (N.D. Cal.).